Opinion
A146729
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY DANIEL SMOCK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC188804A)
This case arose out of a road-rage altercation between defendant Jeffrey Smock, who was riding a bicycle, and a driver of a pickup truck. Many of the events leading up to and surrounding the altercation were disputed, but one part of the incident that was undisputed was that Smock eventually subdued the driver and then repeatedly punched him in the face. A jury convicted Smock of a felony count of battery with serious injury and a misdemeanor count of simple assault, and the trial court placed him on probation.
On appeal, Smock claims that (1) the trial court failed to conduct an in camera review of privileged material he subpoenaed from the driver's civil attorney; (2) the court improperly excluded evidence about the driver's "normal drinking pattern"; (3) the court improperly excluded evidence about a 2011 plane crash offered to support the defense theory that Smock had post-traumatic stress disorder (PTSD), which caused him to black out while attacking the driver; (4) the prosecutor prejudicially misstated the law on the presumption of innocence; and (5) the cumulative effect of these errors rendered the trial unfair. We reject all these claims and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Initial Encounter Between Smock and the Driver.
On April 16, 2014, the driver and a day laborer spent the day doing construction work at a house in Mill Valley. Around 5:00 p.m., the two men left together in the driver's pickup truck. As they drove down East Blithedale Avenue, they came upon Smock, who was riding a bicycle. Smock was headed to his home in Kentfield, having just finished a ride through Marin County with a friend.
The driver testified that Smock had not left him "enough room to pass," so he honked the horn as the truck approached Smock. The day laborer heard Smock respond by saying "something like, 'Okay,' or 'What?' " Both the driver and the laborer testified that the truck did not make contact with Smock. Smock, on the other hand, claimed that he "heard a long horn, and then [he] was clipped by the passenger mirror of a truck."
The truck stopped at a red light at the corner of East Blithedale and Camino Alto in Mill Valley. Witnesses saw Smock pull alongside the driver's side of the truck, in "a fairly tight space" between the truck and another vehicle in the next lane. The driver's-side window was down, and a witness heard Smock scream at the driver, " 'You tried to hit me with your fuckin' truck.' "
Smock testified that although he had not expected to see the truck again, he noticed it as he approached the stoplight. He then "extended [his] arm to get [the driver's] attention" and shouted, " 'You just hit me. You could have fucking killed me. Are you out of your mind?' " According to Smock, the driver responded, " 'Fuck you, and get off the road. You don't belong on the road.' "
B. The Assault.
The driver and the day laborer testified that Smock then hit the driver in the face while the driver was seated in the driver's seat. Although no one else saw Smock make contact with the driver, several witnesses testified to the effect that Smock aggressively moved his arm through the truck's driver's-side window. The driver then got out of the truck, and the two men began fighting.
Witness accounts differed as to who threw the first punch once the driver was outside the truck. Four witnesses, including the day laborer, testified that the driver tried to strike Smock first, and another witness perceived the driver as the aggressor, even though she did not testify as to who struck first. Two other witnesses, however, testified that Smock threw the first punch.
According to Smock, he was backing toward the rear of the truck to get its license-plate number when "[o]ut of the corner of [his] eye, [he] saw [the driver] running towards [him]." The driver then hit him several times on the head and face. Smock stated that he was unable to defend himself because he was still on his bicycle, and the last thing he could remember was trying to dismount.
Witnesses saw Smock and the driver struggle with each other, and the driver soon fell down on his back. Witnesses saw Smock straddle the driver as he lay on the ground and punched him several times in the face. The driver "went limp . . . and was bleeding very profusely," and Smock continued to hit him. Several witnesses called 911, and some thought the driver might be dead. Smock testified that his mind had gone "blank" after the driver initially hit him, and the next thing he remembered was being on top of the driver and realizing the driver was no longer fighting.
