People v. Torrez CA1/5

Filed 5/3/22 P. v. Torrez CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A161474
v.
BRYAN TORREZ, (City & County of San Francisco
Super. Ct. No. 232575)
Defendant and Appellant.
Bryan Torrez appeals from a judgment of conviction and sentence
imposed after a jury found him guilty of misdemeanor assault and battery
(Pen. Code, §§ 240, 242).1 He contends (1) the court erred in precluding
expert witness testimony to support his unconsciousness defense; (2) the
prosecutor committed misconduct in asking a character witness about a
purported arrest of the defendant for attempting to break into cars, because
the arrest was actually for resisting a police officer; and (3) the sentencing
minutes should be corrected so that he does not have to pay the fees and
assessments imposed at sentencing or a $25 fee under section 1463.07. We
will order a correction of the sentencing minutes and affirm the judgment.
1 Except where otherwise indicated, all statutory references are to the
Penal Code.
1
I. FACTS AND PROCEDURAL HISTORY
Torrez was charged in Count 1 with assault with force likely to cause
great bodily injury (§ 245, subd. (a)(4)) and in Count 2 with battery with
serious bodily injury (§ 243, subd. (d)). As to Count 1, it was alleged that he
personally inflicted great bodily injury (§ 12022.7, subd. (a)), and as to Count
2, it was alleged that he personally inflicted serious bodily injury (§ 1192.7,
subd. (c)(8)). The matter proceeded to trial.
A. Prosecution Case
1. Torrez’s Attack on Victim Davidson
Zachary Davidson testified that he was walking on Pine Street toward
Mason Street in San Francisco around 4:30 p.m. on January 26, 2020, looking
down as he unwound his headphones. When he looked up, he saw a man
(Torrez) 10–15 yards away, staring at him intensely. Davidson tried to walk
around Torrez, but Torrez stepped in front of him, blocking his way and
causing him to stop.
Torrez slowly took off his jacket, put the jacket and his bag on the
ground, and “siz[ed] [Davidson] up.” He then “bull-rushed” Davidson, who
felt a blow to the right side of his head as he turned to get away. Torrez hit
Davidson two or three more times as Davidson tried to run between parked
cars and into the street. He threw Davidson down to the sidewalk and
continued striking him in the face. Davidson, who had never seen Torrez
before, screamed “help,” “what the fuck is wrong with you?” and “why are you
doing this?”
Someone yelled at Torrez to stop, and he stopped. Torrez got off
Davidson, picked up his bag and jacket, and slowly walked away, turning left
on Mason Street. Torrez did not say anything to Davidson during the
incident, which lasted about 60 seconds.
2
Davidson called 911 and reported the attack; a recording of the call was
played for the jury. He also described the attack to police when they arrived
at the scene.
Davidson was taken to the hospital by ambulance. He suffered five to
seven “strike marks” or swollen areas on his lip, chin and the right side of his
eye and face, his nose was fractured, he sustained cuts on his forehead,
scrapes on his ankle, and two black eyes, and he had pain in the back of his
head. For a few days, he suffered from headaches and blurred vision.
2. Police Officers Respond and Arrest Torrez
Officers Jason Nord and Javier Elizondo arrived at the scene. Officer
Nord activated his body-worn camera. Portions of the recorded video,
showing Davidson on the street speaking with the officers about the attack,
was played for the jury.
Bystanders informed police that the suspect was nearby and led Officer
Nord around the corner and up a block on Mason Street to California Street,
where one of the bystanders pointed to Torrez near a movie set. The officers
detained Torrez, who did not resist being handcuffed. Torrez cooperated with
Nord, followed his commands, and responded to questions about his name
and date of birth.
Officer Nord took a statement from Davidson and witnesses who had
seen the attack. Davidson was able to view Torrez from the back of the
ambulance and identified Torrez as his assailant.
At the police station, Torrez appeared subdued and fell asleep on a
bench. After being advised under Miranda, Torrez declined to speak to
Officer Nord. There were no indications that Torrez was under the influence
of drugs or alcohol.
3
Officer Elizondo identified Torrez in the courtroom as the person he
and Officer Nord located on California Street and arrested after the assault.
Portions of the video footage from Elizondo’s body-worn camera were played
at trial. According to Elizondo, Torrez was at times uncooperative, refusing
to stand up for a “coldshow” and to be transported. Torrez told Elizondo to
leave him alone and did not respond when repeatedly asked if he needed
help.
3. Patrick Reynolds—Eyewitness
Patrick Reynolds testified that he was in his apartment when he heard
someone screaming, “[h]elp,” “stop.” He looked out the window and saw a
man lying on his back and a person standing over him, hitting him
repeatedly in the face. At trial, Reynolds identified Torrez as the assailant.
