People v. Smith CA2/1 ( 2023 )

Filed 3/1/23 P. v. Smith CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B316904
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA497252)
v.
FRANK LEE SMITH, III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig J. Mitchell, Judge. Affirmed.
William Paul Melcher, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________
Defendant Frank Lee Smith III was convicted after a jury
trial for inflicting injury on a cohabitant, namely his girlfriend
Laura G.,1 and for violating a prior domestic violence restraining
order protecting Laura. Defendant now appeals, arguing
prejudicial error in the prosecutor’s closing argument requires
reversal of his conviction on the corporal injury count. We
disagree and affirm.
FACTUAL BACKGROUND
Defendant was in a relationship with Laura for several
years and was the father of her child. Their relationship included
several incidents of domestic violence.
A. January 2020 Domestic Violence Incidents
In January 2020, Laura applied for a domestic violence
restraining order. In support of that request, she declared in her
court filing that defendant was controlling and verbally abusive;
she also declared that she was scared of him.2
Later in January 2020, Los Angeles County Sheriff’s
Deputy Joshua Munoz responded to a call and upon arrival found
defendant and Laura. Laura had redness on her cheek and neck
area in the shape of a handprint. When Deputy Munoz
attempted to speak with Laura, defendant shouted “Tell him
nothing happened, baby.” Defendant kept trying to speak to
Laura, so Deputy Munoz had the two of them separated.
1 We refer to Laura by her first name only pursuant to the
guidance of California Rules of Court, rule 8.90(b)(4), and not out
of any disrespect.
2 At the criminal trial, Laura recanted these statements
and claimed she wrote them only because the people helping her
fill out the restraining order paperwork told her to do so.
2
When Laura was outside defendant’s presence, she told
Deputy Munoz that defendant and Laura were driving. They
began arguing and pulled over. Laura got out of the car because
she was nervous defendant would become violent based on past
domestic abuse. As Laura walked away from the vehicle,
defendant followed her. Defendant yelled at Laura to get back in
the car; Laura was scared and complied. Once in the car,
defendant grabbed Laura by her face.
Deputy Munoz ran defendant’s information, learned Laura
had a restraining order protecting her from defendant, and
arrested defendant. On February 14, 2020, defendant pled no
contest to a series of charges. The court granted defendant
probation and issued a criminal protective order directing him
not to contact Laura (case No. TA151278).
Defendant and Laura nevertheless continued to see each
other. Defendant told Laura there was a restraining order
prohibiting him from contacting her, and both he and Laura
discussed trying to have it undone.
B. The July 2021 Domestic Violence Incident
On July 22, 2021, defendant and Laura were observed
arguing at a motel in Los Angeles. A resident of the motel,
Casandra E., saw defendant try to grab Laura’s phone. Casandra
saw defendant grab Laura and hit her head against the wall
sufficiently hard that Laura’s head bounced off the wall. The
motel also had a security camera, and video was taken that
captured the assault.
Laura walked towards the motel lobby, and defendant
followed her. Casandra called 911 after Laura reached the lobby
and could be heard screaming. Los Angeles Police Department
Officer Adrian Garcilazo responded to the call. After police
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observed the surveillance video, they detained and questioned
defendant. Defendant told Officer Garcilazo his girlfriend’s name
was “Clair.” Defendant said that he had just come outside to
walk with his baby (who defendant had with him in a stroller)
and did not know what was going on. Officer Garcilazo asked
defendant for the telephone number of the child’s mother because
he planned to arrest defendant and needed someone to take
custody of the child. After defendant provided the requested
number, the officer called and advised the woman who answered
that she needed to come and pick up the child.
Laura arrived soon thereafter to take custody of the child.
Officer Garcilazo observed that Laura had red marks on both
sides of her neck; photographs of those injuries were presented to
the jury. The officer opined that the neck injuries were
consistent with someone either being strangled or grabbed by the
throat. Laura initially identified herself to police as “Clair,” and
told officers that she had punched defendant to protect herself.
Laura thereafter did not cooperate with the investigation.
C. Defendant’s Pre-trial Phone Calls with Laura, and
Her Trial Testimony
In an information filed August 20, 2021, defendant was
charged with inflicting injury on a cohabitant, girlfriend, or
child’s parent (§ 273.5, subd. (a); count 1) and violating a
domestic violence court order with a prior conviction for violating
a protective order (§ 166, subd. (c)(4); count 2). As to both counts,
defendant was alleged to have suffered a prior conviction
qualifying as a strike within the meaning of section 667,
subdivisions (b) through (j) and section 1170.12.
