People v. Kohrs CA1/3

Filed 10/16/20 P. v. Kohrs CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A154295
v.
CHRISTOPHER J. KOHRS, (City & County of San Francisco
Defendant and Appellant. Super. Ct. No. 227677)
Defendant Christopher Kohrs appeals from a judgment after his felony
conviction on two counts of leaving the scene of an accident resulting in
injury (Veh. Code, § 20001, subd. (a)) and a special allegation that one of the
offenses resulted in permanent, serious injury under Vehicle Code section
20001, subdivision (b)(2). He asserts the trial court erred by failing to
instruct the jury on the duress defense and that the prosecutor committed
misconduct during closing arguments by making misstatements of facts and
law. We affirm.
BACKGROUND
On June 29, 2017, the San Francisco District Attorney filed an
information charging defendant with two counts of leaving the scene of an
accident resulting in injury (Veh. Code, § 20001, subd. (a); counts I and II).
As to the second count, the information alleged the offense resulted in
permanent, serious injury (id., § 20001, subd. (b)(2)). On March 15, 2018, a
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jury found defendant guilty as charged and found true the allegation that one
of the offenses resulted in permanent, serious injury. Defendant was
sentenced to three years of probation, including a jail term of nine months.
I. Prosecution Case
On the evening of Saturday, November 28, 2015, defendant, his brother
N.K., and his friend Norman B. went out to Fort One, a club in San
Francisco. Defendant was a San Francisco police officer known online and in
the news media as the “ ‘Hot Cop of the Castro.’ ” He was the designated
driver. All three were at the club from approximately 11 p.m. until 2:30 or
2:45 a.m. After they left the club, defendant drove his car into two
pedestrians who were crossing the intersection of Broadway and Montgomery
Street against the traffic signal. N.K. and Norman B. were passengers in the
car. After the collision, defendant slammed on the brakes and stopped. He,
N.K., and Norman B. exited and walked to the rear of the car. Norman B.
testified that while they were huddled at the rear of the car, they were all
saying, “ ‘Oh, shit. What do we do; what do we do?’ ” Defendant paced back
and forth. There were groups of people on each side of the street; the crowd
came toward the car, and some people were taking video. Some members of
the crowd recognized defendant. Norman B. heard multiple people use
defendant’s moniker, “ ‘Hot Cop.’ ”
Norman B., who is a medical doctor, walked toward one of the injured
pedestrians to render medical assistance. He realized, however, that he had
had too much to drink to safely provide assistance to the seriously injured
man, who was bleeding from the back of his head. Norman B. did not call
911 because a bystander helping one of the injured pedestrians did so.
Norman B. testified that defendant did not approach the injured
pedestrian with him. When Norman B. walked back toward the car, he did
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not see defendant. Norman B. asked N.K. where was the defendant. N.K.
responded that he did not know. Norman B. walked about half a block down
Montgomery Street to search for defendant but did not find him.
Norman B. felt that the area was not very safe around 2:30 a.m., and
he was fearful. He did not see or hear anyone physically or verbally threaten
or display aggression against himself, defendant, or N.K. He could not tell if
the crowd was “an angry mob or not,” but he was concerned there were people
in the crowd who could have been angry. Before the defendant left, he did
not tell Norman B. that he believed he was in danger. Neither defendant nor
N.K. rendered aid to the injured pedestrians. Further, defendant was not
present when the police arrived to give his name and vehicle registration.
Norman B. did not know how much defendant drank while they were
out. However, he opined that defendant was not inebriated when he got into
the car and that he was able to drive.
A witness, Kevin C., who worked at a club near the intersection of the
accident, heard the collision and called 911. He observed a crowd around the
scene of the accident but did not hear any shouting from the crowd. He
testified that it did not appear that anyone was in danger other than the
injured pedestrians. He recalled that police arrived 10 to 15 minutes after
the collision.
Jess Z. witnessed the accident from his parked car, which was facing
the intersection. He also called 911 and approached the rear of defendant’s
car to give the 911 dispatcher the license plate number. Jess Z. testified that
the police arrived within three to five minutes. He was about 30 to 50 feet
away from the injured pedestrians. He did not see anyone make physical
threats, but he saw people waving their hands at uniformed police officers in
a threatening manner. He testified the crowd seemed to be angry at the
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occupants of the car. After a person moved away from the injured
pedestrians, Jess Z. heard verbal threats directed at someone associated with
the vehicle and saw a group of four or five people yelling, “ ‘Stop, you son of a
bitch. Stop, bitch. This is what you do to us. This is what the police do to us.