One witness got out of her car and began screaming for Smock to stop and for someone to call the police, and another witness also exited her vehicle and ran over to Smock. She pushed Smock and asked him what was wrong with him, and he responded that the driver had hit him with the truck. A third woman also left her vehicle and shouted at Smock to stop. Smock responded, " 'He hit my bike, and he punched me in the face,' " and resumed hitting the driver.
A man driving by noticed a crowd of people and heard a woman screaming for help. Thinking there had been an accident, the man pulled over, got out of this car, and "came dashing over the median" toward the truck. After seeing Smock hit the driver several times, the man grabbed Smock and pulled him away from the driver. The man then hit Smock in the face, intending to prevent him from leaving the scene. Smock told the man "something to the effect [that the driver] had run him off the road or hit him."
C. The Aftermath.
A Mill Valley police officer who happened to be nearby heard yelling from the direction of the East Blithedale-Camino Alto intersection and drove to investigate. He saw a crowd of "upset and agitated" people and a person lying on the ground. A witness approached him and identified Smock as the perpetrator. Smock complied with the officer's directive to sit on the curb, and he was subsequently arrested. He had minor abrasions on his cheek, knee, and elbow, and his shirt was ripped.
The driver sustained a concussion, a broken nose and fractured rib, and other injuries to his neck and upper body. He was eventually diagnosed with "postconcussion syndrome" and "posttraumatic anxiety," and he received both physical and speech therapy. His primary physician testified that the driver continued to experience cognitive difficulties, including poor memory. Indeed, at the time of trial the driver could not remember most of the details of the incident, which he thought had occurred in front of the house where he had been working that day.
Smock was charged with assault by means likely to cause great bodily injury and battery with serious bodily injury, both felonies. In addition, an allegation was made in connection with the assault charge that Smock had personally inflicted great bodily injury. The jury convicted him of simple assault, a lesser included offense of the assault charge, and the battery charge, and it did not return a finding on the enhancement allegation. The trial court denied Smock's motion to reduce the battery to a misdemeanor, suspended imposition of the sentence, and granted probation for three years, conditioned upon service of 180 days in jail.
The charges were brought under Penal Code sections 245, subdivision (a)(4) (assault) and 243, subdivision (d) (battery). All further statutory references are to the Penal Code unless otherwise noted.
The allegation was made under section 12022.7, subdivision (a).
The conviction for simple assault was under section 240.
II.
DISCUSSION
A. The Trial Court Did Not Err by Failing to Conduct an In Camera Review of Privileged Communications Between the Driver and His Attorney.
Smock claims that the trial court erred by quashing his subpoena of certain communications between the driver and the driver's attorney without conducting an in camera review of the privileged material. We conclude there was no error.
1. Additional facts.
The driver retained an attorney to represent him in a civil suit against Smock. Before trial in this matter, Smock served the attorney with a "subpoena duces tecum requesting production of 'all notes, memoranda, correspondence that contain or reference statements by [the driver]' " relating to the incident at issue and a September 2011 incident involving the driver and another motorist. As the driver eventually admitted at trial, during the 2011 incident he "lost [his] cool" and threw a glass cereal bowl at the other motorist's vehicle after the motorist cut him off in traffic. The driver also admitted that he avoided speaking to law enforcement about the September 2011 incident and initially lied to the prosecutor by denying involvement in it, explaining that he "was embarrassed about what happened" and "didn't think it had anything to do with [his] being beaten" by Smock.
The prosecution moved to quash the subpoena, arguing that the documents were protected by the attorney-client privilege. At a hearing on the motion, Smock focused on the September 2011 incident, arguing that any statements the driver had made to his attorney were not cumulative of other evidence tending to show that the driver had lied about that incident. He maintained that any lies the driver had told his attorney, as opposed to the police or prosecution, were potentially more harmful to the driver's credibility. This was because the driver's "explanation to mitigate his lying to law enforcement"—the driver's mistrust of police based on "his early life in Soviet-controlled Poland"—did not apply to communications with his attorney. The attorney, who appeared at the hearing, responded that there was no evidence the driver had told him anything about the September 2011 incident, much less had lied about it.
