IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KYLE HYATT WASHINGTON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F08204)
The opinion of the court was delivered by: Hull , J.
P. v. Washington
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was convicted by a jury of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and the court found he had previously been convicted of a serious felony within the meaning of the three strikes law (id., §§ 667, subds. (b)-(i), and 1170.12). Sentenced to an aggregate state prison term of 16 years, defendant appeals, contending the prosecutor committed misconduct during her questioning of one witness and her rebuttal argument to the jury. We disagree and affirm the judgment.
Facts and Proceedings
At approximately 7:00 p.m. on the evening of November 5, 2009, K.N. was working as a security guard at the Madison Square Shopping Center, near the corner of Madison and Manzanita in Carmichael. While on patrol in the parking lot, he spotted a white male trying to steal a Home Depot shopping cart and asked him to put it back. The man refused to do so but eventually allowed K.N. to take the cart.
Soon thereafter, K.N. observed the white male with a black male, later identified as defendant, outside Garcia's Restaurant in the same shopping center. They were talking and drinking from open containers of alcoholic beverages. A second white male on a mountain bike joined them a little later. K.N. told the men they are not permitted to drink alcoholic beverages in the shopping center lot and that they had to leave. The men got "pissed off" and the first white male said: "You're a [sic] just a rent-a-cop. Get out of here." Both the first white male and defendant threatened K.N. K.N. told them they had five minutes to clear out and resumed his patrol of the parking lot.
Approximately five minutes later, K.N. returned and saw that the men were walking away from Garcia's. However, instead of leaving the lot altogether, they went to a nearby Carl's Junior Restaurant. K.N. approached them at Carl's Junior and saw that they were still drinking. He again told them they could not have open containers of alcoholic beverages in the area. The men responded, "Oh, you're not going to stop us" and "We are going to continue drinking here and fuck you." Defendant continued to drink and said he was going to "kick [K.N.'s] ass or something like that." The first white male threw an open soda can that hit K.N. and spilled soda on him.
The three men began walking toward K.N., who backed away. The first white male threw an open can of beer at K.N., hitting and spilling beer on him. The men circled around K.N., who pulled out a can of pepper spray for protection. The second white male got on his bike and rode around K.N. saying he was going to "fuck [him] up."
The first white male spit on K.N.'s face and jacket, and K.N. sprayed him with pepper spray. At that point, defendant, who had been behind the first white male, attacked K.N., hitting him repeatedly on the right shoulder. K.N. sprayed defendant twice, for a total of six seconds. However, this seemed to have no effect except to enrage defendant. The last time defendant hit him in the shoulder, K.N. realized he had been stabbed. He saw blood on his shoulder and a knife with a three- to four-inch blade in defendant's hand. K.N. backed away and the three men fled the area.
At the time of the attack, defendant was separated from his wife, R.W., and was homeless. Defendant had informed R.W. he was staying behind a liquor store near the intersection of Madison and Manzanita. R.W. had obtained a restraining order against defendant.
At approximately 9:00 p.m. that evening, R.W. was working at a restaurant at 5100 Auburn Boulevard, less than a mile from where the attack on K.N. occurred. R.W. was in the back of the restaurant when she observed defendant about 100 yards away. Defendant was beckoning her to come over to him but she refused. Defendant then approached her at the restaurant. They spoke for a while and defendant appeared agitated and nervous. He tried to hug R.W. but she pushed him away. A little later, R.W. touched her face with the hand she had used to push defendant away and her face began to burn. She immediately ran inside and washed her face.
Defendant continued to hang around the restaurant and at one point tried to force his way inside. At that point, R.W. called the police. At approximately 11:00 p.m., Deputy Brian Painter received a call about a domestic disturbance at R.W.'s restaurant and proceeded to that location. He observed defendant walking northbound on Auburn Boulevard just north of the restaurant and followed him into a parking lot. Painter activated the spotlight on his patrol car, parked the car, got out and told defendant to stop. Defendant did as directed. However, when the deputy told defendant to come over to him, defendant instead turned and ran.
Painter followed defendant for a while, but when other officers arrived on the scene, he went back to his patrol car. Officers eventually found defendant hiding in an apartment complex nearby and arrested him.
Defendant was charged with one count of assault with a deadly weapon and with a prior serious felony conviction. A jury convicted him of the assault charge and found true an allegation that defendant inflicted great bodily injury on the victim. After defendant waived a jury trial on the alleged prior, the court found it true. The court thereafter denied defendant's motion to strike the prior.
Defendant was sentenced to the upper term of four years on the assault charge, doubled to eight under the three strikes law. The court also imposed an enhancement of three years for infliction of great bodily injury and a further enhancement of five years for the prior serious felony conviction, for a total of 16 years.
Defendant contends the prosecutor engaged in misconduct, both during questioning of one of the witnesses and during rebuttal argument, in suggesting that defense counsel and defense investigators had violated the law when interviewing witnesses. Defendant argues the prosecutor thereby unfairly sought to minimize any uncertainty in the witnesses' identification of him as the perpetrator.
