P. v. Hernandez CA6 ( 2013 )

Filed 7/29/13 P. v. Hernandez CA6
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H031992
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F12934)
v.
JACOB TOWNLEY HERNANDEZ,
Defendant and Appellant.
This case returns to us on remand from the California Supreme Court in People v.
Hernandez (2012) 53 Cal.4th 1095 (Hernandez). This court had found error in the
superior court's refusal to permit trial counsel to show his client, defendant Jacob
Townley Hernandez (Townley), a sealed declaration by a prosecution witness attesting to
his own participation in an attempted murder, along with a sealed transcript of the
witness's plea agreement proceeding. We held that the trial court had deprived Townley
of his Sixth Amendment right to effective assistance of counsel by denying him access to
these materials. That holding was unchallenged by the People, and the high court
expressed no opinion on this point. It did, however, reject this court's conclusion that the
error was a structural defect subject to automatic reversal under Perry v. Leeke (1989)
488 U.S. 272. On the contrary, our Supreme Court held that an analysis of prejudice was
required under the standard articulated in Strickland v. Washington (1984) 466 U.S. 668,
and it accordingly remanded the case for that purpose.
Having received post-remand written [and oral] argument from the parties, we
now conclude that no prejudice appears on the record before us. We also consider
Townley's assertions that (1) he was deprived of his Sixth Amendment right of
confrontation during cross-examination of the prosecution witness; (2) the prosecutor
engaged in "egregious" misconduct at trial; and (3) the trial judge improperly commented
on Flores's credibility. We find no prejudicial error on these grounds, however, and
therefore must affirm the judgment.
Background
Seventeen-year-old Townley was accused by information with attempted murder,
committed with three accomplices: 18-year-old Jose Ruben Rocha, 16-year-old Jesse
Carranco, and 18-year-old Noe Flores. The charges arose from the gang-related shooting
of Javier Lazaro around 9:00 p.m. on February 17, 2006. In a telephone call at about
7:00 p.m. that night, Townley asked Flores to "do a ride." Flores drove his 1992 white
Honda Accord to pick up Townley and his girlfriend, Amanda Johnston, in Santa Cruz.
Once in the car, Townley showed Flores a small black handgun, which Flores handled
and returned to Townley.
Townley directed Flores to drive to Watsonville, where they picked up Carranco
(known as "Little Huero") and Rocha (known as "Listo"), whom Flores had not met
before. Townley was wearing People's Exhibit 23, a red and black plaid Pendleton shirt-
jacket, which Johnston had given him as a gift. Carranco wore a red hooded sweatshirt;
he had four dots tattooed on his knuckles, signifying his association with Northside, a
Norteno gang.1 Rocha wore a black flannel jacket with white in it. Flores wore black
1 According to gang expert Roy Morales, a sergeant in the Santa Cruz County sheriff's
office, Nortenos and Surenos are rival Hispanic gangs. Nortenos identify with the color
red, the letter N, the Huelga bird symbol, and various representations of the number 14.
Surenos identify with the color blue, the letter M, and various representations of the
number 13. "Scrap" or "scrapa" is a pejorative term Nortenos use for Surenos. Flores
was aware that Southerners associate with blue and Northerners associate with red.
2
sweatpants, a white T-shirt, gloves, and a black zip-up hooded sweatshirt. In his car he
carried a T-ball bat (smaller than a regular baseball bat), as he had been "tagged" by some
Surenos, whom he called "scraps," in downtown Santa Cruz on December 31, 2005.
The group then drove back to Santa Cruz, dropping Johnston off before heading
downtown. Carranco said, "How's that Norte life?" to a pedestrian.
Carranco told Flores where to drive. The group went to an apartment on Harper
Street where Anthony Gonzalez lived. About 20 minutes later, Townley, Carranco,
Flores, and Rocha left the apartment, Carranco again directing Flores. The passengers in
the car were talking about finding a Sureno and saying there would be violence. Flores
later told Detective Sulay that Carranco was doing most of the talking. According to
Flores, there was no talk about shooting anyone as they drove around.
As they were moving down 17th Avenue, they saw Javier Lazaro on the sidewalk
across the street, walking back to his apartment at the Ocean Terrace complex, which was
located in an area known as Sureno gang territory. Lazaro, aged 29, was not associated
with any gang, but the sweatshirt he wore was blue, the color associated with the Sureno
gang. Carranco told Flores in a "[k]ind of urgent" voice to turn around and pull over, and
Flores did so. Grabbing the T-ball bat that Flores kept in the front passenger area,
Carranco jumped out of the car, along with Townley and Rocha. The three crossed the
street and ran after Lazaro as Flores waited in the driver's seat with the engine running.
He heard what sounded like firecrackers; then the three others ran back to the car and
Carranco told him "urgently" to go. Flores drove away rapidly with his passengers and
followed Carranco's directions back to Gonzalez's apartment.
Lazaro testified that as he was walking back to his apartment he heard three or
four voices from inside Flores's car, and then someone yelled, "Come here." He thought
Flores denied being a Norteno gang member or associating with Norteno gang members,
but he admitted associating with Norteno associates.
3
it was directed at someone else, so he continued walking without turning around. Just as
he reached the parking lot of the apartment complex, he saw the group get out of the
white Honda and run across the street toward him. They asked him whether he was
Norteno or Sureno. At that point Lazaro was frightened and ran, until he felt something
push him to the ground. Lazaro received five gunshot wounds, including one that
fractured a rib and bruised a lung. Two bullets remained in his body.
Lazaro did not see who shot him, but Ginger Weisel, Lazaro's neighbor, was in the
parking lot when Lazaro walked away from the group. She heard them call out "fucking
scrap" and ask where Lazaro was from before seeing one of them shoot Lazaro six to
eight times. Lazaro fell after about four shots. Weisel recalled that the shooter was about
five feet, nine inches tall2 and wore a red and black plaid Pendleton shirt. Weisel called
911 from her apartment and returned to help Lazaro.
David Bacon was driving on 17th Avenue when he saw Flores's car parked in a
no-parking zone. He saw what appeared to be two Latino males of high school age,
about five feet 10 inches tall. Seconds later he heard snapping sounds and saw one of the
group standing in a "classic shooting position," holding a gun. He heard a total of five or
six shots from what appeared to be a small-caliber gun. Bacon had the impression that
the shooter wore a plaid jacket, which could have been People's Exhibit 23. The second
man appeared to be a lookout. Bacon then saw two people run back to the car, which
sped away. He parked his car, called 911, and returned to help Lazaro, who was lying on
the ground with two women tending to him. Emergency personnel arrived within a
minute after the last shot.
2 One of the detectives who investigated the case testified that Townley was about five
feet, seven inches. Carranco was about five feet, six inches; and Rocha, about five feet,
nine inches.
4
Susan Randolph stepped outside her home on 17th Avenue when she heard the
gunshots. She described the three as young Latinos between 16 and 20 years old, ranging
from five feet, six inches to five feet, nine inches.
Julie Dufresne was driving on 17th Avenue with Jeanne Taylor when she heard
popping noises that sounded like fireworks, followed immediately by three people
running across the street in front of her car. They were all about her height, five feet nine
or 10 inches, or probably shorter, and they appeared to be between 15 and 20 years old.
One wore a thin, red and black plaid flannel jacket.
Taylor thought there were five popping sounds, followed by the "three young
men" running across the street in front of the car. One of them was less than five feet,
five inches and wore what looked like a plaid Pendleton shirt in black and red. He
appeared to be staggering as if he were drunk or "having difficulty with his
coordination." The other two were taller; one wore a white and black plaid shirt, People's
Exhibit 22, and the other a hooded sweatshirt. When they reached the white car, one
went to the backseat on the driver's side, and the other two went around to the passenger
side. Taylor thought that People's Exhibit 23 looked like the red and black shirt the
"shorter person" had been wearing; Dufresne "couldn't say for sure."
Randi Fritts-Nash was one of the teenagers drinking at the Harper Street
apartment. Sitting in Gonzalez's bedroom with five others, she heard a car pull into the
parking lot, followed by a couple of knocks at the window. Gonzalez went to the
window and then left the room. Before he left, Fritts-Nash heard the anxious voices of
two people outside, one of whom said the words "hit" and "scrap."
When Gonzalez reappeared, Townley and the other three were with him. Townley
was wearing a red and black plaid jacket, People's Exhibit 23. Fritts-Nash heard
Townley say something to Gonzalez about Watsonville Nortenos. She also saw Townley
pull a small handgun out of his pocket and wipe off the prints with a blanket. Townley
moved the gun several times from one pocket to another, saying, "I need to hide this
5
gun." He also told her he was "looking at 25 to life." Rejecting Fritts-Nash's suggested
hiding place, Townley put the gun in his shoe and a small black velvet bag of bullets into
his other shoe. Townley told her to cross her fingers for good luck. Fritts-Nash asked
him if he had shot someone; his head movement indicated an affirmative answer.
