P. v. Bell CA3 ( 2013 )

Filed 6/26/13 P. v. Bell CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C070170
Plaintiff and Respondent, (Super. Ct. No. 11F02687)
v.
LLOYD LEE BELL, III,
Defendant and Appellant.
After hearing defendant’s trial on a nine-count information encompassing several
distinct incidents, a jury found him guilty of four counts of false imprisonment, two
counts of being a felon in possession of a firearm, two counts of dissuading a witness,
and assault with a deadly weapon. The jury found true allegations that all the crimes
were committed for the benefit of a criminal street gang and that defendant personally
used a firearm in some of the offenses. The trial court sentenced defendant to a
determinate term of 40 years in state prison and an indeterminate term of 14 years to life.
On appeal, defendant contends there is insufficient evidence to support the second
of his two convictions for dissuading a witness. He argues the trial court erred in
curtailing cross-examination of a key prosecution witness, and the People committed
misconduct in closing argument. He asks that his booking and classification fees be
1
stricken because the trial court did not explicitly find he had the ability to pay these fees.
As we will explain, defendant’s contentions fail to persuade. Accordingly, we shall
affirm.
FACTS
March 13, 2011 Shooting
Bobby Wilson lived with Maxine Johnson. On March 13, 2011, she left him at
home with his friend “Little Bob” (Robert Solomon). When she returned in the evening,
she saw defendant leaving. Solomon was upset, claiming his money had been taken. He
and Wilson quickly left. Johnson entered the house and saw the mirror by the front door
had been shattered. She called the police.
The police arrived and with Johnson’s consent searched the house. They found a
spent bullet casing on the floor inside the front door. There was a spent round in the
closet nearby.
At trial, Wilson refused to answer questions about that day, claiming he did not
recall the details. In a taped interview with a detective, which was played for the jury,
Wilson said defendant shot at him.
The jury found defendant guilty of assault with a deadly weapon (Pen. Code,1
§ 245, subd. (b)), personal use of a firearm (§ 12022.5, subd. (a)(1)), and being a felon in
possession of a firearm (§ 12021, subd. (a)(1)). The jury found both crimes were
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) (Counts 8
and 9.)
1 Further undesignated statutory references are to the Penal Code.
2
March 15, 2011 Studio Incident
Bakita Adame, who went by Pearl, worked at an entertainment center which had a
recording studio.2 The studio was located in a strip mall where Adame’s brother,
Demetrius Muses, was trying to start a restaurant; another brother, Rick Muses, was
living at the studio at the time.3
On March 15, 2011, at 6:00 p.m., defendant came to the studio with a number of
others for a recording session.4 He had started a recording four or five days before. The
engineer tried to find defendant’s recording, but was unsuccessful. When Adame asked
defendant the song’s name, defendant became disrespectful and cursed at her. Defendant
said that if they could not find his song, he would “take over this motherfucker” and
“take all the shit out of this motherfucker.” He threatened to “put a bullet in [her] fucking
head.” He declared he and his companions were “4th Avenue Zillas” and they were
“taking over shit”; he told Adame to “shut the fuck up” and referenced setting people on
fire in lieu of discussion. Defendant pulled a gun from the waistband of one of his
companions and held it to Adame’s head.5 Rick entered the studio, and defendant and
two others rushed him. Defendant told him to sit down before defendant “peeled his wig
back.”
2 As discussed further in Part II post, Adame had sustained a felony theft conviction.
3 Because the Muses brothers share the same surname, we refer to them by their
respective first names.
4 Defendant was known as Skooter. Two of defendant’s companions, Charles Corbett
and Troy Daniels, were also charged. They each entered a plea to one count of false
imprisonment with stipulated sentences of 8 and 13 years, respectively. They are not
involved in this appeal.
5 The jury failed to reach a unanimous verdict on the allegations of personal use of
firearm. The trial court declared a mistrial as to those allegations, which were
subsequently dismissed.
