Opinion
C080735
08-01-2018
THE PEOPLE, Plaintiff and Respondent, v. RAESEAN VANHOOK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STKCR20156194, SF131278A)
Defendant Raesean Vanhook appeals a judgment entered after a jury found him guilty of attempted murder (Pen. Code, §§ 664, 187; count one), first degree burglary (§ 459; count two), attempted home invasion robbery (§§ 664, 211; count three), felon in possession of a firearm (§ 29800, subd. (a)(1); count four), and manufacture of a short-barreled shotgun (§ 33215; count five). The jury found true the enhancements that defendant was armed with a firearm (§ 12022, subd. (a)(1)) and used a firearm (§ 12022.53, subd. (b)) in connection with counts one, two, and three. It also found true the allegation that defendant discharged a firearm (§ 12022.53, subd. (c)) in the commission of counts one and three. The trial court found true that defendant sustained a prior prison term (§ 667.5, subd. (b)), a prior conviction for first degree burglary (§§ 667, subd. (b), 1170.12, subd. (b)), and a prior conviction for a serious felony (§ 667.5, subd. (a)).
Undesignated statutory references are to the Penal Code.
Defendant argues his conviction must be reversed because (1) the People's questioning of defendant highlighting his custodial status constituted prosecutorial misconduct, and (2) the trial court erred in instructing the jury with the standard flight instruction. In supplemental briefing, defendant argues (3) his case must be remanded to allow the trial court to exercise the sentencing discretion authorized by Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620). (Stats. 2017, ch. 682.)
We remand to allow the trial court to exercise its sentencing discretion and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The People's evidence at trial showed that on October 23, 2014, two men sneaked into a garage through a partially opened garage door, taking the three men inside by surprise. The intruders were wearing ski masks and one was carrying a shotgun. The gunman appeared to be African American, was about five feet eight to nine inches tall and weighed about 170 pounds. The gunman ordered the victims to be quiet and to lie on the ground. Two of the victims complied, but the third did not, telling the intruders to take what they wanted from the garage because his family was in the house. The gunman pointed the gun at the noncompliant victim and threatened to kill him. A struggle over the gun ensued, and the gun went off, causing a hole in the garage door. The gunman let go of the gun and both intruders fled.
Stockton police seized the shotgun that had a shortened handle and barrel. They also recovered a single black glove that was sent to the Department of Justice for testing. Testing on DNA from inside the glove showed two contributors, one of which had alleles present for each of the 15 loci for the DNA profile. This profile was uploaded into the CODIS database and matched defendant.
CODIS stands for "Combined DNA Index System," which is an FBI tool that "compares qualifying offender samples to profiles collected at a crime scene." (People v. Robinson (2010) 47 Cal.4th 1104, 1127.) --------
Stockton police arrested defendant at his home and obtained a new sample of his DNA to confirm the DNA hit from CODIS. This new DNA sample matched the major contributor to the DNA found inside the glove recovered from the crime scene. The same DNA "profile [was] estimated to occur at random among unrelated individuals in approximately 1 in 20 sextillion African-Americans, 1 in 83 sextillion Caucasians, and 1 in 13.7 sextillion Hispanics."
At the time of his arrest, defendant, who is African American, was about five feet eight inches tall and weighed about 160 to 165 pounds. Police recovered a black glove, which resembled the one recovered from the crime scene, from the garbage in a bedroom containing defendant's mail.
Defendant testified in his defense, denying he committed the crimes or had any knowledge of them. The glove recovered from his house belonged to his father, who has lots of gloves like it. Defendant sometimes wears his father's gloves when doing work around the house and when working with horses. Defendant has lost gloves on two occasions. He shares his home with his father, grandmother, aunt, and cousin, and people visit the house daily.
On cross-examination, defendant confirmed he was about five feet eight inches tall and weighed approximately 160 pounds in October 2014. He leaves gloves at the horse stable and in his garage, but no one has ever taken his gloves from the garage. He later tried to qualify this testimony by claiming he did not know whether anyone had taken gloves from the garage. Defendant lost one pair of gloves in September 2014 in a field by the county jail. He lost the second pair of gloves after the crime in this case. When interviewed concerning the glove that was recovered with his DNA, defendant denied having seen the glove and did not mention he had worn or lost similar gloves. He was also questioned concerning conversations with his father, as will be discussed in the next section.