Townley and Carranco, 17 and 16 respectively at the time of the shooting, were
tried together as adults under Welfare and Institutions Code section 707, subdivision
(d)(2). Flores and Rocha originally were also charged as codefendants with attempted
murder, but their cases were severed on Townley's motion. Before trial in this case, both
Flores and Rocha entered into plea agreements in which the prosecution would reduce the
charges in exchange for their declarations under penalty of perjury. Flores thereafter
pleaded guilty to assault with a firearm subject to a three-year prison term, and the
prosecutor dismissed the attempted murder charge against him. Rocha pleaded guilty to
assault with force likely to produce great bodily injury, with an expected sentence of two
years. On the same date that Flores and Rocha entered their pleas, April 17, 2007, the
prosecution filed a motion to reconsolidate the cases against Carranco and Townley,
which the court granted on April 26, 2007.
The jury found Carranco and Townley guilty of attempted premeditated murder.
It further found that both were minors who were at least 14 years old at the time of the
offense within the meaning of Welfare and Institutions Code section 707, subdivision
(d)(2), and were at least 16 years old at the time of the offense within the meaning of
Welfare and Institutions Code section 707, subdivision (d)(1). Townley was also found
to have been armed with a handgun and to have personally used it to inflict great bodily
injury on Lazaro. (Pen. Code, §§ 12022.53, subds (b), (c), (d); 12022.5, subd. (a);
12022.7, subd. (a).) Townley was sentenced to life in prison with the possibility of
parole for the attempted murder, with a consecutive term of 25 years to life for the
section 12022.53 firearm enhancement. Carranco was sentenced to the aggravated term
6
of nine years for the attempted murder, plus one year for a principal's being armed during
the crime.
Discussion
1. Issues Related to Flores's Declaration
a. Restriction on Attorney-Client Discussion of the Flores Declaration
The guilty pleas in Flores's and Rocha's cases were taken in closed proceedings
and the reporter's transcripts were sealed by trial court order. At Flores's plea hearing the
prosecutor stated that Flores would be permitted to serve his sentence out of state
"because he was previously stabbed in the jail. There are very serious concerns about his
physical well-being."
Rocha's declaration stated that he understood that he had "to tell the judge in open
court and under oath what I myself did on February 17, 2006." In Flores's declaration, on
the other hand, he stated: "I understand that I have to tell the judge in open court and
under oath that the contents of this declaration are true." He also stated, "I do understand
that I may be called as a witness in any hearing related to the events that transpired on
February 17, 2006."
At each change-of-plea hearing, the court ordered the declaration to be filed under
seal, to be opened only if the prosecution called him to testify about any of the matters
covered in the declaration. Defense counsel were permitted to look at the document, but
they were "prohibited from discussing the contents or the existence of the document with
their client or any other person." Defense counsel also were not permitted to have a copy
of the declarations. As the Attorney General notes, Flores's counsel emphasized that,
even if the declaration was opened under those circumstances, it "will not ultimately be
part of the paperwork that follows Mr. Flores to his prison commitment." The prosecutor
thereafter provided a written copy to the defense attorneys.
Counsel for Townley and Carranco were unsuccessful in moving to withdraw the
order not to discuss the contents or existence of the document with their clients. At a
7
hearing from which the defendants were excluded, the court reasoned that it would be
improper to rescind the order without Flores's and Rocha's counsel being present. The
court did advise defense counsel that if the witnesses testified inconsistently with their
statements, then the sealing order "would be undone" and counsel would be free to cross-
examine them with the declarations. When the prosecutor asserted that defense counsel
had a right to use the documents to cross-examine and impeach them, the court stated,
"That's going a little beyond what we put on the record, those plea agreements. The
agreement was for their protection." The court agreed with the prosecutor's statement,
"So once they take the stand, the order would necessarily disappear because it doesn't
make sense anymore."
Rocha did not testify at trial, but Flores was called as a witness on the second day
of testimony. His testimony, the Supreme Court noted, was "essentially consistent with,
but more detailed than, the information he had provided to police investigators."
(Hernandez, supra, 53 Cal.4th at p. 1101.) At the end of that day, in the jury's absence,
the court ordered the prosecution to give defense counsel copies of Flores's sealed
declaration "in order to provide for adequate cross-examination of Mr. Flores." But the
document was to be used only for cross-examination, and counsel were still not permitted
to share the statement or its contents with their clients, or with investigators or other
attorneys.
During cross-examination of Flores, "[b]oth defense attorneys used [his]
declaration to impeach him, establishing discrepancies between it and his trial testimony.
For example, witnesses to the shooting reported that the man who shot Lazaro wore a
red-and-black plaid shirt or jacket. Flores testified he had worn a blue or black shirt and
Townley had worn a red-and-black flannel shirt. Defense counsel brought out that in his
declaration Flores had asserted he had worn a red-and-black Pendleton shirt."
(Hernandez, supra, 53 Cal.4th at p.1101.)
8
For purposes of discussion the Supreme Court accepted the premise that the trial
court unjustifiably had interfered with Townley's access to his attorney by sealing
Flores's declaration and the transcript of his plea proceedings. The focus of the high
court's review was the question of whether Townley was denied his right to effective
assistance of counsel by the trial court's order forbidding counsel from discussing the
declaration with his client. That question could be answered in the affirmative, thereby
requiring reversal, only if Townley demonstrated prejudice from the asserted error,
because this case did not present "circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified." (Id. at p.
1104, quoting U.S. v. Cronic (1984) 466 U.S. 648, 658.) Thus, prejudice would not be
presumed in this case, because the challenged order had not rendered "the adversarial
process presumptively unreliable, such as where an accused is denied counsel at a critical
stage of trial, or counsel entirely fails or is unable to subject the prosecution's case to
meaningful adversarial testing." (Id. at p.1106.) In contrast to the situation presented in
Geders v. United States (1976) 425 U.S. 80, where petitioner was not allowed to consult
with his attorney "about anything" during a 17-hour overnight recess between his direct-
and cross-examination, "Townley was at all times free to consult with his attorney
generally about trial tactics and defense strategy, and although he was not fully informed
about Flores's probable testimony before Flores took the stand, he was not prevented
from discussing how to respond to Flores's testimony after hearing it." (Hernandez,
supra, at p. 1106.) In addition, Townley's attorney opposed the prosecution throughout
the proceedings, thereby vitiating any conclusion that counsel "entirely failed to subject
the prosecution's case to adversarial testing." (Id. at p. 1107; see also U.S. v. Cronic,
supra, 466 U.S. at p. 659 ["if counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing, then there has been a denial of Sixth Amendment rights
that makes the adversary process itself presumptively unreliable"]; compare Bell v. Cone
(2002) 535 U.S. 685, 697 [counsel's failure to oppose prosecution "at specific points"
9
during sentencing required showing of prejudice under Strickland].) The court also
rejected any inference that the ban in this case violated Townley's right to " 'unrestricted
access to his lawyer for advice on a variety of trial-related matters.' " (Hernandez, supra,
53 Cal.4th at p. 1109, quoting Perry v. Leeke (1989) 488 U.S. 272 [in a short recess
during which defendant's testimony will likely be discussed, court may deny access to
attorney, contrasting Geders, supra, 425 U.S. at p. 91].)
We therefore address first the question consigned to us upon remand, whether
Townley can show that the interference with his right to consult with his attorney
"deprived him of the effective assistance of counsel and there is a reasonable probability
that, but for the error, the result of the trial would have been different." (Hernandez,
supra, 53 Cal.4th at p. 1111.)
To establish prejudice in accordance with the Supreme Court's decision, Townley
must adhere to the standard enunciated in Strickland— that is, he must show that the
interference "actually had an adverse effect on the defense." (Strickland, supra, 466
U.S.at p. 693.) More precisely, there must be a "reasonable probability" that without the
error, "the result of the proceeding would have been different." (Id. at p. 694.) "The
purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has
the assistance necessary to justify reliance on the outcome of the proceeding." (Id. at pp.
691-692.) "[T]he ultimate focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged. In every case the court should be concerned
with whether, despite the strong presumption of reliability, the result of the particular
proceeding is unreliable because of a breakdown in the adversarial process that our
system counts on to produce just results." (Id. at p. 696.) Thus, "[t]he benchmark for
judging any claim of ineffectiveness must be whether [the error] so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result." (Id. at p. 686.)
10
"Surmounting Strickland's high bar is never an easy task." (Padilla v. Kentucky
(2010) 559 U.S. 356, __ , 130 S.Ct 1473, 1485.) "It is not enough for the defendant to
show that the errors had some conceivable effect on the outcome of the proceeding[, as]
not every error that conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding." (Strickland, supra, 466 U.S. at p. 693.) Nor
must a defendant show that the deficiency "more likely than not" altered the outcome in
the case. (Ibid.) The asserted error must be "so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." (Id. at p. 687; Harrington v. Richter (2011) ___
U.S. ___, ___131 S.Ct. 770, 787-788.) Accordingly, a defendant must show "a
reasonable probability" that the result of the proceeding would have been different. "A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." (Strickland, supra, 466 U.S. at p. 694.)