The trial court granted the motion and quashed the subpoena. The court noted that the driver's inconsistent statements about the September 2011 incident had been provided to the defense, and it concluded that Smock had failed to make "a good enough showing" to justify the production of privileged documents.
2. Discussion.
An attorney may refuse to disclose a confidential communication with a client if the client is still alive and does not authorize its disclosure. (Evid. Code, § 954, subd. (c).) " 'The attorney-client privilege is one of the oldest recognized privileges for confidential communications' [citation] and is 'one which our judicial system has carefully safeguarded with only a few specific exceptions.' " (People v. Gurule (2002) 28 Cal.4th 557, 594.)
Smock contends that "where a criminal defendant seeks to introduce relevant evidence, and the state claims that a statutory privilege entitles it to keep the evidence from the jury, courts must strike a balance between the defendant's rights to confrontation and a fair trial and the interest served by whatever privilege is claimed." Although this may be generally true regarding evidence a defendant seeks to introduce at trial, our state Supreme Court has held that a defendant's "Sixth Amendment rights of confrontation and cross-examination . . . [do not] authorize pretrial disclosure of privileged information." (People v. Hammon (1997) 15 Cal.4th 1117, 1127-1128 (Hammon), italics added.) The Court has also "held that a criminal defendant's right to due process does not entitle [the defendant] to invade the attorney-client privilege of another." (People v. Gurule, supra, 28 Cal.4th at p. 594.) Smock fails to explain how these authorities can be reconciled with his claim that the trial court's ruling on his request for pretrial disclosure of the privileged materials violated his constitutional rights.
Even if a defendant's constitutional rights could otherwise justify the pretrial production of privileged documents, a defendant must establish good cause to be entitled to a review of them. (People v. Reber (1986) 177 Cal.App.3d 523, 531, disapproved on other grounds in Hammon, supra, 15 Cal.4th at p. 1124.) "In this context, good cause means a reasonable likelihood that the documents contain information that is both material and favorable to the defense and that the same or comparable information is not obtainable from nonprivileged sources." (Hammon, at p. 1131 [conc. & dis. opn. of Kennard, J.].)
We agree with the trial court that Smock failed to establish such good cause here. His subpoena sought the production of all communications between the driver and the driver's attorney about both the September 2011 incident and the incident at issue here, theorizing that the communications were material because they might reveal the driver had lied. Smock's suggestion that any of the communications even involved the September 2011 incident, much less would harm the driver's credibility, was speculative. Moreover, the defense had other evidence with which it could impeach the driver's testimony about the earlier incident, including the driver's own statements. And to the extent Smock wished to uncover inconsistent statements about the incident at issue here, his request was particularly speculative, because there was no indication that the driver had lied about the incident except that the driver's story contradicted Smock's own story. Thus, even if Smock might otherwise have been entitled to the communications' disclosure, he failed to demonstrate a reasonable likelihood that they included information materially affecting the driver's credibility. The court properly declined to review the driver's communications with his attorney.
B. The Exclusion of Evidence Related to the Driver's Drinking Pattern Did Not Violate Smock's Constitutional Rights.
Smock contends that his constitutional rights to present a defense and to receive a fair trial were violated by the trial court's exclusion of evidence about the driver's "drinking pattern." We disagree.
1. Additional facts.
A central issue at trial was the amount of alcohol the driver had consumed before the incident with Smock. A paramedic at the scene suspected the driver had been drinking, although law enforcement officials ultimately decided there was an insufficient basis either to conduct field sobriety tests or to seek a blood-draw warrant. At the hospital, the driver declined to provide a blood sample, stating that he had already told the police that he " 'had four beers at the job site.' " The treating emergency-room physician testified that she did not request a blood test because, even though he admitted to having consumed alcohol, the driver did not appear impaired.
