Opinion
C041838.
11-10-2003
THE PEOPLE, Plaintiff and Respondent, v. KEENAN EARL WISE, Defendant and Appellant.
Defendant Keenan Earl Wise was convicted of possessing heroin for sale and was sentenced to three years in prison.[]
At the same hearing, defendant was sentenced to three concurrent years following his guilty plea to criminal threat. (Case No. SF083302A.) On January 24, 2003, we granted defendants application for constructive filing of a notice of appeal from case No. SF083302A.
On appeal, defendant contends he was denied his due process right to a fair trial because the prosecutor used "deceptive and reprehensible" methods in his closing argument to the jury. Defendant acknowledges trial counsel failed to object to the arguments and request the jury be admonished to disregard them and asserts he was ineffective. We conclude any prosecutorial misconduct was waived due to trial counsels failure to object and request appropriate admonishments. We also find this failure did not constitute ineffective assistance of counsel because the comments were not prejudicial error.
FACTUAL AND PROCEDURAL BACKGROUND
About 6:00 a.m., on January 13, 2002, Stockton Police Officers patrolling an area known for drug activity observed a substantial crowd of people at an intersection. When they shone a spotlight on the group, it dispersed. The officers followed defendant in their car and shone the light on defendant. One officer left the car and approached defendant. After the officer asked to speak to him, defendant ran and the officer chased him. Defendant discarded a cigarette pack and fell down. The officers recovered the pack, which contained 26 bindles of tar heroin. Defendant explained to the officers that he ran because he had outstanding warrants and had dropped a baggie of marijuana and a beer not heroin.
DISCUSSION
I
Waiver by Defendant
Defendant contends the prosecutors "deceptive and reprehensible" methods in his rebuttal argument deprived him of a fair trial. He claims this "patter[n] of misconduct" designed to prejudice the jury violated both state law and federal due process principles.[]
This terminology is generally used to refer to personal attacks on the integrity of opposing counsel. "Included within the deceptive or reprehensible methods we have held to constitute prosecutorial misconduct are personal attacks on the integrity of opposing counsel. [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.)
"A prosecutors rude and 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." (People v. Espinoza, supra, 3 Cal.4th at p. 820.) Similarly, a violation of state law "involves `"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" (Ibid.)
It is the general rule no claim of prosecutorial misconduct may be raised on appeal unless there is both an assignment of misconduct and a request the jury be admonished to disregard the objectionable comment. (People v. Ayala (2000) 23 Cal.4th 225, 284.) The purpose of this requirement is to cure any harm caused. A failure both to object and to request an admonishment forfeits the argument on appeal. (People v. Hill (1998) 17 Cal.4th 800, 820.) The only exception to this rule is if the impropriety is so egregious that any admonition would be futile. (People v. Price (1991) 1 Cal.4th 324, 447.)
Applying this rule to the assignment of errors in this case, we must initially conclude any arguable error was waived for appellate purposes because trial counsel failed to object to any objectionable comments save one, and completely failed to request any admonition to the jury to disregard any comments. Thus, defendant must rely upon counsels ineffectiveness in order to preserve these errors for appeal.
II
Ineffective Assistant of Counsel
In order to show ineffectiveness for failure to object, it is defendants burden to show that trial counsels performance fell below prevailing professional norms, and that it is reasonably probable a more favorable outcome would have resulted in the absence of the error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693, 698]; People v. Hart (1999) 20 Cal.4th 546, 624.) If defendants showing is insufficient as to one component, we need not address the other. (Strickland, at p. 697 .) Moreover, the failure to object ordinarily will not establish ineffective assistance of trial counsel. (People v. Catlin (2001) 26 Cal.4th 81, 165.)
A
As he began his closing argument, the prosecutor properly noted that this was argument, not evidence. He then explained that lawyers engage in rhetoric and are trained to be advocates. The following colloquy ensued:
"[THE PROSECUTOR]: [I] think I thanked you all for speaking out in the beginning because youre not use to youre not crazy like we are crazy in that smart way, since Judge Murray is also a lawyer before he was a judge, that we like to speak to people. Were used to it. We argue. Were advocates. Im an advocate for the truth. (Italics added.)
"[DEFENSE COUNSEL]: Objection, that implies that Im not.
"THE COURT: Yeah, sustained."
This comment was an improper attack on the veracity of defense counsel: "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] `An attack on the defendants attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable." (People v. Hill, supra, 17 Cal.4th at p. 832.)
Any comment implying that the prosecutor represents truth, and defense attorneys do not, is error. (See People v. Hawthorne (1992) 4 Cal.4th 43, 59-60.) In Hawthorne, the prosecutor argued that while the state was obligated to present the truth and to make sure no innocent person was convicted, defense counsel was expected and permitted by law to disregard the truth in defense of his client. (Id. at pp. 59-60, fn. 8.) Our Supreme Court disapproved this practice. (Id. at p. 60.) "The closing statements of counsel should relate to the law and the facts of the case as each side interprets them." (Ibid.)
Defense counsel did not ask that the jury be admonished to disregard the prosecutors improper statement and arguably waived his claim of error, raising the spectre that he was ineffective for failing to preserve the error. However, we do not find the error was prejudicial. While improper, the comment was not sufficient to undermine the outcome of the trial, in light of its context concerning the role of argument and the weight of the evidence.