Our Supreme Court implicitly compared the situation presented here to a
Confrontation Clause issue such as that considered in Delaware v. Van Arsdall (1986)
475 U.S. 673, a case in which the trial court improperly prevented the defense from
eliciting bias during cross-examination of a prosecution witness by questioning him about
the dismissal of his public drunkenness charge.3 The Supreme Court in Hernandez cited
the factors employed in Van Arsdall,4 yet not to assess the prejudicial effect of the lower
3 In contrast to a Strickland ineffective-assistance claim, however, in a confrontation
clause violation, "the focus of the prejudice inquiry. . . must be on the particular witness,
not on the outcome of the entire trial." (Delaware v. Van Arsdall (1986) 475 U.S. 673,
680.) The standard adopted in Van Arsdall followed Chapman v. California (1967) 386
U.S. 18, 24—that is, the error was required to be harmless beyond a reasonable doubt.
4 " 'These factors include the importance of the witness' testimony in the prosecution's
case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the extent
of cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution's case.' " (Hernandez, supra, 53 Cal.4th at p. 1108, quoting Delaware v. Van
Arsdall, supra, 475 U.S. at p. 684.)
11
court's restriction on the use of the declaration, but to support the conclusion that "the
circumstances presented here . . . do not justify a presumption of prejudice." (Hernandez,
supra, 53 Cal.4th at p. 1108.) The court notably added, "There is no reason in logic to
require a showing of prejudice to establish reversible error when impeaching evidence is
withheld from a defendant and the defendant's attorney, but to presume prejudice when
impeaching evidence is withheld only from the defendant, even it was the trial court and
not the prosecution that prevented the defendant from learning about the evidence."
(Ibid.)
Townley finds it "difficult to conceive how the court's unjustified order was a non-
prejudicial or harmless restriction" on his right to consult with his attorney. The bulk of
his argument, however, and the authorities on which he relies, primarily serve to
accentuate the importance of Flores's testimony, in order to reinforce the seriousness and
magnitude of the trial court's error. The People, however, no longer contest the fact of
the error; its effect on the reliability of the adversarial process is what is at issue. Much
of Townley's argument also implies that prejudice must be presumed here, a result the
Supreme Court soundly rejected in its opinion. Noteworthy in this respect is the Supreme
Court's rejection of Townley's reliance on Geders to support a presumption of prejudice:
"Here, defense counsel was present during all critical stages of the trial and Townley at
all times had access to his attorney, including during and after Flores’s testimony. In
contrast to the situation in Geders, supra, 425 U.S. 80, where the defendant was
prevented from discussing the events of a day’s trial, Townley was at all times free to
consult with his attorney generally about trial tactics and defense strategy, and although
he was not fully informed about Flores’s probable testimony before Flores took the stand,
he was not prevented from discussing how to respond to Flores’s testimony after hearing
it." (Hernandez, supra, 53 Cal.4th at p. 1106.)
Townley emphasizes that Flores was a "key" prosecution witness and the
prosecutor's depiction of the declaration as "essential to proving her case"; the latter fact,
12
he argues, was "essentially a concession of prejudice under the Strickland standard."
Townley suggests that although there was "some circumstantial evidence" that he was the
shooter, the eyewitness testimony excluded him: The shooter was described as a dark-
complected Hispanic male who was speaking in Spanish, whereas Townley was
described as a "white guy" who did not speak Spanish. These inconsistencies, however,
were brought to light at trial. Townley has not shown how defense counsel's inability to
discuss Flores's declaration with him impaired counsel's ability to expose and underscore
the weak points in the prosecution's case.
The length of the jury's deliberations (three days) is also not a persuasive factor
here; this was a complex case involving a serious crime involving multiple perpetrators,
with multiple witnesses offering inconsistent testimony at trial. (Cf. In re Sassounian
(1995) 9 Cal.4th 535, 549, fn 10 [closeness of case not determined by jury's time spent
deliberating, given complexity of evidence and law, youth of petitioner, and other
circumstances]; People v. Cooper (1991) 53 Cal.3d 771, 837 [seven-day deliberations
indicates conscientious jury but not necessarily close case considering three-month
duration of trial and complexity of issues]; see also People v. Houston (2005) 130
Cal.App.4th 279, 301 [four-day deliberation speaks to jury's diligence, not closeness of
case, where trial was extensive, with lengthy arguments, more than three dozen
witnesses, and a "mass of information" to digest].)
Townley accords additional weight to the inconsistency between Flores's
declaration -- in which he stated that he wore a red and black Pendleton during the
shooting5 -- and his trial testimony, in which he stated that Townley had been wearing
the Pendleton. But Flores was cross-examined on this discrepancy, including the
5 The parties agreed that the shooter wore People's Exhibit 23, a red and black plaid shirt
or jacket.
13
statement in the declaration that he had been wearing a "red and black Pendleton shirt" on
the night of the shooting.6
Townley further points to one witness's testimony that the shooter appeared to be
drunk, as he exhibited a "staggered gait." Townley's argument is that if he had been
permitted "to discuss Flores's proposed testimony which would not exonerate Appellant
(as the prosecutor . . . feared he would without the declaration), counsel and Appellant
could have developed an intoxication defense that could have negated premeditation,
intent to kill and intent to discharge a firearm." Again there is nothing in the record
indicating that counsel could not have developed this defense without the aid of Flores's
declaration. It was Jeanne Taylor, an eyewitness, who contributed the observation of the
apparent shooter's intoxication.
This case would be amenable to reversal for ineffective assistance of counsel if we
could conclude that Townley would have been able to make a material contribution to his
defense had his attorney been allowed to discuss Flores's declaration with him. We can
find nothing in this appellate record, however, that permits such an inference beyond bare
speculation. Townley's attorney, having examined the declaration and plea transcript,
was already aware of the discrepancies between the witness's declaration and his direct
testimony -- discrepancies that included the important inconsistency regarding who wore
the Pendleton -- and Flores was cross-examined accordingly to bring out these
contradictions before the jury. As the Supreme Court itself noted, "The primary value of
the sealed materials to Townley was their usefulness as tools of impeachment during
cross-examination, either to highlight discrepancies between the facts Flores recited in his
declaration and his testimony at trial, or to support the argument Flores had fashioned a
declaration favorable to himself and must have then felt compelled to testify in
6 Flores's declaration has been unsealed, pursuant to the superior court's order on
December 11, 2012.
14
accordance with that declaration. Counsel's inability to consult with Townley about the
materials would not have hampered his ability to make either point." (Hernandez, supra,53 Cal.4th at p. 1107.) The court further commented on Townley's point that there were
22 details in the declaration that were not contained in the police reports: "But the very
ease with which these details may be identified works against his argument that it would
be difficult to assess the prejudicial effect of the trial court's order." (Ibid., fn. 5.)
Townley fails to show what insight he would have provided to the defense that would
have illuminated or enhanced the cross-examination of Flores. Townley has overcome
the "high bar" of the prejudice analysis here.
b. Restrictions on Cross-Examination of Flores
Townley next contends that the court unfairly sustained objections by the
prosecutor during Carranco's cross-examination of Flores. Carranco's attorney attempted
to point out, for example, that (1) the declaration Flores signed was not the first draft
(prosecutor's objection not ruled upon); (2) the declaration had omitted any account of
Flores's first visit to the Harper Street apartment; (3) the declaration had omitted the
detail that Carranco directed Flores, who was driving, back to the apartment; and (4) the
title of the declaration indicated that Flores was charged with a crime. To these efforts
the prosecutor successfully objected.7
7 The prosecutor also successfully objected to defense counsel's reading the title of the
document. Carranco's counsel tried to ask Flores about the requirement that he sign the
declaration in order to obtain the three-year sentence; again the prosecutor's objection
was sustained, as was a question about Flores's methamphetamine use on the night of the
shooting. In the jury's absence, the court explained that it also sustained some of the
prosecutor's objections because they were "questions about things that weren't in the
document . . . suggesting to the jury that we'd intentionally omitted facts. And that's
misleading." Eventually the trial court took judicial notice of the fact that the declaration
was part of a plea bargain and accordingly instructed the jury.
15
But these were problems for Carranco, not issues over which Townley had an
objection. The third point, the omitted detail regarding direction by Carranco, was not a
subject on which Townley joined in cross-examination; indeed his attorney objected to
this area of questioning as "absolutely prejudicial to . . . Mr. Townley." In response to
the prosecutor's continuing objection before the jury regarding changes to the declaration,
the court explained, "He's on the witness stand and can be cross-examined on the
document to the extent it's different [from] what he testifies to here. However, he cannot
be asked extensive questions about what's not in the document because that would be
misleading and [he] can't really explain that to the jury, but there are reasons for the
document to be prepared that Mr. Cave [Carranco's attorney] doesn't seem to understand
or accept." This admonishment did not reflect any failing or unfair restriction on
Townley's own cross-examination of the witness, which had already taken place.
Holley v. Yarborough (9th Cir. 2009) 568 F.3d 1091, does not alter this result. In
that case the trial court excluded statements made by the child abuse victim indicating
personal familiarity with sexual activities. The Ninth Circuit held that the evidence,
which indicated "a highly active sexual imagination or . . . a familiarity with sexual
activities" was "clearly relevant" impeachment evidence, as it could have shown not only
bias but a "tendency to exaggerate or overstate, if not outright fabricate" events. (Id. at p.
