Opinion
B198413 B201346
9-29-2008
THE PEOPLE, Plaintiff and Respondent, v. STEVEN WILLIAMS, Defendant and Appellant. In re STEVEN WILLIAMS on Habeas Corpus.
Halpern and Halpern and H. Russell Halpern for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Steven Williams appeals from his conviction for arson of an inhabited structure. Williams was sentenced to a prison term of 35 years to life.
Williams contends: (1) his counsel was ineffective in a variety of respects; (2) two jurors committed misconduct; (3) the trial court abused its discretion by admitting certain items of evidence; (4) the evidence was insufficient to prove two prior out-of-state convictions qualified as serious or violent felonies within the meaning of the Three Strikes law; and (5) the prosecutor committed misconduct. In a petition for a writ of habeas corpus, which we consider concurrently with his direct appeal, Williams further contends his trial counsel was ineffective. Finding no reversible error, we affirm the judgment and deny the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Appellant lived with his girlfriend, victim Alisha Drake, for nine years. The couple lived in Boston for a considerable period. In approximately 2002, Drake moved with her daughter and Williamss son to an apartment in Van Nuys located at 6716 North Sylmar Avenue. At some point thereafter, Williams joined Drake and the children in the Van Nuys apartment. Williams did not live with Drake continuously, but "was off and on, back and forth through California and Boston." The apartment building had six upstairs and six downstairs apartments.
In the summer of 2003, Drake learned that Williams was cheating on her. She became very angry, asked Williams to leave, and had the locks at the apartment changed.
On July 27, 2003, at approximately 6:25 p.m., Los Angeles Police Department officers Mario Rodriguez and Marc Gordon responded to a "keep the peace" call at Drakes Van Nuys apartment. When they arrived at the apartment building, they observed Williams standing outside the security gate. Williams stated that his last name was King, that his girlfriend was in an apartment in the building, and that he wanted to get his possessions from the apartment. The officers spoke to Drake. She told them the man downstairs was her boyfriend, but he had been cheating on her and she no longer wanted anything to do with him. He wished to retrieve his clothing from her apartment. Drake stated that she did not want Williams in her apartment unless officers were present. The officers observed a green duffle bag and five or six boxes of shoes in the living room in front of the door. One of the officers escorted Williams to the apartment, but Williams declined to take any of his possessions. Drake asked officers to wait while she gathered some of her possessions and left in her vehicle. The officers then advised Williams to leave the apartment building. Drake went to a friends house before catching a "red eye" flight to Boston that morning.
Maria Gomez lived in the apartment next to Drakes and was familiar with Williams. At approximately midnight on July 28, 2003, Gomez was in the apartment laundry room when she saw Williams walk upstairs, carrying something. He did not greet Gomez, which was unusual. Gomez watched as he went to Drakes apartment, No. 201. Gomez saw Williams walk up and down the apartment stairs a second time, again carrying something. He then left the complex and walked down the street. Gomez walked back to her apartment. Approximately five minutes later, she heard a window break and saw smoke coming from Drakes apartment. She was certain that the person she had seen leaving the building was Williams.
Firefighters arrived shortly thereafter and extinguished a fire burning in Drakes apartment. The apartment door was open when they arrived. Los Angeles Fire Department Chief Gary Bowie and Los Angeles City Fire Department Investigator Jose Sanchez both examined the apartment to determine the cause of the fire. They concluded the fire had been deliberately set. Charcoal fluid and a lighter were found in the apartment, and a smoke detector in one of the bedrooms had been physically pulled from the ceiling. Three separate fires had been set. The primary fire had been set in Drakes bedroom, where the bed had been set on fire, and the bedroom window had broken from the heat. Second and third fires were set in the second bedroom and living room. Empty shoe boxes and papers had been arranged so as to spread the fire from one area to another, but had been ineffective. It would have taken approximately five to 10 minutes from the time the fire was set before the bedroom window broke. The green duffle bag was no longer in the apartment.
In the living room, Investigator Sanchez found a Polaroid photograph of two men. Drake later identified one of them as Williams. Officers Gordon and Rodriguez identified Williams in the photograph as the man they had escorted to the apartment.
Investigator Sanchez spoke to Drake on the telephone. Drake stated she had fled to Boston because she was in fear for her life due to her boyfriend, Williams. She had learned that Williams had brought other women to their apartment when she was out of town, and consequently had "kicked him out." He was very angry. After she had the locks changed, while she was showering, Williams attempted to kick in the door. She exited the shower and went to the front window. She saw Williams walking away from the apartment. He looked at her and stated, "`Im going to burn that motherfucker down." Drake understood he was referring to her apartment, and she was afraid. She went to a friends house prior to catching her flight to Boston. At approximately 11:30 p.m. that night, Williams telephoned her and stated that he would "`see you dead before I see you with another man." Drake stated she was afraid Williams would follow her to Boston and kill her. Sanchez advised her to call the Boston Police Department and seek a restraining order.
2. Procedure.
Trial was by jury. Williams was convicted of arson of an inhabited structure (Pen. Code, § 451, subd. (b)) but was acquitted of making a criminal threat (§ 422). In a bifurcated proceeding, the jury found true allegations that Williams had suffered prior convictions in Massachusetts for breaking and entering, and assault and battery by means of a handgun. Williamss motion to strike prior conviction allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, was denied. Williams moved for a new trial on the prior conviction allegations, alleging the court had committed evidentiary and instructional errors. The trial court concluded it had erred, and granted a new trial on the prior conviction allegations only. The People appealed the new trial order and, in an unpublished opinion, this court reversed. (People v. Williams (Jan. 30, 3007, B190232).) On remand, the trial court determined that the prior convictions were serious or violent felonies within the meaning of the Three Strikes law. It sentenced Williams to a term of 35 years to life in prison, and further imposed a restitution fine, a suspended parole restitution fine, and a court security assessment. Williams appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Williams has failed to establish his counsel was prejudicially ineffective.
In his direct appeal and his petition for a writ of habeas corpus, Williams contends his trial counsel was ineffective in a variety of ways. We disagree.
a. Applicable legal principles.
"A meritorious claim of constitutionally ineffective assistance must establish both: `(1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Holt (1997) 15 Cal.4th 619, 703; People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Carter (2003) 30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) "`"Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citations.]" (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Lopez, supra, at p. 966.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]" (People v. Carter, supra, at p. 1211; People v. Jones, supra, at p. 1254.) "Were it otherwise, appellate courts would be required to engage in the `"perilous process" of second-guessing counsels trial strategy." (People v. Frye (1998) 18 Cal.4th 894, 979.)
b. Failure to present the testimony of an eyewitness identification expert.