3
At the beginning of defendant’s outburst, Adame had called the studio’s owner
and told him there was a problem. The owner called Demetrius, who arranged for his
fiancee to call the Sheriff’s Department and then called Carey Bennett and asked him to
check on Adame. Bennett went to the studio and gave his phone to Adame, telling her
that her brother wanted to talk to her. Defendant grabbed the phone. Defendant told
Bennett to sit down; he was in the wrong place at the wrong time. Bennett thought
someone had a gun.
Jeremiah Ellis, who was performing community service at the studio, left to get
snacks when defendant arrived. When he returned, defendant and another man came
outside and told Ellis to go inside. They made Ellis sit down. Adame was on the couch,
hysterical; defendant was telling her she had to pay him money every month.
One of defendant’s group announced the police had arrived. Defendant told his
captives that if anyone talked to the police he would “com[e] back to kill” them, so they
had “better not say a fucking word.” Defendant threatened a “blood bath.” Several of
defendant’s group went to the back where the bathroom was.
The police entered the studio and asked for Adame. She looked sick and was
using an oxygen tank to breathe. Adame said everything was fine. The police took her
outside, where she repeatedly said there was no problem.
The police pat searched everyone and did a quick walk through, but did not find
anything. Defendant was agitated; Adame wanted to speak and defendant told her to
“shut her mouth.”
Everyone stayed, including the police, while defendant and his group finished
their recording and left. Rick then told the police that the men who had been recording
had guns, threatened them, and held everyone hostage. Adame then also told the police
what had happened.
The police recovered two loaded guns from the bathroom garbage can, a
4
nine-millimeter and a .45-caliber. The cartridge found at Wilson’s house came from the
same nine-millimeter gun. Neither defendant’s fingerprints, nor his DNA, were found on
either gun.
The jury found defendant guilty of four counts of false imprisonment (§ 236),
being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and dissuading a witness
maliciously by force or a threat of violence (§ 136.1, subd. (c)(1)), all with gang
enhancements (§ 186.22, subd. (b)(1)). (Counts 1 through 6.)
April 2, 2011 Possession of Firearms
On April 2, 2011, Officer Andy Hall saw a white Chrysler parked behind an
apartment on V Street. The car was associated with a probationer he was looking for.
He knocked on the door of the apartment and the female who answered the door invited
him in. Defendant was sitting in a chair in the bedroom holding a phone; he appeared
very nervous. Hall found a loaded .38-caliber revolver in a jacket next to defendant.
Hall found another .38-caliber revolver in the hallway closet.
The jury found defendant guilty of being a felon in possession of a firearm
(§ 12021, subd. (a)(1)), with a gang enhancement (§ 186.22, subd. (b)(1)). (Count 9.)
April 8, 2011 Threats
On April 8, 2011, Demetrius and Bennett were moving things into the new
restaurant near the studio. Demetrius heard a commotion and saw defendant. Defendant
told Demetrius he looked like “that punk bitch Pearl,” who had “been snitching around
this motherfucker.” Demetrius responded that defendant “must be that asshole she’s
talking about that holding people up with guns inside there.” Demetrius told defendant
his sister was not looking for problems. Defendant said it was too late because she was
“snitching,” and he told Demetrius he could not open his restaurant unless he paid
defendant every week. Defendant brandished his weapon by lifting his shirt so
Demetrius saw the gun handle. Then defendant saw Bennett and accused him of
5
“snitching” too. Defendant told Demetrius, “your sister’s dead. When I find that bitch,
she’s dead.”
Demetrius did not open the new restaurant. He feared for his safety and the safety
of his family.
The jury found defendant guilty of knowingly and maliciously dissuading a
witness with force or threats (§ 136.1, subd. (c)(1)) and found the personal use of a
firearm (§ 12022.5, subd. (a)(1)) and gang (§ 186.22, subd. (b)(4)) enhancements true.
(Count 7.)