At trial, the driver admitted he had bought a six-pack of Corona beer at lunchtime on the day of the incident. He said he drank one bottle with lunch and two more bottles over the course of the afternoon, and he denied having felt intoxicated. He also clarified that although he reported at the hospital that he drank four beers, he later discovered that three bottles were still left at the house where he had been working.
A forensic toxicologist testified that a 190-pound man who ate lunch around noon, drank a Corona at 12:30 p.m., and consumed two more Coronas over the next four hours would have a blood-alcohol content of zero at 5:00 p.m., even if his body eliminated alcohol at a slower-than-average rate. If the hypothetical man had had four beers instead of three, at 5:00 p.m. he would have a blood-alcohol content of zero (if his body eliminated alcohol at an average rate) or .024 percent (if his body eliminated alcohol at a slower-than-average rate).
Before trial, the prosecution moved to exclude evidence of the driver's history of abusing alcohol. The driver had told the prosecution that he knew he drank only three or four beers before the incident because, as a result of past problems with alcoholism, he tried not to drink too much to avoid upsetting his wife. Smock contended that he should be permitted to cross-examine the driver about his pattern of drinking, because it was "relevant to [the driver's] credibility with regard to how much he drank on that day and the effect it would have had on him on that day." Smock agreed, however, that such cross-examination would not be appropriate if the prosecution did not raise the subject first.
Essentially accepting Smock's position, the trial court ruled that if the prosecution opened the door by eliciting the driver's testimony that he did not drink much on the day in question because of his past problems with alcohol, Smock would be permitted "to thoroughly cross-examine" the driver on his "history of alcohol abuse, maybe [his] lying about alcohol consumption to others to hide the extent of his alcoholism." As it turned out, the prosecution presented significant evidence to demonstrate that the driver had consumed at most four beers on the day in question and was not intoxicated at the time Smock confronted him. The prosecution did not, however, elicit any testimony from the driver about his prior history of abusing alcohol.
At trial, the emergency-room physician relied on hospital records to testify about her treatment of the driver, including her determination that it was unnecessary to request a blood test for alcohol. After she concluded her testimony, the prosecution agreed with Smock that these medical records should be admitted, except that the prosecution sought to exclude a page reflecting the driver's statement to his primary doctor that he consumed an average of six ounces of alcohol per week. Smock objected to the page's exclusion, suggesting it was relevant because the driver's admitted consumption of "three beers that day . . . would have a more significant effect upon him" if he normally drank such a small amount of alcohol. The trial court excluded the page, ruling it was not relevant in light of the emergency-room physician's testimony that she had not relied on it in treating the driver.
The page at issue does not appear in our record.
2. Discussion.
Smock never directly argues that the trial court's exclusion of the one page of medical records was erroneous under state evidentiary law, although he characterizes the page as relevant. Instead, he contends that the ruling violated his federal and state constitutional rights to present a defense and to receive a fair trial.
" 'Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or state Constitutions or by statute. [Citations.] The test of relevance is whether the evidence "tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." ' " (People v. Cowan (2010) 50 Cal.4th 401, 482.) We review a trial court's exclusion of evidence for an abuse of discretion. (Ibid.)
Smock claims that the driver's report of consuming six ounces of alcohol per week "was extremely important for the jury to hear in assessing whether [the driver] was under the influence." Smock argues this is so because the defense theory was that he acted in self-defense after the driver, made more aggressive by his consumption of alcohol, attacked him first. It may be true that, in the abstract, the information about the driver's normal consumption of alcohol was relevant. But the trial court had already ruled that Smock could not cross-examine the driver on his drinking history unless the prosecution opened the door. Smock has never challenged that ruling, and he fails to explain why it did not preclude the admission of this particular information about the driver's drinking habits. Moreover, the emergency-room physician did not rely on the page at issue in treating the driver, and thus the information did not become relevant as a result of her testimony. There was no abuse of discretion.
