Opinion
B207061.
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. MELVIN EARL JONES, Defendant and Appellant.
Dwyer & Biggs and John Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Melvin Jones appeals his convictions of murder, robbery and attempted carjacking, and true findings on gang and weapons enhancements. Before this court, appellant argues his convictions cannot stand because his counsel was ineffective for failing to move to suppress statements the police obtained from him allegedly in violation of his Miranda [v. Arizona (1966) 384 U.S. 436] rights and because the prosecutor committed misconduct in misstating the law on the reasonable doubt standard and burden of proof. His claims lack merit. As we shall explain, appellant has failed to convince us that he invoked his Miranda right to silence during his police interview, thus his counsel was not ineffective for failing to move to suppress his statements. With respect to his claim of prosecutorial misconduct, we conclude the misconduct could have been cured by a timely objection and admonition by the court and that appellants failure to object resulted in his forfeiture of his misconduct complaints on appeal. In any event, appellant has not shown the prosecutors misstatements of law resulted in prejudice in view of the instructions given by the court and the evidence against him. Consequently, we affirm, but also modify the judgment to correct various errors and remand for the superior court clerk to prepare an amended abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2004, appellant, Kenny Robinson, Jonathan Carter and Shayna Chin were all friends and members of the "Black-P-Stones" street gang who lived in a housing project known as "The Jungles," near Baldwin Hills. Appellants gang moniker was "Jungle Boy," Robinsons gang moniker was "Flag," Carter was known as "JD" and Chins gang moniker was "China." At the time, appellant was 25 years old and Carter and Robinson were 19 years of age.
On about November 13, 2004, while Chin was visiting her cousin in Hawthorne, she and her cousin were shown a custom El Camino pickup that victim Chris Adams was attempting to sell on behalf of a friend. The vehicle had expensive 20 inch rims.
On November 20, 2004, appellant drove himself, Robinson and Carter to Hawthorne in a car that appellants girlfriend had rented a few days earlier. According to appellant they had driven to Hawthorne "to get some money." While driving around, appellant spotted the custom El Camino driven by Adams. Appellant followed the El Camino to a 7-Eleven. Appellant followed Adams in the vehicle from the convenience store; Adams drove away at a high rate of speed. Apparently trying to elude appellant, Adams ran a red light and nearly hit someone.
At about 9:00 p.m. Adams backed into a parking spot at his apartment in Hawthorne—not far from his sisters apartment where he had shown the El Camino to Chin a week before. Adams apparently removed the detachable steering wheel from the El Camino. Appellant parked the rental car on a side street around the corner from Adams apartment. Carter and Robinson got out, while appellant waited in the rental car. Carter and Robinson approached Adams and fatally shot him; Adams was shot in the chest with a nine millimeter gun and suffered a shotgun wound in his arm.
The steering wheel was detachable; unless the steering wheel was locked in place with a special key the car would not operate. When the car was returned to the owner after the murder, the steering wheel was not locked in place.
Carter and Robinson took Adams cell phone and ran back to the rental car. Adams had over $600 in his pocket, but Carter and Robinson did not take the money. An eyewitness observed the rental car parked on the side street; the witness identified Robinson as one of the two men who ran to the rental car. The witness further observed the men get inside appellants rental car and the car drive away.
Later that evening one of Adams friends called Adams cell phone number and asked for Chris. An unidentified male voice responded: "This is not Chris phone no more" and "If your friend would have cooperated he wouldnt be in the ICU."
Ten days after the murder, police arrested Robinson and recovered a nine millimeter semi-automatic handgun that was later determined to be the one which was fired at Adams. When police searched Carters home they found a picture of him holding a shotgun of the type that could have been used in the murder of Adams. When the police searched appellants apartment they found Adams cell phone on his bed.
Robinson was charged and tried separately for these and other unrelated crimes. He was convicted and appealed his convictions. On May 18, 2009, this court affirmed the judgment against Robinson in case No. B208026.