Williams contends that defense counsel was ineffective for failing to retain an eyewitness identification expert to testify at trial regarding "the problems with [eyewitness] identification" and "the pit falls [sic] that come from these identifications." Williams argues that the testimony of an eyewitness identification expert would have been relevant to explain the testimony of Drakes neighbor, Gomez; Officers Rodriguez and Gordon; and the victim herself. We disagree.
Whether to hire particular experts is generally a matter of trial tactics, and nothing in the record before us suggests counsels decision to forgo an eyewitness identification expert was unreasonable. While an eyewitness identification experts testimony may in appropriate cases assist the trier of fact (see People v. McDonald (1984) 37 Cal.3d 351, 369, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914), this was not such a case. Such expert testimony is often relied upon by the defense when an eyewitness has identified a stranger. Here, in contrast, Williams was known to Gomez, Drakes neighbor. Gomez testified that she "used to see [Williams and Drake] all the time" coming and going from the apartment next to hers. She had seen Williams approximately 100 times, and he "would always say hi" to her. Thus, expert testimony regarding Gomezs identification would have been marginally helpful to the defense at best.
As noted, Gomez identified Williams as one of the men in the Polaroid photograph found in the burned apartment. Williams complains that Gomez was shown only one photograph and was not given an admonition before viewing it, implying her photographic identification was faulty. However, these circumstances do nothing to suggest expert testimony would have assisted the defense. Gomez told Detective Sanchez that Williams was the person she saw at the apartment building at the time of the fire. After providing that information, she identified Williams in the photograph. Under these circumstances, Williams has failed to demonstrate how expert testimony would have assisted the defense.
Williams also points to the facts that Gomez was unable at trial to describe Williamss hair style or eye color and had not noticed whether he sported tattoos or jewelry. A juror sent a note to the court querying, "`If she doesnt remember what he looked like, how does she know it was him? "But the defense was easily able to exploit any weakness in Gomezs testimony without an eyewitness identification expert. In short, given Gomezs familiarity with Williams, counsel could have made a reasonable tactical decision that expert testimony would have been of little or no value. As our Supreme Court has noted, "Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995.) Such was the case here.
Williams has likewise failed to show how an eyewitness identification expert could have assisted the defense in discrediting the testimony of victim Drake, or of Officers Rodriguez and Gordon. As noted, Drake confirmed that the Polaroid photograph depicted Williams and another man. Drake testified that on July 27, 2003, after she telephoned police, officers escorted Williams to the apartment to retrieve his belongings, but he declined to do so. The testimony of Officers Rodriguez and Gordon corroborated Drakes account. Both officers identified Williams in the Polaroid photograph as the man who had been escorted to Drakes apartment.
Williams does not clearly articulate how an eyewitness identification expert could have undercut Drakes testimony that Williams was the man whom police escorted to her apartment. Drake and Williams had been romantically involved for many years, and there is no conceivable possibility she was mistaken that he was the man who came to her apartment with police. To the extent Williams intends to suggest Drake was lying, expert testimony regarding eyewitness identification would have had no bearing on that issue. Likewise, Williams fails to explain how expert testimony would have assisted the defense in proving that the officers were mistaken and had escorted someone other than Williams to the apartment. Williams must "do more than surmise that defense experts might have provided more favorable testimony. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5; see also People v. Cunningham (2001) 25 Cal.4th 926, 1004-1005; People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 995-996.) The record does not reflect the absence of a satisfactory explanation for counsels decision to forgo expert testimony, or the probability of a more favorable result for Williams had such an expert testified. Accordingly, Williams has failed to establish ineffective assistance.
c. Failure to object to photograph of appellant.
In a related vein, Williams contends counsel was ineffective for failing to object to the Polaroid photograph. He posits that the photograph was unduly suggestive because witnesses were shown a single photograph, rather than a six-pack photographic lineup, and because no admonition was given to the witnesses before they viewed the photograph. We disagree.
A pretrial identification procedure violates due process if it is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (People v. Sanders (1990) 51 Cal.3d 471, 508; People v. Contreras (1993) 17 Cal.App.4th 813, 819.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) "`The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 412; Manson v. Brathwaite (1977) 432 U.S. 98, 106-114; People v. Yeoman (2003) 31 Cal.4th 93, 123; People v. Arias (1996) 13 Cal.4th 92, 168.) The defendant bears the burden of demonstrating the identification procedure was unreliable. (People v. Cunningham, supra, 25 Cal.4th at p. 989.) Unfairness must be proved as a "`demonstrable reality, not just speculation." (People v. Contreras, supra, 17 Cal.App.4th at p. 819.) We independently review a trial courts ruling that a pretrial identification procedure was not impermissibly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)
Counsels failure to object to the identifications made by Gomez, Gordon, and Rodriguez did not fall below an objective standard of reasonableness. Even assuming arguendo that use of the single photograph was suggestive, there was no danger that the identifications were unreliable under the totality of the circumstances. "[N]umerous cases have found no due process violation from the admission of evidence of identifications made either at the time of or subsequent to a single photo showup." (People v. Contreras, supra, 17 Cal.App.4th at pp. 820-821, and cases cited therein.) Due process is implicated "only when there is a causal relationship between the photographic procedure and the witnesss identification of the defendant." (Id. at p. 821.) Here, Gomez had seen and greeted Williams on numerous occasions, had a sufficient opportunity to observe him on the night of the fire, and had no doubt he was the man she saw. Moreover, Gomez told police that she had seen her neighbor, i.e., Williams, before she was shown the photograph of him. The photograph was used only to confirm that the neighbor and Williams were the same man. There was no causal relationship between use of the single photograph and the identification.
The officers, likewise, had ample opportunity to observe Williams. Drake testified that Williams was her boyfriend, the man whom the two officers had observed in her apartment the evening of the fire. There was therefore ample evidence that Williams was the individual whom police escorted to Drakes apartment that evening, and no likelihood the officers misidentified Williams. Unless a very substantial likelihood of irreparable misidentification exists, evidence regarding the accuracy of eyewitness identification is for the jury. (Manson v. Brathwaite, supra, 432 U.S. at p. 116.)
Thus, on the record before us it is apparent any motion to exclude the evidence would have been denied. Counsel therefore cannot be faulted for failing to seek to exclude the identifications. Defense counsel "is not required to make futile motions or to indulge in idle acts to appear competent." (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
d. Failure to object to purportedly improper questions by the prosecutor.
Williams next asserts that his counsel was ineffective because he failed to object to various questions posed to Drake by the prosecutor during direct examination, which Williams contends were either leading or lacking in foundation.