Smock's more direct argument is that the trial court's ruling violated his federal and state constitutional rights to present a defense and to a fair trial, a claim we review de novo. (See People v. Quiroz (2013) 215 Cal.App.4th 65, 70.) "As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Smock relies on three United States Supreme Court cases—Davis v. Alaska (1974) 415 U.S. 308, Chambers v. Mississippi (1973) 410 U.S. 284, and Washington v. Texas (1967) 388 U.S. 14—that our state Supreme Court has characterized as "holding that the application of state procedural or evidentiary rules that barred a defendant from making an effective challenge to the prosecution's case or from presenting crucial exculpatory evidence violated the federal Constitution." (People v. Espinoza (1992) 3 Cal.4th 806, 818.) He also cites a number of lower federal court opinions that similarly found constitutional error where the excluded evidence was crucial to the defense. (Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, 1273 [evidence undermining credibility of prosecution's only witness], overruled on other grounds in Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204, 1218, fn. 18, revd. on other grounds sub. nom. Brown v. Payton (2005) 544 U.S. 133); Lyons v. Johnson (2d Cir. 1996) 99 F.3d 499, 503-504 [evidence suggesting defendant was misidentified]; Justice v. Hoke (2d Cir. 1996) 90 F.3d 43, 47-48 [evidence that prosecution's only witness had motive to lie]; Dey v. Scully (E.D.N.Y. 1997) 952 F.Supp. 957, 962-963, 971-972 [evidence suggesting defendant was misidentified]; Franklin v. Duncan (N.D.Cal. 1995) 884 F.Supp. 1435, 1454-1455 [evidence undermining credibility of only eyewitness].)
In contrast to the evidence at issue in these decisions, the evidence here that the driver normally drank six ounces of alcohol per week was far from vital to Smock's defense. The toxicologist's testimony firmly established that if the driver had consumed only three or four beers, his blood-alcohol content was effectively zero. Thus, the critical fact about the driver's consumption of alcohol that Smock needed the jury to believe was that the driver had lied about the amount of alcohol he drank that afternoon, not that the three or four beers he admitted consuming had an exaggerated effect on him because he normally drank so little. The trial court's exclusion of the one page of medical records did not effectively prevent Smock from mounting a defense or otherwise render his trial fundamentally unfair. There was no constitutional error.
C. Smock's Rights Were Not Infringed by the Exclusion of Evidence About the Plane Crash.
Smock also claims that the trial court erred by excluding evidence offered to support the defense theory that he had blacked out during part of the incident because he suffered from PTSD. Again, we are not persuaded.
1. Additional facts.
Before trial, the prosecution moved to exclude evidence Smock sought to offer as foundation for an expert witness's testimony. Specifically, the prosecution sought to exclude evidence the expert witness had relied on to conclude that Smock exhibited symptoms of PTSD. The evidence was about a 2011 plane crash in which Smock was severely injured and his father-in-law was killed. Smock contended that the possibility he had PTSD supported an unconsciousness defense, based on his claim that he had no memory of attacking the driver.
The trial court accepted Smock's contention that expert testimony about PTSD was relevant to his defense. The court expressed doubt, however, that "showing the picture of the crumpled plane or talking about the defendant's father-in-law dying and the defendant crawling to safety" accomplished "anything other than [making] the jurors feel sorry for [Smock]." The court then ruled that the expert witness could testify that Smock had "in 2011 suffered a very serious, life-threatening accident . . . [in which] he was seriously injured" that had contributed to his PTSD, but that specific details about the plane crash were not relevant.