Appellant was arrested and charged with murder (count 1), second degree robbery (count 2), and attempted carjacking (count 3). It was further alleged that as to all three crimes a principal personally discharged a firearm causing death, that the murder was committed during a robbery and attempted carjacking and that the crimes were committed in association with a criminal street gang.
During appellants trial, the prosecutor presented evidence of statements appellant made to police during an interview. During the interview appellant stated that he did not know everything that happened on the evening of Adams murder. He further stated he was driving around in the rental car with two others whom he refused to identify. He said that they had driven to Hawthorne to "get some money." Appellant stated that he parked on a side street, but he waited in the car while the others got out. He said he heard gun fire and then drove off. He admitted that later that evening or the next night he was given a cell phone that had been taken from Adams.
The prosecutor also presented evidence that shortly after his police interview, appellant was permitted to call his girlfriend. The police recorded the conversation, during which appellant acknowledged that he was driving the car with Robinson and Carter and he expressed frustration that they shot Adams and got appellant involved in it.
The audiotape of this conversation was played for the jury.
During the trial the prosecution presented gang evidence through an expert who testified concerning the Black P-Stones and street gangs in general. He opined that these crimes were committed for the benefit of a street gang. He further stated that appellant, Carter and Robinson were members of the Black P-Stones and opined that it would be unusual in gang culture for an older gang member to take direction from younger members.
Following the trial, the jury found appellant guilty of all counts and found the special allegations true.
This appeal followed.
DISCUSSION
I. Suppression of Appellants Statements Made During The Police Interrogation.
Before this court appellant asserts that the police elicited certain statements from him in violation of his Miranda rights. Specifically appellant claims he invoked his right to remain silent during his interview by the police, and that rather than immediately end the interrogation, the police detective continued to question him. Appellant argues that all of the statements appellant made after he invoked his Miranda right to silence should have been excluded and that his counsel was ineffective for failing to file a motion to suppress the admission of those statements. As we shall explain, we do not agree.
A. Appellants Police Interview
On the day appellant was arrested he was interviewed by a Detective Loman. At the outset of the interview Detective Loman advised appellant of his Miranda rights and appellant waived them. At the outset of the interview, appellant said that he did not know everything that happened. He stated he was driving around in the rental car and pulled up on a side street. He further stated "we were going to get some money." Appellant said that he waited in the car, but did not know what happened; he said he heard some "fire" and he then "pulled off" and further stated: "I didnt know what happened. I mean. Later than this, either that night or the next night, one of the nights I . . . thats when I got the phone."
A videotape of the police interview was played for the jury.
After being advised of his Miranda rights, appellant asked: "So basically youre telling me whatever I say is now gonna be used against me in a court of law." The detective responded that it could be used against him or for him depending on what he had to say. Appellant then proceeded to answer questions. Before this court appellant effectively concedes he implicitly waived his Miranda rights by answering substantive questions about his involvement after being apprised of his rights.
Detective Loman then asked appellant who was in the car with him, and the following exchange occurred:
Appellant: Im telling yall, I dont, I cant do that. I cant do that. Im not . . Im not.
Loman: J.D. was with you, wasnt he? Be straight with me. Come on man, you know that I know it. You might . . . what do you mean that you cant do that? You . . . Its about, its about you, if you didnt, if you . . .
Appellant: Okay . . . Im speaking on . . . you told me to tell you on my behalf.
Loman: Okay.
Appellant: You understand?
Loman: Okay.
Appellant: I dont want to speak on nothing else, uh about nobody else and nothing like that. You know, names and all that, but I have . . . I, Ill never . . .uh, uh, uh.
Loman: Two dudes were in the car with you, hows that?
Appellant: I was driving around. . . .
Appellant subsequently admitted that two other people were in the car with him while he was driving around that evening. But, when the detective asked if the other people were carrying weapons, appellant responded: "Only want . . . I only, I only want to say. I wasnt. I dont want to . . ." The detective responded that since appellant was driving and they were in the car he should know whether his passengers carried guns, to which appellant stated: "That . . . all I know . . . I, I know what you are getting at. I know what you are saying. I dont want to, I dont want to do that. I am talking to you but . . . ." The detective then asked appellant what he did when he heard the gun fire, and appellant stated: "When I heard shots, I didnt know if . . . I mean I dont even want to say all that." A few minutes later, appellant again stated that he did not want to identify anyone else involved.