(i) Leading questions.
Williams complains the following exchange involved improper leading questions:
"[Prosecutor]: Now, on that same day after he came and tried to talk to you, he left and he yelled something to you from where he was standing below, correct?
"[Drake]: I dont recall. Like I said, I was angry. I just wanted him away from me.
"[Prosecutor]: Okay. So you didnt tell Officer Sanchez that he yelled up and said, `Im gonna burn that motherfucker down? [¶] . . .[¶]
"[Drake]: I dont know what I did. I might have. Im not saying that I didnt. I might have. I said a lot of stuff. Again, because I was angry." (Italics added.)
The contention that defense counsel was ineffective for failing to object that the italicized questions were leading fails for several reasons. A leading question "is a question that suggests to the witness the answer that the examining party desires." (Evid. Code, § 764; People v. Williams (1997) 16 Cal.4th 635, 672.) Leading questions "may not be asked of a witness on direct or redirect examination," except in "special circumstances where the interests of justice otherwise require." (Id. at § 767, subd. (a)(1).) "Trial courts have broad discretion to decide when such special circumstances are present." (People v. Williams, supra, at p. 672.) It has long been settled that "permitting the use of leading questions on direct examination when the prosecution is faced with a hostile witness is a special circumstance. [Citations.] Because assessment of the circumstances revealing the witness hostility is uniquely within the realm of the trial court, the use of leading questions on direct examination is committed to the sound discretion of the trial court." (People v. Spain (1984) 154 Cal.App.3d 845, 853; People v. Visciotti (1992) 2 Cal.4th 1, 52.) Here, counsel may have refrained from objecting because he reasonably believed that, if he did so, Drake — whose answers were evasive and who had recanted much of her account to officers — would simply be declared a hostile witness and the leading questions allowed. Indeed, shortly after the exchange quoted ante, the prosecutor argued that Drake was a hostile witness, a contention the trial court appeared to accept.
Furthermore, it is permissible to ask a leading question on direct examination when the question "serves `to stimulate or revive [the witnesss] recollection. [Citation.]" (People v. Williams, supra, 16 Cal.4th at pp. 672-673.) The prosecutors second question was asked to revive Drakes recollection regarding what she told Sanchez. Counsel therefore may reasonably have concluded an objection would have been futile.
In any event, Williams fails to show a reasonable probability that, had counsel objected, a determination more favorable to him would have resulted. Had counsel objected to the form of the questions, the evidence at issue surely would have been elicited in any event. Failure to object is a tactical decision that rarely establishes ineffective assistance. (People v. Lancaster (2007) 41 Cal.4th 50, 82; People v. Lucas, supra, 12 Cal.4th at pp. 444-445 ["The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent"].)
(ii) Lack of foundation.
Williamss contention that counsel was ineffective for failing to object on lack of foundation grounds is equally unavailing. The failure to object to the prosecutors question, "Is that when he kicked the door three times?" does not establish ineffective assistance. Drake admitted she told Officer Sanchez that Williams had, in fact, kicked the door three times when he returned to the apartment without police. This evidence would have been elicited even had defense counsel objected on foundational grounds.
The same is true in regard to the next challenged question, i.e., "werent you afraid that he was gonna hurt you like hes hurt you in the past?" Drake responded negatively and denied that Williams had attacked her in the past. When the prosecutor continued this line of inquiry, defense counsel did object, and the parties had a lengthy sidebar discussion regarding whether Williamss prior convictions for, inter alia, assault and battery on Drake might be admitted into evidence.
Finally, Williams argues that Drake repeatedly denied that she "fled" to Boston because she was afraid of him, but without objection the prosecutor nonetheless began one of her questions by stating, "isnt it true that when you fled to Boston, you were frightened of the defendant . . . ." Drake repeatedly stated she had prepaid tickets to go to Boston, and did not leave in response to Williamss conduct. However, she also admitted telling Sanchez that she was afraid Williams would come find her in Boston and kill her. Even assuming arguendo that the prosecutors question was phrased improperly and defense counsel should have objected, we discern no prejudice. It was readily apparent to the jury that the questions of whether Drake was afraid of Williams and traveled to Boston to escape him were disputed, and from the evidence the jury could readily have inferred Drake left Van Nuys as a fearful reaction to Williams. The jury was instructed "not [to] assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer." We presume jurors follow the courts instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Williams (2000) 79 Cal.App.4th 1157, 1171.) There is no reasonable probability of a more favorable result for Williams had defense counsel objected to the question.
e. Failure to call alibi witnesses.
In his petition for a writ of habeas corpus, Williams further avers that his counsel was ineffective for failing to call alibi witnesses. In a declaration attached to his writ petition, Williams declares that in April 2003 his son was killed and he flew to Boston, Massachusetts, for the funeral, along with Drake and their daughter. Afterward, Drake and the couples daughter returned to Los Angeles, but Williams stayed in Boston until he was extradited to California after the fire. He was not in Los Angeles in July 2003. He informed his trial attorney that he had been in Boston at the time of fire "and whom I was with." Trial counsel, however, never asked for his familys information to investigate his location at the time of the crime.
Williams also presents declarations from his sisters, Sheila and Janet Williams and Darlene Whitmore. The three women explained that in April 2003, their nephew, Williamss son, was killed and Williams attended the funeral in Boston on April 29, 2003. All three declare that Williams stayed in Massachusetts from April 2003 until the time he was arrested. Janet declared that she spoke with Williams when she called the homes of her sisters, Veronica and Aletha Williams. Sheila avers that from April to September 2003, she spent "a lot of time" with Williams and saw him at least once a week at the homes of her mother and sisters. Her mother and sisters all lived within walking distance of one another. Moreover, in August 2003, Williams was in Boston when Sheilas boyfriends mother passed away, and offered moral support to the couple. Darlenes declaration states that "from April to the time of his arrest in Boston, Massachusetts in September spent a lot of time with me at my home. [Sic] He would spend the night at least two to three times a week." All three women aver that trial counsel never contacted them regarding Williamss whereabouts at the time of the crime, and they had no information regarding how to contact his attorney.
For ease of reference, we hereinafter sometimes refer to Williamss sisters by their first names.
Williams contends his counsel was ineffective for failing to investigate his alibi and call witnesses to support the story that he was in Boston at the time of the crime. (See People v. Shaw (1984) 35 Cal.3d 535, 540.) He accurately points out that the defense theory, noted in both opening statement and closing argument, was that he had been in Boston the entire period after his sons funeral and therefore could not have set the fire.