1099.) Consequently, the exclusion violated the defendant's Sixth Amendment right to
confront the witness. In this case, however, the rulings to which Townley takes
exception were, as noted, not directed at his own examination of the witness. Holley does
not help him here.
2. Prosecutorial Misconduct
Townley next contends that the prosecutor overstepped the bounds of proper
advocacy in a number of ways, thus engaging in misconduct that was individually and
cumulatively prejudicial. The People respond first that Townley's attorney failed to
preserve the issue as to some of the asserted instances of misconduct by failing to object.
16
As to others, they maintain that the act was not misconduct at all. We examine the
parties' positions as to these claims first by reviewing the context in which they
occurred.8
a. Comments on Witness Credibility
"It is misconduct for a prosecutor to express a personal belief in the merits of a
case, rather than a belief based upon the evidence at trial. [Citations.]" (People v.
Johnson (1981) 121 Cal.App.3d 94, 102.) Similarly, "[t]he prosecutor is generally
precluded from vouching for the credibility of her witnesses, or referring to evidence
outside the record to bolster their credibility or attack that of the defendant. [Citations.]"
(People v. Anderson (1990) 52 Cal.3d 453, 479.) However, when the prosecutor relies on
the evidence presented at trial and the inferences to be drawn from this evidence, and
does not imply any personal knowledge or belief based on facts outside the record, the
prosecutor has not engaged in improper " 'vouching.' " (People v Medina (1995) 11
Cal.4th 694, 757; see also People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on
other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [prosecutor’s
comments not improper vouching if assurances regarding the apparent honesty or
reliability of prosecution witnesses are based on the facts and reasonable inferences, not
purported personal knowledge or belief].)
During opening statement the prosecutor told the jury that the police sergeant who
interviewed Townley at Harper Street "felt that he was holding back and not being
entirely truthful. The sergeant thought that maybe that was because they were in a
Norteno[-] affiliated house and he was investigating a shooting by three or four guys
wearing red who shot at another guy in a blue sweatshirt. [¶] So the decision was made
8 We deny Townley's request that we take judicial notice of two unpublished opinions
discussing conduct by this prosecutor. In addition, we will disregard Townley's
discussion of People v. Shazier, H035423, as that case has been granted review by the
Supreme Court.
17
to take them to the Sheriff's Office for an interview to see if in a different kind of
environment he might be more forthcoming." When the jury had been dismissed for the
day, Townley's attorney objected and moved for a mistrial, reminding the court that
during in limine motions he had opposed the prosecutor's request to call a gang expert. In
that opposition counsel had expressed the concern that the expert might suggest that a
witness was lying to help the defendant or that a former codefendant testifying for the
prosecution was credible. The court had allowed the gang expert to testify, but only as to
matters the jury had heard from other witnesses. The expert was not to "address issues
like snitch and rat and veracity and credibility . . . unless it's become apparent from the
testimony of . . . witnesses that there's a basis for that needing to be explained to the jury
in some way. [¶] But he cannot be put in a position where he is either vouching for the
credibility of your witnesses or . . . essentially negatively vouching for them in any
way . . . ."
The trial court denied the mistrial motion, noting that the "no vouching" order
pertained to a different situation: "What was referred to here was actually the
policeman's impression of behavior that he saw from a person that he was interviewing at
that time," in contrast to the pre-trial discussion of an opinion of a witness's credibility
because he or she was a "snitch."
In examining Sarah Oreb, the prosecutor attempted to bring out the inconsistencies
between her trial testimony and her prior statements to the police. After an initial hearsay
objection (without a ruling) Oreb was permitted to describe the officers' tactics in trying
to persuade her to admit that she had heard Townley say he had "hit a scrap." The
defense did not object as Oreb continued with this testimony and denied that Sergeant
Fish had accurately reported her voluntary statement to him. However, at one point the
prosecutor, having repeatedly attempted to elicit Oreb's admission that she had heard the
"hit a scrap" statement, said, "I suppose you wouldn't be surprised to hear I don't believe
[you]. Which is why I am continuing to ask the question." Townley's counsel
18
immediately objected. The objection was sustained, and the court admonished the jury to
disregard the remark. The prosecutor then asked Oreb, "If there's a recording of your
interview with both Deputy Pintabona, and a subsequent interview with Detective Henry
Montes, they edited those recordings?" Counsel's objection to this argumentative
question was also sustained.
Further into her testimony, Oreb was insisting that she had lied every time she said
she had heard the "hit a scrap" statement. She maintained that it was not acceptable to
lie, which was why she was then telling the truth. The prosecutor asked, "Okay. So
recently, within the last two weeks, you decided that you shouldn't lie? [¶] [Oreb]: No,
not within the last two weeks. [¶] [The prosecutor]: When did you decide you weren't
going to lie? . . . [¶] [Oreb]: I don't know. [¶] [The prosecutor]: When did it become
important to you not to lie? [¶] [Oreb]: It's always been important to me not to lie. [¶]
[The prosecutor]: Apparently it wasn't so important each time you talked to somebody in
law enforcement?" Again both defense attorneys objected to the question as
argumentative, but this time the court overruled the objection. However, just before
playing the recording of the first interview, the prosecutor asked why Oreb had lied about
hearing a knock at Gonzalez's apartment window. Oreb recounted how she had merely
told the interviewer what he wanted to hear. The prosecutor asked, "Did it occur to you
that he didn't believe you?" Defense objections were sustained as argumentative and
calling for speculation.
Oreb also testified that she used Townley's name and the words about hitting a
scrap because that was what she had heard from others. Defense objections were raised
on hearsay grounds. The trial court overruled one objection on the ground that it went to
credibility. When defense counsel affirmed that the questioning was relevant to
credibility only and not for the truth, the court explained to the jurors that as to these
questions about the source of Oreb's information, they could use Oreb's testimony not for
19
the truth of what other people said but only to determine whether Oreb was telling the
truth about her recollection.
Anthony Gonzalez also recanted the statement he had made about the shooting in
police interviews. Like Oreb, he said he did not remember what had happened that night
and had simply told the police what they wanted to hear because they had arrested him.
Gonzalez said he kept telling the detectives what he knew and they kept telling him it
wasn't true. Later, the prosecutor asked Detective Ramsey about a subsequent interview
with Gonzalez. Ramsey testified that the purpose of the second interview was to "see if
he'd be a little bit more up front and cooperative" with the officers. The prosecutor then
asked, "And did you find that he was a little bit more forthcoming?" Townley's attorney
objected to the question as irrelevant, and the objection was sustained.
"The standards governing review of misconduct claims are settled. A prosecutor
commits misconduct under the federal Constitution when his or her conduct infects the
trial with such ' "unfairness as to make the resulting conviction a denial of due process." '
[Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods
to persuade the jury commits misconduct even when those actions do not result in a
fundamentally unfair trial." (People v. Hawthorne (2009) 46 Cal.4th 67, 90, citing
People v. Frye, supra, 18 Cal.4th at p. 969.)
" '[A] prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence outside the
record. . . . However, so long as a prosecutor’s assurances regarding the apparent honesty
or reliability of prosecution witnesses are based on the "facts of [the] record and the
inferences reasonably drawn therefrom, rather than any purported personal knowledge or
belief," [her] comments cannot be characterized as improper vouching. [Citations.]'
[Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 215.)
"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
20
harm is the claim of misconduct preserved for review. (People v. Alfaro (2007) 41
Cal.4th 1277, 1328 . . . .)" (People v. Hawthorne, supra, 46 Cal.4th at p. 90; People v.
Lopez (2008) 42 Cal.4th 960, 965-966.)
Townley contends that "clear misconduct" occurred when the prosecutor
commented on Oreb's lack of credibility. The court sustained the objection to that
remark, however, and admonished the jury accordingly, thus averting any prejudice. The
reference to the police impressions during opening statement and the questioning about
Oreb's lies likewise created no reversible misconduct. The court properly ruled that the
opening statement did not violate the in limine order; and the court sustained defense
counsel's objections to argumentative questioning of Oreb with only one exception. That
exception could not have had a significant impact on the jurors' perceptions of the case,
as it only emphasized what they already knew, that Oreb had lied during questioning by
the police. The subsequent jury instruction to ignore any question to which an objection
was sustained reinforced the court's admonition and thus prevented any prejudice. It is
also noteworthy that no requests to admonish the jury followed the objections to the
prosecutor's questions.
Otherwise, the examination of Oreb proceeded without objection on the ground
now asserted. Townley has forfeited the issue as to these questions, and does not present
analysis to support the bare assertion of ineffective assistance of counsel. In any event, it
is clear that Oreb's insistence that she had lied to the police supported Townley's defense.
Thus, allowing the prosecutor to elicit this testimony was justified as a tactical choice by
the defense. Failing to object to asserted prosecutorial misconduct does not warrant
reversal on appeal for ineffective assistance of counsel "except in those rare instances
where there is no conceivable tactical purpose for counsel's actions." (People v. Lopez,
supra, 42 Cal.4th at p. 972.)