Torrez had a “wild crazy look in his eyes.” Reynolds and his husband
screamed for Torrez to stop; Torrez stopped, looked up at them, and returned
to beating the victim. Reynolds ran downstairs; by the time he reached the
street, another man was next to the victim and Torrez had ceased his attack.
Torrez picked up his bag and casually walked away. After police arrived,
Reynolds and another neighbor ran with the officers up Mason Street, where
Torrez was spotted on the corner of Mason and California Streets and
apprehended. Torrez’s demeanor at the time was subdued.
4. Jim Morrone—Eyewitness
On the day of the incident, Jim Morrone was returning from a corner
store on Pine and Taylor Streets when he heard someone repeatedly say in
distress, “Stop, stop,” “why are you doing this?” Morrone walked toward the
noise and heard an upstairs neighbor yelling from his window for the
assailant to stop. Morrone observed the victim curled up on his side on the
sidewalk and another person dancing around him like a boxer and kicking
4
him. The victim’s face was cut and covered with blood. Morrone told the
assailant to back off; the assailant backed up a couple of feet and moved his
hands back and forth in a boxing motion. After sizing up Morrone for a
minute, the assailant walked down the sidewalk, picked up his backpack, and
walked away quickly toward Mason Street. Police officers arrived within
minutes, and Morrone told them the direction the assailant had gone.
Morrone jogged with the police to find the attacker, who was observed at the
top of a hill where a show was being filmed. Morrone told police, “[t]hat’s
him,” and they made their arrest.
5. Abigale Nowak—Eyewitness
Abigale Nowak was walking home when she saw a person lunging at
another person and latching on to him. The victim said loudly, “get off me,
get off me.” The assailant rammed the victim into a parked car and shoved
him into a window. Nowak called 911. The victim fell to the ground, and the
assailant kicked him as he wailed on the ground in pain. After neighbors
tried to help, the assailant jogged up the hill on California Street, appearing
“amped up and angry,” and sat down at the top of the hill, where a movie was
being filmed.
B. Defense Case
1. Torrez’s Testimony
Torrez testified that he learned his girlfriend was pregnant and went
“several days without sleeping.” Beginning the day his girlfriend gave him
the news, he slept less than four hours a day and, at some point, was not
sleeping at all. He did not identify the days he had no sleep.2
2 During an evidentiary hearing outside the presence of the jury, Torrez
stated that he learned from his girlfriend in December 2019 that he was the
father of her expected child. This caused him to lose sleep and worry. He
could not recall when he last slept before the incident on January 26, 2020.
5
As to the events of January 26, 2020, Torrez testified that he
remembered a man (Davidson) walking towards him from a block away.
Torrez moved from one side of the street to the other several times, and
Davidson did the same thing, moving when Torrez moved. When they were a
few feet apart, Davidson made a gesture or movement that Torrez
interpreted as a threat to attack or frighten him—he believed Davidson had
raised his fists at shoulder height and jerked forward. Torrez recalled
chasing Davidson around a car, hearing someone screaming for him to stop,
and seeing a person in front of him with his hands up. He claimed not to
remember hitting or kicking Davidson or seeing other people approach. He
did remember picking up his bag and leaving in the direction he had come
from. Initially he testified that he did not remember anything after that, but
he later testified that he remembered seeing a crowd and the police
handcuffing him and putting him in the police car.
Torrez denied having taken drugs or consuming alcohol. When asked
on cross-examination, “right now you’re currently on probation in Alameda
County; is that right,” Torres replied that he “wasn’t aware” of it.
2. Torrez’s Character Witnesses
Torrez’s father and brother testified to his character. His father, Felax
Hernandez, testified that his son was very peaceful and nonviolent, always
studying and reading books, and had a peaceful reputation in the community.
Hernandez further testified that he considered Torrez an honest person with
a reputation for honesty in the community.
On cross-examination, the prosecutor asked Hernandez if he was aware
that Torrez had a conviction for theft in Alameda County in 2019.
Hernandez responded that he believed Torrez’s girlfriend was responsible for
that incident and Torrez blamed himself for what happened. The prosecutor
6
also asked Hernandez—in a question at issue in this appeal—whether
Hernandez had heard that Torrez was arrested in December 2019 for
“allegedly trying to break into cars in Alameda.” The court overruled defense
counsel’s objections, and Hernandez replied that he “wasn’t aware of that.”
The prosecutor asked no further questions of the witness.
Torrez’s brother Jose testified that Torrez was a nonviolent person, in
the sense of being peaceful, because he is very respectful and calm.
According to Jose, Torrez had a reputation in the community for nonviolence
because he attended San Francisco State University and never had any
issues. The prosecutor did not ask the brother about Torrez’s other arrests.3
C. Jury Verdict and Sentence
The jury deadlocked on Count 1 (assault with force likely to cause great
bodily injury), and the court declared a mistrial as to that count, which was
later dismissed. The jury found Torrez not guilty on Count 2 (battery with
serious bodily injury) but guilty of the lesser-included misdemeanor offenses
of assault (§ 240) and battery (§ 242).
