Opinion
C083902
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. EARL ALLEN BOEK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16F397)
Rejecting his claim of self-defense, a jury found defendant Earl Allen Boek guilty of unlawfully using tear gas. (Pen. Code, § 22810, subd. (g)(1).) The trial court suspended imposition of sentence and granted probation with a 180-day jail term. Defendant timely filed this appeal.
On appeal, defendant contends reversal is required because: (1) the prosecutor failed to timely turn over material evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady); (2) trial counsel provided ineffective assistance of counsel regarding this evidence; (3) a jury instruction on the victim's right to defend property was misleading and shifted the burden of proof; and (4) the prosecutor committed prejudicial error in argument. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence viewed in the light favorable to the verdict shows that defendant regularly drove a Crown Victoria--with a revolving yellow light on the dashboard--through his neighborhood and confronted people he suspected of wrongdoing, as the self-appointed captain of a citizen's watch. On the date in question he chased Michael Haglan's car to Haglan's house, where a verbal altercation ensued and defendant sprayed Haglan with pepper spray. Defendant claimed self-defense and the jury was instructed accordingly. The jury was also instructed that a property owner may use reasonable force to eject a trespasser. The issue of whether or not defendant (more specifically, his car) entered Haglan's property during the altercation is central to all four of defendant's claims on appeal. We recite the facts relevant to these claims.
Trial Proceedings--Opening Statements
In opening statements, the prosecutor posited that defendant had driven over the curb and onto Haglan's lawn; when confronted about the encroachment, defendant sprayed Haglan. Defense counsel conceded defendant's tire was at least partly on the lawn at some point, but added that defendant had moved the car off the lawn by the time Haglan reacted in a threatening manner.
People's Case
Haglan testified that on January 5, 2016, it was raining heavily and when he drove through an intersection on his way home his tires lost traction. He then saw that he was being followed by a white Crown Victoria with a bright yellow rotating light on the dashboard. He had seen that car before and knew it belonged to someone who conducted neighborhood patrols. Haglan parked at his house towards the end of his driveway; the other car was speeding and approaching aggressively. When it pulled up, the car's left tire was on his lawn. The driver (defendant) was aggressive and revved the engine in an intimidating way. When Haglan told him to leave, defendant sprayed Haglan with pepper spray from about six feet away, hitting Haglan in the face. Haglan said he would call the police and defendant left.
Haglan identified a current photograph that depicted the part of his lawn where defendant's tire had marred it (10 months earlier). Haglan admitted he had two felony DUI convictions. On cross-examination, Haglan repeated that the tire went onto his lawn. He did not show his clothing to law enforcement, and he did not seek medical treatment for a week or two.
Officer Jacob Provencio of the Redding Police Department testified he had 16 years on the job. In response to a dispatch around 4:35 p.m., he telephoned Haglan, who had reported being sprayed with "bear spray." When Provencio found defendant, he said he was part of a "citizen's patrol" that was "willing to take action." Defendant told Provencio that Haglan's car had run a stop sign at 60 miles per hour. Defendant followed Haglan and told the officer he had driven "onto kind of the driveway and grass area of Mr. Haglan's residence." Haglan then swore at defendant, told him he was not a police officer, and that he needed to leave. Defendant admitted spraying Haglan from about six feet away, claiming fear of attack, but he also said Haglan had not attempted to assault him. He said he held the canister to scare Haglan and had not tried to hit him with the spray. Provencio saw Haglan but did not note that he had red or swollen eyes or dripping mucous; that is, there was no corroboration he was sprayed.
The jury was told that " '[t]ear gas' includes any liquid, gaseous or solid substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispersed in the air." The parties do not argue that pepper spray (or "bear spray") was wrongly equated to tear gas for any purpose; therefore we do not address the point.
Defense Case
Defendant testified he was a longtime Redding resident who had organized the "Next Door Citizens Safety Patrol" in his neighborhood. He went on random (unscheduled) patrols up to 15 times per week. He was watching that particular intersection for drivers ignoring the four-way stop signs; the speed limit was 25 miles per hour. He was talking with a friend when he saw Haglan's pickup vehicle "barreling through the intersection" at 60 miles an hour or more; defendant followed Haglan home. Defendant turned his car and stopped next to Haglan's truck. When asked why he ended up with his left front tire on Haglan's lawn, defendant replied: "Just mistake, if I did. You know, I guess it's possible I did." Haglan rushed toward defendant, screaming and swearing and telling him to get off his lawn. Defendant moved his car slightly, and after he did so Haglan stopped mentioning the lawn.