Gang Evidence
A gang detective testified that Ridezilla or Underworld Zilla was a subset of the
Oak Park Bloods criminal street gang. It was one of the few gangs that operated both in
prison and on the street. Ridezilla began as a rap group. The detective opined that
defendant was an active member of the Oak Park Bloods or Ridezilla. His opinion was
based on numerous contacts, gang clothing, defendant’s admission, gang crimes, and
activity. In response to a hypothetical based on the facts of this case, the detective opined
that defendant’s crimes benefitted the gang.
Defense
Defendant’s wife testified that defendant did not live with her at the apartment on
V Street (where law enforcement had found defendant with guns). The male clothing
belonged to her boyfriend, not defendant. The guns were hers (although she could not
describe the gun found in the jacket).
Defendant denied he shot at Wilson or threatened Adame at the studio or had a
gun that day. He claimed he did not live on V Street and the guns at the apartment were
not his. When he saw Demetrius in the parking lot, defendant only asked him to have
Adame call him; he made no threats.
6
DISCUSSION
I
Sufficient Evidence of Count 7 - Dissuading a Witness
Defendant first contends insufficient evidence supports his conviction on count 7,
dissuading witnesses Adame and Demetrius on April 8. Defendant concedes that the
evidence shows “he certainly did something wrong,” but argues his actions and words did
not constitute a violation of section 136.1.
The information charged defendant in count 7 with a violation of section 136.1,
subdivision (c)(1), with both Adame and Demetrius named as victims. The elements of a
violation of section 136.1, subdivisions (a)(1) and (c)(1), are that (1) the person
threatened is a witness to a crime; (2) the person charged, with the specific intent to do
so, attempted to prevent or dissuade the witness from attending or giving testimony at
any trial, proceeding, or inquiry authorized by law; (3) the person charged acted
knowingly and maliciously; and (4) the act of preventing, dissuading or the attempt
thereto, was accompanied by force or by an express or implied threat of force or violence
upon the person or property of the witness or any third person. (§ 136.1, subds. (a)(1) &
(c)(1); see also CALCRIM Nos. 2622, 2633.)6
6 Section 136.1 in pertinent part provides as follows: “(a) Except as provided in
subdivision (c), any person who does any of the following is guilty of a public offense
and shall be punished by imprisonment in a county jail for not more than one year or in
the state prison: [¶] (1) Knowingly and maliciously prevents or dissuades any witness
or victim from attending or giving testimony at any trial, proceeding, or inquiry
authorized by law. [¶] (2) Knowingly and maliciously attempts to prevent or dissuade
any witness or victim from attending or giving testimony at any trial, proceeding, or
inquiry authorized by law. [¶] . . . [¶] (c) Every person doing any of the acts described
in subdivision (a) or (b) knowingly and maliciously under any one or more of the
following circumstances, is guilty of a felony punishable by imprisonment in the state
prison for two, three, or four years under any of the following circumstances: [¶] (1)
Where the act is accompanied by force or by an express or implied threat of force or
violence, upon a witness or victim or any third person or the property of any victim,
witness, or any third person. [¶] . . . [¶] (d) Every person attempting the commission of
7
Defendant contends there is no evidence he was preventing or dissuading either
witness from testifying, although he admits threatening Adame. We are not persuaded.
Defendant’s interaction with Demetrius in the parking lot was focused on defendant’s
extreme displeasure with “snitching.” Defendant’s threat to kill Adame demonstrated
defendant’s intent to retaliate for her past act of reporting his crimes to the police, and the
jury could also interpret the threat as a warning not to testify in the future. (People v.
Ford (1983) 145 Cal.App.3d 985, 989.) Defendant threatened to kill Adame when he
found her; certainly he would “find” Adame at trial if she testified. The fact that
defendant’s comments only directly referred to Adame’s past “snitching” does not
immunize him from guilt for attempting to dissuade her from giving testimony in the
future. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344.) Further, the jury could
also reasonably construe defendant’s threat as a warning to Demetrius not to testify
against defendant or he too would face violence.