F-u-c-k this, f-u-c-k that,’ ” and, “ ‘Please stop. Where are you going? Hey
you, stop.’ ”
At the time of the accident, San Francisco Police Sergeant Donald
Jackson was stationed in his patrol car down the street from the intersection
where the accident occurred. He was stationed in this area because there
was a history of people becoming rowdy and violent when leaving the clubs
and bars in the area. Sergeant Jackson was notified about the accident
around 2:15 a.m. when a passerby knocked on the window of his patrol car.
He arrived on the scene within a minute and rendered aid to the two victims.
Sergeant Jackson did not see the defendant; nor did defendant approach him
to identify himself as the driver of the vehicle. Sergeant Jackson testified
there was a large crowd of more than 100 people at the scene, but he did not
observe any aggression from the crowd toward either civilians or uniformed
police officers.
Officer Horan also responded to the scene and learned from another
officer that the car involved in the accident was registered to defendant. At
that point, Sergeant Jackson recognized defendant’s name because he had
worked with him a couple of times. When he was told that the car involved
in the accident belonged to defendant, he was surprised because defendant
had a reputation for following rules. Officer Horan also had previously met
defendant and knew what he looked like. He saw two people walking on
Broadway, one of whom had the same features and build as defendant. He
called out, “ ‘Hey Chris,’ ” and the men turned around. Officer Horan asked
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them to return to the scene and provide their identification. The two men
were Norman B. and N.K.
Lieutenant William Braconi, who was in charge of internal affairs
criminal investigations in the San Francisco Police Department, spoke with
Norman B. and N.K. at about 5:15 a.m. on November 29th. He asked each of
them to contact defendant. N.K. refused to call defendant. Norman B.
attempted to call defendant but did not reach him because defendant’s cell
phone was left in the car. Lieutenant Braconi went to defendant’s residence
about 9:00 a.m. and knocked or rang the doorbell, but there was no answer.
Defendant called Lieutenant Braconi sometime between 9:30 a.m. and
10:00 a.m., and they discussed defendant’s self-surrendering. At 11:00 a.m.
defendant came to police headquarters and met with Lieutenant Braconi.
II. Defense Case
The court admonished the jury that it had “taken judicial notice of the
fact that there was some presence of the defendant’s name and photograph in
news media in San Francisco in 2015 before November 29th, 2015.”
N.K., the defendant’s brother, testified that at about 10:30 p.m. on
November 28th, he, Norman B., and the defendant met at defendant’s house
before all three drove to Fort One. They did not drink before they left.
Defendant was the designated driver. N.K. was near defendant most of the
night while they were at Fort One and did not see defendant drink, but he
was not certain whether defendant consumed any alcohol. N.K. did not
believe defendant was intoxicated and testified he “was good to drive.”
Just after the accident, N.K. saw defendant exit the car and run toward
one of the victims, lean over and check the one victim. N.K., however, could
not tell exactly what defendant did to check on the victim. At that point, a
crowd of close to 100 people came toward them, and N.K. heard someone say,
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“ ‘Hey, that’s the Hop Cop [sic],’ ” and, “ ‘Yeah, it’s the Hop Cop [sic].’ ” Then
he heard, “ ‘Fuck the police, fuck that pig,’ ” “ ‘Fuck the Hop Cop [sic],’ ” and,
“ ‘Beat his ass, beat his ass.’ ” He saw people throw sports bottle drinks
toward the trio when they were near the car. N.K. saw defendant pacing,
which is something he did when he was scared. He heard the defendant say
to himself something like, “ ‘Get here soon. Get here soon.’ ” Defendant
looked scared, and N.K. feared for defendant’s physical safety.
Defendant instructed N.K. to call the police, to make sure the two
victims were taken care of, and to answer any questions by the police. After
N.K. was given these instructions, he did not see defendant. Defendant did
not tell N.K. where he was going, and N.K. did not see him leave the scene.
N.K. did not call the police because he saw others doing so. When the police
arrived, N.K. stayed on the scene, and eventually he was taken to the police
station for an interview. N.K. answered questions but refused the police
officers’ request to call defendant. He told the police that defendant had
instructed him to call police and get help for the pedestrians. N.K. told the
police there was a crowd, but he did not mention an angry mob. He did not
tell the police that anyone had said, “ ‘Fuck Hot Cop,’ ” “ ‘Fuck the police,’ ”
“ ‘Fuck the pig,’ ” or, “ ‘Beat his ass.’ ” Further, he did not tell the police that
someone in the crowd threw sports drinks at him, defendant, and Norman B.
He told the police that defendant looked distraught and scared. He also said
in his police interview that he believed defendant was “ ‘under a lot of duress
from what he saw’ ” and that it was “ ‘something that he couldn’t handle.’ ”
Retired Police Lieutenant Mark Solomon testified as a character
witness on behalf of defendant. He testified that he supervised defendant for
about a year and that he had a high opinion of defendant’s character.