The detective asked appellant what he heard about the situation afterwards:
Loman: Let me ask you this, what did you hear about what happened afterwards? I mean I know questions . . . you, youre caught in something that you, that you, that you say wouldnt need to be caught up in.
Appellant: When I got back, when I got back to the jungle, I got back to the jungle . . . They said, um . . .
Loman: You were told that they tried to get his car, but it didnt quite work right[?]
Appellant: It was . . . no, they said something about, somebody . . . man. I guess thats what happened basically in so many words. I guess thats . . . no . . .
Loman: What you got better words? I mean, I mean these are your words? Man. I dont want to put words in your mouth.
Appellant: Well, I wasnt even involved.
Loman: Well, Im not asking word for word, Im just asking your for a summary. But I dont want to put words in your mouth. I want your words to be. . . .
Appellant: This is gonna be used against me. I dont want to say nothing.
Loman: Well, yeah, well, you know used against you or possibly used for you, right? Could be used for you?
Appellant: Its gonna be used against me in court." (Italics added.)
After this exchange, Detective Loman continued to ask appellant questions about the Adams murder, and appellant continued to refuse to identify anyone else involved. Appellant maintained that he did not know what was going to happen and limited his involvement to driving. A number of times during the interrogation, appellant refused to discuss certain details of the evening, he expressed concerns about how he would be perceived on the street and at the end of the interview he acknowledged that he could have refused to speak; he stated that he spoke only to explain his limited involvement.
Appellants counsel did not seek to suppress any of appellants statements from the interview with Detective Loman. Before this court, appellant focuses on his statement: "This is gonna be used against me. I dont want to say nothing," which appellant characterizes as an invocation of his right to remain silent as recognized by Miranda. He claims his counsel was ineffective for failing to seek the exclusion of the statements appellant made to police after he invoked his right to silence.
B. Ineffective Assistance of Counsel and Miranda Rights
To establish a claim of ineffective assistance of counsel, the defendant must prove both counsels representation was objectively deficient, below a reasonable standard of care under prevailing professional norms, and prejudice flowing from the deficient performance, that is, but for counsels errors, the defendant would have received a more favorable result. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Defendant has the burden of proving an ineffective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
Given the difficulties inherent in making this evaluation, this court indulges in a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered a sound trial strategy." (People v. Thomas (1992) 2 Cal.4th 489, 530-531.) "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." (Strickland v. Washington (1984) 466 U.S. 668, 690-691.) In addition if the record sheds no light on why counsel acted or failed to act in the challenged manner, the court will reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsels performance. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Moreover, a reviewing court need not determine "whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (In re Fields (1990) 51 Cal.3d 1063, 1079.) Defendant must affirmatively demonstrate prejudice. It is not sufficient for the defendant to show the error had some "conceivable effect" on the outcome of the proceeding; defendant must prove that there is a "reasonable probability," that absent the errors the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
With these principles in mind, we turn to the relevant concepts governing Miranda rights.
To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. (Miranda, supra, 384 U.S. 436, 444, 467-473, 478-479.) If the suspect knowingly and intelligently waives these rights, the police are free to interrogate him or her. (Id. at pp. 444, 475, 479.) However, if, at any point afterwards during the interview, the suspect invokes these Miranda rights, questioning must cease. (Id. at pp. 444-445, 473-474.) "This `second layer of prophylaxis for Miranda [rights] . . . is `designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." (Davis v. United States (1994) 512 U.S. 452, 458-459 (Davis ).)
