People v. Richey CA4/2

Filed 4/13/23 P. v. Richey CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077961
v. (Super.Ct.No. RIF2000757)
ERIN LEAH RICHEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.
Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Daniel J.
Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2021, a jury convicted Erin Leah Richey of one count of felony assault with a
deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court reduced the felony
conviction to a misdemeanor and sentenced Richey accordingly. On appeal, Richey
argues that the prosecutor engaged in prejudicial misconduct in closing argument and by
eliciting purportedly inadmissible testimony. We conclude that Richey has failed to
show prejudicial error, and we therefore affirm.
BACKGROUND
Richey represented herself at trial. In September 2019, Richey was an inmate at
the Robert Presley Detention Center, a county jail in Riverside, California. Richey was
housed in a cell with Lorena B.
One night, a correctional officer became aware that Richey and Lorena were
arguing in their cell. The prosecution’s only witness in its case-in-chief was one of the
three correctional officers on duty in the unit or pod in which the cell was located.
Richey pushed a call button to notify the correctional officers that “they were fighting.”
Lorena yelled out, “‘She stabbed me.’” A correctional officer was monitoring the cell by
video. A video recording of the incident was played for the jury.
The recording showed Lorena throwing a small container of coconut oil at Richey.
Richey then stabbed Lorena with a pencil. Inmates can purchase golf pencils at the
commissary or are given them if they do not have any money. A golf pencil is a small
pencil. Correctional officers did not recover the pencil. The area in the cell in which the
toilet is located is not recorded.
2
The prosecution’s witness testified that correctional officers do not “immediately
rush over and enter [a] cell” when physical contact between cellmates is seen on video,
because of safety concerns for the officers. Although there are not supposed to be any
weapons in the jail, the officer testified that “[a]ll kinds of things can be manufactured to
become a weapon,” such as spoons that have been sharpened and sugar that has been
melted to form a sharp object. The officer believed that the golf pencils that inmates
were permitted to use created a “potential danger” because inmates could “sharpen them
really, really good against the concrete,” and she had seen this happen.
In cross-examining the officer, Richey asked: “Do you consider a golf pencil a
deadly weapon?” The officer responded, “I believe that it can become a deadly weapon,
yes.” Richey asked the officer how such a pencil could be used as a deadly weapon, and
the officer responded, “Using it to stab other inmates.” Asked where the stabbing would
need to be, the officer answered, “Anywhere in the body.”
On redirect examination, the prosecutor asked the officer whether she believed
that the pencils provided to inmates were capable of causing and likely to cause great
bodily injury, and the officer responded: “I don’t believe inmates should have them.
They have been used multiple times throughout the jails, and I have worked multiple
jails, and I have seen many incidents where inmates use them as a weapon because they
can be sharpened very sharp, regardless of size.” The trial judge asked some follow-up
questions, and the officer confirmed that she believed the pencils provided to inmates
were deadly weapons.
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There was no video evidence that Richey sharpened the pencil on the day of the
incident, but the officer could not confirm whether the pencil had been modified, because
it was not recovered. After Richey used the pencil “to stab” Lorena, Richey was “feeling
the point of the pencil,” which caused the correctional officer to believe that it “could
have been particularly sharp.”
The correctional officer took Lorena to the nurse after the incident because Lorena
had an injury “on the top of her head” and was bleeding. The stabbing inflicted puncture
wounds on the back of Lorena’s hand and on her head. The officer described the
puncture wound on Lorena’s head as being “little.” The pencil punctured Lorena’s hand,
causing her to have a “little cut” on her finger that was bleeding. A band-aid was placed
on Lorena’s hand. A photograph of Lorena’s hand was admitted, and the officer
described it as showing that Lorena’s skin appeared “wrinkly,” the way skin looks after a
band-aid is removed. No injury was visible. The officer confirmed that Lorena had not
received “any great bodily injury from the pencil.”
Richey refused to give a statement on the night of the incident. She testified on
her own behalf. After providing some background information about her education and
work history, Richey testified that she “did something that made [her] wind up in jail that
was an accident and a mistake, and [she] ha[s] been waiting for trial all that time and
having—I have mental issues.”
Richey claimed that Lorena was a “pretty bad” cellmate who on the day of the
incident had destroyed some of Richey’s property and eaten some of Richey’s food.