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Defendant testified that he gained notoriety after someone took his
picture while he was on duty in the Castro District and posted it on the
Internet; he became known as the “ ‘Hot Cop of the Castro.’ ” On the night of
November 28, 2015, defendant was off duty, and he met his brother N.K. and
Norman B. at his home before going out to Fort One. Defendant was the
designated driver. He was at the club for about two hours, and he had one or
two shots of hard liquor while he was there. Although he did not remember
the exact type of alcohol he consumed, he testified that it did not make him
inebriated or buzzed. As he was driving within the speed limit upon a fairly
steep hill, he heard a thud and saw his windshield crack. He slammed on the
brakes and immediately got out of the car and went to check on one of the
pedestrians. He gently nudged one of the pedestrians and asked if he was
okay, but there was no response. He did not go check on the other pedestrian
because he heard someone say, “ ‘Hot Cop. Fuck the police,’ ” and other
“threats” such as, “ ‘Fuck you, pig. Beat his ass; beat his ass.’ ” The people
making the threats were very aggressive, and defendant thought they
sounded like they “really wanted to hurt” him. He saw a crowd of people
moving toward him. He returned to his car and paced back and forth.
After he stopped pacing, he told N.K., “ ‘Call 911, get help for these
guys, and answer any questions the police have.’ ” Sometime after
instructing N.K., defendant left because he was scared of the belligerent
crowd threatening him and he thought that he had just killed two people. He
ran up Montgomery Street because he was scared of being injured. He saw
people chasing him when he looked back, but he could not say how many. He
did not remember hearing anyone yelling for him to stop or asking where he
was going. After he turned several corners, he lay down behind some bushes
and passed out from a panic attack.
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Eventually, defendant woke up and took a cab to his friend Leslie’s
house in San Bruno. At 9:00 a.m., after N.K. told defendant that the
department’s internal affairs unit was looking for him, defendant called the
police. He met with the police at 11:00 a.m. and took a field sobriety test
sometime after 11:00 a.m. Defendant denied running because he was afraid
to submit to a field sobriety test, which he believed he would have passed.
But he knew from his police training what types of evidence would have been
collected if he had remained on the scene, and he knew that by the time he
took the field sobriety test after 11:00 a.m., whatever alcohol may have been
in his system would have dissipated.
Defendant admitted he did not remain at the accident scene to provide
his name, address, or car registration to the police. He knew there was a
police station “relatively” close to the scene of the accident, but he did not go
there because he was running “blindly” and he believed he had done
everything he was supposed to do by telling N.K. to call for help and to
answer any questions by the police. Defendant acknowledged that once the
police arrived they may have wanted to speak with him as the driver of the
vehicle. Defendant never made a police report about being threatened at the
scene of the accident; nor did he ask any bystanders for help.
DISCUSSION
I. Failure to Give Duress Instruction Was Not Erroneous
Defendant argues the trial court erroneously refused to instruct the
jury on the duress defense. Defendant requested both CALCRIM No. 3403,
explaining the necessity defense, and CALCRIM No. 3402, the duress
instruction. The trial court instructed the jury on the necessity defense
(CALCRIM No. 3403) as follows:
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“The defendant is not guilty of VC 20001(a) if he acted because of legal
necessity.
“In order to establish this defense, the defendant must prove that:
“1. He acted in an emergency to prevent a significant bodily harm or
evil to himself;
“2. He had no adequate legal alternative;
“3. The defendant’s acts did not create a greater danger than the one
avoided;
“4. When the defendant acted, he actually believed that the act was
necessary to prevent the threatened harm or evil;
“5. A reasonable person would also have believed that the act was
necessary under the circumstances;
“AND
“6. The defendant did not substantially contribute to the emergency.
“The defendant has the burden of proving this defense by a
preponderance of the evidence. This is a different standard of proof than
proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each of the six listed items is true.”
Defendant asked that the jury be instructed on the duress defense1 as
well, but after an unreported conference in chambers, defendant withdrew
1 CALCRIM No. 3402 states: “The defendant is not guilty of if (he/she) acted under duress. The defendant acted under duress
if, because of threat or menace, (he/she) believe that (his/her/ [or] someone
else’s) life would be in immediate danger if (he/she) refused a demand or
request to commit the crime[s]. The demand or request may have been
express or implied. [¶] The defendant’s belief that (his/her/ [or] someone
else’s) life was in immediate danger must have been reasonable. When
deciding whether the defendant’s belief was reasonable, consider all the
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his request because “the facts in this case do not support [the duress]
instruction,” but he stated he would argue duress in the colloquial sense.2
During closing argument, defense counsel argued two theories: first, that
defendant “performed his required duty” and “did what he was supposed to
do, despite the fact that he was under duress. And despite the fact that . . .
the situation necessitated him leaving the scene”; and, second, that defendant
“did not leave willfully.”