The court struck the section 240 conviction as a lesser-included offense
of section 242 and sentenced Torrez on the battery conviction to 180 days in
county jail with 279 days credit for time served. The sentence was deemed
served. Fees and assessments were imposed, as discussed post. This appeal
followed.
3 Another defense witness, Dr. Michael Laufer, testified about the nature
of Davidson’s injuries, noting his nasal fracture did not require treatment
and there was no disfigurement or expected disability.
7
II. DISCUSSION
A. Exclusion of Expert Testimony on Sleep Deprivation
Torrez’s defense at trial was that he did not sleep for several days
before attacking Davidson, and the sleep deprivation had caused a state of
unconsciousness such that he was unaware of his actions. On appeal, he
contends the trial court abused its discretion in excluding proffered expert
witness testimony on sleep deprivation and thereby violated his
constitutional right to present a defense.
1. Background
Before trial, defense expert Dr. Logan Schneider testified at an
evidentiary hearing on the mental and physical effects of sleep deprivation.
Dr. Schneider, who had not interviewed Torrez or reviewed any statements
from him, opined that everyone eventually suffers the same effects from sleep
deprivation, but each person’s susceptibility can vary. Typically, after 24
hours of not sleeping, most people will experience a decrease in attention and
thinking ability, slight mood alterations, and temperature changes. After 48
hours of not sleeping, these impairments will worsen, people may misperceive
reality in the form of visual illusions (misinterpreting things that are there,
such as misinterpreting others’ facial expressions as more aggressive than
they actually are) or hallucinations (seeing things that are not there), and
emotions may become more volatile (moodiness, elation, depression,
aggression, anger, or irritability) as sleep deprivation continues. After 72
hours without sleep, most people will hallucinate and accept the
hallucination as reality. As time goes on, delusions and detachment from
reality may make sleep-deprived persons less aware of their impairments.
Dr. Schneider distinguished sleep deprivation from sleep walking, however,
8
confirming that one cannot be conscious when sleep walking, which
originates out of deep sleep.
At the conclusion of the evidentiary hearing, the court ruled that it
would not give an instruction on unconsciousness and excluded Dr.
Schneider’s proffered testimony. Citing CALCRIM No. 3425 and case law,
the court recognized that a person is unconscious when not aware of their
actions, which can result from mental illness such as a psychotic episode;
however, the evidence from Dr. Schneider was that a sleep-deprived person
was not unconscious, but conscious and aware, and the evidence was that
Torrez erroneously believed he was justified in hitting his victim, not that he
was unaware he was doing it.
Torrez subsequently testified at an evidentiary hearing that he could
not remember the last time he went to sleep before attacking Davidson. At
trial, he testified as described above – he had not slept for “several days,” he
could not remember all that occurred after he first encountered Davidson, he
felt threatened by Davidson’s movements, and he chased Davidson around a
car. He remembered someone yelling “stop,” seeing a person with their
hands up, and picking up his bag and walking away, but had no memory of
assaulting Davidson.
Defense counsel renewed his request that Dr. Schneider be permitted
to testify about sleep deprivation as a basis for unconsciousness, and the
court again denied the request.
Later in the proceeding, the court reiterated its reasons for not allowing
Dr. Schneider’s testimony. Among other things, Dr. Schneider had not met or
diagnosed Torrez but based his opinions on videos, police body-worn camera
footage, some papers, and a police report. The court recounted Dr.
Schneider’s testimony, including the testimony that the effects of sleep
9
deprivation vary based on a person’s personal history and susceptibility. In
particular, the court observed, Dr. Schneider did not testify that a
sleep-deprived person is unconscious, but that such a person has a reduced
awareness of their environment. Citing case law, the court noted that
hypothetical questions are impermissible unless supported by evidence in the
record, and there was no evidence of how long Torrez went without sleep
because Torrez did not know. The court found that Dr. Schneider’s proffered
testimony was more prejudicial than probative because it was “based on
generalities” and “based on conjecture.” Nonetheless, in light of Torrez’s
testimony that he did not remember some of his encounter with Davidson,
the court found there was substantial evidence justifying an instruction on
unconsciousness.
The court instructed the jury on unconsciousness pursuant to
CALCRIM No. 3425, as follows: “The defendant is not guilty of Penal Code
245(a)(4) as charged in Count 1, or Penal Code 243(d) as charged in Count 2
if he acted while unconscious. Someone is unconscious when he is not
conscious of his or her actions. Someone may be unconscious, even though
able to move. [¶] The People must prove beyond a reasonable doubt that the
defendant was conscious when he acted. If there is proof beyond a reasonable
doubt that the defendant acted as if he were conscious, you should conclude
that he was conscious. Unless based on all the evidence you have a
reasonable doubt that he was conscious . . . in which case you must find him
not guilty.”