Williamss contention fails. We agree with Williams that a competent attorney relying on the defense that his client was in a different state at the time of a crime has a duty to investigate potential alibi witnesses. However, the record before us does not demonstrate that trial counsel failed to do so, or that he lacked a tactical reason for his failure to call witnesses Janet, Sheila, and Darlene.
First, there is no showing in the record that counsel was asked for an explanation and failed to provide one, or that there could be no tactical explanation for his failure to call alibi witnesses. (See People v. Carter, supra, 30 Cal.4th at p. 1211.) Williams does not clearly state that he informed trial counsel that Janet, Sheila, or Darlene could provide an alibi for him. Instead, his declaration states that he told counsel "I was in Boston, Massachusetts at the time of the alleged incident and whom I was with." (Italics added.) The declaration does not state that he was with Janet, Sheila, or Darlene on the date of the fire. Elsewhere in the declaration, Williams stated he, Drake, and their daughter stayed with "various relatives" in the area while in Boston for the funeral, including a sister and his mother. Williams does not explain, however, whom he stayed with after Drake and their daughter returned to California. The declarants statements suggest Williams stayed with his mother and his sisters Veronica and Aletha; none of them have provided declarations. Thus, although counsel failed to contact Janet, Sheila, or Darlene, it is not clear Williams informed counsel of their existence or told him they could provide an alibi.
Further, Drake testified that Williams did not stay with her continuously, but "was off and on, back and forth through California and Boston." Thus, counsel could reasonably have concluded that neither Sheila, Janet, nor Darlene could have provided sufficient alibi evidence. Janets declaration states only that she spoke with Williams when she called the homes of her sisters Veronica and Aletha, but omits to state when, or how often, her calls occurred. Sheilas declaration states she saw him at least once a week, and that he was present in August, after the fire. Evidence Williams was in Boston in August, after the fire, would not have assisted in establishing an alibi, and Sheila did not aver that she saw him in Boston on the date of the fire. Darlene stated that Williams would spend the night at her house two to three times a week, but like her sisters, did not aver that Williams was staying at her house the night of the fire. Trial counsel could have concluded that none of these witnesses could have established a strong alibi for Williams, as he was not living with them continuously and they did not see or speak to him in Boston every day, or on the date of the fire. Moreover, the declarations presented by Williams do not preclude the possibility that counsel did, in fact, investigate whether other relatives — including Williamss mother or other sisters, with whom he appears to have been staying — could have provided support for his alibi. Williams has failed to establish that counsel performed inadequately or that, had Janet, Sheila, or Darlene testified, a more favorable result for him would have resulted.
2. Purported juror misconduct.
a. Juror No. 1.
After the People rested, the prosecutor informed the court that she had been informed by Investigator Sanchez that at the end of the previous court day, Juror No. 1 had spoken with Sanchez in the courthouse hallway and in an elevator. The juror had approached Sanchez and asked if Sanchez knew anything about fire occupancy rules in restaurants. The prosecutor observed the incident and pulled Sanchez away. Sanchez told the juror they should not be talking. While Sanchez and the juror were in the same elevator, the juror had also stated "something about [the] defense was trying to make [Sanchez] look dumb." Sanchez replied that defense counsel was just doing his job. No other jurors were present in the elevator at the time.
After speaking with Sanchez, the trial court questioned Juror No. 1 out of the presence of the other jurors. Juror No. 1 explained that he had asked Sanchez about how many people might lawfully stand in a restaurant waiting to be seated. The juror also stated to Sanchez, when the two were in the elevator, that defense counsel had been "very rude" to Sanchez and "was trying to show that you dont know what you are talking about, you dont know what you are doing." Sanchez replied that "it was something very normal, very common in these kind[s] of cases." When the trial court queried whether defense counsel wished to ask Juror No. 1 any further questions, defense counsel declined. Defense counsel requested that the trial court excuse Juror No. 1. Before closing arguments, the trial court dismissed Juror No. 1 "in an abundance of caution."
Williams argues that Juror No. 1s comments indicated bias, and that Sanchezs response to the Jurors comments reflected negatively on defense counsel. Williams does not challenge the trial courts decision to dismiss Juror No. 1, as his trial counsel had requested, but asserts that the court failed to adequately inquire into whether other jurors knew of or discussed the incident. To the contrary, the trial court acted appropriately.
"`When a trial court is aware of possible juror misconduct, the court "must `make whatever inquiry is reasonably necessary" to resolve the matter. [Citation.] Although courts should promptly investigate allegations of juror misconduct `to nip the problem in the bud [citation], they have considerable discretion in determining how to conduct the investigation. `The courts discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry. [Citation.]" (People v. Prieto (2003) 30 Cal.4th 226, 274; People v. Roldan (2005) 35 Cal.4th 646, 730; People v. Cleveland (2001) 25 Cal.4th 466, 478.)
Here, the trial court dismissed Juror No. 1, curing any issue of possible juror misconduct. Williams never requested that the trial court conduct a further inquiry with other jurors regarding Juror No. 1s possible misconduct, and therefore he has forfeited any argument that the court should have done so. (People v. Ramirez (2006) 39 Cal.4th 398, 460.) The claim fails on the merits as well. There was no deficiency in the trial courts investigation of the incident. The trial court questioned Juror No. 1 and Sanchez, the only persons involved. There was no evidence before the trial court suggesting that any other juror had overheard Juror No. 1s question to Sanchez, or the discussion between the juror and Sanchez in the elevator. Indeed, the court inquired and learned that only one other person, unconnected to the case, had been in the elevator at the time, eliminating the possibility that any other juror overheard Juror No. 1s comment or Sanchezs response. On this record, the notion that Juror No. 1s comments and question to Investigator Sanchez somehow were relayed to other jurors is purely speculative. (See People v. Maury (2003) 30 Cal.4th 342, 435-436.) "[N]ot every incident involving a jurors conduct requires or warrants further investigation" (People v. Cleveland, supra, 25 Cal.4th at p. 478), and an evidentiary hearing should not be used as a fishing expedition to search for possible misconduct. (People v. Yeoman, supra, 31 Cal.4th at p. 163.)
b. Questions by unnamed juror.