We find no instructional error. As explained in People v. Saavedra
(2007) 156 Cal. App. 4th 561, 567, “Duress is available as a defense to
defendants who commit a crime ‘under threats or menaces sufficient to show
that they had reasonable cause to and did believe their lives would be
endangered if they refused.’ (Pen. Code, § 26, subd. six; [citation].) An
circumstances as they were known to and appeared to the defendant and
consider what a reasonable person in the same position as the defendant
would have believed. [¶] A threat of future harm is not sufficient; the danger
to life must have been immediate. [¶] [The People must prove beyond a
reasonable doubt that the defendant did not act under duress. If the People
have not met this burden, you must find the defendant not guilty of .]”
2 Following the unreported conference in chambers, the trial court
stated on the record, “The defense . . . asked for the duress instruction under
. . . CALCRIM 3402,” and inquired whether defense counsel “wish[ed] [to] be
heard on that.” Defense counsel replied, “Only to the extent that I withdraw
that request. I think that, during our chambers conference, it was pointed
out to me in the course of our discussion that that’s legal duress, and that the
facts of this case do not support that instruction. But I also brought up the
fact that, if I had an argument about duress, that I could do that, just so long
as I didn’t try to insinuate or state that it’s a legal duress.” The trial court
then stated: “All right, okay. [¶] Having reviewed that instruction and
discussing it with counsel, the Court did not feel that it was appropriate to
give the duress instruction; that the evidence did not support that. [¶] And
looking at what was required here under this instruction, it just didn’t seem
appropriate, so the Court declined to give that.”
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essential component of this defense is that the defendant be faced with a
direct or implied demand that he or she commit the charged crime. ‘The
defense of duress, unlike the necessity justification, requires that the threat
or menace be accompanied by a direct or implied demand that the defendant
commit the criminal act charged.’ [Citation.] In contrast, the necessity
defense is available when the defendant reasonably believed there was a
threat of harm and no other means to alleviate the harm, and the harm
sought to be avoided by the defendant’s conduct was greater than the harm
sought to be prevented by the law defining the charged offense. [Citations.]”
“Duress is an effective defense only when the actor responds to an
immediate and imminent danger. ‘[A] fear of future harm to one’s life does
not relieve one of responsibility for the crimes he commits.’ [Citations.] The
person being threatened has no time to formulate what is a reasonable and
viable course of conduct nor to formulate criminal intent. ‘The unlawful acts
of the person under duress are attributed to the coercing party who supplies
the requisite mens rea . . . .’ [Citation.] Thus, duress negates an element of
the crime charged—the intent or capacity to commit the crime—and the
defendant need raise only a reasonable doubt that he acted in the exercise of
his free will. [Citation.]” (People v. Heath (1989) 207 Cal. App. 3d 892, 900.)
“ ‘It is well settled that a defendant has a right to have the trial court
. . . give a jury instruction on any affirmative defense for which the record
contains substantial evidence [citation]—evidence sufficient for a reasonable
jury to find in favor of the defendant [citation]—unless the defense is
inconsistent with the defendant’s theory of the case [citation]. In
determining whether the evidence is sufficient to warrant a jury instruction,
the trial court does not determine the credibility of the defense evidence, but
only whether “there was evidence which, if believed by the jury, was
11
sufficient to raise a reasonable doubt . . . .” [Citations.]’ On appeal, we
likewise ask only whether the requested instruction was supported by
substantial evidence . . . .” (People v. Mentch (2008) 45 Cal. 4th 274, 288.)
Here, the trial court correctly ruled that the evidence did not support a
duress defense. Defendant and N.K. testified that people in the crowd
recognized defendant and yelled his moniker, “ ‘Hot Cop,’ ” as well as, “ ‘Beat
his ass,’ ” and, “ ‘Fuck the police,’ ” but these verbal threats suggest the
possibility of harm in the immediate future, which supports the necessity
defense but not the duress defense. (See People v. Heath, supra, 207
Cal.App.3d at p. 901 [for the necessity defense, “[u]nlike duress, the
threatened harm is in the immediate future, which contemplates the
defendant having time to balance alternative courses of conduct”].) Even
N.K.’s testimony that someone threw sport drink bottles at the trio does not
amount to an “immediate and imminent danger” to life. (CALCRIM No.