In a related motion, Smock sought to quash a prosecution subpoena of any records of his treating psychotherapist related to his PTSD. The trial court denied the motion, ruling that if Smock introduced expert testimony that he suffered from PTSD to support "a mental health defense," he would waive the client-psychotherapist privilege and any constitutional right to privacy "as to the PTSD discussion only." The court indicated that it would be unfair to both allow the defense to present its own expert witness on PTSD and prevent the prosecution from cross-examining that witness based on any PTSD-related information gleaned from Smock's psychotherapist.
After the jury was selected, Smock's trial counsel informed the trial court that Smock's psychotherapist was "simply not capable of assembling her notes." Counsel continued, "As a result, they're not going to be produced, and as a result, I'll be withdrawing [the expert on PTSD] as a witness." Later in the trial, counsel again indicated that he was not going to call the PTSD expert because Smock's psychotherapist was not going to produce her notes.
Before Smock testified, the trial court confirmed that its ruling excluding evidence about the plane crash also applied to his testimony. The court indicated that Smock could, however, testify that "he was involved in a very serious accident" for which he was not at fault and "suffered serious injuries, devastating injuries, which required a lengthy and painful rehabilitation process," and could also "talk about maybe some particularly vulnerable parts, whether it be hands, feet, back, whatever it is."
Consistent with the trial court's ruling, Smock testified that he was in a serious accident in October 2011 for which he was not at fault. He had sustained numerous injuries, including the crushing of his feet and the breaking of his back, and underwent five surgeries. He daily experienced pain in his feet and lower back, and his collarbones were "permanently deformed." Sensitive to the possibility of reinjuring himself, he was "as cautious as [he could be]" when riding his bicycle, and he claimed his physical vulnerabilities had made him not want to fight the driver.
2. Discussion.
Smock does not argue that the trial court's exclusion of evidence about the plane crash was improper under state law. Instead, he claims that the ruling violated his federal and state constitutional rights to present a defense and to receive a fair trial. Again, we review this claim de novo. (See People v. Quiroz, supra, 215 Cal.App.4th at p. 70.)
Initially, the Attorney General argues that the claim is forfeited because Smock ultimately did not introduce any evidence about PTSD. We need not resolve this issue because we reject the claim on the merits.
Smock argues that the evidence about the plane crash was critical to support his credibility. Specifically, he contends this evidence "helped explain why he would not remember the fight" with the driver and that its absence made his testimony about blacking out "difficult to believe." In support, Smock cites the same federal cases he relied on to challenge the exclusion of information about the driver's drinking pattern, the claim we rejected in part II.B. above. He also cites two other decisions. In the first, Crane v. Kentucky (1986) 476 U.S. 683, the Supreme Court held that the right to present a complete defense was violated where a state court excluded "competent, reliable evidence bearing on the credibility of [the defendant's] confession." (Id. at p. 690.) In the second, Depetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057, the Ninth Circuit Court of Appeals held that the defendant's rights to a fair trial and to present a defense were violated by the exclusion of evidence corroborating the testimony of the defendant that she killed her husband because she feared him, which in turn supported her claim of imperfect self-defense. (Id. at pp. 1058-1059, 1062.)
None of the decisions Smock relies on addressed evidence analogous to the evidence the trial court excluded here. Smock was permitted to introduce evidence that he had been in a life-threatening accident in which he sustained serious injuries, and he testified to that effect at trial. We accept that evidence he had experienced a physically and emotionally traumatic event would have been key to establishing that he had PTSD, which in turn would have bolstered his claim that he blacked out during the assault of the driver. But Smock does not explain why particular details about the plane crash—including that his father-in-law died—would have been essential to the unconsciousness defense he ultimately did not pursue. Those details would have given more context for an expert opinion that Smock in fact suffered from PTSD, but they would not have directly bolstered the credibility of his claim that he had blacked out. The court's ruling did not violate his constitutional rights.