Prior to voir dire, the trial court informed the attorneys that it was the courts policy to allow jurors to anonymously ask written questions during the evidentiary portion of the trial. Defense counsel did not object. After Drakes direct examination, outside the jurys presence the trial court informed the parties it had received several written questions from jurors. One juror asked the following set of questions: "How did Ms. Drake feel about the infidelity and why? [¶] `And then supposing everything she told P.O. Sanchez was false, how would she feel if she was told and it was proven to her that he had something to do with the fire in July which endangered so many? [¶] `How would she feel if her daughter had been in the apartment? [¶] `What is the timeline of [the] trip to Boston and police report there and fire? " Defense counsel stated he believed it was "important to have that juror identified. That question I think is highly suspect and for the record purposes I want to know who that juror is." The trial court declined to have the bailiff determine which juror posed the questions. Defense counsel continued, "I believe it is improper for that kind of information to be out there and those questions not be addressed. I dont think that . . . these were reasonable questions. This jurors showing a bias and for us not to know who that person is and not be able to judge that persons demeanor throughout the rest of this trial or to call in and question now is prejudicial to my client" and would deny Williams a "fair trial." The trial court summarily denied the request.
Williams contends the jurors questions showed "bias." We are unpersuaded. The practice of having jurors submit written questions has been sanctioned by the California Supreme Court (People v. Cook (2006) 39 Cal.4th 566, 592), and Williams has not objected, either here or below, to the procedure. Although Williams asserts that some of the questions showed bias, he cites no authority for his argument. To the contrary, our Supreme Court has held that "[m]ere questions from individual jurors prior to actual deliberations do not constitute jury misconduct." (People v. Davis (1995) 10 Cal.4th 463, 548.) In any event, we see no indication of bias or impropriety in the jurors questions. Drakes feelings about Williamss infidelity could have been relevant to judge her credibility, in particular whether she lied to retaliate for his unfaithfulness. The timing of Drakes travel to Boston was potentially relevant to show whether she fled in fear, as the prosecution theorized, or whether she was planning to travel prior to her breakup with Williams, as she testified. The remaining questions, while arguably not perspicacious or entirely germane to the issues, nonetheless did not demonstrate bias or any sort of overt misconduct. Instead, the questions suggested the juror was attempting to understand the testimony given. (See People v. Cook, supra, at p. 593.) Certainly nothing in the questions suggested the juror was unable to properly perform his or her duty to render an impartial and unbiased verdict, as Williams argued. The trial courts handling of the matter did not constitute an abuse of discretion.
3. Evidentiary issues.
a. Admission of evidence of Investigator Sanchezs telephone conversation with Williams.
Investigator Sanchez testified that in late July 2003, Drake gave him Williamss telephone number. Using that number, Sanchez telephoned Williams, who was in Pennsylvania. On the telephone, Williams stated that he knew nothing about the fire and had been in Pennsylvania when it occurred. At trial, Williams objected that there was a lack of foundation regarding the telephone conversation, and that Sanchezs statements during the conversation were hearsay. During cross-examination, defense counsel questioned Sanchez about the telephone call. At a sidebar discussion, defense counsel objected that evidence of the telephone conversation should be excluded because there was no showing Williams had been given Miranda advisements, and there was no foundation for the evidence. The trial court, noting that there was no custodial interrogation, overruled the objection.
Miranda v. Arizona (1966) 384 U.S. 436.
Williams asserts that evidence of the telephone conversation was inadmissible because there was a lack of foundation to establish that the person to whom Sanchez spoke was, in fact, appellant. In support of this contention, Williams points to People v. Witt (1975) 53 Cal.App.3d 154, overruled on other grounds in People v. Posey (2004) 32 Cal.4th 193, 205, footnote 5, 215. In Witt, the defendants were charged with conspiracy to defraud the estate of an elderly woman, Pearle Zalud, after they presented to the probate court a forged will leaving her million-dollar estate to one of them. At trial, the defense sought to present the testimony of a witness who claimed to have received a telephone call from Zalud several years before, during which Zalud spoke about one of the defendants and stated she thought highly of him, "key defense facts in attempting to rebut the prosecutions case that the [later] will was a forgery." (People v. Witt, supra, at p. 174.) The witness did not know Zalud, nor had he ever received any other calls from her. The trial court properly excluded the proffered evidence because the callers statements were hearsay, and because the telephone call was unauthenticated. "[T]he maker of [the phone call] could not be independently identified, rendering the testimony objectionable on the ground of an insufficient foundation." (Ibid.)
Williams does not here argue that the conversation was inadmissible hearsay, or should be excluded because he was not given Miranda advisements. We therefore do not consider these points.
Witt is clearly distinguishable. In contrast to Witt, in which an unknown person purportedly telephoned the witness, here Sanchez was given Williamss telephone number by a known source, Drake, Williamss ex-girlfriend. Sanchez telephoned and spoke with Williams, not the other way around. From these facts, the court could logically find there was sufficient foundation to establish that the person with whom Sanchez spoke was actually Williams. On appeal, a trial courts decision to admit evidence is reviewed for abuse of discretion, and its ruling implies whatever finding of fact is prerequisite thereto. (People v. Williams (1997) 16 Cal.4th 153, 196-197; Evid. Code, § 402, subd. (c).) We discern no abuse of discretion here. Moreover, we observe that shortly after the courts ruling, Sanchez testified that he met with Williams in person after their telephone conversation, and Williams reminded Sanchez that they had spoken on the telephone while Williams was in Pennsylvania. Thus, any foundational deficiency could have been easily remedied, and no prejudice is apparent. (See Evid. Code, § 353, subd. (b) [no verdict shall be set aside for the erroneous admission of evidence unless the error resulted in a miscarriage of justice].)
b. Use of Williamss prior convictions to impeach Drake.
Williams next complains that the trial court erred by allowing Drake to be impeached with questions regarding his Massachusetts convictions for assault and battery against her. This contention lacks merit.
(i) Additional facts.
During direct examination, Drake admitted telling Investigator Sanchez that Williams had kicked her door; had yelled "`Im gonna burn that motherfucker down," in reference to the apartment; and had told her over the telephone, "`Ill see you dead before I see you with somebody else[.]" However, Drake stated that she told Sanchez "a lot of stuff out of anger" because she "was hurt, and . . . just wanted to hurt" Williams the way he had hurt her. The prosecutor then queried whether Drake had been afraid that Williams was going to "do something" to her. Drake denied it, and also denied that she travelled to Boston to flee from Williams. The following exchange transpired:
"[Prosecutor]: So now you are saying you did not flee — werent you afraid that he was gonna hurt you like hes hurt you in the past?
"[Drake]: He never put his hands on me. He hurt me as far as fooling around and me going through female problems with him.
"[Prosecutor]: Are you saying that you never had him arrested in the past for assault and battery on you?
"[Drake]: No, I never told them that he put his hands on me.
"[Prosecutor]: Okay. Well, isnt it true that he has put his hands on you before and hurt you before?
"[Drake]: No.
"[Prosecutor]: You are saying that thats not true?
"[Drake]: Thats not true."