Before trial, defendant called Laura from jail; the phone
calls were played for the jury. In the first call, defendant told
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Laura the encounter at the motel “wasn’t that serious,” and
suggested the case would be dropped if “the victim” did not go to
court. He told Laura he was thinking of killing himself and that
he could not stay in prison.
In the next call, defendant told Laura it would not matter
whether she came to court, because authorities had video of the
incident. Laura said that she hoped the video did not work and
would say that she hit him. Defendant said he understood the
video showed him choking Laura, slapping her, and punching
her. Laura responded, “You didn’t even punch me.” Defendant
then equivocated on whether the case might be dropped if Laura
did not come to court. During this phone call, defendant
reiterated that being locked up made him want to kill himself
and also made various comments to Laura about their child,
including that he missed their child, that he was missing seeing
their child grow older, that he wanted to hold their child, and
that their child was his whole world.
In the final call, defendant said he hoped the witness
(Casandra) would not come to court. Defendant repeatedly asked
Laura to talk with Casandra and convince Casandra to not come
to court. He mentioned their child, how he loved the child, and
how he might lose the child because Laura “wasn’t listen[ing] to
me.” Near the end of the call, Laura commented that her throat
was hurting, and defendant responded by encouraging her to
think about how he felt being in jail. Defendant also told Laura
that, during the incident, he was trying to grab her and look at
her.
Laura testified at trial that defendant never harmed her.
With regard to the January 2020 incident, Laura claimed not to
remember what happened, and denied that defendant ever
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grabbed her by the face. With regard to the July 2021 incident,
Laura claimed she started the physical altercation by launching
herself at defendant, pushing him, and taking a swing at him.
Laura said she tried to run away, but defendant caught up to her.
He yelled at her to go back upstairs. She tried to keep him away
from her. At one point she testified that defendant did not grab
or slam her, but instead held her back and pushed her so she
would go back upstairs. At another point, she testified she did
not remember him touching her in the courtyard. Laura said the
same pattern occurred in the lobby; Laura swung at defendant,
and he tried to calm her down.
When shown the surveillance video of her and defendant,
she admitted that defendant did in fact touch her in the
courtyard. Laura claimed the video portrayed her being held by
defendant and told to go upstairs, not slammed against the wall.3
Laura testified she provided officers with a fake name
because she did not want to get in trouble. She testified she told
officers that defendant acted in self-defense, that she could not
remember what happened, and that she was so mad that she
blacked out. Laura explained that she was uncooperative with
law enforcement because she did not want to incriminate herself.
D. Trial and Sentencing
After jury trial, defendant was found guilty on both counts.
The jury also found true the allegation that the violation of the
domestic violence protective order involved violence or a credible
threat of violence. The court thereafter found that defendant
3 Having ourselves reviewed the surveillance video
admitted into evidence, this is not a credible description of what
the video shows.
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suffered a prior strike (§§ 667, subds. (b)-(j), 1170.12) and that he
had violated probation on two outstanding cases.
The court sentenced defendant to four years on count 1,
doubled due to the prior strike to eight years. The court imposed
a concurrent term of two years on count 2, found defendant in
violation of his probation in case No. TA151278, and ordered the
sentence imposed for the probation violation to run concurrently
to the sentence imposed on the current convictions. The court
also found defendant in violation of probation in a third matter
(case No. SA101531) and sentenced him to a consecutive one-year
term in that matter, for an aggregate sentence of nine years. The
court granted defendant 157 days of custody credits and imposed
various fines and fees.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant does not challenge his conviction on count 2
(violating a prior restraining order), or any aspect of either
probation revocation. He argues we should reverse his conviction
on count 1 for inflicting corporal injury because the prosecutor
committed two acts of prejudicial misconduct during closing
argument—the first involving a mention of an unrelated case
involving domestic violence committed by another defendant
against another victim, and the second involving a discussion
regarding strangulation.