B
Defendant next challenges the prosecutors statement urging the jury not to "buy anything the defense is selling." That comment came immediately after the prosecutor read aloud CALJIC No. 2.21.1, explaining that differences in witness testimony may be caused by innocent factors. The prosecutor described the defense argument as magnifying trivial elements and arguing form over substance. This is a rhetorical device, directed to the argument. We find no error.
C
The next questioned comments were quotations concerning lawyers, which the prosecutor apparently read from a California Supreme Court case, People v. Gionis (1995) 9 Cal.4th 1196, 1219.
We quote from the transcript:
"`If there were no bad people, there would be no good lawyers. Charles Dickens said that.
"`Theres no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth. Jean Jerdeaux (phonetic), 1935. Thats from People v. Gianonis [sic], 9 Cal.4th, 1996 [sic]."
Both of these quotations are comedic or ironic lines, spoken by fictional characters, and should not have been identified as from a judicial opinion. The first line is from an English attorney "of no very good repute," Sampson Brass, in Charles Dickenss novel, The Old Curiosity Shop, pages 55, 271.
The actual author of the second quotation is a French playwright, Jean Giraudoux. The quotation is from his 1935 play, Tiger at the Gates, act II, scene 3.[]
There is some disagreement over the translation. Another version is: "We all know here that the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth." (http://www.law.utexas.edu/lpop/quotes.htm.)
More precisely, the quotation is from Christopher Frys 1955 translation of this play (Oxford University Press 1955), which in French is titled La Guerre de Troie Naura Pas Lieu [The Trojan War Will Not Take Place]. The quotation is from a scene between Hector, a leader of Troy, who does not want war with the Greeks, and an international law expert, Busiris. Hector suggests to Busiris that he offer an opinion to the government that the Greeks have not violated any international law. When Busiris responds that such a position does not reflect the facts, Hector reminds him he is a lawyer. We leave the accuracy of the translation to others. [" . . . le droit est la plus puissante des écoles de limagination. Jamais poète na interprété la nature aussi librement quun juriste la réalité." (La Guerre de Troie Naura Pas Lieu, p. 111, Livre de Poche no. 945.) (See, e.g., www.discoverfrance.net/France / Theatre/Giraudoux; Cohen, Robert, Giraudoux: Three Faces of Destiny (University of Chicago Press 1970.)
We recognize that "`"[c]ounsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature." [Citation.] "A prosecutor may `vigorously argue his case and is not limited to "Chesterfieldian politeness" [citation], and he may `use appropriate epithets . . . ." [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 221; see People v. Dennis (1998) 17 Cal.4th 468, 521; see also People v. Sandoval (1992) 4 Cal.4th 155, 180 ["Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence"].)
Defendant maintains the comments attacked the honesty and integrity of defense counsel. We agree that the deliberate use of these two quotations to rebut the defense argument is an unsubtle attack on the maker of the argument.
However, in People v. Gionis, supra, 9 Cal.4th at pages 1218-1219, our Supreme Court found that the prosecutors reading of these quotations (and another) were not improper because they did not single out the defense attorney, and the judge admonished the jury to disregard another quote directly accusing the defense attorney of lying. We do not take this approval as a green light for counsel to use these quotations — or similar ones — as a matter of routine argument. Nevertheless, we find any error nonprejudicial.
D
Defendant cites several more of the prosecutors comments: "I guess thats where we lose the war on drugs . . . one of the battles is the war on drugs is occurring . . . [and] that battles won today . . ."; the jury should not be swayed by "empty rhetoric"; and the defense is an "insult."
As noted above, referring to defense counsels argument as empty rhetoric or an insult is not impermissible. Defense counsel was deliberately attacking the police investigation and the discrepancies between police witnesses, attempting to argue the existence of reasonable doubt. Further, referring to the police as engaged in a war on drugs is not a "reprehensible" tactic.
Moreover, in evaluating prejudice, "`when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Prieto (2003) 30 Cal.4th 226, 260.) We see no likelihood the jury misconstrued these comments.
Our conclusions, however, should not be read to signify approval of counsels comments. It seems clear in this case that the prosecutor sought to encourage the jurys distrust of lawyers other than himself. All the questioned comments occurred in the prosecutors final argument, after defense counsel had already argued and had no opportunity for rebuttal. While this argument properly offers the prosecution a chance to refute defense challenges to its case, it should not be viewed as a free opportunity to belittle defense counsel. Some rhetorical devices used in rebuttal arguments may be attributed to zealous advocacy and hyperbole. However, when an attorney comes prepared with quotations designed to attack the credibility of lawyers, he or she is fanning the flames of prejudice and encouraging public distrust of fellow officers of the court.
III
Laboratory Fee Penalty Assessment
We note an error requiring correction. Although the trial court imposed the drug laboratory fee of $50, as required by Health and Safety Code section 11372.5, it failed to impose the mandatory penalty assessments under Penal Code section 1464 and Government Code section 76000, subdivision (a), a $50 state penalty assessment (Pen. Code, § 1464, subd. (a)), and a $35 county penalty assessment (Gov. Code, § 76000). The trial courts failure to impose the mandatory fee and assessments is an unauthorized sentence that we must correct on appeal even though the issue was not raised by the parties in the trial court or on appeal. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.)
DISPOSITION
The judgment is modified to include a penalty assessment of $ 50 under Penal Code section 1464, and a penalty assessment of $35 under Government Code section 76000. The superior court shall prepare a modified abstract of judgment reflecting these changes and forward a copy to the Department of Corrections. As modified, the judgment is affirmed.
We concur, SCOTLAND, P.J. and HULL, J.