“There is, of course, no talismanic requirement that a defendant must say ‘Don't
testify’ or words tantamount thereto, in order to commit the charged offenses. As long as
his words or actions support the inference that he . . . attempted by threat of force to
induce a person to withhold testimony [citation], a defendant is properly” convicted of a
violation of section 136.1, subdivision (c)(1). (People v. Thomas (1978) 83 Cal.App.3d
511, 514 [in hallway outside courtroom defendant cursed at and threatened witness and
yelled, “You put my mother in jail, you had my mother picked up”].)
Substantial evidence supports defendant’s conviction on count 7.
any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted
without regard to success or failure of the attempt. The fact that no person was injured
physically, or in fact intimidated, shall be no defense against any prosecution under this
section.”
8
II
Restricted Cross-Examination of Adame
Defendant contends the trial court abused its discretion in limiting cross-
examination of Adame. He argues that because he was not allowed to ask Adame about
the details of her fraud conviction, his Sixth Amendment right to confront witnesses
against him was violated.
A. Background
Before trial, the court ruled defendant could impeach Adame with her felony
grand theft and identity theft convictions. The defense indicated its intent to call as
witnesses a former IHSS (In-Home Supportive Services) worker who had been deceived
by Adame, and also Stacy Hutchins, the victim of the identity theft, as well as to
introduce certain documents. The court said it would not permit collateral witnesses to
relitigate the theft case because Adame had entered a plea. It was, however, “fair game”
for the defense to question Adame about the benefit she received in the plea bargain.
Subsequently, the court asked counsel if there were issues regarding impeachment that
needed to be addressed. Defense counsel responded, “I think we have already talked
about our stuff.”
On direct examination, Adame testified she had suffered a 1991 misdemeanor
conviction for welfare fraud and more recently was involved in a felony theft case. That
case involved allegations that she was over-billing for in-home care services, that she
received money for services she did not provide. She pled no contest to the felony
charges and was granted probation. Regarding the instant case, the District Attorney’s
Office had arranged that she move from her previous residence and had also provided her
with financial assistance, about $1,700 over five months, plus relocation costs,
presumably given the danger of retaliation for her testifying.
On cross-examination, Adame testified she had also received money for vehicle
repairs, although she claimed not to know the specific amounts. Adame admitted she
9
pled guilty to using Hutchins’s signature to sign checks that were not hers. She spent no
time in custody. The bail amount was $45,000, but she was released on her own
recognizance. The People put her matter on calendar to modify her formal probation to
informal probation.
When the defense tried to question Adame about additional details of her
conviction, the court sustained the People’s Evidence Code section 352 objections. The
defense did question Adame about over-billing in the amount of $44,000 over almost
three years; Adame responded it ended when she found Hutchins in bed with her
husband. Adame denied she wrote 70 checks without Hutchins’s permission, claiming
Hutchins signed some. When the defense pursued this issue, the court sustained an
objection. The court also sustained objections when the defense asked if Adame had
used Hutchins’s social security number. The court told counsel to move on to another
area. “Counsel, we have already, I think, covered this area sufficiently. It’s getting to the
point where minutia is not relevant in light of the time consumption. So, move on.”
Later, defendant put on the record the tactical decision not to call Hutchins as a
witness because the court had ruled her testimony would be limited to her opinion of
Adame’s character for honesty. The court reiterated its position that specific instances of
misconduct are potentially admissible if they relate directly to honesty and veracity and
the court had permitted limited cross-examination as to the underlying facts of Adame’s
conviction. The court would not, however, permit relitigation of something already
resolved by criminal adjudication.