At sidebar, the parties discussed whether the prosecutor would be allowed to impeach Drakes testimony that Williams had never hurt her with his prior 1997 Massachusetts convictions for, inter alia, assaulting and robbing her and breaking and entering her residence. The prosecutor represented that one of the elements she was required to prove on the criminal threats charge was that the victim was in sustained fear. Drake had recanted her statements to Investigator Sanchez, and the fact Williams had previously been convicted of assaulting Drake and damaging her property would demonstrate Drake was, in fact, afraid of Williams and would undercut her contrary trial testimony. Defense counsel objected that the prior convictions were not sufficiently authenticated, were not felonies, and that the probative value of the evidence was outweighed by its prejudicial effect. The trial court granted the prosecutors request.
When Drakes examination resumed, she again denied being afraid of Williams. She admitted telling Sanchez she was afraid Williams would come find her in Boston and kill her, but again denied "fleeing" to Boston due to her fear. The prosecutor queried, "[W]erent you in fear because the defendant has used violence against you in the past?" Drake denied it. The prosecutor then asked whether Williams had assaulted and battered her in August and September of 1997. Drake denied that Williams had ever beaten her.
(ii) Discussion.
All relevant evidence is admissible. (Evid. Code, §§ 350, 351.) "`Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action," including a witnesss bias. (Evid. Code, § 210; People v. Williams (2008) 43 Cal.4th 584, 633-634; People v. Wilson (2006) 38 Cal.4th 1237, 1245.) Evidence is substantially more prejudicial than probative under Evidence Code section 352 if it "poses an intolerable `risk to the fairness of the proceedings or the reliability of the outcome [citation]." (People v. Waidla, supra, 22 Cal.4th at p. 724.) We apply the abuse of discretion standard to a trial courts rulings on the admissibility of evidence, including those turning on the relevance or probative value of the evidence in question. (Id. at pp. 723, 724; People v. Harris (2005) 37 Cal.4th 310, 337.) A trial court has wide discretion in determining whether evidence is relevant and whether Evidence Code section 352 precludes its admission. (People v. Williams, supra, 43 Cal.4th at p. 633.)
We discern no abuse of discretion here. Williams was charged with violating section 422, although ultimately he was acquitted of the charge. To prove a violation of section 422, the prosecution had to establish: (1) the defendant willfully threatened to commit a crime which would result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent it be taken as a threat; (3) the threat was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution; (4) the threat actually caused the person threatened "`to be in sustained fear for his or her own safety or for his or her immediate familys safety," and (5) the threatened persons fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228; see generally People v. Bolin, supra, 18 Cal.4th at pp. 337-340.) In determining whether these elements are met, the parties history can be considered as one of the relevant circumstances. (People v. Butler (2000) 85 Cal.App.4th 745, 754; see also People v. Gaut (2002) 95 Cal.App.4th 1425, 1431-1432 [defendants history of threatening and assaulting the victim supported finding threats were specific, unequivocal, and immediate]; People v. Garrett (1994) 30 Cal.App.4th 962, 967 [wifes knowledge of husbands prior criminal conduct]; People v. McCray (1997) 58 Cal.App.4th 159, 172.)
The proffered evidence was therefore highly probative to prove that Drake was in sustained fear, and that her fear was reasonable under the circumstances. On the other hand, there was little danger of undue prejudice. Evidence of the convictions was not presented, and Drake denied the abuse. Even assuming arguendo that the jury assumed prior assaults had occurred, they were not the same crime as the charged arson or criminal threats, the conduct was not remote in time, and no inflammatory details were presented. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) "`The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations.]" (People v. Zapien (1993) 4 Cal.4th 929, 958.) Although the court did not expressly rule the evidence was more probative than prejudicial under Evidence Code section 352, the record discloses that it was well aware of, and consistently performed, its duty under Evidence Code section 352 to balance the probative value of evidence against any prejudicial effect. (See People v. Taylor (2001) 26 Cal.4th 1155, 1169 ["[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352"]; People v. Hinton (2006) 37 Cal.4th 839, 892.)
Even assuming arguendo the evidence was admitted in error, no prejudice is apparent. The erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Avitia (2005) 127 Cal.App.4th 185, 194.) The evidence of Williamss prior assaults went primarily to the criminal threats count. As Williams was acquitted on that count, it is clear he was not prejudiced by the trial courts decision to allow the prosecutor to question Drake regarding the prior assaults.
4. Prosecutorial misconduct.
Williams next asserts the prosecutor committed misconduct by questioning Drake about a restraining order and a police report, and by commenting on Williamss failure to testify. We address these contentions seriatim.
a. Applicable legal principles.
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of `deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendants specific constitutional rights — such as a comment upon the defendants invocation of the right to remain silent — but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action `"so infected the trial with unfairness as to make the resulting conviction a denial of due process." [Citations.] [¶] `"[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" [Citation.]" (People v. Rundle (2008) 43 Cal.4th 76, 157; People v. Lopez, supra, 42 Cal.4th at pp. 965-966; People v. Roldan, supra, 35 Cal.4th at p. 719.)
b. Prosecutors reference to a police report.
As discussed ante, during direct examination Drake admitted telling Sanchez that she was afraid Williams would come to Boston and kill her. The prosecutor then queried, "And didnt [Sanchez] advise you that if you were fearful to make a police report with the Boston Police Department?" Drake replied, "Yes, and I never made a police report." When the prosecutor asked, "So you called the Boston P.D. and didnt you make a report and tell them that you were in fear for your life because your ex-boyfriend had burned down your place and threatened you[,]" defense counsel objected. At a sidebar discussion, the parties clarified that the prosecutor had in her possession a Boston Police Department report, which she had already provided to defense counsel.
When the examination continued, defense counsel asked that the police report be marked as an exhibit. The prosecutor had no objection. Defense counsel asked, "How many pages is that?" The prosecutor replied that the report was five pages long. The parties approached the bench at defense counsels request. Defense counsel pointed out that only one page of the report was relevant. The prosecutor responded that the report had been mailed to her with all five pages stapled together. Defense counsel complained that the prosecutor had told the jury the report was five pages in length, but only one page was actually relevant. The prosecutor confirmed that she would only question the witness about one paragraph on one page of the report. Defense counsel accused the prosecutor of misconduct, arguing, "and this is another incident where this district attorney in front of the jury has fanned out a number of pages and alleged that theres some great report here, when in fact if . . . she were properly prepared and not attempting to exaggerate, she would have known that this is all that she had." Defense counsels request for a mistrial was denied. The trial court observed that for purposes of marking the exhibit, the report was five pages. Drake eventually admitted she had made the report.