3402.) Moreover, there was no evidence that anyone made an express or
implied demand that defendant leave the scene of the accident. Rather, the
evidence was that members of the crowd yelled, “ ‘Please stop. Where are you
going? Hey you, stop.’ ” (See People v. Steele (1988) 206 Cal. App. 3d 703, 707
[substantial evidence did not support essential element of duress defense
where “[t]here is no indication that those making the threats requested,
demanded or desired that [prison inmate] escape”].)
Defendant asks us to relax the duress defense’s requirement of a
demand that defendant commit a crime, arguing that “[at] least in a case that
simply involves running away and thereby allegedly omitting to undertake a
legal duty, a defendant should not be required to prove that someone
demanded that he abstain from his duty in order to present a duress
defense.” According to defendant, the defense should apply even without a
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specific demand as long as “the defendant’s fear arises from a blunt threat
requiring flight . . . .” Defendant’s request is contrary to the principles
underlying the duress defense, in which the “ ‘unlawful acts of the person
under duress are attributed to the coercing party who supplies the requisite
mens rea . . . . [Citation.] Thus, duress negates an element of the crime
charged—the intent or capacity to commit the crime . . . .” (People v. Heath,
supra, 207 Cal.App.3d at p. 900.) Without a demand to commit a crime, there
is no transference of the mens rea and the duress defense does not apply.
(Ibid.)
Defendant argues that even though defense counsel withdrew his
request for the duress instruction following the conference in chambers, this
did not relieve the court from its sua sponte duty to provide the instruction
because it was not “ ‘clear from the record that defense counsel made an
express objection to the relevant instructions’ and that ‘counsel acted for
tactical reasons and not out of ignorance or mistake.’ ” (People v. Wickersham
(1982) 32 Cal. 3d 307, 330, disapproved on other grounds by People v. Barton
(1995) 12 Cal. 4th 186, 201.) Of course, here defense counsel did not object to
the instruction but requested it and then, following a conference in chambers,
withdrew the request. Nonetheless, defendant asserts it is not clear from the
record that defense counsel acted for tactical reasons. We find the record of
the postchambers conference discussion suggests that defense counsel’s
withdrawal of his request for the duress instruction was not “out of ignorance
or mistake,” but rather was because defense counsel understood that “the
facts in this case do not support that instruction” and his strategy—which he
executed in closing argument— was to argue “about duress . . . just so long as
[he] didn’t try to insinuate or state that it’s a legal duress.” Thus, it appears
defense counsel made a tactical decision to withdraw his request for the
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instruction and to continue referring to duress in its colloquial, nonlegal
sense in support of defendant’s necessity defense. Accordingly, defendant has
forfeited any claim the trial court had a sua sponte duty to instruct on the
duress defense. (See People v. Wader (1993) 5 Cal. 4th 610, 657–658 [“When a
defense attorney makes a ‘conscious, deliberate tactical choice’ to forego a
particular instruction, the invited error doctrine bars an argument on appeal
that the instruction was omitted in error”].)
But even if we assume defense counsel’s withdrawal of his request for
the duress instruction is not a forfeiture, we find the trial court did not have
a sua sponte duty to give the instruction.
In criminal cases, even in the absence of a request, the trial court has a
sua sponte obligation to instruct on “ ‘ “principles [of law] closely and openly
connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.” ’ ” (People v. Breverman (1998) 19 Cal. 4th
142, 154.) The court’s duty to instruct extends to defenses “if it appears the
defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the
defendants’ theory of the case.” (People v. Sedeno (1974) 10 Cal. 3d 703, 716
(Sedeno), overruled on other grounds in Breverman, at pp. 149, 173.)
Defendant argues Sedeno provides a two-prong, disjunctive test such that the
trial court’s sua sponte duty arises when either the defendant relies on the
defense or the defense is supported by substantial evidence and consistent
with the defense raised at trial; defendant argues both prongs are satisfied
here. We concluded above that substantial evidence did not support the
duress defense. Nor are we convinced that defendant “relied on” a duress
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defense.3 It is true that defense counsel referred to duress in his opening
statement and closing argument, but defense counsel acknowledged “the facts
in this case do not support [the duress] instruction” but that he would argue
to the jury “about duress . . . just so long as [he] didn’t try to insinuate or
state that it’s a legal duress.” The fact that defense counsel argued defendant
was under duress in the colloquial sense does not constitute reliance upon the
duress defense, particularly where defendant correctly acknowledged the
facts did not support such a defense. We agree with the People that counsel’s
reference to duress in closing argument was in line with his strategy of
arguing defendant acted under duress in the colloquial sense. This is not
3 In People v. Shelmire (2005) 130 Cal. App. 4th 1044, the Third District
Court of Appeal concluded that the first prong of Sedeno’s disjunctive test has
been overruled by subsequent decisions, including People v. Flood (1998) 18
Cal. 4th 470, 480, which disapproved of Sedeno to the extent it suggested a
duty to instruct “ ‘ “whenever any evidence is presented, no matter how
weak” ’ ” (Shelmire, at p. 1058), and Shelmire departed from the first prong
“because it is illogical . . . to allow a defendant to receive an instruction on a
defense, and to allow a jury to excuse criminal conduct, when the defendant
purports to rely on a defense for which substantial evidence does not exist.”