The defense eventually relied on the traumatic-event evidence to support the theory that Smock was so physically vulnerable that he would not have initiated the fight with the driver. Smock does not argue that the details about the plane crash were crucial to support that theory, however, and we conclude that they were not. --------
D. The Prosecutor Did Not Commit Misconduct When Discussing the Presumption of Innocence in Closing Argument.
Smock contends that the prosecutor committed misconduct by stating in her rebuttal closing argument that Smock was "no longer presumed innocent." We conclude that the prosecutor's argument was proper.
1. Additional facts.
Before opening statements, the trial court instructed the jury that a criminal defendant "is presumed to be innocent" and "the People [must] prove the defendant guilty beyond a reasonable doubt." The court also instructed, "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty."
Before closing arguments, the jury was again instructed about the prosecution's burden to prove a defendant guilty beyond a reasonable doubt and told that "[a] defendant in a criminal case is presumed to be innocent." Smock's trial counsel discussed the presumption of innocence at length during closing argument, stressing that a defendant is presumed innocent until proven guilty beyond a reasonable doubt and that "the presumption of innocence exists in a courtroom."
During the prosecutor's rebuttal, the following exchange took place:
[PROSECUTOR]: Presumptions. Counsel said the defendant is presumed innocent. That was true on day one of this trial. It is no longer true. Why? Because he's been proven guilty. He is no longer presumed innocent.
[DEFENSE COUNSEL]: Objection, Your Honor. I believe that's a misstatement of the law.
THE COURT: It's argument. Ladies and gentlemen, you'll have the instructions in the jury room to consider. I would allow it.
[PROSECUTOR]: The other thing about the presumption of innocence is that it never applies to the defendant being truthful. He's never been presumed truthful. Although he was presumed innocent at the beginning, no longer.
2. Discussion.
Smock argues that the prosecutor's rebuttal argument amounted to misconduct because it misstated the law on the presumption of innocence and thus deprived him of his due process rights.
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.) Where, as here, the "charge of prosecutorial misconduct is based on a prosecutor's argument to the jury, the appellate court must consider whether there is a reasonable likelihood the jury construed or applied any of the challenged statements in an objectionable manner. [Citation.] The court must consider the challenged statements in the context of the argument as a whole to make its determination." (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.)
"A defendant in a criminal action is presumed to be innocent until the contrary is proved." (§ 1096.) In People v. Goldberg (1984) 161 Cal.App.3d 170 (Goldberg), the Second District Court of Appeal relied on section 1096 to approve of the following remarks by the prosecutor: " 'And before this trial started, you were told there is a presumption of innocence, and that is true, but once the evidence is complete, once you've heard this case, once the case has been proven to you—and that's the stage we're at now—the case has been proved to you beyond any reasonable doubt. I mean, it's overwhelming. There is no more presumption of innocence. Defendant Goldberg has been proven guilty by the evidence.' " (Goldberg, at p. 189, italics omitted.) The court determined that "the prosecutor essentially restated, albeit in a rhetorical manner, the law as reflected in . . . section 1096." (Ibid.) "Once an otherwise properly instructed jury is told that the presumption of innocence obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt." (Id. at pp. 189-190.) Thus, the court concluded that the prosecutor's remarks had "effectively preserv[ed] the presumption up and until unanimous agreement [was] reached," which occurred at "the close of evidence in a persuasively prosecuted case." (Ibid.)
In People v. Booker (2011) 51 Cal.4th 141 (Booker), the Supreme Court addressed similar remarks. There, the prosecutor had argued, " 'I had the burden of proof when this trial started to prove the defendant guilty beyond a reasonable doubt, and that is still my burden. . . . [¶] The defendant was presumed innocent until the contrary was shown. That presumption should have left many days ago. He doesn't stay presumed innocent.' " (Id. at p. 183.) After the defendant objected, the trial court instructed the jury that the presumption of innocence persisted unless and until the jury concluded the defendant was guilty. (Id. at pp. 183-184.) The prosecutor then continued, " 'As the Court instructed you, I was correct, that the defendant starts out with the presumption of innocence. That doesn't stay. That isn't an automatic thing forever. That's why we have a trial. Once the evidence convinces you he is no longer innocent, the presumption vanishes.' " (Id. at p. 184.) Explicitly approving Goldberg, the Supreme Court held that the prosecutor's remarks were proper: "Although we do not condone statements that appear to shift the burden of proof onto a defendant (as a defendant is entitled to the presumption of innocence until the contrary is found by the jury), the prosecutor here simply argued the jury should return a verdict in his favor based on the state of the evidence presented." (Booker, at p. 185.)