Haglan was out of control, and defendant thought he was drunk, as he had been the two prior occasions defendant met him. Haglan was screaming, while defendant maintained a normal tone. Defendant had immediately shown Haglan the spray canister during the encounter and had asked him to "back off" because Haglan had approached to three feet or less of defendant's car window, before retreating to about six feet away. Defendant decided to leave, but Haglan then "went from an eight to a ten" and got "dangerously close to blocking my exit," so defendant sprayed him. Defendant's fear was based (at least in part) on his own poor medical condition, which made him particularly vulnerable. He testified his action was justified from the beginning as he was in danger and that he aimed the spray between his car and Haglan (rather than directly at Haglan).
On cross-examination, defendant testified he was frightened because Haglan was not afraid of him, and showed him no respect. In a YouTube interview of defendant, he denied being on Haglan's lawn, but added, "If I was, I was just on the edge of his lawn. I wasn't on his lawn. It would [have] just been my left front [tire]." Defendant was adamant that Haglan was not hit with the spray and did not say he would call the police. Defendant did not call the police himself because Haglan was a drunk and defendant thought his lifestyle was punishment enough.
We quote a transcript in the record on appeal; neither party challenges its accuracy.
At the end of cross-examination, defendant testified: "I never said I was on his lawn. The police officer said I was, and Mr. Haglan said I was. Let me tell you, Mr. Haglan is a liar, but I may have had my front tire, left front tire might have climbed that rounded curb and ended up on his lawn, but the damage [to the lawn] I saw in that picture [was] self-inflicted in my opinion."
Other witnesses also testified for the defense. One confirmed that he had been speaking with defendant when a truck "fishtailed" around the corner. Defendant said he would check on it, but did not speed off and did not appear to be angry. A retired probation officer who had interacted with Haglan personally thought he had a character for dishonesty and testified that Haglan's reputation in the community was more dishonest than honest. Another witness testified that in her opinion Haglan was not a truthful person, and he had a reputation for untruthfulness in the community. Another had met defendant "from him being on patrol" in the neighborhood, where defendant "would drive around . . . at random times and hours just to keep an eye" out for wrongdoing. A neighbor testified defendant's patrols had reduced crime in the community.
Stipulations
The parties stipulated that when Haglan was taken to identify defendant, Officer Provencio recorded him saying defendant "was 'almost on my lawn.' " The parties also stipulated that had two different Redding police officers been called, each would have testified that Haglan had been untruthful to each officer on one occasion, once in 2001 and once in 2002, respectively.
This recording is the subject of the claimed Brady violation discussed in part I of the Discussion. Its presence was discovered (upon a close reading of the police report) by the prosecutor during trial and disclosed to all; its contents were then made the subject of a stipulation read to the jury. We discuss these events in more detail later.
Closing Arguments and Deliberations
The People argued defendant acted unreasonably from the beginning of the encounter, chasing Haglan's vehicle and aggressively pulling up onto the curb and grass. Defendant had his pepper spray ready at the outset. Haglan was justifiably angry and never threatened defendant; it was defendant who confronted Haglan.
Defense counsel argued the prosecution case rested on Haglan's testimony, but Haglan had two felony DUI convictions, and by inference was drunk and angry at defendant at the time of the incident. The "bombshell" in the case was the stipulation showing that Haglan told Provencio that defendant had only "almost" been on the lawn (and thus defendant was not trespassing and Haglan knew it). Counsel denied any of defendant's actions were aggressive; his testimony about Haglan's speeding through the intersection was corroborated, and defendant acted as a concerned citizen seeking order in this residential neighborhood. Other evidence showed Haglan was a known liar. There was no evidence of pepper spray found on Haglan or his clothing, and Provencio did not notice any redness or swelling in Haglan's eyes. Given all of the circumstances, defendant reasonably believed Haglan was a threat, and he acted with reasonable force in repelling that threat and then driving away. The stipulation showed defendant was not on Haglan's property but rather was on a public street, and therefore Haglan had no right to tell Haglan to leave or become enraged at Haglan.