(Id. at p. 1059.) Shelmire explains that “neither in Sedeno nor in any later
case has the high court used the first prong of the Sedeno test to require
instruction on a defense for which there is no substantial evidence.” (Id. at p.
1058 [citing multiple California Supreme Court cases as examples].)
Defendant cites People v. Brooks (2017) 3 Cal. 5th 1, 73, as a more recent
Supreme Court case referencing Sedeno’s two-part, disjunctive test, as well as
People v. May (1989) 213 Cal. App. 3d 118, 125, and People v. Meneses (2008)
165 Cal. App. 4th 1648, 1660–1667, both from this district, which state the
Sedeno test is disjunctive. But in none of the cases cited by defendant did the
court hold that an instruction was required because a defendant relied upon
a defense for which there was no substantial evidence. (Brooks, at pp. 73–74;
May, at p. 126; Meneses, at p. 1665.) We find Shelmire’s analysis and
reasoning to be persuasive, but because the Supreme Court recently restated
Sedeno’s disjunctive test in Brooks, at p. 73, we proceed with an analysis of
each prong of Sedeno.
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equivalent to relying on the legal duress defense, the elements of which
defense counsel did not articulate for the jury and for which there was no
substantial evidence.
II. No Prosecutorial Misconduct
Defendant argues the prosecutor committed prejudicial misconduct
during closing arguments by: (1) suggesting that defendant left the scene
because he was intoxicated and hoped to avoid an investigation;
(2) misstating facts regarding a conversation between Norman B. and N.K.;
(3) pointing out inconsistencies between defendant’s testimony and that of
other witnesses; (4) asserting that N.K. knew where defendant went; and
(5) misstating the law regarding the duty to render reasonable assistance
under Vehicle Code section 20001, subdivision (a). Defendant acknowledges
that his trial counsel did not object to the alleged misstatements of fact and
law but argues that this failure constituted ineffective assistance of counsel.
We find no prosecutorial misconduct during closing argument, and therefore
defendant’s trial counsel was not ineffective for failing to object to the
prosecutor’s statements.
A. Suggestions That Defendant Left Scene to Avoid an
Investigation as to Whether He Was Intoxicated
Defendant complains the prosecutor repeatedly suggested during
closing argument that he left the scene of the accident because he was
intoxicated and did not want to present himself for investigation. Defendant
argues that this suggestion was contrary to the evidence because defendant,
N.K., and Norman B. testified that defendant was not intoxicated. “ ‘ “It is
settled that a prosecutor is given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the
evidence, which can include reasonable inferences, or deductions to be drawn
therefrom.” ’ ” (People v. Williams (1997) 16 Cal. 4th 153, 221.)
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The prosecutor did not state that the defendant was intoxicated, but he
argued that defendant left the scene to avoid a criminal investigation. The
prosecutor argued defendant fled “[t]o avoid more serious charges.
[¶] Because if anything is detected in your blood while driving and someone is
seriously hurt, there will be questions. [¶] And at the time of the collision,
Christopher Kohrs did not know what his blood result would be. He didn’t
know. [¶] He didn’t take a breath test or a blood test right before he left. He
had no idea. [¶] But that’s where the fear generated from, the not knowing.
So he ran. [¶] And the more time that passed, the less chance of evidence
being collected from Kohrs.” We find the prosecutor’s argument to be a fair
comment on the evidence, which included defendant’s own testimony that he
left the scene, that he had consumed two shots of hard liquor before the
accident, and that as a police officer he knew the investigation was likely to
include sobriety tests.
B. Facts Regarding Conversation Between Norman B. and N.K.
Defendant complains the prosecutor avoided asking Norman B. about
defendant’s instructions to N.K. and then improperly argued in closing that
because Norman B. did not testify regarding the instructions, the jury should
not believe that defendant gave instructions to N.K. On direct examination,
Norman B. testified that when he returned to the parked car after
determining he was too intoxicated to render medical assistance to the
victims, he scanned the area for defendant. Norman B. “did not notice him.