The jury convicted defendant on all counts, and the trial court found true the bifurcated prior prison term allegation. Prior to sentencing, defendant filed a motion asking the trial court to exercise its discretion under section 1385 to strike the prior conviction allegation, which the court denied.
The court sentenced defendant to serve an aggregate term of 43 years in prison. On the attempted murder count, the trial court sentenced defendant to serve 14 years (the midterm of seven years, doubled under section 1170.12, subdivision (b)) and imposed an additional 20 years for the section 12022.53, subdivision (b), enhancement, for a total of 34 years. For the burglary count, it sentenced defendant to serve two years eight months, plus one year four months for the section 12022.5, subdivision (a), enhancement, for a total of four years to be served consecutively. It also sentenced defendant to serve five years for the section 667, subdivision (a), enhancement, to be served consecutively. The trial court struck the section 667.5, subdivision (b), prior conviction enhancement and stayed the sentences for all remaining counts and enhancements.
Defendant timely appealed.
DISCUSSION
I
Prosecutorial Misconduct
Defendant argues the prosecutor's repeated questioning of defendant concerning contacts with his father while defendant was in custody "violated a court order and presented highly prejudicial and irrelevant evidence to the jury." The People counter that defendant forfeited any such argument by not objecting in the lower court and his claim also fails on the merits.
A.
The People's Questioning of Defendant and Trial Court's Ruling
Defendant acknowledged speaking with his father several times since his arrest and initially denied talking to him about the case. He later acknowledged he had spoken with his father about the case, but denied it was to get their story straight. Since his arrest, he had visits with his father, which required use of a phone with a warning that the conversation was being recorded, and they would hang up after few minutes to avoid being "recorded and monitored." Defendant acknowledged visits were 45-minutes long, but the recordings lasted only three to five minutes. They would visit on the phone, say goodbye, and then his father would leave. He again acknowledged he knew the conversations were recorded.
There was a break in defendant's testimony and an off-the-record discussion between counsel and the court was held.
The following day, defendant continued his testimony, confirming he had spoken to his father on the phone since his arrest, his father's visits lasted only three to five minutes, and the visits ended after they hung up and said goodbye. Defendant's father asked to put money on defendant's books and then told defendant he could not stay. During this exchange, defendant's counsel objected on the bases of relevance, that questioning was argumentative, and the questions were asked and answered. The objections were overruled. Defendant did not remember speaking with his father about the glove recovered from their house.
After the close of evidence, the court asked counsel if the bench conferences needed to be put on the record. Defense counsel asked to memorialize "the conference we had today in chambers about jail visits and the transcript." The following exchange then occurred:
"[DEFENSE COUNSEL]: [The prosecutor] had sent me two recordings from a conversation between my client and his father, that was believed to be his dad from the jail. They were jail recordings as well as a log of visitation from the county jail. [¶] I reviewed all of that stuff last night and did not find it to be relevant in trial today. I brought that to the Court's attention and the Court made rulings as to such.
"[THE PEOPLE]: The People abided by the Court's ruling. We made arguments. I think, given that, given the Court's ruling and the fact that the People abided by them, I don't think we need anything further on that.
"THE COURT: And I said it wasn't going to come in. I thought it was too tenuous at best for impeachment.
"[DEFENSE COUNSEL]: Because there were several implications that were made that had no basis and no support.
"[THE PEOPLE]: I'm not willing to concede that, but I did abide by the Court's ruling.
"[THE COURT]: So the Court said not to bring in the transcript or whatever said at the jail. I just didn't feel--a good way to describe it was too tenuous for impeaching under [Evidence Code section] 352. [¶] Anything further? [¶] I think that was it. [¶] So that's everything."
B.
Analysis
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) "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 trial court or the jury." (Ibid.)
"It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.) "It is [also] misconduct for a prosecutor to ask a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means. [Citation.] But if the defense does not object, and the prosecutor is not asked to justify the question, a reviewing court is rarely able to determine whether this form of misconduct has occurred. [Citation.] Therefore, a claim of misconduct on this basis is waived absent a timely and specific objection during the trial. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 481, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1163; Crew, at p. 839 ["a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury"].)
