(Alameda County Super. Ct. No. H-43194-A). Trial Judge: Honorable Roy Hashimoto.
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
There is a tactic of advocacy, universally condemned across the nation, commonly known as "The Golden Rule" argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim's position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970 and decisions cited.)
A jury found defendant Andrew James Vance guilty of first degree murder, without special circumstances, following which he was sentenced to state prison for the term prescribed by law. He contends he is entitled to reversal by reason of: (1) numerous instances of misconduct by the prosecutor; (2) erroneous admission of a post-arrest confession elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436; and (3) the jury improperly learning that he had been incarcerated in San Quentin. We conclude that the prosecutor made a sustained Golden Rule closing argument so blatant that it alone requires reversal, particularly when conjoined with improper references to what was in plain effect victim impact evidence, and a snide and utterly unwarranted attack on defense counsel's valiant attempts to halt the flood of misconduct. An unfortunate factor in aggravation was the trial court's refusal to give the admonition requested by the defense. Given the peculiar balance of the sole evidentiary point submitted to the jury--defendant's intent--we conclude the misconduct qualifies as prejudicial, requiring reversal.
In light of this conclusion, all but one of defendant's remaining contentions need not be addressed because they involve matters unlikely to recur at a retrial. The one contention we do address is defendant's claim of Miranda error, which we conclude is without merit.
Except in one particular, the jury was not presented with material conflicts in the evidence, only the strength of the incriminating conclusion to be drawn from the largely undisputed testimony and trial exhibits.
It appears accepted that the victim, Dipak (Deuce) Prasad, died on June 2, 2006.*fn1 It further seems that it all began with Prasad telling defendant's girlfriend, Jennifer Delong, that he, defendant, was sleeping with another woman. Delong confronted defendant with this report, and its source, and left town, much to defendant's distress.
On the afternoon of June 2, defendant confronted Prasad about what he, Prasad, had told Delong. Prasad thought what he told defendant had defused defendant's anger. The two thereafter spent several hours getting and consuming methamphetamine, all the while Prasad unaware that defendant was bent on revenge.
Defendant intended to teach Prasad a lesson with a beating. His friend Kevin West agreed to assist.*fn2 Defendant and Prasad met up with West, and, with Prasad driving his Lexus, they then went to Ronnie Pedrosa's auto shop. Pedrosa, who had been in prison with defendant and West, had also agreed to help with the beating of Prasad. They all ingested some methamphetamine provided by Prasad. Pedrosa had to beg off participating in the beating because he had to take care of a friend's children.*fn3 Before the group left, and without telling either West or Pedrosa, defendant took some black plastic "zip ties" from Pedrosa's shop.*fn4
Prasad drove defendant and West in Prasad's Lexus to a friend's house, where they had more methamphetamine. They then drove to Palomares Canyon, looking for an address where defendant said they could get more methamphetamine. Palomares Canyon is located in an area that is not densely populated, and only poorly and intermittently lighted.*fn5 The canyon has a creek at its bottom, approximately 75 feet down a steep incline from Palomares Road. It was about midnight.
Stopping in a driveway, the three got out of the Lexus. Defendant then put Prasad in a choke hold and rode him down to the ground; this occurred in a period West estimated as 30 to 90 seconds. According to West, Prasad "went limp" and began making snoring sounds. According to both West and defendant, neither of them ever kicked or punched Prasad, or hit him with any kind of object.
West testified that he and defendant then bound Prasad's hands and feet, West using a shoelace from one of Prasad's shoes to "tie up" his legs; they then put him in the trunk of the Lexus. Before Prasad was put in the trunk, West heard the sound of adhesive tape being unrolled. Defendant and West drove a short way to a more isolated part of the canyon. According to West--who described Prasad as being unconscious but still snoring--he and defendant threw him down the embankment of the canyon. Defendant followed this by throwing Prasad's shoe, presumably the one from which the lace had been removed, down the embankment.
Defendant testified that he put Prasad in a headlock for 20 to 30 seconds. He did not intend to actually choke Prasad, only "to restrain him . . . [¶] so Kevin could tie him up." "It was just [a] spur of the moment" decision. Defendant did not know that a choke hold could be life-threatening. Defendant let go of Prasad when "he wasn't resisting anymore" and "started to . . . breathe funny," emitting "like a snoring sound." Defendant thought "I just rendered him unconscious," and Prasad "just passed out," because he was breathing and making the snoring sounds.