As to the prosecutor's examination of Gonzalez, the only objections made by the
defense were for hearsay, leading, and irrelevance. The recordings of both Oreb and
21
Gonzalez were allowed over the objection that they did not contain prior inconsistent
statements. The court properly ruled in both cases that the witnesses had fabricated their
testimony—in Oreb's case, that she had heard nothing at the window, and in Gonzalez's
case, that he did not remember anything that had happened that night.
b. References to Townley's Bad Character
(1) Involvement in previous criminal activity
Without objection from the prosecution the court granted a defense motion in
limine to preclude evidence that Townley had a juvenile record and was on juvenile
probation at the time of the offense. Also precluded without objection was evidence or
allegations that Townley might have been involved in other shooting incidents.
Nevertheless, early in direct testimony by Detective Phillips, the prosecutor asked him
what he had been asked to do on February 18, 2006. He answered that he had been asked
to assist another detective in conducting a probation search, and he started to recite the
address when both defense attorneys and the prosecutor interrupted with objections.
After conferring privately with the witness, the prosecutor resumed her examination with
the question, "You did a probation search first thing in the morning on a different case; is
that right?" The witness replied in the affirmative, and when asked whose house he
searched, he named the people who lived there, including defendant Townley.
Later, during testimony by Scot Armstrong, a ballistics expert, he mentioned two
sheriff's numbers corresponding to two cases. Subsequently he was referring to "fired
cases" identified as "REG-1, number 1 through 4. REG-110. And 131MH-001." The
prosecutor directed the witness's attention to the five "REG" casings submitted when
Townley's attorney obtained a sidebar conference. After completion of Armstrong's
examination, both defense attorneys moved for a mistrial. The prosecutor acknowledged
the in-limine ruling but noted that she had directed the witness not to mention any other
investigations. "Clearly, he forgot." The slip, the prosecutor stated, "certainly was not
anything intentional." Moreover, she argued, the jury was not likely to have understood
22
what the witness was referring to by "SCD" numbers and different casings. The court
agreed that "there was not enough there that the jury could possibly infer that there were
other investigations going on or there were other bullets or casing being investigated
beyond what's in this case."
On appeal, Townley contends that the prosecutor engaged in "highly prejudicial
misconduct" by eliciting information about his probation status and other shootings. He
maintains that not only was the mention of a probation search improper, but the
prosecutor "compounded the problem" by informing the jury "both that Townley was on
probation, and that he was a suspect in a different case."
While "[i]t is misconduct for a prosecutor to violate a court ruling by eliciting or
attempting to elicit inadmissible evidence in violation of a court order" (People v. Crew
(2003) 31 Cal.4th 822, 839), it is evident from the record that the incipient reference to a
probation search occurred because Phillips forgot to avoid mentioning any case but this
one. It is true that a prosecutor " 'has the duty to guard against statements by his
witnesses containing inadmissible evidence,' and if a prosecutor 'believes a witness may
give an inadmissible answer during his examination, he must warn the witness to refrain
from making such a statement.' " (People v. Earp (1999) 20 Cal.4th 826, 865.) Here,
however, the prosecutor did warn the witness not to refer to other investigations; and
when he slipped, she interrupted her examination apparently to remind him. As in Earp,
"nothing in the record suggests that the prosecutor had a basis for anticipating the
response in question by Detective [Phillips]. Therefore, there was no prosecutorial
misconduct." (Ibid.)
As to the disclosure of the additional forensic investigation, Townley disputes the
People's characterization of the disclosures as inadvertent; in his view, it was part of a
"demonstrated pattern of ignoring or attempting to evade the trial court's rulings." We
find no error in the trial court's ruling, however. As did the trial court, we find the
prosecutor's brief references to obscure case numbers unlikely to encourage the jurors to
23
speculate that Townley was being investigated for other shooting incidents. She
mitigated potential harm by refocusing the witness's account on the shooting of the night
before, relegating the mention of a probation search to an apparently unrelated case. The
court's determination that the disclosure was obscure, unintentional, and unlikely to cause
prejudice is supported by substantial evidence.
(2) Evidence that Townley was Dangerous
Detective Ramsey testified that while Detective Makdessian was transporting
Townley to the sheriff's station, Ramsey, who was in the car ahead, received information
from Sergeant Sulay that caused him to alert Makdessian to stop the patrol car. The
officers asked Townley to step out of the car; then they handcuffed him and examined his
shoes. Inside the right shoe was an unloaded pistol; in the left shoe was a bag containing
cartridges. During the direct examination of Ramsey, the prosecutor asked him to
describe his "degree of alertness" in this encounter. The witness replied, "Extremely
heightened." The prosecutor then asked, "Did you feel that your safety was in danger?"
The witness answered, "Yes." At that point, however, Townley's attorney objected and
moved to strike. The court granted the motion and admonished the jury to disregard the
answer. The prosecutor's next question, whether Ramsey had his gun out, was answered
in the negative; but when she asked why not, his answer-- "I didn't want to --" was
interrupted by another objection on irrelevance grounds, which was also sustained.
While Detective Makdessian was describing the same events, he stated that while
transporting Townley he received an urgent call from then-Deputy Fish over the car
radio, which the detective returned by cell phone. The prosecutor asked, "Did you have a
physiological response after you had that phone conversation with Sergeant Fish?"
Defense counsel objected to the question as irrelevant, and the court sustained the
objection. After describing Detective Ramsey's removal of the gun from Townley's shoe,
Makdessian was asked, "Had you ever transported somebody unhandcuffed with a gun
before?" He answered, "Never." The prosecutor continued, "Do you anticipate ever
24
doing that again?" Another defense objection to the irrelevant question followed and was
sustained.
Sergeant Fish was also questioned about the discovery of the gun. Hearsay and
irrelevance objections were sustained to two questions: about what a witness had told
him and about whether Sergeant Sulay's telephone call was related to officer safety.
Because the question about officer safety was answered ("Very much") before the
objection was sustained, the court instructed the jury to disregard the answer.
Townley contends that this line of questioning improperly suggested that Townley
was a danger to the officers' safety. The questions, however, did not imply that the
officers were actually threatened by Townley, nor that their safety concerns were caused
by anything other than the knowledge that there was a passenger in the backseat with
access to a weapon. In any event, the questions were at worst irrelevant and they
provoked objections sustained on that ground. No prejudice resulted from the
prosecutor's line of questioning about officer safety.
Townley further argues that the prosecutor tried to give the jurors the impression
that Flores was in protective custody because the defendants were a threat to him. The
prosecutor was permitted to bring out Flores's statement that he was in "PC," or
protective custody. When the prosecutor asked whether he was in protective custody
because he had given a statement to the sheriff's deputies, the objection as speculation
was sustained. Then the prosecutor asked, "Who is housed in protective custody?"
Objections on multiple grounds followed, and the court suggested that the prosecutor
move on to other questions until they could discuss the issue later. After the jury had left
for the day, the prosecutor protested that it was important to present the evidence that he
had to be housed in protective custody and transported separately because he was a snitch
and had negative feelings about that "category." The court pointed out that Flores had
said he was not afraid to be there testifying. Following extensive debate on the issue, the
court cited the right to a fair trial and sustained the defense objection.
25
Flores eventually admitted that he did not want to tell the police about what his
companions had done the night of the shooting because he did not want to get them in
trouble. The prosecutor questioned Flores further about what he thought of people who
told the police about crimes others had committed. Her questions about why Flores did
not want to tell the police what had happened the night of the shooting were permitted;
but the court sustained relevancy objections to her question about what word was used to
describe a person who told the police what someone else had done, as well as the
questions about what Flores thought about such people. The court overruled the
objection to the question whether he wanted to be such a person. Flores said he might get
hurt. The prosecutor was not so successful in asking whether Flores felt like a Good
Samaritan; he did not have an opinion about whether a person who told the police about a
crime was a Good Samaritan, and he did not feel like one when he was talking to the
police. The question "Why not" was met with another objection, which was sustained as
irrelevant. At that point the court directed the prosecutor to move on to another area, and
she did.
The prosecutor later asked Flores whether he had wanted to talk to the police; he
said he had not. When she asked why, a defense objection was overruled and Flores
simply answered that he had not wanted to get in trouble. Flores explained that he had
eventually told the truth to Sergeant Sulay, though he did not like talking to him. The
question "Why not?" was again met with an irrelevance objection, which was sustained.
Also sustained were similar objections to the question, "Why did you ultimately tell
Sergeant Sulay the truth?" and the question, "What did you think about yourself for
[telling Sergeant Sulay what had happened the night before]."
Ginger Weisel, the victim's neighbor at the Ocean Terrace apartment complex,
testified at length about what she had seen that night. On redirect, the prosecutor asked
whether she wanted to be there testifying; she answered that she did not. The prosecutor
asked why; and the defense objection ("352") was overruled. The witness responded that
26
she did not "need to be part of this" and did not "want problems." She then was allowed,
over objection, to testify that she was familiar with gangs and knew there were Surenos
living at the complex.
The jury subsequently heard from Detective Montes, the gang investigator who
related Oreb's statement that she had "heard somebody say they hit a scrap." Oreb was
not threatened with custody, nor was Gonzalez in custody at the time of the detective's
interview with her. The prosecutor asked Detective Montes whether it had appeared to
him that Oreb "was at all reluctant" to tell him that she did not remember looking out the
window, but defense objections were sustained. The prosecutor then asked whether
Oreb's demeanor had suggested any reluctance or timidity, and another objection was
sustained. The jury was instructed to disregard the last two answers, but no answer to
either question exists on the record.
