People v. Young

Full title: THE PEOPLE, Plaintiff and Respondent, v. DETRESE MONJAI YOUNG, Defendant…

Court: California Court of Appeals, Fifth District

Date published: Mar 25, 2009

No. F054367 (Cal. Ct. App. Mar. 25, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County No. 07CM2310. David L. Allen, Judge.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Gomes, J.

After a jury found Detrese Monjai Young guilty of carjacking, he admitted an allegation of a prison term prior for possession of a controlled substance, and the trial court imposed an aggregate six-year sentence (the five-year midterm for the carjacking plus a one-year enhancement for the prison term prior). (Pen. Code, §§ 215, subds. (a), (b), 667.5, subd. (b); Health & Saf. Code, § 11377, subd. (a).) On appeal, he argues prosecutorial misconduct, ineffective assistance of counsel, instructional error, and cumulative error. We will affirm the judgment.

BACKGROUND

On July 8, 2007, a man Sal Rene Orosco knew only as Mike was driving him around Hanford in Orosco’s SUV along with a man Orosco knew only as Chavez. Sometime around noon, Mike parked the SUV in front of a house on the south side of Hanford, took the keys, and walked inside, leaving Orosco in the front passenger seat and Chavez in the seat behind him. After Orosco heard yelling inside the house, Chavez got out of the SUV and walked inside. After Orosco heard more yelling inside the house, Mike opened the door of the house and told him to stay inside the SUV. Through the open door, Orosco saw someone push or slap Chavez’s torso.

After hearing people arguing and yelling inside the house for awhile longer, Orosco saw a heavyset African-American man park a white car behind the SUV, walk inside the house, and emerge later with a skinny African-American man. The heavyset man got into the back seat of the SUV, held Orosco by the chest and shoulders, and told him to stay still, while the skinny man got into the driver’s seat, put the key into the ignition, and drove away. After he drove around the corner, he stopped and told Orosco to get out. Orosco jumped out, ran down the street to the nearest house, and called 911. He told responding officers the two men beat Mike and Chavez before getting into, telling him to get out of, and driving off in, the SUV.

Later that afternoon, one of the officers received a call from dispatch informing her Orosco’s satellite tracking system had located the SUV at an address on the southwest side of Hanford. After the officer advised dispatch she could not see the SUV at that address, the satellite tracking system activated the SUV’s alarm, which she heard from behind a garage door. As she approached the house, Jamica Lewis walked outside and identified Young, her cousin, as “one of the people involved.” About 30 minutes earlier, Young had asked her if he could put the SUV in her garage. She had asked him if the car was stolen. He had said no. After she had opened the garage door for him, he had put the SUV inside and had left in a hurry with a skinny African-American man she did not know.

The officer prepared a six pack – a lineup of six photos of people similar in color and race so nothing set one person apart from the others – with Young as the person in one of the photos. Before showing the six pack to Orosco, she advised him the people in the photos may or may not have been involved in the incident. Orosco identified a photo of Young as showing a person involved in the incident. At trial, the parties stipulated Young was the person in the photo Orosco identified.

ISSUES

On appeal, Young argues (1) an officer’s reference to him by inmate number in reply to a question by the prosecutor was prosecutorial misconduct, (2) his trial attorney’s failure to object to an officer’s reference to him by inmate number and failure to request an accomplice credibility instruction were ineffective assistance of counsel, (3) the trial court’s failure to instruct sua sponte on accomplice credibility was instructional error, and (4) prosecutorial misconduct, ineffective assistance of counsel, and instructional error together were cumulatively prejudicial.

DISCUSSION

1. Evidence of Inmate Number

Young argues an officer’s reference to him by inmate number in reply to a question by the prosecutor was prosecutorial misconduct. The Attorney General argues Young forfeited his right to appellate review by failing to make a contemporaneous objection, the prosecutor’s comment was not prosecutorial misconduct, and error, if any, was harmless.

Before trial, Young waived his right to jury trial on the allegation of the prison term prior. The trial court stated, “[T]his is not to be mentioned to the jury that Mr. Young has this prior.” (Italics added.) At trial, the officer who prepared the six pack testified the top page contained six color photos, under one of which (number four) Orosco had written his initials, and the bottom page contained the identity information of the people in each of the six photos. The prosecutor asked the officer, “Could you please read what number four says?” The officer replied, “Inmate number 1015, last name Young, first name Detrese, Middle initial Monjai, social security number.” The record shows no objection and no request for a curative admonition. The parties later stipulated Young was the person in the photo Orosco identified.

To preserve the right to appellate review of a prosecutorial misconduct claim, the defendant must make a timely objection, unless a timely objection would be futile, and, if practicable, must request a curative admonition. Otherwise, the lack of a timely objection denies the trial court the opportunity to consider the claim and denies the defendant the right to appellate review of the claim. (People v. Noguera (1992) 4 Cal.4th 599, 638.) If Young had made a timely objection, the trial court could have admonished the jury to disregard the “Inmate number 1015” part of the officer’s testimony.