Richey reported those incidents to a correctional officer, who said they were monitoring
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the situation. Lorena then took off all of her clothes and got “really close to” Richey,
which Richey considered “a sexual assault.” Lorena either “ejaculated” or urinated on
Richey. Lorena urinated on Richey’s bed linens and threatened Richey. Richey told a
passing correctional officer what was happening, and the officer told Richey that they
were handling the situation and would be moving Lorena.
Richey got onto the top bunk bed. Lorena repeatedly kicked the bottom of
Richey’s bed and said, “crazy stuff.” Richey got out of bed and stood at the door trying
to get help and was holding a pencil in her hand. Lorena said, “come on, bitch” and
charged at Richey, “rush[ing] at [Richey] with a fighting stance.” Lorena then threw “a
heavy coconut oil” at Richey “as hard as” Lorena could throw it. The thrown object
grazed Richey and shattered against the wall. Richey swung her fist with the pencil at
Lorena as many times “as it took to stop” Lorena. Richey feared for her life and believed
that she acted with “reasonable force” to protect herself. Richey described the tip of the
pencil she used as being “like a rose thorn,” which she admitted “might be” sharp.
The jury was instructed that in order to convict Richey of assault with a deadly
weapon the prosecution had to prove that (1) Richey “did an act with a deadly weapon
other than a firearm that by its nature would directly and probably result in the
application of force to a person,” (2) Richey “did that act willfully,” (3) when Richey
acted, “she was aware of facts that would lead a reasonable person to realize that her act
by its nature would directly and probably result in the application of force to someone,”
(4) when Richey acted, “she had the present ability to apply force with a deadly weapon
other than a firearm,” and (5) Richey “did not act in self-defense.” (CALCRIM No. 875.)
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The instructions specified that the prosecution did not need to prove that Richey had
“actually touched someone” or caused any injury. As to what constituted a deadly
weapon, the jury was instructed: “A deadly weapon other than a firearm is any object,
instrument, or weapon that is used in such a way that it is capable of causing and likely to
cause death or great bodily injury.” The jury was further instructed that “[g]reat bodily
injury means significant or substantial physical injury. It is an injury greater than minor
or moderate harm.” (Italics omitted.)
In closing argument, Richey argued that she “didn’t want to fight that day” and
instead acted in self-defense when she used the pencil against Lorena. Richey also
argued that she did not use the pencil as a deadly weapon. As to whether the pencil could
have been used as a deadly weapon, Richey stated: “I understand this—this pencil, if I
had struck [Lorena] with it and aimed for her eyes and aimed for her throat, or jabbed it
into her ear or really meant—or really hit her hard, that—that would be the potentially
excessive. Potentially not.”
DISCUSSION
Richey argues that the prosecutor committed prejudicial misconduct and violated
her right to due process by (1) questioning Richey about the criminal charges on which
she was awaiting trial when the incident occurred, (2) making a purportedly improper
analogy during closing argument, and (3) misstating the evidence in closing argument.
We conclude that Richey has not shown any prejudicial error.
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A. Governing Law
“In California, the law regarding prosecutorial misconduct is settled: ‘When a
prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with
such a degree of unfairness as to render the subsequent conviction a denial of due
process, the federal Constitution is violated. Prosecutorial misconduct that falls short of
rendering the trial fundamentally unfair may still constitute misconduct under state law if
it involves the use of deceptive or reprehensible methods to persuade the trial court or the
jury.’” (People v. Masters (2016) 62 Cal.4th 1019, 1052 (Masters).)
Even if prosecutorial misconduct occurs, reversal is not required unless the
defendant demonstrates that prejudice resulted. (People v. Fernandez (2013) 216
Cal.App.4th 540, 564.) To the extent that prosecutorial misconduct implicates federal
constitutional rights, we review the error under the harmless standard of Chapman v.
California (1967) 386 U.S. 18. (Fernandez, supra, at p. 564.) We otherwise review the
error under the state law harmlessness standard of People v. Watson (1956) 46 Cal.2d
818, 836 (Watson). (People v. Parker (2022) 13 Cal.5th 1, 71-72 (Parker).)