This prophylactic rule requires courts to determine whether the accused actually invoked his right to counsel or to remain silent. (Id. at p. 458.) This is an objective inquiry. (Id. at pp. 458-459.) To invoke the Fifth Amendment privilege after it has been waived, and to halt police questioning after it has begun, the suspect "must unambiguously" assert the right to silence or counsel. (Davis, supra, 512 U.S. at p. 459.) Invocation of the one of the Miranda rights requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire to invoke the right. The test is what a reasonable officer would perceive under the circumstances; it is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. (Ibid. ["But if a suspect makes a reference to an attorney [or remaining silent] that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking" a Miranda right, the cessation of questioning is not required.) Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, either to ask clarifying questions or to cease questioning altogether. (Davis, supra, 512 U.S. at pp. 459-462.)
Statements obtained in violation of these rules are inadmissible to prove guilt in a criminal case. (Miranda, supra, 384 U.S. at pp. 444, 476-477, 479; see People v. Sapp (2003) 31 Cal.4th 240, 266; People v. Neal (2003) 31 Cal.4th 63, 79-80.) With these principles in mind, we turn to appellants claim.
We do not agree that appellants statement "This is gonna be used against me. I dont want to say nothing," was a clear and unequivocal invocation of his right to remain silent under Miranda. Outside of the context of the interview, these statements are ambiguous; it is not clear what "This" refers to—whether appellant was referring to the all of his interview responses or simply the detectives effort to summarize appellants prior response that immediately preceded this statement. In addition, these statements when read together are equivocal; they appear to imply a condition—appellant did not want to say anything if [or because] his statement might be used against him, but that he would talk about matters favorable to his claim of limited involvement. A reasonable officer under these circumstances would not necessarily have known at that point in the investigation that the condition would be met—that is, whether appellants statements would be used to implicate or exonerate appellant at trial.
However, when these statements are viewed in the full context in which they were uttered—in light of appellants prior statements during the interview—the meaning is clear. At several points earlier in the interview appellant made a number of comments to Detective Loman in which appellant indicated that he would discuss only certain aspects of the case, and not others. He made clear that he would not identify any of the other people involved or whether they carried weapons or what he learned about what happened afterwards. Appellant only wanted to speak about what he perceived as his limited involvement in the situation—i.e., driving the car. Under these circumstances, a reasonable officer would conclude that appellants statements "This is gonna be used against me. I dont want to say nothing," was not an effort to halt all questioning but instead it was appellants way of letting the officer know that they had broached a subject that appellant did not want to discuss.
Appellants statement at the end of the interview, in which he expressly acknowledged that he could have refused to speak entirely underscores our conclusion that the statements at issue reflect the appellants effort to reiterate the ground rules he had set about the topics he would discuss rather than a clear invocation of his Miranda right to silence.
Our supreme court has on several occasions recognized that a suspect may refuse to answer certain questions or talk about certain subjects, without implicating Miranda. In People v. Silva (1988) 45 Cal.3d 604, the defendant waived Miranda rights and answered several questions, then refused to answer a question that might place him at the site where the murder victim was kidnapped. The interrogation continued, with the defendant answering some questions and not others. The Supreme Court concluded that the defendants constitutional rights were not violated, because "[a] defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate `an interrogation already in progress." (Id. at pp. 629-630.)
In People v. Michaels (2002) 28 Cal.4th 486, the defendant waived his constitutional rights, and was asked to describe the capital crime. He hesitated, saying "`I dont know if I should without an attorney." (Id. at p. 509, italics omitted.) The interrogating officer replied that defendant could stop talking, and that he did not have to answer any question he disliked. Defendant said, "`Okay, that one," and then confessed. (Ibid., italics omitted.) On appeal, defendant argued that even if his reference to counsel was ambiguous, he clearly invoked his right to silence by saying "Okay." Applying Davis, supra, 512 U.S. 452, the Supreme Court rejected the claim, concluding that "`Okay, that one" implied a refusal to answer a particular question, perhaps Detective Gaylors question asking defendant: "`[W]hats your side of the story? What happened?" Defendant did not assert a right to refuse to answer any questions, ask that the questioning come to a halt, or request counsel. Instead, he was showing that he knew he could refuse to answer any or all questions and would exercise this right on a question-by-question basis. From time to time in the interrogation he did refuse to answer specific questions. But the words defendant used, and his subsequent conduct, do not show that he wanted to stop the interrogation and bar all further questions." (People v. Michaels, supra, 28 Cal.4th at p. 510.) This case presents an analogous situation.