The prosecution has a solemn obligation to protect a criminal defendant's constitutional right to a fair trial. (Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321].) "Improper remarks by a prosecutor can '"so infect the trial with unfairness as to make the resulting conviction a denial of due process."'" (People v. Frye (1998) 18 Cal.4th 894, 969, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
"[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (People v. Bemore (2000) 22 Cal.4th 809, 846.) "An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper." (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) However, "[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 defendant's 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.' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 832.)
One of the witnesses to the assault was T.B., who had driven into the parking lot that evening, noticed a security guard being assaulted by three people, jumped out of his vehicle and proceeded in that direction to lend assistance to the guard. However, before T.B. could intervene, the guard pulled out pepper spray and started spraying sporadically. T.B. backed away. Twenty to 30 seconds later, T.B. saw the attackers run off.
When asked at trial whether he sees anyone who was involved in the scuffle in court, T.B. answered, "I think so, yes" and then identified defendant. T.B. testified he made eye contact with defendant from a distance of 10 to 15 feet as defendant and the others were leaving the area.
T.B. was then asked about being questioned by a defense investigator. He indicated a woman called him and he had difficulty understanding her because of her "strong Asian accent." T.B. testified that at some point during that conversation, he asked, "Well, who are you with again?" and the woman said she was representing defendant. The testimony then continued:
"Q. And at any point in time did the investigator tell you that you had a right to speak to her or you had a right to refuse to speak with her?
"MR. VALDEZ [defense counsel]: I don't see the relevance of any of this line of questioning.
"THE COURT: Overruled.
"You can answer.
"THE WITNESS: No. He [sic] did not advise me of anything."
During defense counsel's argument to the jury, he suggested that T.B. should not be believed because he was "a little overzealous, good Samaritan, wants to get the so-called bad guy." During rebuttal argument, the prosecutor responded to this argument as follows:
"Let's talk about [T.B.] Overzealous? Oh, he--he clearly doesn't want to help the defense. Every witness when they're being asked questions either by the district attorney's office or by defense has a right to be informed; who are you working with? [¶] They have the right to know that you do not need to speak with either party. They have the right to have all that information so that they can make the decision as to who they do and don't want to talk to because that's their right as witnesses. [¶] If the defense investigator did that, played by those rules which we all know [as] attorneys exist where is the investigator? [¶] Why doesn't the investigator come in and say, 'No, I said all that.' Maybe that would lend a little bit more credibility to the fact that [T.B.] really is just a [sic] overzealous Prosecution witness. [¶] But that evidence isn't before you. It doesn't exist. So all Mr. Valdez wants you to do is speculate that [T.B.] is an overzealous witness because he doesn't know how else to attack this witness because he was a solid witness."
Defendant contends the prosecutor's question to T.B. about whether the defense investigator informed him he did not have to talk with her and the prosecutor's rebuttal argument regarding the defense investigator's failure to do so was misconduct as it suggested to the jury that defense counsel "had acted in an underhanded and unethical manner." Defendant cites Penal Code section 1054.8, subdivision (a), which states: "No prosecuting attorney, attorney for the defendant, or investigator for either the prosecution or the defendant shall interview, question, or speak to a victim or witness whose name has been disclosed by the opposing party pursuant to Section 1054.1 or 1054.3 without first clearly identifying himself or herself, identifying the full name of the agency by whom he or she is employed, and identifying whether he or she represents, or has been retained by, the prosecution or the defendant. . . . " Defendant argues there is no comparable obligation to inform a victim or witness that he or she need not speak with the attorney or investigator.
The People contend defendant failed to object to the prosecutor's argument and, therefore, his misconduct claim has been forfeited. We agree.
"As a general rule 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." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if '"an admonition would not have cured the harm caused by the misconduct."' [Citations.]" (People v. Hill, supra, 17 Cal.4th at p. 820.)
Although defendant did object to the prosecutor's question to T.B. about whether he was informed by the defense investigator that he did not have to speak with her, that objection was to the relevance of "any of this line of questioning." Thus, defendant did not object to the specific question as somehow improper but to all of the prosecutor's questions about the defense investigator's interview of T.B. Defendant does not contend the court erred in overruling his relevance objection to the entire line of questioning.
Defendant contends an objection to the prosecutor's rebuttal argument would have been futile in this instance, because of the trial court's ruling on the foregoing objection. However, because that objection was not specific as to the grounds, it cannot form the basis of a futility argument. On this record, there is no reason to believe a specific and timely objection would have been futile and would not have cured any possible prejudice to defendant.
Defendant contends that, to the extent the issue has been forfeited, he received ineffective assistance of counsel. Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23 Cal.3d 412, 422.) This right "entitles the defendant not to some bare assistance but rather to effective assistance." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) "To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.)
Defendant makes no attempt here to explain how his counsel's failure to object fell below the standard of a reasonably competent attorney under the circumstances. "Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight." (People v. Kelly (1992) 1 Cal.4th 495, 520.) "A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (Ibid.) "[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal." (People v. Frierson (1991) 53 Cal.3d 730, 749.) On this record, it cannot be determined whether counsel's failure to object may have been a tactical decision. Thus, defendant has failed to establish ineffective assistance.
The judgment is affirmed.
We concur: RAYE , P. J. DUARTE , J.
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