Williams avers that the prosecutors conduct "amounted to prejudicial prosecutorial misconduct" that violated his due process rights. We disagree. The trial court observed that the report was, in fact, five pages long. Defense counsel, not the prosecutor, asked that the report be marked as an exhibit and asked, in front of the jury, how many pages were in the report. The record before us does not suggest the prosecutor engaged in deceptive or reprehensible behavior by accurately referring to the number of pages in the police report or spreading out the pages on the counsel table, as defense counsel suggested. There is no probability whatsoever that, had the prosecutor brought to court only one page of the report, a result more favorable to Williams would have resulted. Reasonable jurors would not have attributed any significance to the fact a police report consisted of five pages rather than one, nor would they have assumed that because the report was comprised of five pages, Williams was guilty. Williams has not shown the prosecutors use of the report infected the trial with unfairness. There was no misconduct.
c. Prosecutors reference to a Boston restraining order.
Just after the aforementioned portion of Drakes direct examination, the prosecutor queried, "Isnt it true that you sought a restraining order in Boston . . . to keep the defendant away from you?" Drake denied it. Defense counsel objected and moved to strike. The trial court ordered the prosecutors question stricken and admonished the jury to disregard the question and the answer. Direct examination continued. During the next break, defense counsel renewed his objections to the prosecutors reference to a restraining order, accused her of misconduct, and sought a mistrial. The prosecutor explained she had a good faith belief Drake had sought a restraining order because Drake had asked Investigator Sanchez how to obtain a restraining order, and the Boston police stated that Drake had been advised to seek a restraining order. The trial court concluded that the prosecutor lacked sufficient information to conclude Drake had actually sought a restraining order. However, it pointed out that it had struck the question and answer and admonished the jury not to consider them, and therefore there was no prejudice to Williams. Accordingly, the court denied Williamss mistrial motion.
Williams asserts, conclusorily, that the prosecutors question constituted prejudicial misconduct. We disagree. The prosecutor appeared to have a good faith, but erroneous, belief that Drake had sought a restraining order. The solitary error did not rise to the level of a deceptive or reprehensible method, nor did it render the trial fundamentally unfair. (See People v. Roldan, supra, 35 Cal.4th at p. 720.) Moreover, any possible harm to Williams was cured by the courts striking the evidence and admonishing the jury to disregard it. We presume jurors follow the courts instructions. (People v. Smith (2007) 40 Cal.4th 483, 517-518.)
d. Purported Griffin error.
During argument, the prosecutor argued that all the evidence pointed to Williamss guilt. She urged, "I suppose if it was on videotape or we had . . . cameras, I suppose that would be even better. But life is life. Crimes dont happen on videotape. We dont get them always on camera. [¶] Criminals usually are smart enough to commit crimes without witnesses around or theyre smart enough to make sure that theres no cameras. [¶] The defendant tried here. He tried not to say hi to [Gomez]. He tried to move quickly. He tried to disable the smoke detectors. He got in, he got out. He tried. [¶] But there were too many other things pointing to his guilt. And this is where your common sense and your brains come into the picture. [¶] The defendant is saying he didnt do it and he is here to — he is here — he has motive to say or to tell you whatever it takes to get you to have reasonable doubt. Little things here and there. Little questions here and there. Why wasnt there this? Why wasnt there that? [¶] This isnt Law & Order. This isnt T.V. This is the real world. These are police officers who are human. These are police officers who have other things to do besides just this case. They have other crimes to solve. They did the best job they could and the evidence is overwhelming here. You just have to connect the dots." (Italics added.)
Williams contends the italicized portion of the argument quoted above constituted improper comment on his failure to testify, i.e., Griffin error (Griffin v. California (1965) 380 U.S. 609.) He argues, "The prosecutor . . . directly told the jurors that the [defendant] was present, and could `tell you whatever it takes to get you to have reasonable doubt clearly violates Griffen [sic] . . . and its progeny."
The Fifth Amendment to the federal Constitution forbids either direct or indirect comment by the prosecutor upon a defendants invocation of the constitutional right to remain silent, because such comment risks inviting the jury to consider the defendants silence as evidence of guilt. (Griffin v. California, supra, 380 U.S. at p. 615; People v. Lewis (2001) 25 Cal.4th 610, 670; People v. Hughes (2002) 27 Cal.4th 287, 371-372.) Therefore, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when the evidence could only be contradicted or refuted by the defendants own testimony. Likewise, the prosecutor may not refer to the absence of evidence if such evidence could be provided only by the defendants testimony. (People v. Hughes, supra, at pp. 371-372.) Griffin, however, does not extend to prosecutorial comments on the state of the evidence or on the defenses failure to call logical witnesses or introduce material evidence. (People v. Lewis, supra, at p. 670; People v. Hughes, supra, at p. 372.)
Initially, we note that Williams has forfeited his claim because he failed to object and request an admonition below. (People v. Turner (2004) 34 Cal.4th 406, 420; People v. Hughes, supra, 27 Cal.4th at p. 372.) In any event, the claim is meritless. When reviewing a claim of Griffin error, we consider whether there is a reasonable likelihood jurors misconstrued or misapplied the words in question. (People v. Roybal (1998) 19 Cal.4th 481, 514.) There is no reasonable likelihood the jury understood the prosecutors remarks as an improper comment on Williamss failure to testify. (People v. Lewis, supra, 25 Cal.4th at p. 671.) In our view, Williamss interpretation of the prosecutors comments is flawed. The prosecutor did not remark, directly or indirectly, on Williamss failure to testify. Instead, as the People point out, the prosecutor was simply commenting on the commonplace defense tactic of highlighting minor inconsistencies or gaps in the Peoples case, and urging jurors to look instead at the evidence using their common sense. This was a fair comment on the state of the evidence, not a comment on Williamss failure to personally provide an explanation for events. (People v. Lancaster, supra, 41 Cal.4th at p. 84.)
Even if the prosecutors comment could be construed as an indirect comment on Williamss failure to testify, the misconduct would be harmless beyond a reasonable doubt. "The prosecutors statement was, at most, `an indirect, brief and mild reference to defendants failure to testify as a witness. [Citation.] The prosecutor did not suggest that the jury should draw any additional inference of guilt from defendants failure to testify beyond the inference of guilt established by the evidence that had been presented. `Such references have uniformly been held to be harmless error. [Citations.] . . . Accordingly, any misconduct would have been harmless beyond a reasonable doubt." (People v. Rundle, supra, 43 Cal.4th at p. 195.)