2. Law
A defendant has a constitutional right to present a defense, which
includes the right to put on evidence that might influence the determination
of guilt, if the evidence is reliable, intelligible, not cumulative, and bears on
10
an important element of the defense. (U.S. v. Stever (9th Cir. 2010) 603 F.3d
747, 755–758.) Notwithstanding, a state court’s exclusion of defense evidence
under the applicable evidentiary rules—including Evidence Code section
352—generally does not infringe upon this right. (See People v. Chavez
(2018) 22 Cal.App.5th 663, 681; People v. Cornwell (2005) 37 Cal.4th 50, 82
[disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390,
421, fn.22].)
Under Evidence Code section 352, a trial court may exclude evidence if
its probative value is substantially outweighed by the probability its
admission will consume undue time, mislead the jury, or confuse the issues.
(People v. Scott (2011) 52 Cal.4th 452, 490.) We review the exclusion of
evidence for an abuse of discretion. (People v. McDowell (2012) 54 Cal.4th
395, 426.)
As the jury was instructed, unconsciousness is a defense if the
defendant was unaware of his actions. (People v. Heffington (1973) 32
Cal.App.3d 1, 9 (Heffington); CALCRIM No. 3425.) This unconsciousness
may be caused by, for example, a blackout or epileptic seizure. (People v. Cox
(1944) 67 Cal.App.2d 166, 172; People v. Freeman (1943) 61 Cal.App.2d 110.)
“To constitute a defense, unconsciousness need not rise to the level of coma or
inability to walk or perform manual movements; it can exist ‘where the
subject physically acts but is not, at the time, conscious of acting.’ ” (People v.
Halvorsen (2007) 42 Cal.4th 379, 417; see Heffington, supra, 32 Cal.App.3d at
p. 9; People v. Boyer (2006) 38 Cal.4th 412, 472 (Boyer) [suggesting
unconsciousness extends to persons who are not conscious of acting but
perform acts while asleep or while suffering from a delirium of fever]; People
v. Gana (2015) 236 Cal.App.4th 598, 610–611 (Gana) [jury should be
instructed on unconsciousness where there is substantial evidence the
11
defendant’s medical condition and medications caused her to suffer delirium,
which resulted in fluctuating levels of consciousness].) An inability to
remember is generally insufficient, without more, to demonstrate
unconsciousness. (E.g., Heffington, supra, 32 Cal.App.3d 1, 10.)
3. Analysis
The court did not abuse its discretion in excluding Dr. Schneider’s
proffered testimony in support of Torrez’s unconsciousness defense. Although
Dr. Schneider opined about the effects of sleep deprivation, he did not opine
that a sleep-deprived person is unconscious or otherwise lacks awareness of
his or her actions. He testified that a person deprived of sleep for 48 hours
may have illusions (misinterpreting things that are there) or possibly
hallucinations (seeing things that are not there), but not that the person
would be unaware of what he or she was doing. Similarly, Dr. Schneider
opined that persons deprived of sleep for 48 hours may lose awareness of how
impaired they are, but he did not opine that they would lose awareness of
their actions. To the contrary, Dr. Schneider distinguished sleep deprivation,
which Torrez claimed, from instances of sleepwalking, in which a person is in
deep sleep and is not conscious. Because Dr. Schneider did not testify that
sleep deprivation can lead to unconsciousness, it was not an abuse of
discretion to preclude him from testifying as to Torrez’s unconsciousness
defense.
Torrez argues there was evidence he had not slept for at least 48 hours,
Dr. Schneider would have testified that a person might experience
hallucinations at that point, and case law suggests hallucinations can render
a person unconscious. There was, however, nothing presented to the jury (or
in Dr. Schneider’s proffered testimony) that linked hallucinations to
12
unconsciousness.4 And even if there had been, there was no evidence that
Torrez was suffering a hallucination when he beat up Davidson. Dr.