[¶] And then [he] asked [N.K.] if he knew where Chris went.” The prosecutor
said, “Okay, let’s take this—just answer this question . . . .” Norman B.
replied, “Sure,” and the prosecutor asked, “Did you receive a response from
[N.K.]?” When Norman B. said, “Yes,” the prosecutor asked, “What did you
do after you received a response from [N.K.]?” Norman B. replied, “I went up
Montgomery. . . . [¶] . . . I walked up about half a block to search for Chris.”
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When the prosecutor asked, “And why were you searching for Chris?”
Norman B. answered, “Because [N.K.] said that he didn’t know where
[defendant] was, and I did not see him on the scene. [¶] So I was searching for
him to see where he was.”
On cross-examination, defense counsel elicited from Norman B. that he
did not know what N.K. and defendant did during the period when
Norman B. went toward one of the injured pedestrians and then returned.
During closing argument, the prosecutor commented on Norman B.’s
testimony as follows: “He asks [N.K.] where the defendant was; [N.K.]
doesn’t know. And please notice what was not said by [N.K.] through
Norman [B.], that Chris had to get away from a crowd or ‘Don’t worry, Norm,
I have instructions’ or ‘I’ll call 911, you take care of the injured.’ [¶] None of
that was said. [¶] Why do I mention that? Because you have to determine
whether Christopher Kohrs gave reasonable assistance. . . . [¶] Because at
the end of the day, he didn’t do anything. [¶] And they’re trying to tell you, ‘I
told my brother to do it.’ And you have to determine whether that’s
reasonable.”
Defendant argues the prosecutor avoided presentation of evidence as to
the substance of Norman B.’s conversation with N.K. and therefore it was
improper for the prosecutor to argue that N.K. did not tell Norman B. that
defendant gave him instructions or that defendant said he was scared of the
crowd. We find the prosecutor’s argument was a reasonable inference and a
fair comment on the evidence. Norman B. testified he did not know what
transpired between N.K. and defendant during the period when Norman B.
went toward one of the injured victims and then returned. When Norman B.
returned, the defendant was gone, and N.K. told Norman B. that “he didn’t
know where [defendant] was . . . .” This testimony could support a
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reasonable inference that N.K. did not tell Norman B. that defendant said he
was afraid of the crowd and that he had given N.K. instructions. (See People
v. Lawley (2002) 27 Cal. 4th 102, 156 [prosecutor’s comment on absence of
evidence presented at trial was a “fair comment on the evidence”].)
C. Inconsistency Between Testimony of Defendant and Other
Witnesses
Defendant argues the prosecutor misstated facts when he questioned
the credibility of defendant’s testimony that he was chased from the scene on
the basis that it was inconsistent with the testimony of Norman B., Jess Z.,
Sergeant Jackson, Officer Horan and Kevin C. The prosecutor argued
defendant’s testimony was not credible “[a]nd it is his burden to prove to you
that there was a legal necessity by a preponderance of the evidence. [¶] But
he can’t even say how; where; who chased him; when. [¶] And it’s inconsistent
with the testimony of Norman [B.] who did not see the chase; Jess [Z.], who
saw people gathered around, but the reaction was, ‘Stop!’ [¶] There was
already flight. There was already flight. And that’s an issue. That doesn’t
bode well for the defendant. He was running, and that’s why people were
reacting. [¶] That is the logical inference. He was already on the run.
[¶] Inconsistent with Sergeant Donald Jackson, who didn’t see anything
unusual, and Officer Horan, who actually stopped . . . [N.K.] and Norman [B.]
[¶] Kevin [C.] testified. And he didn’t see anything really remotely close to
what Christopher Kohrs testified to.”
Defendant argues there was no inconsistency between these witnesses’
testimony and defendant’s testimony that he was chased from the scene
because Sergeant Jackson, Officer Horan, and Kevin C. testified they did not
see defendant; Norman B. testified he had “no idea” what happened to
defendant; and Jess Z. recalled members of the crowd “running and yelling at
an individual to stop him.” The prosecutor’s argument that the testimony of
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Sergeant Jackson, Officer Horan, Kevin C. and Norman B., who were on the
scene either at the time of the accident or shortly thereafter, was inconsistent
with the defendant’s testimony is a fair comment on the evidence. (People v.
Williams, supra, 16 Cal.4th at p. 221.) The fact that these witnesses did not
see a chase is inconsistent with defendant’s version of events. Further, the
prosecutor’s argument that crowd members were angry defendant fled the
scene and yelled to stop him was supported by Jess Z.’s testimony and was
inconsistent with defendant’s testimony.