We conclude that appellant did not invoke his Miranda right to remain silent during his interview with Detective Loman, and thus his statements were not obtained in violation of his Fifth Amendment privilege against self-incrimination. As a consequence his counsel would have had no basis to move for the suppression of these statements at trial and therefore was not incompetent for failing to seek the exclusion of the statements appellant made to police.
In any event, even if all of statements appellant made after he said "This is gonna be used against me. I dont want to say nothing," were to have been excluded, we are not convinced it is reasonably likely appellant would have obtained a better result at trial. (See Ledesma, supra, 43 Cal.3d at pp. 217-218.) Indeed, before appellant uttered these statements he had already described his involvement that evening, and nearly every inculpatory statement he made later merely repeated what he had previously admitted, highlighted what he had refused to discuss or served to express his awareness of the seriousness of the situation. Thus appellants claim would also fail under the second prong of the Strickland test for ineffective assistance of counsel.
II. Prosecutorial Misconduct
Before this court appellant claims the prosecutor made two statements during his the closing argument that amounted to prejudicial prosecutorial misconduct.
A. The Prosecutors Statements
At the outset of the prosecutors rebuttal argument after appellants counsel had presented his closing argument, the prosecutor stated: "It is good that counsel left off on beyond a reasonable doubt. What is that magical formula? I say it is just common sense. When you come into court you are not supposed to leave your common sense outside. It would be the same as if somebody outside the court told you what is their story or version of facts which led you to a certain belief of what the truth was. [¶] The courtroom is not some magical place that makes good old common sense impossible to find, that is why it is called reasonable doubt, not beyond all doubt, not beyond a shadow of a doubt, not beyond all possible doubt. No what is reasonable is good common sense."
Thereafter at the end of the argument while the prosecutor discussed how to assess circumstantial evidence, he stated:
Finally [defense counsel] talked about reasonable interpretations, and this case had direct and circumstantial evidence, but to find him not guilty, if you took all of the evidence and reasonable interpretation, you would have to find, you would have to believe his running buddy, China, gang buddy, looked at the car, said nothing to him. You would have to believe the defendant innocently gets this rental car, not in his name. You would have to innocently believe that he innocently gets Flag and JD to go for a ride, JD of course with this long 12 gauge, Flag with a nine millimeter. [¶] You would have to believe that the defendant innocently for no apparent reason drives them to the same area that China had seen the car a week before. This same victim and the same car happened to be at the same apartment, China saw it 40 minutes before he gets killed. [¶] You would have to believe the defendant and his crew innocently end up by the area of the 7-Eleven. The defendant and his crew end up innocently following the victim and his car across El Segundo, the defendant ends up innocently pulling his car over just around the corner from the victim and car that he just parked. [¶] You would have to believe the defendant innocently had his lights off, the defendant innocently lets Flag and JD get out of the car for no apparent reason, take their guns with them. You would have to believe for no apparent reason they got out [of] the car with guns since nothing was discussed. [¶] You would have to assume that Flag and JD innocently know what the others are going to do and where they are going. You would have to believe the defendant innocently waits with the lights out. The defendant innocently takes them away with his lights out. The defendant innocently returns back to the area with them and the defendant innocently ends up with the dead victims cell phone. [¶] 2.00 reads if the circumstantial evidence permits two reasonable interpretations, one which points to the defendants guilt, the other to his innocence you must adopt the interpretation that points to his innocence and reject the interpretation that points to his guilt. If on the other hand one interpretation of the evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable interpretation."
B. Analysis
Appellant argues that the prosecutor committed misconduct in misstating the law on the definition of reasonable doubt when he equated it with "common sense"; and secondly that the prosecutor improperly suggested to the jury that appellant had the burden to prove that he was not guilty. Appellant claims that the prosecutors statements violated his right to the presumption of innocence and proof beyond a reasonable doubt.