Schneider did not testify that Torrez experienced a hallucination (which he
defined as seeing things that are not there) or that every person deprived of
sleep for 48 hours suffered hallucinations. Nor did Torrez claim that he
hallucinated or saw things that were not there. At most he testified to
perceiving Davidson’s actions inaccurately—thinking a gesture by Davidson
was a threat to attack—but according to Dr. Schneider that would have been
a visual illusion, not a hallucination. Moreover, the evidence demonstrated
that Torrez was aware of his environment, as Torrez testified that he knew
Davidson was mirroring his movements, Torrez stopped the beating when
Morrone told him to stop, Torrez knew his belongings were on the ground and
retrieved them, and Torrez cooperated with the police when they
apprehended him. Indeed, Torrez was able to remember the incident—except
4 Torrez instead refers us to two California cases. In Boyer, supra, 38
Cal.4th 412, the court held that any error in failing to instruct on the
complete defense of unconsciousness was harmless, because the defendant
did not claim he suffered a hallucination when he killed the victims, he
seemed mentally normal after the killings, and expert witnesses did not
testify that he hallucinated. (Id. at p. 470.) The court further held it was
unnecessary, in instructing on unconsciousness by voluntary intoxication, to
instruct that a person could be unconscious while in delirium because jurors
receiving the instruction would know it related to the defendant’s claim that
he killed while hallucinating he was in the movie Halloween II. (Id. at
p. 472.) In Gana, supra, 236 Cal.App.4th 598, the court ruled the jury should
be instructed on unconsciousness where a medical expert testified that the
defendant was “ ‘experiencing a delirium, which is a kind of fluctuating
level of consciousness, due to medical illness that caused her to . . . have
worsening symptoms of depression and worsening psychoses.’ ” (Id. at
pp. 610–611.) Neither case is on point, because Torrez did not claim to have a
hallucination or delirium, and neither case addressed an issue of the
admissibility of expert testimony to support an unconsciousness defense.
13
for the part where he was hitting and kicking his victim—and a claim of
partial memory loss does not constitute unconsciousness. (Heffington, supra,
32 Cal.App.3d at p. 10 [defendant’s ability to remember some parts of the
incident and not others “fell far short of a claim or description of
unawareness coexistent with the fight”].)
In sum, the court did not abuse its discretion in excluding Dr.
Schneider’s testimony. Because the court instructed the jury with CALCRIM
No. 3425 on unconsciousness, allowed testimony from Torrez about his lack of
sleep, allowed defense counsel to argue the defense in closing argument, and
did not err in excluding Dr. Schneider’s testimony, Torrez was not deprived of
his defense or a fair trial.
B. Prosecutor’s Questioning on Torrez’s Arrest
Torrez next argues that the prosecutor engaged in misconduct when
she asked Hernandez, a defense character witness, if he had heard that
Torrez was arrested for allegedly trying to break into cars, claiming she had
no good faith belief that such an arrest had occurred.
1. Background
After the close of the People’s case, the prosecutor advised that she was
prepared to introduce two further items of evidence against Torrez. First, the
prosecutor informed the court that if Torrez testified, she would attack his
credibility with evidence of his prior misdemeanor conviction for grand theft
(§ 487), a crime of moral turpitude. Second, after defense counsel indicated
he would present character witnesses to testify about Torrez’s trait for
non-violence, the prosecutor stated she would offer evidence of Torrez’s prior
bad acts to rebut the character evidence. Specifically, a December 2019
police report indicated that Torrez was seen attempting to break into cars,
was uncooperative with the police when they asked for his identification, lied
14
to the police by giving a false name, and was arrested for deterring an officer
in the performance of his duties (section 148), resulting in a probation
violation. The court agreed that the prosecutor could ask Torrez’s character
witness about his knowledge of this prior bad act.
Thereafter, Torrez’s father (Hernandez) testified that he knew Torrez
to be an honest and nonviolent person and that Torrez had a reputation in
the community for honesty and nonviolence. On cross-examination, the
prosecutor asked whether he was aware that Torrez had a conviction for theft
in Alameda County in 2019; Hernandez responded that he believed Torrez’s
girlfriend was responsible for that incident. The prosecutor then asked, “Are
you aware that in December of 2019, right before this incident, [Torrez] was
arrested for allegedly trying to break into cars in Alameda?” Defense
counsel objected based on “relevance, 352; lack of foundation; lack of personal
knowledge.” The court overruled the objections. Hernandez responded, “No,
I wasn’t aware of that.” The prosecutor did not inquire further.
After the prosecution’s case, defense counsel read the description of the
incident from the 2019 police report into the record outside the presence of
the jury. According to the police report, a citizen advised that he had
observed Torrez, who resembled a suspect from a prior vehicle burglary,
attempting to break into cars. Officers located Torrez, noted he matched the
suspect’s description, and detained him for investigation. Torrez refused to
provide identification, repeatedly gave the officers a false name, and claimed
he did not recall where he lived. Police arrested Torrez for violation of
section 148—willfully resisting, obstructing or delaying a peace officer.
2. Relevant Law of Prosecutorial Misconduct
Under federal law, a prosecutor’s conduct requires reversal if it “ ‘so
infected the trial with unfairness as to make the resulting conviction a denial
15
of due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Under
state law, “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury” is misconduct that requires reversal
only when it is reasonably probable that the defendant would have received a
more favorable result if the misconduct had not occurred. (People v.