Here, defendant's counsel did not object to the prosecutor's alleged violation of a court order during questioning and did not disagree with the prosecutor's statement that the People "abided by the Court's order." That order precluded use of recorded statements from jail to impeach defendant because "it was too tenuous for impeaching under [Evidence Code section] 352." The recordings were not used. Thus, any claim the prosecutor committed misconduct in violating the court's order necessarily fails as forfeited and on the merits. (People v. Crew, supra, 31 Cal.4th at p. 839.)
Defendant's argument that the prosecutor "repeatedly elicited testimony that revealed to the jury that the [defendant] was in custody, and improperly suggested to the jury that [defendant] and his father had engaged in some sort of collusion to influence the case" also fails. Defense counsel did not object on this basis, and indeed did not object on any basis to much of the testimony concerning those conversations. Objections on one basis do not preserve objections on another. (People v. Ayala (2000) 23 Cal.4th 225, 284.) Therefore, defendant has forfeited this argument.
We also disagree with defendant that the failure to object should be excused as futile. After the parties made a record of the bench conference and court's order that defendant could not be impeached with the recordings of jail conversations with his father, the court explicitly asked if there was "[a]nything further?" Nothing in that bench conference discussion shows it would have been futile to disagree with the prosecutor's statement he abided by the court's order or to object that the prosecutor committed misconduct through asking questions that implied facts harmful to defendant where the prosecutor allegedly had no reasonable grounds to anticipate an answer confirming the implied fact or was not prepared to prove the fact by other means.
II
The Flight Instruction
Defendant argues the trial court erred in instructing the jury with the standard flight instruction. He reasons because the victims could not identify defendant as the shooter, and the glove merely placed defendant at the scene, "the instructions as given invited the jury to interpret the instruction as a directed finding on the issue of identity." He continues, the instruction improperly suggested that "[defendant] was in fact the perpetrator, when there was little evidence to support such conclusion [and thus defendant] was denied his right to a fair trial."
A.
The Instruction
After a defense objection, the trial court instructed the jury with the standard flight instruction from CALCRIM No. 372: "If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
B.
Analysis
" 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his [or her] movement was motivated by a consciousness of guilt." [Citations.]' " (People v. Leon (2015) 61 Cal.4th 569, 607.)
The Supreme Court recognized in People v. Mason (1991) 52 Cal.3d 909, 943 that it is not improper to give a flight instruction just because identity is at issue in a given case. "If there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight. [Citation.] 'The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.' [Citation.]" (Ibid.)
Here, defendant's DNA was on a glove found in the victim's garage. Defendant matched the height, weight, and race (African American) of the gunman as described by the victim. In contrast, the other intruder was described as Mexican or Hispanic. Therefore, there was evidence supporting the jury's conclusion defendant, not the other intruder, was the person with the gun. Having reached that conclusion, defendant's flight from the garage rationally supported an inference he was conscious of guilt. Therefore, the instruction was proper.
III
Defendant's Request for Remand
Finally, defendant argues in supplemental briefing that his case must be remanded to allow the trial court to exercise the sentencing discretion authorized by SB 620 for the section 12022.5 and section 12022.53 enhancements. The People concede the newly-conveyed discretion applies retroactively, but maintain remand is not appropriate because "there is no reason to believe that the trial court would exercise its new discretion to strike either of the firearm enhancements." As we will explain, we agree with defendant remand is appropriate in this case.
On October 11, 2017, the Governor signed SB 620 (2017-2018 Reg. Sess.) that amended sections 12022.5 and 12022.53, effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2), to permit a trial court to strike a firearm enhancement: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
We agree with the parties SB 620 applies retroactively as explained in People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091. We also agree with defendant that the trial court must be afforded the opportunity to exercise this sentencing discretion. Unlike the court in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, here, we cannot say "the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." While the trial court did decline to strike a different enhancement, it sentenced defendant to the midterm on other counts and exercised its discretion to strike other enhancements under section 1385. Therefore, remand is required.
DISPOSITION
The matter is remanded to the trial court to consider whether to exercise its discretion to strike defendant's firearm enhancements. The judgment is otherwise affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BLEASE, J.