The attorney general asserts appellant forfeited his claims of prosecutorial misconduct because he failed to object to the prosecutors explanation of reasonable doubt and his subsequent argument about the burden of proof, and because appellant failed to request curative instructions. We agree. "To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) However, "the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct." (People v. Cole (2004) 33 Cal.4th 1158, 1201.) Appellant does not claim any objection and request for admonition would have been futile. In fact, appellant concedes that there "is reasonable probability that had counsel made a timely objection and the trial court would have sustained" it. We agree and conclude any alleged harm arising out of the prosecutors remarks would have been cured by an appropriate and timely admonition. Accordingly, because appellant did not timely object to any of the comments and request a curative admonition and has not shown that either of those actions would have been futile or would not have cured any prejudice, we conclude he forfeited any contention on appeal that the prosecutor committed misconduct during his rebuttal argument. (People v. Cole, supra, 33 Cal.4th at pp. 1201-1202, [defendant forfeited any claim of prosecutorial misconduct during closing arguments where he failed to object to comments about the Spanish Inquisition and the persecution of early Christians].)
To overcome forfeiture appellant asserts his counsel was ineffective in failing to object to these statements. Consequently, we examine the merits to determine whether his trial counsels representation was objectively deficient, and whether but for counsels errors, the defendant would have received a more favorable result.
"A prosecutors misconduct violates the Fourteenth Amendment to the United States Constitution when it `infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] In other words, the misconduct must be `of sufficient significance to result in the denial of the defendants right to a fair trial. [Citation.] A prosecutors misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves `the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Cole, supra, 33 Cal.4th at p. 1202.) Whether the prosecutor acted in good faith is not the issue. (People v. Clair (1992) 2 Cal.4th 629, 661.) We review the prosecutors remarks to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied them. (Id. at p. 663.) Also, we do not view the prosecutors remarks in isolation but rather "in the context of the argument as a whole." (People v. Cole, supra, 33 Cal.4th at p. 1203.)
A prosecutor commits misconduct when he or she to misstates the law generally (People v. Bell (1989) 49 Cal.3d 502, 538), and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements (People v. Gonzalez (1990) 51 Cal.3d 1179, 1215; People v. Hill (1998) 17 Cal.4th 800, 831-832 [holding that prosecutors comment that there has "to be some evidence on which to base a [reasonable] doubt" amounted to prosecutorial misconduct because statement could be reasonably interpreted as suggesting to the jury that the defendant had the burden of producing evidence to demonstrate reasonable doubt of his guilt].)
As we shall explain, we are troubled by the prosecutors explanation of reasonable doubt and his subsequent reference to what the jury would have to "believe" in order to "find him not guilty."
First, informing the jury that reasonable doubt is just "common sense" is misleading. It fails to convey the full scope of what is involved in making determinations of guilt. "Common sense" equates to the knowledge which, although people are said to be born with (or without), is actually derived from ones individual life experiences. "Common sense" is defined as "native good judgment, not based on specialized knowledge." (See American Heritage Dictionary of English Language; Fourth Ed. 2000.) In every day parlance it refers to beliefs or propositions that most people would consider prudent and of sound judgment, without reliance on esoteric knowledge or study or research, but based upon what they see as knowledge held by people "in common."
Albert Einstein is said to have observed that "common sense is the collection of prejudices acquired by age eighteen."
Jurors are not required to leave their life experiences at the door of the jury room; their common sense properly influences their assessment of the evidence. (See People v. Venegas (1998) 18 Cal.4th 47, 80 ["jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them"]; see CALCRIM No. 226 ["In deciding whether testimony is true and accurate, use your common sense and experience."].) Nonetheless, during trial evidence is sometimes presented that is based on esoteric information or specialized knowledge, which informs or may even challenge "common sense" views and beliefs. Thus, the problem with the definition of reasonable doubt given by the prosecutor in this case is that it creates the real risk that the jury may reject out of hand that evidence which, although admissible and based on reliable expert information and research, is at odds with that jurors common sense view. Consequently, relying only on common sense in determining guilt unduly simplifies and trivializes all that is required in the guilt beyond a reasonable doubt determination. (Compare People v. Nguyen (1995) 40 Cal.App.4th 28, 37 [holding that prosecutor trivialized the "reasonable doubt" standard when he told the jury that "reasonable doubt" was the same standard people use in making everyday decisions, such as getting married or changing lanes while driving].)