The prosecutor's remarks here were essentially the same as those approved in Booker and Goldberg. Smock attempts to distinguish Booker on the basis that the prosecutor there tied the "argument to the 'evidence presented.' " Smock claims that in contrast, "the prosecutor here was not making a substantive point about the state's evidence of guilt rebutting the presumption of innocence" but was instead "making a procedural argument about when the presumption applied." (Italics omitted.) But the prosecutor told the jury that the presumption of innocence no longer applied because Smock had "been proven guilty." Although the prosecutor did not say the word "evidence," her reference to guilt having been "proven"—a statement Smock omits in quoting her remarks—implicitly referred to the evidence offered. In other words, as was true in Booker and Goldberg, the arguments here conveyed that the presumption of innocence no longer applied because the evidence proved guilt.
Smock also relies on People v. Dowdell (2014) 227 Cal.App.4th 1388 (Dowdell), in which the Sixth District Court of Appeal concluded the prosecutor had committed misconduct by stating that " '[t]he presumption of innocence is over.' " (Id. at p. 1407, italics omitted.) The prosecutor first used this phrase while discussing the state of the evidence, which the appellate court determined was analogous to the remarks approved in Goldberg. (Dowdell, at pp. 1407-1408.) The court held that the prosecutor had committed misconduct by using the phrase a second time, however, when he said, " 'It's fairly obvious that [the defendant] committed all of the crimes we are accusing him of. The presumption of innocence is over. He has gotten his fair trial. Be thorough, deliberate, and come back with guilty verdicts on all counts.' " (Ibid.) The prosecutor's remarks thus improperly "implied that the 'fair trial' was over" and that the jury should consequently no longer "respect the presumption of innocence." (Id. at p. 1408.)
Smock argues that Dowdell "addressed misconduct almost identical to [that in] this case" because "[h]ere, just as in Dowdell, the prosecutor expressly told [the] jurors twice during closing argument that [the defendant] was no longer entitled to a presumption of innocence." But Dowdell relied on only one of the prosecutor's statements to hold that misconduct had occurred, the one that was not tied to a discussion of the evidence but instead to the idea that "the 'fair trial' was over." (Dowdell, supra, 227 Cal.App.4th at p. 1408.) Here, in contrast, the prosecutor tethered her claim that the presumption of innocence no longer applied to the idea that Smock had been proven guilty. Her remarks were therefore more analogous to those Booker and Goldberg approved than those Dowdell found improper.
Finally, we are not persuaded by Smock's reliance on Cowan, which held that the prosecutor committed misconduct by stating, " 'Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. That presumption is gone.' " (People v. Cowan, supra, 8 Cal.App.5th at p. 1154.) Although the Cowan prosecutor's remarks also referred to the state of the evidence, they are distinguishable from the ones at issue here. The statement that the presumption was "only in place when the charges are read" impermissibly conveyed that the presumption no longer applied once the trial began. Here, in contrast, the prosecutor did not suggest that the presumption had ended before the close of evidence and was unrelated to the evidence. There was no misconduct.
E. No Cumulative Error Appears.
Finally, Smock contends that the cumulative effect of the errors he identifies requires reversal of his convictions, even if none of the errors individually require reversal. For the reasons given above, we find no error, and we therefore reject this claim. (People v. Wallace (2008) 44 Cal.4th 1032, 1099.)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.