B. Cross-Examination
Richey first argues that the prosecutor committed misconduct by questioning
Richey during cross-examination about the criminal charges on which she was awaiting
trial when the incident occurred. We disagree.
1. Relevant Proceedings
Before trial, the prosecution moved to admit evidence of Richey’s pending
criminal case as rebuttal evidence if Richey introduced evidence of Lorena’s purported
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“‘dangerousness.’” Richey objected and claimed that Lorena had convictions
demonstrating “a long stream of violence.” The court granted the motion and ruled that if
Richey introduced evidence of Lorena’s purported “character for violence,” then the
court would allow the prosecutor to introduce evidence about Richey’s “prior violent
conduct” in rebuttal.
During trial, the prosecutor asked Richey a question about Lorena’s hygiene, and
Richey answered that Lorena “is violent, she is a pervert, she was talking gibberish,
loudly, she was hurting me.” Responding to a later question by the prosecutor about the
incident, Richey described Lorena as being “[v]ery violent.”
Richey’s claim of prosecutorial misconduct concerns a line of questioning that
followed Richey’s testimony that Lorena was violent. The prosecutor questioned Richey
about why she did not want to be housed with Lorena or a prior cellmate. As to the other
inmate, Richey responded: The other inmate “was there for breaking her grandma’s
shoulder with a felony assault and she said she was gonna kill me. So yes, I wanted her
out.” The prosecutor then asked Richey, “You were there [in jail] for bludgeoning your
sister in the head with a hammer?” Richey did not object and answered: “Well,
[Lorena]—my sister—that was an accident and a misfortune. My sister wasn’t hurt. She
had a small laceration. And it wasn’t intended to my sister.” The prosecutor followed up
and asked Richey if her sister had been hurt. Richey objected, and the court sustained the
objection.
The prosecutor then asked Richey numerous questions about issues she had with
other cellmates. The court sustained an objection by Richey to a question about
8
something that happened between Richey and one of the other cellmates. The prosecutor
asked for clarification from the court. The court responded: “To answer your question,
that door hasn’t been opened in my view, so you are not to go there.” Richey objected
that the prosecutor already “went there” and moved the court to strike anything
concerning her pending criminal charges.
Outside of the presence of the jury, the court explained to Richey that the only
reason that any information about her prior criminal charges had been admitted was that
she failed to object. The court rejected Richey’s argument that the prosecutor had been in
contempt by asking Richey about why she was in jail. The court explained: “She’s not
in contempt. She asked a question that was objectionable. Object to it.” The prosecutor
repeatedly apologized to the court and explained that she had only asked the question
about Richey’s pending criminal charges because Richey had repeatedly testified that
Lorena was violent. The prosecutor thought that Richey had “swung the door wide open”
but acknowledged that she might have “misinterpreted” what had happened. The court
indicated that it did not believe that Richey had opened the door to such questioning by
testifying that Lorena was violent. The prosecutor said that she would not ask further
questions about Richey’s pending criminal charges and would not object to the jury being
admonished about the prior line of questioning, which the court agreed to do.
The court instructed the jury: “There was a question and answer series earlier in
the cross-examination dealing with the facts of the matter by which Ms. Richey was in
custody for. That question and that answer is stricken. It has absolutely nothing to do
9
with the facts of this case. And I am telling you that you must disregard it and you must
not consider that, these facts, for any purpose.”
2. Analysis
A prosecutor commits misconduct by “‘“intentionally”’” eliciting inadmissible
testimony, but “‘“merely eliciting evidence is not misconduct.”’” (Parker, supra, 13
Cal.5th at p. 76; People v. Fuiava (2012) 53 Cal.4th 622, 678-679.) “It is misconduct for
a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible
evidence in violation of a court order.” (People v. Crew (2003) 31 Cal.4th 822, 839.)
The prosecutor did not engage in misconduct by questioning Richey about the
pending criminal charges for which she was awaiting trial in jail. The prosecution only
questioned Richey about the criminal charges for which she was in jail after Richey
repeatedly testified that Lorena was “violent.” The prosecutor’s line of questioning was
permissible under the trial court’s in limine ruling that allowed the prosecution to
introduce character evidence about Richey’s “propensity for violence” if Richey
introduced evidence of Lorena’s purported “character for violence.” The prosecutor’s
questions about the pending criminal charges did not violate “any earlier statement by the
court that clearly precluded the prosecutor from asking such a question.” (People v.