These remarks occurred during the closing argument;
defendant makes no claims of misconduct concerning the
prosecutor’s rebuttal argument. While defendant claims these
remarks comprised the “greater portion” of the prosecutor’s
“theme” during closing, the record belies that claim. They
constitute a small portion of a closing argument that spans 23
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pages of transcript (the rebuttal takes up an additional 13 pages),
and were made while arguing two discrete points among many
made during the closing argument. We set forth and address the
challenged remarks below, after first addressing the law
applicable to defendant’s claims.
A. Legal Background and Standard of Review
“A prosecutor is held to a standard higher than that
imposed on other attorneys because of the unique function he or
she performs in representing the interests, and in exercising the
sovereign power, of the state.” (People v. Hill (1998) 17 Cal.4th
800, 820.) “The standards governing review of [prosecutorial]
misconduct claims are settled. ‘A prosecutor who uses deceptive
or reprehensible methods to persuade the jury commits
misconduct, and such actions require reversal under the federal
Constitution when they infect the trial with such “ ‘unfairness as
to make the resulting conviction a denial of due process.’ ”
(Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464,
91 L.Ed.2d 144]; see People v. Cash (2002) 28 Cal.4th 703,
733 . . . .) ‘Under state law, a prosecutor who uses such methods
commits misconduct even when those actions do not result in a
fundamentally unfair trial.’ (People v. Alfaro (2007) 41 Cal.4th
1277, 1328 . . . .) ‘In order to preserve a claim of misconduct, a
defendant must make a timely objection and request an
admonition; only if an admonition would not have cured the harm
is the claim of misconduct preserved for review.’ (Ibid.) When a
claim of misconduct is based on the prosecutor’s comments 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.” ’
[Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 29.) To
8
establish a claim of misconduct, “bad faith on the prosecutor’s
part is not required. ([People v.] Hill[, supra], at pp. 822-823.)
‘[T]he term prosecutorial “misconduct” is somewhat of a
misnomer to the extent that it suggests a prosecutor must act
with a culpable state of mind. A more apt description of the
transgression is prosecutorial error.’ [Citation.]” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667.)
B. The Prosecutor’s Comments About Unrelated
Domestic Violence Matters
1. The Comments at Issue
During his closing argument, the prosecutor characterized
the trial as, in part, “[a]n intervention . . . in someone’s life to
help change behaviors and outcomes” and remarked that
domestic violence cases can be more difficult for juries than for
example a robbery matter because jurors are asked “to intervene
into someone’s personal life.” The prosecutor noted that most
domestic violence goes unreported, and even when it is reported
most cases are dismissed because the perpetrator apologizes and
emotionally manipulates the victim, and many prosecutors “are
too lazy or too incompetent to try these cases when the victim is
not cooperating.” Defense counsel lodged no objection to any of
these comments.
The prosecutor then stated victims or other individuals
typically only cooperate when the perpetrator is the victim’s ex-
partner, or the assault “goes too far” like a shooting or stabbing.
After the comment about victims cooperating against ex-partners,
defense counsel said simply “Objection” without stating any
grounds, and the court responded “This is argument. I will
permit it.”
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The prosecutor then explained that he called Laura to
testify so jurors would have all the evidence. He argued Laura’s
testimony misrepresented what occurred, and the video and
phone calls showed that defendant was controlling Laura through
physical means and emotional manipulation. That emotional
manipulation included remarks about their child, including
defendant’s statements about missing the child while in jail
captured on the recorded phone calls. The prosecutor argued
defendant’s emotional manipulation involving the parties’ child
was one of the primary motivators for Laura testifying as she did.
The prosecutor then mentioned a prior unrelated domestic
violence case he had handled involving a defendant with the last
name Marquez who tortured his victim with hot metal objects,
and how despite that abuse the victim was uncooperative because
she and Marquez had a child in common. The prosecutor noted
the victim later divorced Marquez and got sole custody of their
child, but at the time of his criminal trial “she stood by that man”
despite him burning her arms. The prosecutor ended this
anecdote by noting it illustrated “the strength of emotional
manipulation when you’re dealing with children” before moving
on to discuss other examples of emotional manipulation in the
recorded phone calls and other facts in this case the prosecutor
argued established guilt. The Marquez matter was not further
referenced during closing argument.