In rebuttal, the prosecutor emphasized defendant provoked Haglan through his actions. In context, Haglan's comment to Provencio that defendant was "almost" on the lawn meant he was only partly on the lawn, rather than completely on the lawn, as shown by the fact that defendant moved his car slightly after Haglan ordered him off the lawn. Once defendant displayed the canister, Haglan moved further away, but defendant still sprayed him.
The jury found defendant guilty in a little over an hour.
New Trial Motions and Sentencing
Trial counsel filed a motion for a new trial based on the purportedly late disclosure of Provencio's recording of Haglan, couched as prosecutorial misconduct and a Brady violation. After the People filed their opposition, trial counsel filed a supplement outlining possible ways he could have used the recording at trial. However, before the new trial motion(s) could be heard, new counsel filed what the trial court called a third new trial motion, alleging ineffective assistance of counsel (IAC) by trial counsel in his handling of the audio file.
The trial court listened to the recording and read the transcript. Haglan made the "almost" on the lawn comment twice, but also said defendant "wasn't parked normally" and used his "gas and brake" to provoke Haglan.
Both defense attorneys appeared at the hearing; that is, defendant had not discharged trial counsel, who argued at sentencing after new counsel left.
Trial counsel argued that because the 33-minute recording captured statements by the three main witnesses--Haglan, defendant, and Provencio--it was critical to the defense, but was too long to process overnight, and had the prosecution given him a transcript earlier he would have conducted the trial differently. He conceded both attorneys missed the reference to the audio file in the police report.
The prosecutor replied that Haglan's statement that defendant was "almost" on his lawn was not necessarily inconsistent with the trial evidence that his car was only slightly on the lawn, and in any event the evidence was introduced at trial, via the stipulation read to the jury. Further, no prejudice was shown.
The trial court ruled that no intentional concealment occurred because both counsel had equal access to the police report and should have noticed there was an audio file referenced. Upon learning of the recording, trial counsel had tactical decisions to make, including whether to seek a mistrial or continuance, and chose to proceed by way of a stipulation. Because the main point of the recording--Haglan's "almost" statement--was presented to the jury, no prejudice ensued. The court denied the first two new trial motions. New counsel then argued trial counsel was ineffective in not seeking a mistrial or continuance, and should have understood the reference to the audio file contained in the police report. The trial court denied that (third) new trial motion for lack of prejudice.
The trial court declined to reduce the offense to a misdemeanor, but granted defendant probation on various conditions including a jail term.
DISCUSSION
I
Brady Violation
A. Background
After Haglan testified, there was an early break because Officer Provencio was not available. The plan had been to have Provencio testify about what had been said to him, not to present any audio recordings. When court reconvened, the prosecutor placed on the record that he had just noticed that the police report reflected there was an audio file that had been placed into evidence by Provencio. He had not heard the file, nor had it been given to the defense (nor had the defense asked for it).
The police report contains a five-page typed narrative of Provencio's actions that does not mention an audio file. The narrative is attached to a two-page standard form. The first page lists the date, time, and location of the event, and information about defendant and Haglan. The second page contains a number of check boxes at the bottom, and at the top is a space to list evidence which contains the following (roughly) handwritten
"H 1 Digital memory card w/photos
"H 1 " " " w/audio"
Codes at the top explain that "H" means "Held/Evidence" and the "1" appears under the heading "Quantity."