When Gonzalez was describing his interview with sheriff's deputies, he was asked
whether he was "scared" while talking to them. The court sustained defense counsel's
objection to the question as irrelevant. Also sustained were questions about whether he
remembered contrasting his concern about his freedom "with something else"
(irrelevant); whether he had wanted to speak with the police officers (irrelevant), and
whether he wanted to be there testifying (asked and answered). Later the prosecutor
asked, "Did you feel that, or do you feel now that talking about what happened that night
is dangerous for you?" The objection ("irrelevant. 352.") was sustained. Then the
prosecutor repeated the question, "Do you want to talk about what happened that night?"
The same objection was sustained, along with the court's comment that this question had
been asked and answered.
This record reveals that to the extent that the prosecutor sought to portray
witnesses as in fear of Townley, she was unsuccessful. Whenever she asked a question
that could have suggested an answer revealing fear by a witness, defense counsel
interrupted with a timely objection, and if the witness had already answered, the jury was
27
instructed to disregard it. In addition, the jurors were instructed at both the beginning and
the end of trial that the attorneys' remarks and questions were not evidence; only the
witnesses' answers were evidence. They also were told that if an objection was sustained,
they must ignore the question, refrain from guessing what the answer might have been,
and disregard any answer that might have been given. (Cf. People v. Hamilton (2009) 45
Cal.4th 863, 928-929 [instruction that attorneys' questions were not evidence eliminated
the possibility of jury's considering facts not in evidence].) "As a general matter, we may
presume that the jury followed the instructions it was given . . . and defendant has failed
to supply any persuasive reason to suppose the jury instead would have accepted as
evidence the insinuation allegedly implicit in the prosecutor's questions." (People v.
Prince (2007) 40 Cal.4th 1179, 1295.) Accordingly, no prejudice could have resulted
from any improper questions posed by the prosecutor.
c. Comments during Argument to the Jury
"When the issue 'focuses on 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.' [Citations.] A prosecutor is
given wide latitude during closing argument. The argument may be vigorous as long as it
is a fair comment on the evidence, which can include reasonable inferences or deductions
to be drawn therefrom. ' "A prosecutor may 'vigorously argue his case and is not limited
to "Chesterfieldian politeness" ' [citation], and he may 'use appropriate epithets . . . .' "
. . . ' " (People v. Harrison (2005) 35 Cal.4th 208, 244; People v. Williams (1997) 16
Cal.4th 153, 221.)
" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood that the jury understood or applied the
complained-of comments in an improper or erroneous manner.' [Citation.]" (People v.
Wilson (2005) 36 Cal.4th 309, 337.) "In conducting this inquiry, we 'do not lightly infer'
that the jury drew the most damaging rather than the least damaging meaning from the
28
prosecutor's statements." (People v. Frye, supra, 18 Cal.4th at p. 970.) "We presume the
jurors treated 'the prosecutor's comments as words spoken by an advocate in an attempt to
persuade' [citation] . . . ." (People v. Cole (2004) 33 Cal.4th 1158, 1204.) In addition,
while a defendant may single out certain comments made by the prosecutor during
argument in order to demonstrate misconduct, as the reviewing court we "must view the
statements in the context of the argument as a whole." (Id. at p. 1203.) Finally, " 'A
defendant’s conviction will not be reversed for prosecutorial misconduct . . . unless it is
reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct.' [Citation.]" (People v. Harrison, supra, 35 Cal.4th at
p. 244; People v. Bolton (1979) 23 Cal.3d 208, 214.)
(1) Appealing to Fear of Gang Violence
Townley protests the prosecutor's "improper comments that preyed upon the jury's
fear" during her argument. One of the challenged remarks occurred in the context of the
prosecutor's discussion of the natural and probable consequences of an assault: "Is
somebody almost dying a natural and probable consequence of assaulting a rival gang
member in that rival gang member[']s turf? Read about it all the time. You read . . .
about it all the time. Gang fights where somebody ends up dead." At this point
Carranco's attorney objected, but the prosecutor maintained that she was only talking
about natural and probable consequences. The court cautioned her to be "careful about
the intent issue" and overruled the objection. The prosecutor then continued with the
point that one has to intend the assault, but "almost being killed [was] a natural and
probable consequence" of an attack by a rival gang member.
During her closing argument, the prosecutor used the facts that Lazaro was shot
five times and that "there were additional bullets brought" to show that Townley had
premeditated and planned to kill the victim. She queried, "Why did he need all those
bullets? Why did he need all those bullets? Maybe they were going to go out and do
another one. But why, if you don't mean to kill somebody, do you need to have to [sic]
29
all that?" Carranco's attorney objected that "[k]illing is an improper argument," but the
objection was overruled.
Townley contends that these comments, together with the questions suggesting
that the officers were in danger from the defendants and that the witnesses feared the
defendants, "were a blatant plea to the fears and vulnerabilities of the jurors, and were
calculated 'to induce a level of fear in the jurors so as to guarantee a guilty verdict.' " He
compares this situation to Commonwealth v. Mendiola (9th Cir. 1992) 976 F.2d 475(overruled on another ground in George v. Camacho (9th Cir. 1997) 119 F.3d 1391),
where the prosecutor's appeal to jury fears of the defendant's dangerousness constituted
clear misconduct from which prejudice was "highly probable." (Id. at p. 487.) This case,
however, bears no resemblance to Mendiola. There the prosecutor's inflammatory
argument evoked an image of a dangerous criminal who, if freed, would walk out of the
courtroom "right behind" them and retrieve the gun.9 (Id. at p. 486.) In this case the
prosecutor's speculation about the defendants' intentions on the night of the shooting was
a far cry from the clear attempt to evoke fear and alarm among the Mendiola jurors, and
the reference to gang fights was confined to her discussion of the natural and probable
consequences of a gang-motivated assault.
Townley's further reliance on People v. Vance (2010) 188 Cal.App.4th 1182 and
United States v. Sanchez (9th Cir. 2011) 659 F.3d 1252 is similarly misplaced. The
prosecutor did not, as in Vance, urge the jurors to view the crime through the victim's
9
The Mendiola prosecutor told the jury, "Now as I said, a lot of people are interested in
your decision. . . . Everyone in Saipan is interested. That's why there are so many people
in the courtroom. The people want to know if they are going to be forced to live with a
murderer. [¶] Your job is to worry about Mr. Mendiola. And when I say worry, I mean
worry. Because that gun is still out there. [¶] Mr. Mendiola deserves to be punished for
what he did and that's your decision. And it's important because, as I said, that gun is still
out there. If you say not guilty, he walks out right out the door, right behind you."
(Commonwealth v. Mendiola, supra, 976 F.2d at p. 486.)
30
eyes and imagine the victim's suffering, or comment derisively on either defendant's
courtroom demeanor. Nor did she suggest in some version of the prosecutor's argument
in Sanchez, that by convicting Townley they would " 'protect community values, preserve
civil order, or deter future lawbreaking.' " (United States v. Sanchez, supra, 659 F.3d at
p. 1256.)
(2) Racially Biased Remarks
A prosecutor engages in misconduct if he or she refers to facts not in evidence,
thereby " 'offering unsworn testimony not subject to cross-examination.' " (People v. Hill
(1998) 17 Cal.4th 800, 828.) In Hill the prosecutor impugned the testimony of a defense
witness who had witnessed the killing while visiting a friend whose last name was Hill.
In an "outrageous fabrication," the prosecutor asked the jury to infer from the similarity
of the names that the defendant and witness were related. (Id. at p. 829.) Townley
contends that the prosecutor engaged in "almost identical" misconduct to that condemned
in Hill, through remarks that were racially and ethnically biased.
The source of the challenged argument was the prosecutor's characterization of the
perpetrators' "culture" and the suggestion that Townley was part of that culture. The
prosecutor argued that Flores was scared to identify his companions. "He didn't want to
dime people out. He didn't want to be a rat. Nobody wants to be a rat in that culture. In
our culture we generally call it a Good Samaritan helping police solve a case. Different
culture." Then, referring the jury to the "two different Spanish voices" that called out to
the victim, the prosecutor commented that Townley "may or may not" speak Spanish,
although Townley's girlfriend had testified that he did not know Spanish. The prosecutor
also pointed out that "one of his sur names [sic] is Hernandez." She did not acknowledge
Flores's testimony that he had never heard Townley speak Spanish.
Townley contends that the prosecutor engaged in misconduct by making the
incorrect, racially biased suggestion that Townley spoke Spanish and implying that he
31
was part of a culture that frustrates police investigation.10 Our reading of the record,
however, is more consonant with the People's interpretation. The prosecutor's reference
to a "different culture" occurred in the context of her discussion of gang behavior,
including the resistance being a "snitch." The prosecutor had already established during
examination of Flores that he had not wanted to tell the police about what the group had
done that night because he did not want to get them in trouble. She repeatedly used the
term "Good Samaritan" and elicited Flores's statement that he did not feel like a Good
Samaritan by talking to the police. We see no impermissible racial or ethnic insinuations
in the challenged reference to being a "rat" on others. At worst it was illogical, creating a
false comparison between a "rat" and a Good Samaritan. In addition, in further
discussing Flores's reluctant testimony, the prosecutor clarified her associations by
specifically referring to "the gang culture. That's where this happened that night. That
particular culture."