B. The Law
The Sixth Amendment's confrontation clause guarantees an accused in a criminal
prosecution the right to be confronted with the witnesses against him. (Delaware v. Van
Arsdall (1986) 475 U.S. 673, 678 [89 L.Ed.2d 674, 682-683 ] (Van Arsdall).) The
essential purpose of this right is “‘to secure for the opponent the opportunity of cross-
examination.’ [Citation.]” (Davis v. Alaska (1974) 415 U.S. 308, 315-316 [39 L.Ed.2d
10347, 353] (Davis).) An important function of the right of cross-examination is exposure
of a witness's motivation in testifying. (Van Arsdall, supra, 475 U.S. at pp. 678-679 [89
L.Ed.2d at p. 683].)
Trial judges retain wide latitude to impose reasonable limits on cross-examination
to avoid harassment, prejudice, confusion of the issues, danger to the witness's safety, or
interrogation that is repetitive or only marginally relevant. (Van Arsdall, supra, 475 U.S.
at p. 679 [89 L.Ed.2d at p. 683].) “In particular, notwithstanding the confrontation
clause, a trial court may restrict cross-examination of an adverse witness on the grounds
stated in Evidence Code section 352. [Citation.]” (People v. Quartermain (1997) 16
Cal.4th 600, 623 (Quartermain).)
The standard for whether a trial court abused its discretion in restricting defense
cross-examination of a prosecution witness is whether a reasonable jury might have
received a significantly different impression of the witness's credibility had the excluded
cross-examination been permitted. (Van Arsdall, supra, 475 U.S. at p. 680 [89 L.Ed.2d at
p. 684]; Quartermain, supra, 16 Cal.4th at pp. 623-624.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by concerns
of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a
discretionary power is statutorily vested in the trial court, its exercise of that discretion
‘must not be disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124-1125.)
C. Analysis
Defendant contends the details of Adame’s crime would support the defense
theory that she fabricated the events at the studio. He claims that due to the restriction on
cross-examination, Adame was “bathed in artificial credibility.” We disagree.
11
Defendant relies on Davis, supra, 415 U.S. 308 [39 L.Ed.2d at p. 353]. In Davis,
the sole witness to the petitioner defendant’s involvement in the theft of a safe from a bar
was, at the time of trial, as well as at the time of the events to which he testified, on
juvenile probation after having been adjudicated a delinquent for burglarizing two cabins.
Defense counsel sought to impeach the witness with his juvenile adjudication, arguing
that he not only might have made a hasty and faulty identification of petitioner to shift
suspicion away from himself as one who robbed the bar, but might also have been subject
to undue pressure from the police and made his identifications under fear of possible
probation revocation. (Davis, supra, 415 U.S. at p. 311 [39 L.Ed.2d at p. 351].)
The United States Supreme Court held that the refusal to allow cross-examination
about the witness’s probationary status denied the defendant his constitutional right to
confront witnesses against him. (Davis, supra, 415 U.S. at p. 318 [39 L.Ed.2d at p. 355].)
Davis is readily distinguishable from the case at hand. Here, defendant was only
slightly limited in exercising his right to cross-examine Adame about her prior conviction
or the benefits she received from the People. The defense was able to show that Adame
had been involved in a serious theft of $44,000 over a three-year period. In addition to a
generous plea bargain permitting probation, Adame obtained modification of her
probation from formal to informal, was relocated at the People’s expense, and received
other financial aid. Thus, defendant was able to attack Adame’s credibility by showing
that she was a thief and that she had received considerable benefits from the prosecution.7
Defendant contends limiting the cross-examination of Adame was an abuse of
discretion because he had “persuasive evidence” that she fabricated her story and he
needed to explore the details of her crime to undermine her credibility. He cites Adame’s
claim that she was hysterical during the ordeal, but the responding officer noted no such
7 Her evasive answers to questions about her crime also served to undercut her
credibility.
12
distress, and the lack of forensic evidence tying the guns to defendant.8 The record does
not show strong evidence of fabrication. While defendant refers to Adame as the key
prosecution witness, she was not the sole witness as to the crimes at the recording studio.
Adame’s version of events at the studio was corroborated not only by the testimony of
Bennett, Ellis, and Rick, but also by their statements to the police at the scene, before
there was an opportunity to conspire against defendant. The testimony of Demetrius and
Bennett about defendant’s threats a few weeks later in the parking lot also provided
corroboration.