In People v. Valdez (2004) 32 Cal.4th 73 (Valdez), the prosecutor asked a detective how he managed to get the defendant’s photo into a photo lineup. (Id. at p. 123.) The detective testified he “went to the jail and found a mug photo and put it in this mug photo lineup.” (Ibid.) With no defense objection in the record, the Supreme Court opined that the detective’s “fleeting reference to ‘jail’ was not ‘so outrageous or inherently prejudicial that an admonition could not have cured it.’” (Ibid., quoting People v. Dennis (1999) 17 Cal.4th 468, 521.) Here, the same is true of the officer’s fleeting reference to “Inmate number 1015.” Like the defendant in Valdez, Young forfeited his right to appellate review of the prosecutorial misconduct claim. (See Valdez, supra, 32 Cal.4th at p. 123.)

Even if there were no forfeiture, the record fails to show prosecutorial misconduct. The record shows the goal of the prosecutor’s direct examination of the officer was to connect Young’s photo (on the top page of the six pack) with his name (on the bottom page of the six pack) to show Orosco identified him as a person involved in taking the SUV. In that context, the prosecutor’s question, “Could you please read what number four says?,” does not necessarily seek testimony about the words “Inmate number 1015.” Perhaps the prosecutor never knew those words were there. Or perhaps she knew those words were there and asked the officer to omit those words from her testimony but in the heat of trial the officer forgot. Or perhaps the prosecutor thought the trial court’s pretrial ruling about Young’s prior did not preclude the officer from reading “Inmate number 1015” since those words did not necessarily implicate him in either a prior crime or a prior conviction. In short, no evidence of prosecutorial misconduct is in the record.

2. Ineffective Assistance of Counsel

Young argues his trial attorney’s failure to object to an officer’s reference to him by inmate number and failure to request an accomplice credibility instruction were ineffective assistance of counsel. The Attorney General argues the contrary.

By guaranteeing “access to counsel’s skill and knowledge” and an “‘ample opportunity to meet the case of the prosecution,’” the right to counsel protects the due process right to a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 684-686; People v. Ledesma (1987) 43 Cal.3d 171, 215.) A meritorious claim of ineffective assistance requires a showing not only of a trial attorney’s performance “below an objective standard of reasonableness” but also of prejudice to the defense. (People v. Hart (1999) 20 Cal.4th 546, 623.)

With reference to the evidentiary aspect of his ineffective assistance argument, Young contends his trial attorney’s failure to object was “clearly prejudicial” since the officer’s reference to him by inmate number “improperly informed” the jury he had a “criminal record.” Quite to the contrary, the words “Inmate number 1015” did not necessarily implicate him in either a prior crime or a prior conviction. (Ante, part 1.) For all the jury knew, his inmate number could have come from a brief county jail stay on a misdemeanor arrest that never led to even a formal charge, let alone a criminal record.

Additionally, Young argues the trial court “expressly ruled that such information should not be disclosed to the jury.” The record belies his argument. The trial court’s ruling expressly prohibited mention to the jury of his prior, not of his inmate identification number on the second page of the six pack. (Ante, part 1.)

Finally, Young argues his trial attorney should have objected since the record showed no “tactical reason for failing to object.” Whether to object to inadmissible evidence is a tactical decision. (People v. Williams (1997) 16 Cal.4th 153, 215.) Since an admonition could have cured the prejudice, if any, of the officer’s fleeting reference to his inmate identification number (ante, part 1), the best-case scenario, had she objected, was an admonition, not a mistrial. So a tactical decision not to object so as not to draw the jury’s attention to that scrap of evidence is not only reasonably inferable but also perfectly plausible. A defendant has a duty to show the lack of an objection was not due to a tactical decision a reasonably competent and experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) An attorney may choose not to object for many reasons, and failure to object rarely establishes ineffective assistance of counsel. (People v. Avena (1996) 13 Cal.4th 394, 421.) That is so here. Our role is not to second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1212.)

With reference to the instructional aspect of his ineffective assistance argument, Young’s premise is that Jamica Lewis “was awaiting sentence on the same offense,” but his citations to the record show only that she was “a co-defendant” who “entered a guilty plea” and was “pending sentencing,” not that she was his accomplice. Elsewhere, the record shows the prosecutor represented to the trial court Lewis pled guilty to “something connected with this incident.” The probation officer’s report shows she was arrested for receiving stolen property, not carjacking.

In short, Young fails to show Lewis was his accomplice, and her testimony, like other portions of the record, show the contrary. The law neither does nor requires idle acts. (Civ. Code, § 3532.) An attorney has no duty to make a futile request, and the absence of one from the record does not show ineffective assistance. (See People v. Anderson (2001) 25 Cal.4th 543, 587.)

3. Instructional Error

Young argues the trial court’s failure to instruct sua sponte on accomplice credibility was instructional error. The Attorney General argues no sua sponte duty arose since the law of accomplice credibility was inapplicable and error, if any, was harmless. We agree with the Attorney General. Young fails to show Jamica Lewis was his accomplice (ante, part 2), so ipso facto he fails to show the trial court had a sua sponte duty to instruct on accomplice credibility.

4. Cumulative Prejudice

Young argues prosecutorial misconduct, ineffective assistance of counsel, and instructional error together were cumulatively prejudicial. The Attorney General argues the contrary. Again we agree with the Attorney General. Young fails to persuade us any error occurred, so his cumulative error argument is meritless. (People v. Heard (2003) 31 Cal.4th 946, 982.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: Ardaiz, P.J. Levy, J.