Defendant's version was that his plan was not to take Prasad into Palomares Canyon to kill him, just to beat him up, and then "leave him there, teach him a lesson," and take his car. According to defendant, West was the only one who took tape--black electrical tape--into Palomares Canyon, and the only one who did any binding of Prasad's hands and feet; it was West who fastened the zip ties on Prasad's hands, put his hands behind his back, and pinioned Prasad's feet with "black electrical tape and [a] shoelace." Defendant kept hold of Prasad, whose body was "wiggling a little bit." When he and West took Prasad out of the trunk of the Lexus, Prasad was not moving, but he was "still breathing" and "still snoring." "Then we . . . placed him on the side of the road." Prasad was not thrown into the ravine. And it was West who threw Prasad's shoe into the ravine.
Defendant and West then returned to Pedrosa's shop in Prasad's Lexus. According to West, defendant asked if Pedrosa "had any tools for digging," and whether he knew anyone who might want to buy the Lexus. Defendant told Pedrosa that he had "choked him [Prasad] out" and then "threw him off the cliff." Pedrosa was not sure if defendant was serious or merely bragging. Defendant later told Delong the same thing. Defendant denied making any statement about tools. He did tell Pedrosa and Delong that he had thrown Prasad over the cliff, but he also told them that Prasad was alive when he was left in Palomares Canyon.
According to Pedrosa, a day or two later, he and defendant were driving in Palomares Canyon, and at one point defendant said something to the effect that he wondered whether Prasad "would climb back up from where [defendant] threw him off." Defendant drove the Lexus for several days, and later sold it in Fresno. Although Delong initially did not believe defendant's statement of what he did to Prasad, she came to believe it when defendant sold the Lexus, and after she received a telephone call from Prasad's sister trying to locate him. That same call apparently started defendant thinking that Prasad "might not be alive anymore" because "it's been so many days and he has not turned up." At that point defendant "was thinking that he might be deceased."
Things started unraveling on June 12, when Pedrosa was arrested for a parole violation, and he raised the subject of Prasad's situation in hope of receiving "some consideration." Under police guidance, Pedrosa made a number of recorded telephone calls to defendant in which defendant indicated awareness that Prasad's body was still in Palomares Canyon, and that the restraining zip ties should be removed.*fn6 Pedrosa also arranged a meeting with defendant at which defendant was arrested.
Prasad's body was found partially submerged in the creek of Palomares Canyon, with his hands tied behind his back "in an unnatural position" with black plastic zip ties. Both tennis shoes and socks were found nearby. A shoelace from one of the shoes was found attached to duct tape.
Due to decomposition and/or animal mutilation, forensic pathologist Dr. Thomas Rogers testified that the cause of death could not be pinpointed. The autopsy revealed no signs of bone fractures or blunt force trauma on the body. Dr. Rogers further testified a person can die of asphyxiation from a choke hold minutes after being released, and during this period the victim may appear unconscious or make noises such as wheezing, gasping, or snoring. Moreover, the duration of a choke hold resulting in death "can be just a few seconds or it can be upwards to minutes."
Defendant and West were arrested on June 13. The next day, defendant gave a lengthy statement to detectives Norton and Kelly, and a then a shorter statement to an assistant district attorney. In his statement, and in his testimony at trial, defendant admitted that he was angry at Prasad because of what Prasad had told his girlfriend; that what Prasad said was true, even if motivated by sexual jealousy; that he did put a choke hold on Prasad; that Prasad was alive when he and West left, and he had no intent to cause Prasad's death; and that he and West left Prasad by the side of the road, and did not throw him down the embankment.
In closing argument, defendant's counsel argued that, because of a learning disability and his drug consumption, defendant was guilty of manslaughter or, at most, second degree murder.*fn7
The Prosecutor Committed Misconduct In Arguing That The Jury Should "Walk In [The Victim's]Shoes" And "Relive . . . What [The Victim] Experienced"
" 'It is, of course, improper to make arguments to the jury that give it the impression that "emotion may reign over reason," and to present "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response." [Citation.]' " (People v. Redd (2010) 48 Cal.4th 691, 742.) "It has long been settled that appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial." (People v. Fields (1983) 35 Cal.3d 329, 362.)