As for the comment that Townley "may or may not" speak Spanish, the
prosecutor's erroneous suggestion was not clearly deliberate. Moreover, it was corrected
by Townley's attorney, who pointed out that the prosecutor had incorrectly recalled or
misunderstood the evidence. He reminded the jury that two witnesses, not just one, had
10 Susan Randolph had believed that all three were Hispanic. David Bacon saw only two
of the assailants, who appeared to be of "Latino origin." Jeanne Taylor described the
shortest of the three, the one with the black and red plaid jacket, as being of dark
complexion. Ginger Weisel described the gunman as five feet nine inches, but she did
not see any of their faces. They were yelling in English. Randi Fritts-Nash, one of the
teenagers drinking at the apartment, described Townley as white, while the others were
Hispanic. In her first interview at the station Oreb also described Townley as a "white
guy." In the year that Noe Flores had known Townley, he had not heard Townley speak
Spanish. Amanda Johnston, Townley's girlfriend, testified that Townley did not know
Spanish.
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explained that Townley did not speak Spanish.11 This correction, together with the jury
instruction to rely on the evidence rather than argument, dispelled any potential prejudice
that conceivably could have resulted from the prosecutor's misstatement.
(3) Misstating the Burden of Proof
Townley further challenges three statements the prosecutor made during her
argument to the jury. In her opening argument, she said, "I want to highlight a couple of
things about Townley being the shooter. I suspect most of you don't have much doubt in
your mind about whether he is the shooter." We do not regard this comment as a claim
that the prosecutor professed to have personal knowledge of Townley's guilt, so the
People's response is not helpful. Instead, Townley merely asserts that the prosecutor
suggested she had a personal belief in his guilt and thus "lowered the burden to overcome
doubt about this factual question." We disagree. The remark was brief and did not
suggest that Townley had to refute her personal belief by presenting his own evidence.
Moreover, the defense objection to it was sustained. The prosecutor then rephrased her
comment to say, "Based on the evidence, all of the evidence you heard, the evidence
doesn't support you[r] having a reasonable doubt as to whether . . . Townley was the
shooter."
The prosecutor introduced her closing argument by revisiting the concept of
reasonable doubt: "[W]hat I want to tell you is [that] juries have worked with this for
hundreds of years. It's not super-esoteric. It's a doubt to which you can assign a reason.
And the reason that's so important is because [sic] jury deliberations are a group activity.
You all will deliberate together. And in order for you to be able to effectively do that, it
can't be a feeling, because it's very difficult to put feelings into words so that all of you
11 Townley's attorney noted that "there were two people. Not just one. Not just Amanda
Johnston. Noe Flores also testified, who's known Mr. Townley for over a year. Mr.
Townley didn't speak Spanish. Mr. Flores did. So there are actually two people that
established Mr. Townley does not speak Spanish."
33
folks can talk about it. So it has to be a reasonable doubt based on the evidence. So
remember, it isn't a feeling like I feel like maybe something's amiss. It's something you
can put your finger on and talk to your fellow jurors about."
Townley contends that this argument misstated the law in the same manner that
the Supreme Court condemned in People v. Hill, supra, 17 Cal.4th at page 831. Reversal
is not required, however. First, he did not object to the prosecutor's statement, thus
forfeiting the issue. Secondly, the challenged remark was not comparable to the
argument rejected in Hill. There, the prosecutor stated that in order to have reasonable
doubt, " 'you have to have a reason for this doubt. There has to be some evidence on
which to base a doubt.' " (Id. at p. 831. ) The trial court clouded the picture further by
not only overruling the defense attorney's objection, but also chastising him, thereby
appearing to endorse the prosecutor's incorrect position and potentially biasing the jury
against the defense. The prosecutor then continued: " 'There must be some evidence
from which there is a reason for a doubt. You can't say, well, one of the attorneys said
so.' (Italics added.)" (Id. at p. 831.)
Here the prosecutor did not affirmatively state that the defendant must have
produced evidence to support a reasonable doubt; she said only that there must be a
reasonable doubt based on the jurors' evaluation of the evidence presented. It is not
reasonably likely that her statement would have been understood by the jury to mean that
Townley had the burden of producing evidence to demonstrate a reasonable doubt of his
guilt.
Later in her argument the prosecutor stated: "I want to remind you that the
evidence doesn't have to eliminate any possible doubt. Just any reasonable doubt. That's
all. That is all. There's always going to be possible doubts. But what an abiding
conviction really is, what it boils down to, is it sits right in your gut. You feel okay, you
feel good about the decision you made. Maybe some of you regret it later? Perhaps in a
way. Perhaps some of you may feel badly about being involved in this trial. Something
34
very violent happened to a nice guy. He was almost killed. Who wants to be a part of
that? The Defendants are young. That is tragic. It's nothing short of tragic. But they
made very adult decisions that night and, in fact, they made a very adult decision with
somebody's life hanging in the balance. That is what they did that night."
Townley argues that these statements lowered the burden of proof by "equat[ing]
abiding conviction to a moral certainty with something that the jury feels 'okay' about or
'good about the decision' even if '[m]aybe some of you regret it later.' " Again there was
no objection to the prosecutor's explanation. Townley misinterprets the prosecutor's
reference to regret; she was suggesting that some jurors might feel bad about convicting
young people involved in a tragic event; yet they were making adult choices that almost
cost an innocent person his life. Characterizing "abiding conviction" as a conviction that
"sits right in your gut" is not equivalent to a mere hunch or "gut feeling." Thus, even if
Townley had preserved this claim by a timely objection, we would find no basis for
reversal. (Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1156 [describing "beyond a
reasonable doubt" as "that feeling, that conviction, that gut feeling that says yes, this man
is guilty" was not a purported definition of "moral certainty" and did not cause a
misunderstanding of the reasonable doubt instruction].) As in Barnett, the trial court's
instructions, together with the correct statements of the standard by both defense counsel,
mitigated any misstep in the prosecutor's characterization of the standard of proof and
emphasized the burden placed on the prosecution to prove every element beyond a
reasonable doubt. Hence, we find no reasonable likelihood either that the jury construed
the prosecutor's remarks as requiring the defendant to carry any burden of proof or that
the jury misapplied the relevant law.
(4) Misstating Facts
Townley points to two instances he believes constituted misconduct by misstating
facts. First, during opening argument the prosecutor was discussing Flores's declaration,
and in particular his "mistake" about what he was wearing the night of the shooting. She
35
stated, "When he was speaking with sheriff's deputies, they didn't make him any
promises. They didn't tell him we'll cut you some slack if you come clean." The
prosecutor went on to emphasize how reluctant Flores was to "come clean" and tell the
officers what had happened. He did so, she pointed out, without distancing himself or
minimizing his own role. She concluded, "There's nothing, nothing to suggest that he
was doing anything but telling the truth that day. [¶] No promises from the D.A.'s office.
He admitted that he understood what he had to do if he was called as a witness was to tell
the truth. There's no evidence that he doesn't like these guys, that he'd want to set them
up for some reason. Nothing. He just met Carranco that night. There was no suggestion
that he had any ill-will toward Townley, so why would he? Why would he set 'em up?
He didn't get anything out of it. Again, deputies didn't promise him anything."
Townley again forfeited any challenge to this alleged misstatement by failing to
object. Were we to address the merits, we would reject the People's assertion that the
prosecutor spoke accurately when she said Flores received no benefit from testifying.
Although his declaration contained the statement that he did not have "an agreement to
testify in exchange for telling the truth in this declaration," it also reflected the plea deal
he had made with the district attorney. Nevertheless, the jury was fully aware of the
negotiated disposition of Flores's case. At trial Flores acknowledged that he had pleaded
to a reduced charge, that he might be called to testify, and that if called he would have the
obligation to tell the truth.
Townley also takes issue with the following statement by the prosecutor: "When
people talk about going to prison for life, they are talking about killing somebody." The
prosecutor was referring to Townley's statement to Fritts-Nash that he was "looking at 25
to life." Townley contends that the comment "not only misstated the evidence, but . . .
suggested that the prosecutor had evidence beyond the record to support her assertions."
The prosecutor's statement was an illogical inference from the facts and an incorrect
36
statement of the law. Nevertheless, defense counsel's objection was sustained, thus
minimizing any harm.
(5) Sarcastic Remarks
Finally, Townley argues that the prosecutor made "a host of sarcastic comments in
front of the jury," directed at defense witnesses as well as the attorneys. "A prosecutor
commits misconduct if he or she attacks the integrity of defense counsel, or casts
aspersions on defense counsel. [Citations.]" (People v. Hill, supra, 17 Cal.4th at p. 832;
People v. Vance, supra, 188 Cal.App.4th at p. 1200.) " ' "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. Vance, supra, 188 Cal.App.4th at p. 1200.)