Cunningham (2001) 25 Cal.4th 926, 1000; People v. Pigage (2003)
112 Cal.App.4th 1359, 1375.)
Torrez contends the misconduct consisted of the prosecutor asking
Hernandez if he had heard that Torrez was arrested for allegedly breaking
into cars—an uncharged offense. Evidence of uncharged offenses may be
admissible on at least two grounds. First, as a prior bad act, it can
sometimes be introduced to attack the credibility of a testifying defendant.
(See Evid. Code, § 1101, subd. (c); People v. Millwee (1998) 18 Cal.4th 96, 131
[admissible to show “the implausibility and untruthfulness of defendant’s
testimony”].) Second, it can be introduced to discredit the testimony of a
witness who testified to the defendant’s reputation for good character,
provided the prosecutor asks the question in good faith. “When a defense
witness, other than the defendant himself, has testified to the reputation of
the accused, the prosecution may inquire of the witness whether he has heard
of acts or conduct by the defendant inconsistent with the witness’ testimony.
[Citations.] In asking such questions, the prosecutor must act in good faith
and with the belief that the acts or conduct specified actually took place.
[Citations.] The rationale allowing the prosecution to ask such questions (in
a ‘have you heard’ form) is that they test the witness’ knowledge of the
defendant’s reputation.” (People v. Wagner (1975) 13 Cal.3d 612, 619; see
People v. Mooc (2001) 26 Cal.4th 1216, 1233 [it would be prosecutorial
misconduct to ask a witness questions that suggest facts harmful to a
16
defendant without a good faith belief that the questions would be answered
affirmatively or the facts could be proved].)
3. Forfeiture
To preserve an issue for appeal, an objection must be made in the trial
court sufficient to apprise the court of the specific reason the objecting party
believes the evidence should be excluded. (People v. Linton (2013) 56 Cal.4th
1146, 1205–1206 [defendant must make timely and specific objection].)
Here, defense counsel objected to the prosecutor’s question on the
grounds of “relevance, 352; lack of foundation; lack of personal knowledge,”
but he did not object on the specific ground that the prosecutor was engaging
in misconduct. Accordingly, Torrez did not preserve the issue of prosecutorial
misconduct for appellate review. (People v. Bolden (2002) 29 Cal.4th 515,
563–564 [issue of prosecutorial misconduct was waived where the defense
objected on grounds of hearsay and assuming facts not in evidence, but “did
not object that the prosecutor was engaging in misconduct by implying facts
the prosecutor was unable to prove”].)
Torrez argues that his “lack of foundation” objection was sufficient
because a prosecutor’s cross-examination of a character witness about
conduct indicating the defendant’s bad character is improper where there is
no “foundation” for the belief the defendant committed the act in issue. But
objecting on the ground of “lack of foundation” for admission of the testimony
is not the same as objecting that the prosecutor lacked a good faith belief for
asking the question. The “foundation” objection is itself ambiguous, since it
can refer to a lack of personal knowledge or authentication, or perhaps some
other evidentiary element such as a hearsay exception or compliance with the
best evidence rule. But even if “lack of foundation” were sufficient to apprise
the court of a concern over any and all foundational elements for the
17
admission of the testimony that the prosecutor was intending to elicit, it did
not sufficiently bring the court’s attention to whether the prosecutor had a
good faith basis for asking the question in the first place.
Accordingly, the issue is waived. We nonetheless turn to the merits of
the issue to avoid any potential issue of ineffective assistance of counsel.
4. Merits
As mentioned, the prosecutor asked Hernandez if he was aware Torrez
was arrested for “allegedly trying to break into cars,” while he was actually
arrested for deterring an officer in violation of section 148 after being
detained for allegedly trying to break into cars. The record suggests the
prosecutor did not ask the question in bad faith, but simply misspoke. After
all, the true ground for the arrest—deterring an officer—would have been
more indicative of violence than an attempt to break into a car, so it is
unlikely the prosecutor was motivated by bad faith when characterizing the
arrest as less serious than it really was. Nor would it make sense for the
prosecutor to ask about an arrest that never occurred and that Hernandez
could therefore readily and truthfully deny, rather than asking about an
arrest that Hernandez would potentially have to admit. It can safely be said,
therefore, that the prosecutor did not act in bad faith; it is a closer question
whether the prosecutor had an objectively good faith basis for asking about
an arrest that was not indicated by the police report.
Even assuming the prosecutor’s question constituted misconduct,
however, it was harmless. For several reasons, there is no reasonable
probability that Torrez would have obtained a more favorable verdict if the
prosecutor had not asked the question (or if the court had sustained defense
counsel’s objections). (People v. Watson (1956) 46 Cal.2d 818, 836; see also
18
People v. Welch (1999) 20 Cal.4th 701, 749–751 [evaluating erroneous
admission of evidence under Watson standard].)
First, it is unlikely Hernandez’s testimony as to Torrez’s reputation for
honesty and nonviolence carried much weight anyway, since Hernandez was
Torrez’s father. To the extent the jury would have accepted a relative’s
testimony, Torrez’s brother also testified, and he was not asked about the
purported arrest for attempted vehicle theft.