Our Supreme Court has never departed from the opinion that "During the guilt phase of a capital trial, it is misconduct for a prosecutor to appeal to the passions of the jurors by urging them to imagine the suffering of the victim. 'We have settled that an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt.' " (People v. Jackson (2009) 45 Cal.4th 662, 691, quoting People v. Stansbury (1993) 4 Cal.4th 1017, 1057; accord, e.g., People v. Mendoza (2007) 42 Cal.4th 686, 704; People v. Leonard (2007) 40 Cal.4th 1370, 1406; People v. Arias (1996) 13 Cal.4th 92, 160; People v. Pensinger (1991) 52 Cal.3d 1210, 1250; see People v. Millwee (1998) 18 Cal.4th 96, 137.) Although all of the Supreme Court decisions just cited are death penalty cases, Golden Rule arguments are just as improper in non-capital cases. (See People v. Lopez, supra, 42 Cal.4th 960 [defendant charged with sex crimes against minors]; People v. Simington (1993) 19 Cal.App.4th 1374 [attempted murder].)*fn8
It is equally established that is misconduct for a prosecutor to argue that the jury in a non-capital case--or in the guilt phase of a capital case--should consider the impact of the crime on the victim's family. (E.g., People v. Jackson, supra, 45 Cal.4th 662, 691-692; People v. Salcido (2008) 44 Cal.4th 93, 151-152; People v. Taylor (2001) 26 Cal.4th 1155, 1171.) The justification for both of these exclusionary policies is that they deal with subjects that are inherently emotional, possessing an unusually potent power to sway juries, and that their use must therefore be rigidly confined and controlled: "[P]enalty trials are different from guilt trials. Emotional appeals are allowed, and evidence that arouses emotions, including evidence of the suffering of the victims and their families, is generally admissible." (People v. Smith (2005) 35 Cal.4th 334, 364.)
Defendant contends that both of these principles were violated by the prosecutor's closing argument. The details are as follows:
The prosecutor opened her remarks by summarizing for the jury why the evidence showed that defendant was guilty of "a killing" that "was intentional" and "done with malice aforethought." She then examined the concepts of murder and manslaughter on which the jury would be instructed. The prosecutor then commenced a lengthy examination of the trial evidence to persuade the jury that defendant was guilty of first degree murder and, failing that, he was "at least guilty of second degree murder." The following then occurred:
"In order for you as jurors to do your job, you have to walk in Dipak Prasad's shoes. You have to literally relive in your mind's eye and in your feelings what Dipak experienced the night he was murdered. You have to do that. You have to do that in order to get a sense of what he went through. Can you imagine thinking about just hanging out with your friends, people who you think are your friends, driving them around in your car from place to place. Being told to drive to Palomares, thinking you're going for one reason, being completely unaware that there's another plan. Being told to turn into a dark driveway, no cars in sight. Being told to turn off your car engine, the lights, the music. Getting out of your car with the two people you thought up to that point were your friends, the one you just had met that night and the one you have been with before. And then suddenly, without warning, being jumped, being put into a choke hold, taken down to the ground and choked out. You're trying to gasp for air but the pressure from the choke hold doesn't let up. You don't know what's going on and at first you think it's a nightmare.
"We all on one occasion or another have experienced the sense of what it's like to be suffocated to a lesser degree, maybe when we've swallowed some water or beverage and it's gone down the wrong way. Maybe you were held underwater too long while swimming or playing in water as a child. Maybe we suffer from asthma or some other respiratory problem. Maybe we've had the wind knocked out of ourselves before. There's nothing more terrifying than a feeling of not being able to breathe. You're totally trapped. Trapped in darkness without the ability to breathe--
"Mr. Mann: I object to this, this is improper argument, based on the facts of the evidence in this case.
"The Court: Sustained. Proceed, Counsel.
"Ms. Ynostroza: You don't know what's going on. How long are you conscious in this situation? When do you know to fight? When do you get to fight? What are you thinking to yourself at that time, what did I do, why me. This hurts.
"Mr. Mann: Objection, same objection, your Honor.
"Ms. Ynostroza: Defense is objecting because the defense believes that I'm painting too graphic a picture.
"Mr. Mann: Objection, your Honor, improper argument.
"The Court: Sustained. Counsel, proceed.
"Ms. Ynostroza: What I am describing to you is what happened in the last moments of Dipak's life, what the evidence shows at the end of Dipak's life, not what I want to say happened, what the evidence has shown happened.
"Your job as jurors is to determine how bad this murder was. You must decide what exists beyond the elements of murder and part of that is the pain and suffering of Dipak.
"Mr. Mann: Objection, pain and suffering of the victim is irrelevant and what he was feeling ...