"Common sense" plays a role in a jurys evaluation and consideration of the evidence, but in a criminal case it is too narrow of a concept to encapsulate the entire deliberative process. Indeed, as the jury was informed: "reasonable doubt" is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." Whether the defendant is "guilty beyond a reasonable doubt" is a serious determination that requires jurors to carefully deliberate and consider all of the evidence presented at the trial. It is often a complicated and challenging process that should not be reduced into a catch phrase concept, as it was here.
Second, of equal concern to this court are the comments in which the prosecutor told the jury "this case had direct and circumstantial evidence, but to find him not guilty, if you took all of the evidence and reasonable interpretation, you would have to find, you would have to believe . . ." followed by a recitation of other beliefs and assumptions about the facts the jury would have to adopt to accept appellants version of events. Read in context it appears the prosecutor was attempting to explain the application of CALJIC No. 2.00, and specifically how to assess the reasonableness of inferences arising from the circumstantial evidence. Thus, one interpretation of the italicized statement is that appellants version should be rejected because the inferences one would have to reach to believe appellant are not reasonable or credible. To the extent the prosecutor intended to assert this interpretation, however, he should have chosen his words more carefully. Because, another possible interpretation of these statements is that appellant shouldered the burden to prove his innocence and that if the jury rejected appellants version of events it would be required to find him guilty. This second interpretation is clearly contrary to the law; and a prosecutor urging it commits misconduct.
Notwithstanding this analysis, we also conclude that appellant has failed to demonstrate that either of these instances resulted in prejudice; appellant has not shown there was a reasonable possibility that the jury construed or applied the prosecutors comments in an objectionable manner. Appellants counsel emphasized in his argument that the appellant was not required to prove anything and that the prosecution had a "heavy burden" to prove appellants guilt beyond a reasonable doubt. In addition, the court properly instructed the jury: (1) that the People were required to prove beyond a reasonable doubt every essential element of the charges against appellant; (2) that appellant need not present any evidence; (3) that appellant was presumed innocent until the contrary was proved by the People; and (4) on the definition of reasonable doubt. Significantly, the court also instructed the jury "you must accept and follow the law as I state it to you regardless of whether you agree with it. If anything concerning the law is said by the attorneys in their arguments or at any other time during the trial [that] conflicts with my instructions on the law, you must follow my instructions." We presume that the jury followed the courts instructions absent evidence to the contrary. (People v. Nguyen, supra, 40 Cal.App.4th at p. 37.)
Furthermore, the evidence against appellant, though circumstantial, was strong. Appellant was an active gang member in the Black-P-Stone gang. A week before his murder Adams showed appellants close gang associate, China, the custom El Camino at an apartment in Hawthorne not far from where he lived. Appellant admitted that his girlfriend rented a car and appellant and two younger gang members Robinson and Carter drove to Hawthorne to "get some money." Appellant followed Adams as he drove the El Camino. Appellant parked around the corner from the Adams apartment and let Robinson and Carter out of the car. Robinson and Carter confronted Adams, shot him and stole his cell phone. An eyewitness observed appellants rental car wait and then immediately leave after Robinson and Carter returned to it. Robinson was arrested with one of the guns that was used to kill Adams. When he was arrested appellant had Adams cell phone and he conceded he received the phone the night of the murder or the next day. Appellant made a number of incriminating statements to the police and statements to his girlfriend during their phone conversation that implicated him in the crimes. This evidence supports the reasonable conclusion that appellant was a participant in the crimes—that he knew Robinson and Carter would rob Adams at gun point—and that he is responsible for the foreseeable consequences of his cohorts conduct. Viewed in the context of the entire guilt phase of the trial and all of the evidence against appellant and the jury instructions, we are not convinced that the prosecutors misstatements of law resulted in prejudice. Appellant has not demonstrated that his counsels failure to object to the prosecutors argument rendered his trial fundamentally unfair or "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.)