The trial court had no sympathy with either counsel for overlooking the audio file, noting that officers often write reports referencing evidence. Defense counsel did not allege intentional nondisclosure--and the trial court agreed--and the prosecutor said he would e-mail trial counsel the audio file that evening. Both parties assumed it was inculpatory, and the prosecutor said he was not going to use it because of the timing problem; nor was the defense, depending on what it contained. Ultimately, the parties agreed to the stipulation given to the jury, to the effect that Haglan had told Provencio in a recorded statement that defendant was " 'almost on my lawn.' "
B. Analysis
We accept the view that the prosecutor bore the burden to understand the reference to the audio file and disclose the file to defense counsel before trial. (See People v. Harrison (2017) 16 Cal.App.5th 704, 710 ["The cryptic reference to DICV {digital in-camera video, which ultimately was found to depict a Miranda violation} in the police report did not relieve the prosecution of the duty to provide appellant a copy of the video recording before the first trial"].) But a successful Brady claim has three components: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Green (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 302]; see People v. Lucas (2014) 60 Cal.4th 153, 274, overruled on another point by People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "In the case of impeachment evidence, materiality requires more than a showing that 'using the suppressed evidence to discredit a witness's testimony "might have changed the outcome of the trial" [citation].' [Citation.] Rather, the evidence will be held to be material 'only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' [Citation.]" (People v. Lucas, supra, at p. 274, italics omitted.) Further, " '[e]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery.' " (Ibid.; see People v. Verdugo (2010) 50 Cal.4th 263, 282; People v. Morrison (2004) 34 Cal.4th 698, 715.)
Miranda v. Arizona (1966) 384 U.S. 436 .
Based on the last point, no suppression occurred in this case, because the evidence--at least, the part the parties chose to stipulate to--was introduced at trial.
Further, defendant's Brady claim also fails for lack of prejudice.
First, although trial counsel mused about other points that might have been explored at trial, there is no claim that any other point was as important as the "almost" statement, which was introduced by stipulation. Second, Haglan was thoroughly impeached on this point and on his credibility generally. Third, trespass was tangential to the central question of whether Haglan's behavior caused defendant to be in fear such that his resort to spraying Haglan was reasonable, and as the jury was instructed (CALCRIM No. 3470), the People had the burden to disprove self-defense. Fourth, defendant's own testimony established that he was either on Haglan's lawn or so close that he was unsure about it. Fifth, the speedy verdict shows the jury was unimpressed with defendant's explanation for chasing a neighbor down and confronting him in front his own home, then pepper-spraying him when he got angry.
For all of the above reasons, no Brady violation occurred.
In a separate sub-claim defendant argues the purported discovery violation infected the preliminary hearing. But he fails to explain how this deprived him of a fair jury trial. (See People v. Aston (1985) 39 Cal.3d 481, 494-495 [failure to disclose information at preliminary hearing cured by disclosure at later suppression hearing]; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530.)
II
Ineffective Assistance of Counsel
Defendant contends trial counsel provided IAC because had he carefully reviewed the police report he would have noticed the reference to an audio file. He adds that after the prosecutor pointed out the file's existence, counsel should have sought a mistrial or at least a continuance, so that he would have had time to fully digest everything on the file and use it in various ways to defendant's advantage.
A criminal defendant is entitled to the effective assistance of counsel, whether appointed or retained. (See Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345 [64 L.Ed.2d 333, 344]; People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) An IAC claim has two elements: first, the defendant must show counsel acted below the standards of professional competence; second, the defendant must show resulting prejudice. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
A trial judge is "uniquely equipped" to evaluate trial dynamics. (People v. Stewart (1985) 171 Cal.App.3d 388, 396, disapproved on other grounds in People v. Smith (1993) 6 Cal.4th 684, 696; see People v. Andrade (2000) 79 Cal.App.4th 651, 660.) But a decision is not an informed decision if it is made in ignorance, or is based on an unreasonable failure to properly investigate the case. (See People v. Bolin (1998) 18 Cal.4th 297, 334; People v. Hill (1969) 70 Cal.2d 678, 689-690.) A defendant can "reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. [Citations.] If counsel fails to make such a decision, his action—no matter how unobjectionable in the abstract—is professionally deficient." (People v. Ledesma, supra, 43 Cal.3d at p. 215; see In re Edward S. (2009) 173 Cal.App.4th 387, 407.)
Even assuming, as the trial court found, that both defense counsel and the prosecutor should have realized before trial that the police report contained reference to a recording, we do not agree with defendant that agreeing to a stipulation instead of seeking a continuance or mistrial was an unreasonable tactical choice. That stipulation established conclusively that contemporaneously with the incident, Haglan told Provencio that defendant's car was only "almost" on the lawn. That was powerful evidence that the car was not on the lawn at the time Haglan testified it was, as trial counsel argued to the jury. It allowed counsel to tether the general evidence about Haglan's dishonesty to his purported effort of manufacturing evidence, namely, the photograph of the damaged lawn 10 months later.