Townley specifically focuses on two incidents. The defense had called Laurie
Kaminski, an expert in gunshot residue, who had watched a video showing Townley
rubbing his hands together and touching his shirt. Kaminski suggested that gunshot
residue might be transferred from the shirt to his hands. She also expressed the opinion
that it can be misleading to try to establish the meaning of gunshot residue based on its
location, because particles "redistribute themselves." Thus, residue on someone's hands
could result from being near a gun when fired, or from handling a fired gun or fired
ammunition. In cross-examining Kaminski, the prosecutor asked what the odds would be
of contamination ending with the right hand having significantly more particles than the
left hand or sleeve. Kaminski explained that there would be no way to estimate those
odds. The prosecutor suggested, "Sure a curious coincidence, wouldn't you say?" A
defense objection, "argumentative," was sustained.
Even if this was an impermissible comment on the evidence, it was brief and
insignificant, and in any event it was tempered by the ruling sustaining the objection. We
find no harm from the offhand remark.
37
The second comment occurred during closing argument, when the prosecutor was
going over Carranco's participation and Townley's admissions to Fritts-Nash after the
shooting. The trial court overruled an objection by Carranco's counsel to the depiction of
Carranco as saving face by getting out of the car with the other two assailants. At that
point the prosecutor said, "If I'm lucky, I can be accused of misconduct one more time."
This sarcastic remark was clearly gratuitous, but it had no bearing on the issues, and it
only cast the prosecutor in an even more pejorative light, making her appear petty and
querulous. And when Carranco's attorney asked the court to strike her remark, the
prosecutor responded with yet more petulance: "Perhaps you should admonish Counsel
as [sic] to stop objecting on that [misconduct] basis." The trial court appropriately
curbed such fractiousness by telling the prosecutor to "Just finish the argument." No
prejudice to Townley resulted from the prosecutor's intemperate but self-defeating
conduct.
3. Trial Court's Comments on Witness Credibility
During cross-examination of Flores and later in closing argument, defense counsel
suggested that Flores had merely assented to the detectives' leading questions without
independently recalling facts. In cross-examining Flores, counsel for both defendants
brought out Flores's initial denial to the police that he had witnessed anything, along with
questions apparently designed to suggest that (a) Flores was manipulated into admitting
his participation in the crime and (b) Flores's plea bargain was an incentive for testifying
against Townley and Carranco.12 The following colloquy took place in cross-
examination by Carranco's attorney: "Q. And early on when you're talking to Detective
Ramsey, you initially told him several times that you didn't know anything about this; is
12 For example, Townley's attorney asked, "You indicated to Deputy Ramsey when you
were initially talking to him you hadn't seen anything; is that correct? [¶] A. Yes. . . .
[¶] Q. You hadn't witnessed – the way you used – 'I witnessed nothing'; is that correct?
[¶] A. Yes. [¶] Q. You took the position, I didn't know what happened. [¶] A. Yes."
38
that correct?" After the prosecutor's objection was overruled, Flores answered "Yes" and
counsel continued: "And Detective Ramsey, during that interview, conveyed to you that
they already had some information about this situation; is that correct? [¶] A. Yes. [¶]
Q. Detective Ramsey also told you he didn't believe your statement that you didn't know
anything about this situation; is that correct? [¶] A. Yes. [¶] Q. Detective Ramsey at
one point called you a stand-up guy; is that correct? [¶] [The prosecutor]: Your Honor,
objection. Hearsay. It exceeds -- [¶] THE COURT: It's all irrelevant. Sustained."
When Carranco's attorney tried to defend his question as relevant to Flores's state of
mind, the court responded with the explanation challenged on appeal: "We've already
established by everyone's agreement that whatever – most of what he told Detective
Ramsey wasn't the truth, and that he told what he thinks characterizes the truth to
Sergeant Sulay later in the interview. That's my understanding of the testimony in this
case. I don't know where you're going with characterization and police tactics used by
Detective Ramsey. And those aren't actually that relevant."
Shortly thereafter, Carranco's attorney brought out Flores's acknowledgement that
in the interrogation room he was nervous and scared and afraid of being locked up. The
next question -- "And you asked detectives if you were going to be able to go home; is
that correct?" -- prompted an objection by the prosecutor on relevance grounds. Counsel
responded, "Goes to the credibility of the statement that he's making." But the court
disagreed, explaining that "[t]he credibility is what he's saying today, not what he said
back when he was interviewed. You all have to use his interview for impeachment of
different purposes, but the jury has to focus on whether his testimony today is truthful or
not, and on the other indications here that they've heard."
Townley contends that these rulings violated his Sixth Amendment rights to
present a defense and cross-examine witnesses, because the court improperly commented
on the evidence and "cut-off [sic] reasonable attempts to demonstrate that [Flores's]
testimony was the product of threats and promises of leniency." Even if Townley's
39
attorney had made a proper objection, we would reject his contention, as we find no
impairment of Townley's constitutional rights. The court was not declaring the police
tactics irrelevant to Flores's credibility at trial; it was merely observing that it had already
been established that Flores had not told the truth to the deputies when first interviewed.
The colloquy did not significantly add to the jury's understanding of the defense position.
The issue presented here is not comparable to the cases on which Townley relies.
He cites only one part of the holding in Crane v. Kentucky (1986) 476 U.S. 683 (106
S.Ct. 2142), where the Supreme Court explained that the right to a fair trial was violated
by the "blanket exclusion" of testimony about the circumstances of the defendant's
confession. (Id. at p. 690.) The high court cited its earlier decision in which it had
explained that while " 'the exposure of a witness'[s] motivation in testifying is a proper
and important function of the constitutionally protected right of cross-examination,' " a
defendant is not entitled to " 'cross- examination that is effective in whatever way, and to
whatever extent, the defense might wish.' " (Delaware v. Van Arsdall, supra, 475 U.S. at
pp. 678-679.) Accordingly, "trial judges retain wide latitude . . . to impose reasonable
limits on such cross-examination based on concerns about, among other things, . . .
interrogation that is repetitive or only marginally relevant." (Id. at p. 679.) California v.
Green (1970) 399 U.S. 149, 158 also is not helpful to Townley; the cited holding merely
confirms that "the Confrontation Clause is not violated by admitting a declarant's out-of-
court statements, as long as the declarant is testifying as a witness and subject to full and
effective cross-examination." People v. Fierro (1991) 1 Cal.4th 173, 221 only offers the
reminder that a prior inconsistent statement is admissible "not only to impeach credibility
but also to prove the truth of the matters stated." And People v. Rodriguez (1986) 42
Cal.3d 730, 772 is inapposite because it addressed judicial comments to a deadlocked
jury; indeed, the court emphasized that "accurate, temperate, nonargumentative, and
scrupulously fair" commentary is not tantamount to coercing the deadlocked jurors into
reaching a verdict. (Id. at p. 766.) "Accordingly, we have made clear that the trial court
40
has broad latitude in fair commentary, so long as it does not effectively control the
verdict. For example, it is settled that the court need not confine itself to neutral, bland,
and colorless summaries, but may focus critically on particular evidence, expressing
views about its persuasiveness." (Id. at p. 768.) The court in this case did not even go
that far; not only were the coercive circumstances of a deadlocked jury absent here, but
there was no comment beyond pointing out a fact that had already been established.
Nor is this case analogous to People v. Sturm (2006) 37 Cal.4th 1218. There the
trial judge's comments during the penalty phase of trial told the jury that the defendant
had been convicted of premeditated murder, which was not true. That inaccurate
statement not only advanced the prosecutor's argument that the defendant had
premeditated the murders, but "severely damaged" the defense position that lack of
premeditation and deliberation was a mitigating factor in the penalty decision. (Id. at p.
1232.) No such damage occurred here. The court's statement was accurate in that
Flores's credibility on the witness stand was the critical point the jury had to determine.
If his trial testimony was false, defense counsel could use the circumstances of his prior
statement for impeachment; and Townley's attorney did so by bringing out the details of
Flores's plea agreement with the prosecution. Defense counsel also stated in closing
argument that Flores tended to agree with any suggestion made to him about the facts.
Only Carranco's attorney was curtailed in his cross-examination of Flores on the veracity
of the statements made to Detective Sulay. The court acted to control the proceedings
and minimize jury confusion by limiting Carranco's cross-examination to testimony
bearing on Flores's credibility at trial. Townley himself was not deprived of a fair trial by
the trial court's ruling. Furthermore, any potential jury misunderstanding would have
been averted or corrected in the instruction with CALCRIM No. 318, which told the
jurors that they could use the prior statement to evaluate whether Flores's trial testimony
was true and whether his statements to the detectives were true.
41
Conclusion
On the record before us we are unable to discern a reasonable probability that, but
for the interference with defense counsel's ability to discuss Flores's declaration with
Townley, the outcome of trial would have been different. (Strickland, supra, 466 U.S. at
p. 694.) Whether additional evidence of prejudice exists outside the appellate record is
not a question we can answer in this procedural posture. We further cannot find ground
for reversal in either the prosecutor's intemperate conduct during trial or the trial court's
reference to a witness's credibility.
Disposition
The judgment is affirmed.
_________________________________
ELIA, J.
WE CONCUR:
__________________________________
RUSHING, P. J.
__________________________________
PREMO, J.
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