III. Errors in the Judgment and Abstract of Judgment
A. Miscalculation of Custody Credits
At the sentencing hearing on February 1, 2008, while discussing the calculation of custody credits the court asked the date of appellants arrest. Appellants counsel responded that appellant was arrested on February 27, 2005. Thereafter, the court awarded appellant 767 days of actual time in custody.
Before this court appellant contends that the court erred in awarding actual custody credits. Appellant argues that the courts calculation excluded a full year during which he was in custody and that his counsel gave the court an erroneous arrest date. He points out that he was actually arrested on January 27, 2005. Appellant contends that he was entitled to an additional 334 days of actual time in custody under Penal Code section 2900.5, subdivision (a).
The Attorney General concedes the credits were miscalculated but argues the error alleged can only be raised in the trial court. (Pen. Code, § 1237.1 [No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credit, unless the defendant first presents the claim in the trial court . . ."].) However, Penal Code "section 1237.1 only applies when the sole issue raised on appeal involves a criminal defendants contention that there was a miscalculation of presentence credits. In other words, [Penal Code] section 1237.1 does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal." (People v. Acosta (1996) 48 Cal.App.4th 411, 420.) Such is the situation in this case.
We therefore reach the custodial credits issue and find the award was in error. It is undisputed that appellant was arrested on January 27, 2005, and sentenced on February 1, 2008. Although the probation officers report does not estimate the number of days appellant spent in jail prior to his conviction, the report discloses appellant had been "remanded" into custody, which implies that appellant remained in jail from the date of his arrest until sentencing. Consequently, under Penal Code section 2900.5 appellant should have been awarded actual custody credits from his pre-judgment period of incarceration (from January 27, 2005 through February 1, 2008) for a total of 1,101 days of actual custody credits. The judgment should be modified to reflect these credits.
B. Error in the Abstract of Judgment on Count 2
During the sentencing hearing the court imposed but ordered that the sentence for the conviction on count 2 be stayed under section 654. The abstract of judgment does not, however, reflect the courts order. Instead the abstract indicates that the sentence on Count 2 would run consecutive to the sentence on Count 1. Thus, the abstract of the judgment must be corrected to reflect the courts order on count 2.
C. The Imposition of Additional Court Security Fees
Respondent notes the lower court failed to impose a $20 security fee pursuant to Penal Code section 1465.8, on each of appellants three convictions. In this case the court imposed only one $20 security fee.
Penal Code section 1465.8, subdivision (a)(1) provides: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . ." This section "unambiguously requires a fee to be imposed for each of defendants convictions. Under this statute, a court security fee attaches to `every conviction for a criminal offense." (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) Thus, the judgment must be modified to reflect the imposition of three security fees ($20 each) on the three counts upon which appellant was convicted.
D. Parole Revocation Fine
Appellant contends that because he was sentenced to life imprisonment without parole, the trial court erred in imposing the suspended parole revocation fine contemplated by Penal Code section 1202.45. The Attorney General concedes that this section does not apply where, as here, the defendant is sentenced to life imprisonment without parole, a sentence that does not include a period of parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) The judgments must be modified to strike the parole revocation fine imposed by the court.
"In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked." (§ 1202.45.)
DISPOSITION
The judgment is modified as follows: (1) to add two additional $20 security fees under Penal Code section 1465.8 to the judgment, so that the total security fee defendant is obligated to pay is $60; (2) to reflect an award of 1,101 days of actual custody credits; and to strike the parole revocation fine imposed by the court. The abstract of judgment is to be corrected to reflect these modifications and to reflect the trial courts order that the sentence on the conviction on count 2 is stayed under section 654. The cause is remanded to the superior court with directions to prepare a new abstract of judgment accordingly and to forward the new abstract to the corrections officials. As so modified, the judgment is affirmed.
We concur:
PERLUSS, P.J.
ZELON, J.