Defense counsel did not object to this anecdote at the time
it was made. After the prosecutor’s closing argument concluded,
and before the defense closing argument began, defense counsel
objected at sidebar to the reference to the Marquez matter as
“prosecutor misconduct” and asked for a mistrial. The court
denied the motion, remarking “I think the prosecutor made it
10
very clear that he was distinguishing that case from anything
that happened in this case and that his point was not to inflame
the jury, but to draw attention to the point he was making.” The
prosecutor explained that he referenced the Marquez case to
explain the incentives Laura had to support her abuser, and
indicated the court could issue a limiting instruction to make
sure the jury did not consider the reference for any improper
purpose but that the prosecutor was “not even sure [such an
instruction was] necessary.” After the mistrial request was
denied, defense counsel did not ask for an admonition or limiting
instruction.4
2. The Alleged Comments Were Neither Error nor
Prejudicial
Defendant argues the Marquez anecdote was prejudicial
error because it was based upon facts outside the record and
improperly urged the jury to base its verdict on an emotional
subjective response rather than the evidence. As no objection
was made at trial to the other remarks about domestic violence
statistics and prosecutions, defendant does not assert those
remarks are grounds for reversal; he nevertheless claims they
must be considered because they provide context for the Marquez
anecdote.
4 After conviction, defendant filed a motion for a new trial
that, among other things, again argued the comments about the
Marquez case were misconduct. The trial court rejected this
argument, finding that “[t]he prosecution’s reference to the case
involving the woman who was tortured was simply an effort to
show the extreme lengths that recanting victims will go to try
and aid the perpetrator of violence” and were not an effort to
appeal to the passions of the jury.
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As noted above, “[a] defendant may not complain on appeal
of prosecutorial misconduct unless in a timely fashion, and on the
same ground, the defendant objected to the action and also
requested that the jury be admonished to disregard the perceived
impropriety.” (People v. Thornton (2007) 41 Cal.4th 391, 454.)
There is an exception to this rule, however, when the objection or
the request for an admonition would have been futile. (People v.
Panah (2005) 35 Cal.4th 395, 462.)
The anecdote at issue was told about one quarter of the
way through the prosecutor’s closing; no objection was made until
after the closing concluded. Defendant implicitly concedes that
the objection was not timely made, arguing instead an earlier
objection would have been futile because the court overruled the
objection when it was eventually made after the closing
concluded. We agree under the circumstances here that an
earlier objection, if made, would have been overruled on the
merits and therefore futile; nothing in the court’s ruling when the
objection was finally made suggests the court would have ruled
differently if the objection was made earlier.
Similarly, we do not find forfeiture because defense counsel
failed to request an admonition. The court’s statement in
response to the prosecutor’s suggestion regarding the potential
for an admonition was not to indicate openness to that idea, but
instead to state that counsel had made their records, and any
issue with the Marquez anecdote would be addressed by the
Court of Appeal if defendant was convicted. This sequence of
events and resulting ruling did not provide a realistic opportunity
for defense counsel to request an admonition. (People v. Hill,
supra, 17 Cal.4th at pp. 820-821 [absence of a request for a
curative admonition does not forfeit the issue for appeal if the
12
court overrules an objection to alleged prosecutorial misconduct
such that defense counsel has no opportunity to make such a
request].)
Defendant asserts a prosecutor’s closing argument must be
restricted to commenting on the evidence before it. It is true that
a prosecutor commits misconduct by basing an argument on case
specific facts not in evidence. That can include, for example,
explicitly referencing case specific facts not admitted into
evidence (People v. Ledesma (1987) 43 Cal.3d 171, 238
[misconduct for prosecutor to refer in argument to victim’s
extrajudicial identification of defendant]) or suggesting “ ‘ “ ‘that
evidence available to the government, but not before the jury,
corroborates the testimony of a witness.’ ” ’ ” (People v. Mendoza
(2016) 62 Cal.4th 856, 906.)
In referencing the Marquez matter, the prosecutor did not
attempt to put case specific facts before the jury that were not
admitted into evidence. Instead, the prosecutor told a brief
anecdote about an unrelated matter not involving defendant to
illustrate an argument the prosecutor was making about the
specific facts of this case—namely the evidence of defendant’s
emotional manipulation of Laura and how that emotional
manipulation helped explain why she testified as she did.