Defendant points to trial counsel's claim that he was in a "pickle" because the more time he spent reviewing the recording the less time he had for other matters, and argues that trial counsel had no reason not to ask for a continuance or a mistrial. But counsel could rationally have concluded the trial was going as well as could be expected because the stipulation was favorable and that it was not necessary to seek a continuance or a mistrial. "Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation.]" (Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 695].)
The IAC claim also fails for lack of prejudice, which requires showing counsel's mistake(s) "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington, supra, 466 U.S. at p. 686.) Defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694; see In re Marquez (1992) 1 Cal.4th 584, 603.) The probability must be "substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112 [178 L.Ed.2d 624, 647].) As described above in part I, the stipulation largely if not entirely cured any error in failing to find the audio file before trial.
Defendant also faults trial counsel for not requesting an instruction on late discovery, not objecting to the trespass instruction, and not requesting a definition of "trespass" be included with the trespass instruction. The latter two claims are addressed in part III post. The claim that trial counsel should have requested a "late discovery" instruction (CALCRIM No. 306) is unaccompanied by authority or analysis establishing that the trial court would have given such an instruction on request, appellate counsel simply asserts it would have been given and "would have had an effect on the jury's deliberations." The claim is forfeited. (See People v. Anderson (2007) 152 Cal.App.4th 919, 929 ["A point not argued or supported by citation to authority is forfeited"]; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Further, a late discovery instruction would have told the jury that the prosecutor failed to timely disclose the file and "[i]n evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure." (CALCRIM No. 306; see CALJIC No. 2.28 (7th ed. 2005).) Giving such an instruction is discretionary. (See Pen. Code, § 1054.5, subd. (b).) As the Attorney General points out, because both counsel missed the reference to an audio file in the police report, it is not clear that the trial court would have given such an instruction. In any event, it is speculative to think such an instruction would have tipped the case, given the brevity of the deliberations and the fact defendant largely convicted himself with his own testimony. Had the jury been told the prosecutor did not timely disclose the disputed recording, it is not reasonably probable defendant would have achieved a better result. For all of these reasons, we reject the claim of IAC.
III
Instructional Error
As modified to fit this case, CALCRIM No. 3475 provided as follows:
"The owner or lawful occupant of a home or property may request that a trespasser leave the home or property. If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to the home or to the property or to the owner or occupants, the owner or lawful occupant may use reasonable force to make the trespasser leave.
"Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. If the trespasser resists, the owner or lawful occupant may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property or owner or lawful occupant.
"When deciding whether Mr. Haglan used reasonable force, consider all the circumstances as they were known to and appeared to Mr. Haglan and consider what a reasonable person in a similar situation with similar knowledge would have believed. If Mr. Haglan's beliefs were reasonable, the danger does not need to have actually existed."
Trial counsel repeatedly declined to object to this instruction. Defendant now contends this instruction improperly shifted the burden of proof and was misleading because it did not include a definition of "trespass." He also contends no substantial evidence supported the instruction, and trial counsel was ineffective in failing to object to the instruction and in failing to seek a definition of "trespass."
Defendant's claim that no substantial evidence supported the instruction rests on the idea that the jury was compelled to accept Haglan's "almost" on the lawn statement as binding, but as detailed above, there was contrary evidence from which the jury could rationally have found defendant was a trespasser, justifying some instruction on the right to eject a trespasser. Because defendant contends trial counsel performed inadequately regarding the instruction as given, we address his claims on the merits despite the lack of any trial court objections.
"In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. [Citations.] We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given. [Citations.]" (People v. Vang (2009) 171 Cal.App.4th 1120, 1129; see People v. Speegle (1997) 53 Cal.App.4th 1405, 1413 [faulting "[e]ngaging in the proscribed hypertechnical parsing of instructions [citations] rather than determining the reasonably likely interpretation given them by reasonable jurors"].)