Defendant fails to show how the details of Adame’s crime would have bolstered
his contention that she fabricated her story about hostage taking at the studio. He offers
nothing that would show Adame had a motive to frame defendant. He fails to show the
jury might have received a significantly different impression of the witness's credibility
had the excluded cross-examination been permitted. (Van Arsdall, supra, 475 U.S. at p.
680 [89 L.Ed.2d at p. 684]; Quartermain, supra, 16 Cal.4th at pp. 623-624.)
“‘While cross-examination to test the credibility of a prosecution witness is to be
given wide latitude, its control is within the discretion of the trial court, and the trial
court's exclusion of collateral matter offered for impeachment purposes has been
consistently upheld.’” (People v. Redmond (1981) 29 Cal.3d 904, 913; see Quartermain,
supra, 16 Cal.4th at p. 625 [trial court did not abuse discretion by excluding
impeachment on collateral matter].) Defendant has not shown an abuse of discretion in
limiting the cross-examination of Adame.
8 There was, however, evidence tying one of the guns found at the recording studio to the
shooting at Wilson’s house.
13
III
Prosecutorial Misconduct
Defendant contends the People committed repeated misconduct in closing
argument. He contends three comments by the prosecutor, to which the trial court
sustained defendant’s objection, improperly asked the jury to “send a message” about
stopping gang violence.
A. Background
To explain why Adame was relocated and why Wilson was reluctant to identify
defendant as the shooter, the prosecutor discussed Oak Park gangs and their use of
violence and intimidation. The following occurred.
[Prosecutor]: “And the reality is this: The gang detectives I work with, my office,
we can’t take that power back from Skooter.
[Defense Counsel]: “Objection, Your Honor.
[The Court]: “Sustained.
[Prosecutor]: “We can’t do anything.
[Defense Counsel]: “Objection, Your Honor.
[The Court]: “Sustained.
[Prosecutor]: “In reality, the only people who have the power to stop gang
violence in any community in the system of justice that we have designed is you.
[Defense Counsel]: “Objection, Your Honor.
[The Court]: “Sustained.
[Prosecutor]: “Here’s the deal: The Skooter’s of the world in cases like this take
over businesses, they take over communities, and they have to stand trial. And that’s
what we have here, and that’s why I am asking you to make tough decisions in a case like
this.”
There was no further objection and the prosecutor turned to discussing the
elements of the gang enhancement.
14
B. The Law
“To constitute a violation under the federal Constitution, prosecutorial misconduct
must ‘so infect[ ] the trial with unfairness as to make the resulting conviction a denial of
due process.’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 122.) “A
prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless
violates California law if it involves ‘the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’ [Citations.]” (People v. Cole (2004) 33
Cal.4th 1158, 1202 (Cole).) “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.]” (Cole, supra, 33 Cal.4th at pp. 1202-1203.)
“’It is, of course, improper to make arguments to the jury that give it the
impression that “emotion may reign over reason,” and to present “irrelevant information
or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an
irrational, purely subjective response.” [Citation.]’” (People v. Redd (2010) 48 Cal.4th
691, 742.) “It has long been settled that appeals to the sympathy or passions of the jury
are inappropriate at the guilt phase of a criminal trial.” (People v. Fields (1983) 35
Cal.3d 329, 362.)
“A prosecutor is allowed to make vigorous arguments and may even use such
epithets as are warranted by the evidence, as long as these arguments are not
inflammatory and principally aimed at arousing the passion or prejudice of the jury.”
(People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) On the other hand, a prosecutor may
not urge the jury to convict defendant for reasons unrelated to the evidence presented at
trial. (See e.g., United States v. Solivan (6th Cir.1991) 937 F.2d 1146, 1155 [prosecutor
committed misconduct by asking the jury to send a message to defendant and all other
drug dealers that “we don’t want that stuff in Northern Kentucky”].)