Price (1991) 1 Cal.4th 324, 452, italics added.)
The prosecutor’s questions do not appear to be an effort to elicit inadmissible
testimony. (Parker, supra, 13 Cal.5th at p. 77.) Instead, the line of questioning was a
reasonable (and correct) effort to elicit evidence made admissible by the trial court’s prior
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ruling. (Ibid.) We accordingly conclude that the prosecutor’s questions about Richey’s
pending charges did not constitute misconduct.
C. Closing Argument
Richey also argues that several remarks the prosecutor made during closing
argument amounted to prosecutorial misconduct. The People concede and we agree that
the prosecutor misstated the evidence and thus committed misconduct, but we conclude
that the error was not prejudicial. We reject Richey’s other claim of misconduct.
Richey first argues that the prosecutor committed misconduct by improperly
implying “that the crime of felony assault with a deadly weapon, to wit. a pencil, was
tailored to the facts of this case when [the prosecutor] argued to the jury that the use of a
pencil during an assault would be just as egregious as the use of a firearm or machete.”
Richey’s argument is based on the following italicized remarks the prosecutor made
during closing argument: “The defendant is charged with assault with a deadly weapon.
And if you have no legal training at all, that probably sounded fairly egregious to you.
And you were probably waiting for some evidence that someone got shot in the head or
flayed with a machete or something like that. [¶] But that’s not the law. That would be a
different kind of a crime, maybe an attempt murder or a battery. [¶] But an assault isn’t
about what actually does happen.” (Italics added.) The prosecutor’s argument was that
Richey’s attack on Lorena with a pencil amounted to assault with a deadly weapon even
though the attack was not as egregious as using a firearm or a machete to commit assault.
The prosecutor thus did not equate the underlying attack with an assault committed by
using a firearm or a machete. We accordingly reject Richey’s argument to the contrary.
11
Richey next argues that the prosecutor committed misconduct by telling the jury
that Lorena’s injury required stitches even though, according to Richey, there was no
evidence that Lorena had received “ any kind of medical treatment, let alone stitches.”
We agree that there was no evidence that Lorena received stitches, but we conclude that
the error was harmless.
During closing argument, the prosecutor identified and described each of the
elements of assault with a deadly weapon that she had to prove. In discussing the deadly
weapon component of the first element, the prosecutor reiterated the instruction’s
definition that a deadly weapon is “any object that is used in such a way that it is capable
of causing and likely to cause death or great body injury.” The prosecutor acknowledged
that pencils were not designed to hurt or to kill, but she explained that the law focused on
whether the pencil was “‘likely to cause great injury or death’” and that she did “not have
to prove that pencil is inherently or always deadly.” The prosecutor told the jury that she
did not have to prove that Richey could have killed Lorena but instead had to prove that
Richey “could have and that her actions were likely to cause great bodily injury,” which
the prosecutor explained means “something more than minor or moderate harm.” The
prosecutor admitted that the injuries sustained by Lorena were “minor” and “not
substantial or significant.” The prosecutor then stated: The injuries “were no more than
minor or moderate harm. [Lorena] started bleeding. [Richey] broke skin, and [Lorena]
had to get stitches. If it was bad enough to get stitches, that’s great bodily injury. [¶]
But that’s not what we’re concerned with here. The injuries actually received are not
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what is important. This is about what could have happened, what is likely to happen
when we go around stabbing people in the head with pencils.” (Italics added.)
The prosecutor then argued that the pencil was used as a deadly weapon because it
could have inflicted great bodily injury, not because it had in fact caused great bodily
injury. As to Richey’s use of the pencil, the prosecutor described the incident as Richey
“simply jabbing, jabbing, jabbing at [Lorena’s] head. [Richey] had no control. She was
in a blind rage, stabbing again and again and again. [¶] Lucky [Lorena’s] response was to
give the defendant the hardest part of her skull. But what if [Lorena] had turned her head
to look up and see if the defendant was done yet? [Lorena] would have taken a pencil to
the eye. Do you have any doubt that that would cause her a substantial or serious injury?