5. Appellants two prior Massachusetts convictions qualified as serious felonies under the Three Strikes law.
The People alleged Williams suffered two prior "strike" convictions in Massachusetts, i.e., a 1993 conviction for assault and battery with a firearm, Massachusetts General Law, chapter 265, section 15a(b), and a 1998 conviction for breaking and entering, Massachusetts General Law, chapter 266, section 17. In a bifurcated proceeding, the jury thereafter found Williams had suffered the convictions. The trial court determined that Williams was the individual who suffered the convictions, and that both qualified as serious or violent felonies within the meaning of the Three Strikes law. Williamss motion to dismiss the prior conviction allegations on grounds the offenses did not qualify as serious or violent felonies under the Three Strikes law was denied. Williams was sentenced pursuant to the Three Strikes law to a term of 25 years to life, plus an additional five years for each of the prior felonies pursuant to section 667, subdivision (a).
Williams contends the two Massachusetts convictions did not qualify as serious or violent offenses within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He is incorrect.
"A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious or violent felony in this state. [Citations.]" (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128.) The relevant inquiry is "whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense." (People v. Myers (1993) 5 Cal.4th 1193, 1195.) In making that determination, the trier of fact may "consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California" offense. (Id. at p. 1195; People v. Reed (1996) 13 Cal.4th 217, 223; People v. Riel (2000) 22 Cal.4th 1153, 1204-1205; People v. Whitney (2005) 129 Cal.App.4th 1287, 1297.) When a defendant challenges the sufficiency of the evidence to sustain the trial courts finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. "`The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt." (People v. Rodriguez, supra, 122 Cal.App.4th at p. 129.) In making this determination, we review the record in the light most favorable to the trial courts findings. (Ibid.)
Under California law, any felony in which a defendant personally used a firearm, or personally used a dangerous or deadly weapon, is a serious felony, and therefore a strike. (§§ 667, subd. (d)(1), 1192.7, subds. (c)(8), (23).) The certified Massachusetts court records presented by the People established that in Massachusetts case No. 92-11757, a grand jury presented a "true bill" stating that "Steven Williams, on September 22, 1992, did commit an assault and battery upon one Leandrew Burns, by means of a certain dangerous weapon, to wit: a handgun." The docket sheet indicates the statute violated by Williamss conduct was Massachusetts General Law, chapter 265, section 15A:b. That statute provided, "Whoever commits assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than ten years," or by a fine or imprisonment in jail. Williams pleaded guilty to the charge, and was sentenced to a prison term of five years. Under Massachusetts law, "A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors." (Mass. Gen. Laws, ch. 274, § 1.) Therefore, the evidence presented by the People sufficiently proved Williamss conviction for assault and battery with a dangerous weapon, i.e., a firearm, was a strike under California law. Indeed, Williamss counsel conceded the point below.
The People likewise showed Williamss conviction for breaking and entering qualified as a strike. Under California law, every burglary of the first degree is a serious felony, and therefore a strike. (§§ 667, subd. (d)(1), 1192.7, subd. (c)(18).) A burglary of an inhabited dwelling house is burglary of the first degree. (§ 460.) The certified Massachusetts court records presented by the People established that in case No. 97-11816, a grand jury presented a "true bill" stating Williams entered 5 Emrose Terrace, #3, in Roxbury, Massachusetts, with intent to commit a felony therein. The indictment form indicated the statute violated by Williamss conduct was Massachusetts General Law, chapter 266, section 17. The People presented a certified transcript showing that Williams pleaded guilty to the charge of breaking and entering with intent to commit a felony. During the plea proceeding, Williams admitted breaking and entering Drakes Massachusetts home through a porch window, and once inside, stealing her jewelry. Williams was sentenced to a prison term of two years. The evidence was therefore sufficient to establish the conviction was for residential burglary, a strike.
Williams attempts to avoid this result by relying on People v. Crowson (1983) 33 Cal.3d 623. Under that authority, Williams argues that the trial court should have considered only the least adjudicated elements of the foreign convictions, rather than the entire record of conviction. Using that approach, he urges, the priors did not qualify as serious or violent felonies.
This analysis is unpersuasive. As the California Supreme Court has noted, it "overruled Crowson in People v. Myers (1993) 5 Cal.4th 1193 []. Myers held that, in determining whether a foreign conviction satisfies the minimum elements of a `serious felony in California, the court may examine `the entire record of the prior conviction. [Citations.]" (People v. Carter (2005) 36 Cal.4th 1114, 1144.) Williams urges that Myers only applies to determination of whether a prior conviction qualifies as a serious felony under section 667, subdivision (a), not whether it qualifies as a strike under the Three Strikes Law, section 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). But our Supreme Court has stated differently. In People v. Kelii (1999) 21 Cal.4th 452, for example, the court considered whether the trial court or the jury determines whether a prior conviction qualifies as a strike under the Three Strikes law. In the course of its analysis, Kelii explained, "Determining whether a prior conviction qualifies as a strike under the Three Strikes law is . . . the type of inquiry that judges traditionally perform as part of the sentencing function. Often this determination is purely legal, with no factual content whatever." (Id. at p. 456.) Sometimes, however, there is a "factual content," as when the definition of the qualifying prior is "not completely congruent with the definition of the crime of which the defendant has been convicted." (Ibid.) Under those circumstances, Kelii observed, "In determining whether a prior conviction is serious, `the trier of fact may look to the entire record of the conviction but `no further." (Id. at pp. 456-457.) We are not at liberty to disregard the pronouncements of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Further, California courts have routinely applied the Myers analysis to the determination of whether a prior conviction qualifies as a strike under section 667, subdivisions (b) through (i), as well as a serious felony under section 667, subdivision (a). (See, e.g., People v. Rodriguez, supra, 122 Cal.App.4th at pp. 128-129 ["In determining the truth of the existence of a prior felony conviction in another jurisdiction for purposes of the Three Strikes and other enhancement laws, `the [trier of fact] may look to the entire record of the conviction to determine the substance of the prior foreign conviction"]; People v. Houck (1998) 66 Cal.App.4th 350, 355 ["the Supreme Court has stated that a trier of fact may consider the `entire record of the proceedings leading to imposition of judgment on the prior conviction in determining whether a prior conviction qualifies as a strike"]; People v. Zangari (2001) 89 Cal.App.4th 1436, 1440 ["In determining whether an out-of-state prior is a serious felony, `the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all the elements of the comparable California serious felony offense" and "[t]he same approach applies in determining whether an out-of-state prior is a strike for purposes of the three strikes law"]; People v. Purata (1996) 42 Cal.App.4th 489, 493.) Accordingly, we reject Williamss contention that Myers is inapplicable.
DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.