That being said, we need not decide if the comments about
the Marquez matter strayed beyond the allowable bounds of
argument because even if they did the error was harmless. With
reference to the federal constitutional standard, the remarks at
issue were brief, and did not infect the trial with such unfairness
that defendant was denied due process. (People v. Cash, supra,28 Cal.4th at p. 733.) Instead, the closing argument focused on
the evidence admitted during the trial and why that evidence
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pointed to guilt. Nor, applying the state law standard, is it
reasonably possible the jury would have reached a result more
favorable to the defendant had the prosecutor not mentioned the
Marquez anecdote. (People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 319.) The jury was instructed that in weighing guilt
they were to consider only what was received into evidence
during the trial, and that nothing the attorneys said was
evidence including remarks in closing argument. We agree with
the trial court that “the prosecutor made it very clear that he was
distinguishing [the Marquez] case from anything that happened
in this case and that his point was not to inflame the jury, but to
draw attention to the point that he was making.” The
prosecutor’s closing argument did not dwell on this anecdote but
focused on the facts before the jury, and the evidence of guilt—
including videotape of the physical altercation, recorded phone
calls between defendant and Laura, eyewitness testimony from a
disinterested third party, photographs of Laura’s injuries, and
testimony from Laura that lacked any credibility—was
overwhelming.
C. The Prosecutor’s Comments About Strangulation
1. The Comments at Issue
When discussing the elements necessary for the jury to
convict on count 1, the prosecutor noted the People had to prove
that the injury inflicted by defendant on Laura resulted in a
traumatic condition. In particular, as relevant here, the jury was
instructed that a traumatic condition means a condition of the
body including but not limited to injury resulting from
strangulation or suffocation caused by physical force. The jury
was further instructed that strangulation and suffocation include
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impeding the normal breathing or circulation of the blood of a
person by applying pressure on the throat or neck.
The prosecutor gave examples of the type of injuries that
would qualify as a traumatic condition (such as hitting, pushing,
and choking Laura), and said this case included an injury
because of strangulation or suffocation. The prosecutor then
argued as follows: “Why is strangulation important? It’s literally
the most sensitive, most potentially deadly thing you do is choke
someone or strangle them. This part of your body is incredibly
vulnerable.” The defense objected that the argument was not
based on facts in evidence; the court overruled the objection.
Without further objection, the prosecutor then noted the neck
connects the brain to the heart and the lungs, and that strangling
impedes airflow to the lungs and as well as blood flow to the
brain. The prosecutor remarked that “you can go awhile without
dying without air,” but that blood flow to the brain was important
and “[t]he last thing you want to do is impede blood flow going to
someone’s brain.” The prosecutor ended this portion of his
remarks by saying “So when you strangle or suffocate someone,
impeding the normal breathing or blood of the person by applying
pressure to the throat, that can potentially be a sufficient
traumatic injury.”5
5 Defendant’s post-conviction new trial motion also argued
that the prosecutor’s comments concerning strangulation were
misconduct and not within common knowledge. The trial court
rejected this claim, finding that the effects of strangulation as
argued in the People’s closing argument were commonly known
by laypeople.
15
2. The Statements About Strangulation Were Not
Misconduct
Defendant argues these remarks were improper because
they are matters outside of jurors’ common knowledge and not
based on evidence in the record.
When the prosecutor began to discuss strangulation,
defense counsel initially objected but did not seek a curative
admonition. Unlike the Marquez anecdote, nothing in the record
suggests that requesting an admonition (for example, a limiting
instruction on how jurors should consider these statements)
would have been futile. By failing to request an admonition,
defendant has failed to preserve this issue for appeal. (People v.
Carter (2005) 36 Cal.4th 1114, 1205.)
Even if this claim had been preserved, we perceive no error.
Counsel (including prosecutors) have wide latitude during
argument, which “includes stating matters not in evidence, but
which are common knowledge.” (People v. Dickey (2005) 35
Cal.4th 884, 915.) The average juror knows the neck’s location on
the body, and its importance to breathing and oxygen reaching
the brain. The average juror also knows that choking a person
impedes air reaching the lungs and blood reaching the brain, and
that restricting air and blood flow poses a risk of injury. (See,
e.g., People v. Sanders (1969) 268 Cal.App.2d 802, 805, fn. 1
[common knowledge “that any stoppage of the flow of blood to the
head until one becomes unconscious is attended by serious
danger”].) That is essentially all the prosecutor said. Because
these comments were within the common knowledge of the
average juror, the prosecutor did not err by including them in his
closing argument.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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