15
Finally, “a defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion--and on the same ground--the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety.
[Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
C. Analysis
Defendant forfeited his claim of prosecutorial misconduct by failing to request a
curative admonition. (People v. Gonzales (2012) 54 Cal.4th 1234, 1275 (Gonzales).)
Defendant contends an admonition would have been futile because the jury could not
“forget” what it just heard. We find it more probable that the failure to seek an
admonition was “a reasonable strategic decision” due to the minimal “rhetorical impact”
of these comments. (Gonzales, supra, 54 Cal.4th at p. 1275.)
In any event, we find the prosecutor’s comments were not prejudicial misconduct.
“Isolated, brief references to retribution or community vengeance . . . , although
potentially inflammatory, do not constitute misconduct so long as such arguments do not
form the principal basis for advocating the imposition of the death penalty. [Citation.]”
(People v. Ghent (1987) 43 Cal.3d 739, 771.) Here, the prosecutor did not argue for
retribution or vengeance; instead, he focused on the jury’s role in the criminal justice
system. He told the jury it was their job alone to determine defendant’s guilt and, by
finding defendant guilty, they could help stop gang violence.
Similar arguments have been found not to constitute misconduct. In People v.
Lang (1989) 49 Cal.3d 991, 1041, the prosecutor told the jury, “if you want to have a
voice in your community and an effect upon the law in the community, this is your
opportunity.” Our Supreme Court found “[n]o reasonable juror would have construed the
remarks as urging the jurors to follow community sentiment rather than their own
judgment.” (Ibid.) In People v. Wash (1993) 6 Cal.4th 215, 261–262, the court found no
misconduct where prosecutor urged “jury ‘to make a statement,’ to do ‘the right thing,’
and to restore ‘confidence’ in the criminal justice system by returning a verdict of death.”
16
Here, the prosecutor did not invite the jury to convict defendant solely because of
his gang status and no reasonable juror would have so construed his remarks. Instead, the
closing argument focused the reasons Adame was credible and the corroborating
evidence. There was no prejudicial prosecutorial misconduct.
IV
Ability to Pay Booking Fee
The trial court imposed a $289.78 booking fee and $53.23 classification fee
pursuant to Government Code section 29550.2, without objection from defendant.
Defendant now contends that the trial court erred in imposing these fees because it failed
to make a finding as to defendant’s ability to pay and did not determine the actual
administrative costs involved. The People respond that defendant has forfeited this claim
by his failure to object to the imposition of the fees in the trial court.
Our Supreme Court recently adopted the People’s position in People v.
McCullough (2013) 56 Cal.4th 589 (McCullough). There, the defendant challenged the
imposition of a booking fee without a finding of the ability to pay. The high court held,
“a defendant who does nothing to put at issue the propriety of imposition of a booking fee
forfeits the right to challenge the sufficiency of the evidence to support imposition of the
booking fee on appeal, in the same way that a defendant who goes to trial forfeits his
challenge to the propriety of venue by not timely challenging it.” (Id. at p. 866.) The
court noted that, “the Legislature considers the financial burden of the booking fee to be
de minimis and has interposed no procedural safeguards or guidelines for its imposition.
In this context, the rationale for forfeiture is particularly strong. [Citation.]” (Id. at p.
867.) The court further noted that determining a defendant’s ability to pay was “much
less complex” than determining his sentence. (Ibid.) “Given that imposition of a fee is of
much less moment than imposition of sentence, and that the goals advanced by judicial
forfeiture apply equally here, we see no reason to conclude that the rule permitting
challenges made to the sufficiency of the evidence to support a judgment for the first time
17
on appeal ‘should apply to a finding of’ ability to pay a booking fee under Government
Code section 29550.2. [Citation.]” (Ibid.)
The reasoning of McCullough applies equally to the classification fee.
Defendant’s contentions regarding both the booking fee and classification fee are
forfeited by his failure to object below.
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.
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