As the Attorney General correctly observes, it is permissible to consider the impact of the arguments of counsel on how a reasonable jury would understand the instructions. Our Supreme Court has not changed the rule that arguments of counsel do not supersede the trial court's instructions, but has said that in determining "whether the interplay of argument with individually proper instructions produced a distorted meaning, it seems appropriate to evaluate the remarks of both counsel to determine whether the jury received adequate information." (People v. Brown (1988) 45 Cal.3d 1247, 1256; see People v. Garceau (1993) 6 Cal.4th 140, 189 ["any theoretical possibility of confusion was diminished by the parties' closing arguments: defense counsel argued that corroboration was required because the key prosecution witnesses were conspirators, and the prosecution emphasized that the People had shown corroboration if it was needed"].)
In ordinary parlance, "trespass" is well understood to mean an uninvited entry onto property. This case did not turn on some arcane aspect of the law of trespass. (Cf. People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1499 [interpreting the law of burglary to reject a claim that the victim's entry onto a front porch triggered a duty to instruct on the Home Protection Bill of Rights, Pen. Code, § 198.5].) The jury was presented with a clear conflict in the evidence and arguments about whether one of defendant's tires came to rest on Haglan's lawn. The term "trespass" did not require further definition.
Defendant claims the instruction "invited the jury to infer that [he] was a trespasser." He does not explain why this is so. The trial court instructed the jury (CALCRIM No. 200) that not all instructions would necessarily apply, that it was up to the jury to find the facts, and not to assume that because an instruction was given the court was "suggesting anything about the facts." We presume the jury followed this instruction. (People v. Vang, supra, 171 Cal.App.4th at p. 1129.) Further, as part of the pattern self-defense instructions, the trial court instructed that the People had the burden to prove beyond a reasonable doubt that defendant did not act in self-defense. The verdict shows how the jury resolved that question.
We find no error regarding the trespass instruction.
IV
Prosecutorial Error
Defendant contends the prosecutor should not have argued that Haglan had a right to evict defendant for trespassing and faults the prosecutor because he "knew [Haglan] stated that [defendant] was almost on his lawn on the tape."
Although no objections were interposed, we address the merits because of defendant's alternate claim of IAC in not objecting to the prosecutor's argument. --------
The jury was presented with conflicting evidence regarding whether or not defendant's tire was on Haglan's lawn at any time during the confrontation. As the prosecutor argued at trial and explained at the new trial hearing, Haglan's "almost" on the lawn statement was not necessarily an admission that defendant was not on the lawn, but reasonably could have meant no more than he was slightly on the lawn, consistent with defendant's own uncertainty on the point and his act of moving his car at Haglan's request. Given the conflicting evidence on the subject, the jury could draw different reasonable inferences and it was appropriate for the attorneys to argue that the jury should draw the inference favorable for the respective parties.
Contrary to defendant's view, this this is not a case where the prosecutor lied about or misstated an objective fact known to the prosecutor. (Cf. People v. Varona (1983) 143 Cal.App.3d 566, 568-570, 570 ["the prosecutor not only argued the 'lack' of evidence where the defense was ready and willing to produce it, but he compounded that tactic by actually arguing that the woman was not a prostitute although he . . . knew that he was arguing a falsehood"].) Neither the prosecutor nor the jury had to accept the defense interpretation of Haglan's "almost" statement, that is, it did not establish conclusively that defendant was not on the lawn. Witnesses often make inconsistent or arguably inconsistent statements, and it is not error for a prosecutor to ask the jury to believe one version or interpretation over another. (See 5 Witkin, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 757, p. 1176.)
Accordingly, we reject the claim of prosecutorial error in argument.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. I concur: /s/_________
Mauro, J. Raye, P. J., Concurring.
I concur fully in the judgment but disagree that the court properly instructed on trespass; the instruction was unnecessary and may have even been confusing. Whether the front tire of defendant's car intruded on the victim's lawn was of no consequence. The prosecution's case was not premised on trespass or on the victim's right to evict a trespasser. The prosecutor mentioned the possible trespass in explaining that the victim had every right to be angry with defendant. But regardless of whether the victim's possible anger was justified, the victim's actions provided no justification for defendant's pepper spray assault. No special instruction on trespass was required, but there is no reason to suspect that defendant was harmed by it.
/s/_________
Raye, P. J.