Second, the prosecutor asked Hernandez only one question about
hearing of an arrest for allegedly breaking into cars, and Hernandez denied
it. There was no other inquiry into the matter by the prosecution, and the
prosecutor did not mention the matter in closing argument, even after
Torrez’s attorney asserted in the defense closing that the testimony of
Torrez’s father and brother “regarding his reputation for nonviolence is
uncontested.”
Third, while Torrez argues that the prosecutor’s question tarnished his
credibility by insinuating that he had been arrested for allegedly attempting
to break into cars, it is difficult to see how the mere posing of this question to
Hernandez would have affected Torrez’s credibility any more than Torrez’s
own testimony that he “wasn’t aware” he was on probation for a theft
conviction. Indeed, it was this denial that the prosecutor used to attack
Torrez’s credibility in closing, noting particularly that Torrez’s plea form had
been introduced into evidence, the form showed he was convicted less than a
year earlier, and Torrez had told his father about the conviction.
Fourth, if the prosecutor had asked about Torrez’s actual arrest—for
deterring a police officer—it would have been worse for Torrez and
Hernandez. While Hernandez testified that Torrez was nonviolent and had a
reputation for nonviolence, a question asking about an arrest for “willfully
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resist[ing], delay[ing], or obstruct[ing a] police officer” is more suggestive of
violence than is a question asking about allegedly attempting to break into
cars. Similarly, to the extent Torrez’s credibility was affected by a question
about “allegedly trying to break into cars,” it would have been no less affected
by a question asking about an arrest for resisting an officer after being
detained for allegedly trying to break into cars. And if the prosecutor had
asked Hernandez about Torrez’s actual arrest, the more likely Hernandez
would have had to admit he knew about it. In short, by asking Hernandez
the wrong question, the prosecutor did Hernandez (and Torrez) a favor.
Fifth, the court instructed the jury that the prosecutor’s question was
not evidence that Torrez had engaged in the conduct of attempting to break
into cars. For example, the jury was instructed with CALCRIM No. 351,
which reads: “The attorney for the People was allowed to ask defendant’s
character witnesses if they had heard that the defendant had engaged in
certain conduct. These “have you heard” questions and their answers are not
evidence that the defendant engaged in such conduct. [¶] You may consider
those questions and answers only to evaluate the meaning and importance of
the character witness’s testimony.” (Italics added.) The jury was further
instructed: “Nothing that the attorneys say is evidence. . . . [T]heir remarks
are not evidence. Their questions are not evidence. . . . The attorneys’
questions are significant only if they helped you to understand the witness’s
answers. [¶] Do not assume that something is true just because one of the
attorneys asked a question that suggested it was true.” We assume the jury
followed these instructions. (People v. Mooc, supra, 26 Cal.4th at p. 1234.)5
5 Torrez argues that the jury instructions did not cure the misconduct,
citing People v. Wagner, supra, 13 Cal.3d 612 and Awkard v. U.S. (D.C. Cir.
1965) 352 F.2d 641. In Wagner, a pre-Proposition 8 case, the prosecutor
asked questions of the defendant that exceeded the scope of permissible
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Torrez argues that deterring a police officer by failing to provide
identifying information is not a crime of moral turpitude, so it was not a
proper matter for the jury’s consideration. (See People v. Wheeler (1992) 4
Cal.4th 284, 295–296 [past criminal conduct amounting to a misdemeanor
may be admissible if it logically bears on the veracity of witness, i.e., moral
turpitude].) Not so. The question was not asked by the prosecutor to attack
Torrez’s credibility, but to impeach Hernandez’s credibility and his testimony
that Torrez was not violent and had a reputation for nonviolence.
5. No Constitutional Violation by Questioning
Torrez argues that the trial court, in allowing the prosecutor to
question Hernandez about his 2019 arrest absent a good faith belief that such
misconduct occurred, abused its discretion in admitting the evidence and
violated his state and federal constitutional right to due process and a fair
trial. Based on our foregoing discussion, the court did not commit prejudicial
error in allowing the prosecutor to ask a question about Torrez’s 2019 arrest;
nor did it violate Torrez’s state or federal rights to due process and a fair
trial.
Torrez declares that, based on the prosecutor asking Hernandez
whether he was aware of the purported arrest for breaking into cars, which
the prosecutor “knew” to have been made without probable cause, and the
cross-examination of a criminal defendant, repeatedly insinuating that the
defendant had sold cocaine and heroin in the past, without evidence that he
had ever been convicted. (Wagner, supra, at pp. 615–619.) Here, the
prosecutor asked a single question of a reputation witness, not the defendant.
In Awkard—a decision not binding on this court—the prosecutor repeatedly
asked clearly improper and highly prejudicial questions of a character
witness who had testified that she did not know the defendant’s reputation in
the community or about the period in question. (Awkard, supra, at pp.