A pencil to the side [of] the cheek is going to cause a lot more damage than one to the
skull. [¶] . . . The fact that [Lorena] was able to protect herself from substantial injury
doesn’t mean that the defendant could not have and wasn’t likely to inflict substantial
injury.”
Because there was no evidence that Lorena received stitches, the prosecutor
committed misconduct by telling the jury that Lorena had received stitches. (People v.
Hill (1998) 17 Cal.4th 800, 823.) That misstatement of the evidence, however, was not
so egregious that it infected “the trial with such a degree of unfairness as to render the
subsequent conviction a denial of due process.” (Masters, supra, 62 Cal.4th at p. 1052.)
The error instead amounted to an error of state law. We thus analyze whether there was a
reasonable probability that the jury would have reached a verdict more favorable to
Richey absent the misconduct. (Parker, supra, 13 Cal.5th at pp. 71-72.)
13
There was strong evidence of Richey’s guilt if the jury rejected Richey’s claim of
self-defense and found that the pencil was a deadly weapon. Richey admitted that she
stabbed Lorena with the pencil, and a video recording of the incident was played for the
jury in which Richey is shown stabbing Lorena with a pencil. Thus, once the jury
concluded that Richey had not acted in self-defense, the critical issue left for it decide
was whether the pencil was a deadly weapon.
The jury was instructed that to prove that the pencil Richey used was a deadly
weapon, the prosecutor had to prove that the pencil was “used in such a way that it [was]
capable of causing and likely to cause death or great bodily injury,” meaning an injury
involving “greater than minor or moderate harm.” Thus, when the prosecutor told the
jury that Lorena “had to get stitches” and “[i]f it was bad enough to get stitches, that’s
great bodily injury,” the prosecutor was in essence telling the jury that the pencil had
already caused great bodily injury so it was capable of causing great bodily injury and
thus was a deadly weapon. The prosecutor’s misstatement thus went to the heart of the
issue the jury had to decide if it rejected Richey’s claim of self-defense, which it did.
The prosecutor’s misstatements nevertheless were harmless because of the
evidence that that the pencil was used in such a way that it was capable of and likely to
cause great bodily harm. The correctional officer testified that a golf pencil could be
used as a deadly weapon to stab inmates anywhere on their bodies. The officer further
explained that inmates can sharpen the pencils to be “very sharp.” Richey admitted that
the pencil she used could have been sharp and that it felt “like a rose thorn.” Richey used
the pencil to stab Lorena in the head. And the pencil caused puncture wounds on
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Lorena’s head and hand. Thus, there was ample evidence from which a reasonable jury
could infer that the pencil Richey used was sharp and was used in a manner capable of
and likely to cause great bodily injury.
In addition to this evidence, the jury was instructed that it “alone” would “decide
what happened, based only on the evidence” presented at trial, which it was instructed
meant “the sworn testimony of witnesses, the exhibits admitted into evidence, and
anything else [the judge] told [them] to consider as evidence.” The jury was further
instructed: “Nothing that the attorneys say is evidence. In their opening statements and
closing arguments, the attorneys discuss the case, but their remarks are not evidence.” In
closing argument, the prosecutor reiterated this point and told the jury: “As important as
I like to think I am, nothing that I say is actually evidence in the case. You determine
that based off of what was said by witnesses on the witness stand.” We assume that the
jurors followed the instructions (People v. Seumanu (2015) 61 Cal.4th 1293, 1345) and
thus were able to distinguish between the evidence concerning Lorena’s injury and the
prosecutor’s misstatements.
There was ample evidence contradicting the prosecutor’s mischaracterization of
the injury. A photograph of the injury was admitted. The officer described the puncture
wound on Lorena’s hand as being a “little cut” on her finger that bled. The only medical
treatment needed for the cut was a band-aid. Moreover, the officer confirmed that Lorena
had not received “any great bodily injury from the pencil.”
Given the strong evidence that the pencil was used as a deadly weapon, the ample
evidence that Lorena’s injury did not require stitches, and the instructions that the
15
statements by the attorneys are not evidence, we conclude that it is not reasonably
probable that the jury would have reached a verdict more favorable to Richey absent the
prosecutor’s misstatements about Lorena’s injury.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
FIELDS
Acting P. J.
RAPHAEL
J.
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