D. Assertion That N.K. Knew Where Defendant Went
The prosecutor argued N.K.’s testimony was not credible because he
wanted to protect his brother. He further argued N.K. refused to cooperate
with the police, stating: “[N.K.] knew where Christopher Kohrs was. He was
at Leslie’s house, remember that? [¶] Remember . . . Christopher Kohrs
testified that [N.K.] called him and told him that . . . Internal Affairs . . .
wanted to talk to Christopher Kohrs? [¶] And this was after, after, [N.K.] did
not cooperate with SFPD. See, [N.K.] knew where Christopher Kohrs was.
Why didn’t he cooperate? [¶] [N.K.] did not tell the police where Kohrs
was. . . . He didn’t cooperate. [¶] What does that tell you about [N.K.]? . . .
[N.K.] refused to call the defendant . . . when asked by Lieutenant Braconi.
But he knew. [¶] Why did [N.K.] elect to not call the defendant while
Lieutenant Braconi is there, knowing that he was probably at Leslie’s house,
at some point? [¶] Well, [h]e has an agenda to protect his brother. That’s the
agenda, right there. That’s your evidence. [¶] That’s evidence that he knew,
but didn’t want to cooperate with the police. [¶] He protected his brother at
the scene by not telling police immediately what had happened. He protected
his brother at the station by not trying . . . to contact Christopher Kohrs.”
Defendant contends there was no evidence that at the time of N.K.’s police
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interview, he knew defendant was at a friend’s house in San Bruno, and that
N.K. testified that he did not know where defendant went.
We agree with the People that the evidence supports an inference that
N.K. knew where defendant went and therefore the prosecutor’s argument
was not improper. The evidence showed that when N.K. was interviewed by
the police in the early morning after the accident, he refused to contact
defendant. N.K. testified he saw defendant six to seven hours after the
collision, when he “went to drop off some clothes to him.” Defendant testified
that N.K. told him the internal affairs unit was looking for him. N.K.’s
refusal to contact defendant when the police requested he do so, and his
testimony that later that day he went to defendant’s friend’s house to drop off
clothes to him, is sufficient to support an inference that N.K. knew where
defendant was but refused to contact him at the request of the police in order
to protect defendant. (People v. Williams, supra, 16 Cal.4th at p. 221.)
E. Prosecutor’s Statements About N.K.’s Not Aiding Victims
and Defendant’s Failure to Follow Up
The jury was instructed with CALCRIM No. 2140 (failure to perform
duty following accident: death or injury), which states: “To provide
reasonable assistance means the driver must determine what assistance, if
any, the injured person needs and make a reasonable effort to see that such
assistance is provided, either by the driver or someone else. Reasonable
assistance includes transporting anyone who has been injured for medical
treatment, or arranging the transportation for such treatment, if it is
apparent that treatment is necessary or if an injured person requests
transportation. The driver is not required to provide assistance that is
unnecessary or that is already being provided by someone else. However, the
requirement that the driver provide assistance is not excused merely because
bystanders are on the scene or could provide assistance.”
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Defendant argues the prosecutor misstated the law when he suggested
defendant failed to provide “ ‘reasonable assistance’ ” because N.K. did not
actually render aid to the victims after defendant asked him to do so and
because defendant did not “ ‘follow[] up’ ” on the victims’ condition in the
hours after the accident. We find no error. The prosecutor’s argument
focused on whether delegation of defendant’s duty to N.K. constituted a
“reasonable effort to see that [reasonable] assistance is provided” to the
victims. (CALCRIM No. 2140.) Regarding the lack of follow-up, the
prosecutor argued, “[I]f you believe that those . . . requests [to N.K.], given all
the circumstances in this case—given that they were at Fort One drinking—if
you think that is a reasonable effort, and you’re discounting the fact that
reasonable efforts can also include, maybe an hour later, checking up to see if
something was done—that’s part of ‘effort,’ making a reasonable effort that
such assistance was provided by someone else, okay? [¶] If you believe that
that’s reasonable to not follow up; to be missing from 2:23 in the morning
until past 9:00 in the morning, if you think that’s reasonable, then so be it.
[¶] But it’s not. It’s not. [¶] And that is why the defense theory of delegating
this duty to [N.K.] and [N.K.] simply receiving the communication, but then
doing nothing about it, that’s why it fails.” Under the circumstances of this
case, there was nothing improper about the prosecutor’s argument. (See
People v. Scheer (1998) 68 Cal. App. 4th 1009, 1027 [statutory duty to render
reasonable assistance is not nullified merely because bystanders are on the
scene or offer assistance where evidence reflects driver fled scene without
ascertaining “whether any of the bystanders were in fact rendering the kind
of assistance mandated by Vehicle Code section 20003”].)
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DISPOSITION
We find no instructional error or prosecutorial misconduct. The
judgment is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A154295/People v. Christopher J. Kohrs
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