645–646.) Not so here.
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police having arrested Torrez “without probable cause in the first place,”
“[t]he notion that Mr. Torrez’s Hispanic race and/or ethnicity did not play a
role in causing this extraordinary concomitance of adverse irregularities
strains credulity,” thus constituting federal constitutional error.
There is, however, no evidence whatsoever that race played any factor
at all in the prosecutor’s question or Torrez’s arrest, and there was no such
aspersion in the trial court. Appellate counsel therefore seems to contend the
acts of the San Francisco prosecutor and police officers must have been
racially motivated merely because the defendant’s last name is Torrez. On
this record, the argument is untenable.6
C. Cumulative Prejudice
Torrez claims that his conviction should be reversed because of
cumulative prejudice resulting from the errors raised on appeal. Because he
fails to establish multiple errors, the argument is unavailing. (See People v.
Capers (2019) 7 Cal.5th 989, 1017.) In any event, Torrez has not established
that he failed to receive due process and a fair trial. (See People v. Alcala
(1992) 4 Cal.4th 742, 810.)
D. Fees in Minute Order
On the record at the sentencing hearing, the court imposed a $40 court
operations fee, a $30 critical needs assessment, and a $150 restitution fine.
Because Torrez had already been in custody 99 days longer than his 180-day
6 Torrez cites Rochin v. California (1952) 342 U.S. 165, which involved
conduct that “shock[ed] the conscience,” consisting of three police officers
illegally breaking into the defendant’s home, forcibly opening his mouth and
attempting to remove what was there, handcuffing him and taking him to a
hospital, directing a doctor to force an emetic solution through a tube into his
stomach against his will, and inducing him to vomit his stomach’s contents so
the officers could obtain evidence that was later used to convict him. (Id. at
pp. 166, 169.) Nothing remotely akin to that occurred here.
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jail sentence, the court stated it was “going to deem it’s been taken care [of],”
referring apparently to the fees.
The sentencing minute order of November 12, 2020, reflects the
imposition of the $40 court operations fee, the $30 critical needs assessment,
and the $150 restitution fine. Torrez contends the minute order should be
corrected to reflect that he is no longer subject to those fines and
assessments. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate
court may correct clerical errors].) Respondent agrees, and we will so order.
The sentencing minutes also reflect the imposition of a $25 own-
recognizance administrative screening fee pursuant to section 1463.07 (OR
fee), which the court had not stated on the record. Torrez argues that,
because the OR fee was not orally imposed at sentencing, the fee should be
stricken from the minute order. When there is a discrepancy between the
court’s oral pronouncement and a minute order, the former generally
controls. (E.g., People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.)
Respondent argues, however, that the OR fee was a mandatory fee
under former section 1463.07 at the time it was imposed (November 2020),
and if a trial court omits a mandatory assessment or fee, an appellate court
may correct the omission and impose the fee on appeal. (People v. Talibdeen
(2002) 27 Cal.4th 1151, 1157.) Therefore, respondent urges, the $25 fee
should stand. (People v. Benner (2010) 185 Cal.App.4th 791, 797 [imposing
§ 1463.07 fee].)
Torrez counters that section 1463.07 has since been repealed (Stats.
2021, ch. 257, § 34) and the OR fee is now unenforceable pursuant to section
1465.9, subdivision (a). Although section 1465.9 did not become effective
until September 2021, after Torrez was sentenced, Torrez claims the statute
operates retroactively because it states that “[t]he balance of any
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court-imposed costs pursuant to Section . . . 1463.07 . . . shall be
unenforceable and uncollectible and any portion of a judgment imposing
those costs shall be vacated.” (§ 1465.9, subd. (a).) To avoid Torrez having to
initiate a separate proceeding in the trial court after remand to have the OR
fee vacated pursuant to section 1465.9, Torrez urges that we strike the fee
now.
Although matters of fees and credits must ordinarily be raised first in
the trial court, in the interest of judicial economy we will address the parties’
skirmish over $25 here. Because (1) the record unequivocally reflects the
trial court’s intention to deem $220 in fees to be deemed paid in light of
Torrez spending 99 days beyond his sentence in jail, (2) the court never
imposed the OR fee on the record, and (3) section 1465.9 provides in effect
that the OR fee is unenforceable and uncollectible and should be vacated, we
order the OR fee stricken from the sentencing minutes.
III. DISPOSITION
In the sentencing minute order of November 12, 2020, the $40 court
operations fee, the $30 critical needs assessment, the $150 restitution fine,
and the $25 own-recognizance administrative screening fee are stricken. The
judgment is affirmed in all other respects.
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NEEDHAM, J.
We concur.
JACKSON, P.J.
SIMONS, J.
People v. Torrez / A161474
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