Opinion
F074537
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES KENNEDY, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DF012035A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant James Kennedy, a prison inmate, punched a correctional officer in the face. He was thereafter charged with and convicted by jury of battery by a prisoner on a nonconfined person, in violation of Penal Code section 4501.5. In a bifurcated proceeding, the jury also found true that defendant suffered five prior serious and/or violent felony convictions within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e).) Defendant was sentenced to an indeterminate term of 25 years to life, to be served consecutive to his previously imposed prison sentence.
All further statutory references are to the Penal Code.
Pursuant to Evidence Code section 777, subdivision (c), the prosecutor selected the correctional officer who was the victim of defendant's crime as her designated officer. On appeal, defendant claims the trial court abused its discretion under state law by permitting the victim to be the designated officer under the statute, and he argues the error also deprived him of a fair trial in violation of his federal constitutional rights.
The People dispute defendant's entitlement to relief. They contend he forfeited his claims on appeal by failing to object during trial. If we reach the merits, they contend the prosecutor properly designated the officer under Evidence Code section 777, any error under state law was harmless, and defendant was not deprived of a fair trial under federal law.
We conclude the trial court did not abuse its discretion under Evidence Code section 777, we reject defendant's federal constitutional claim, and we find no prejudice to defendant even if we assume error under state or federal law. We therefore affirm the judgment.
FACTUAL SUMMARY
On October 14, 2014, at approximately 1:35 p.m., correctional officers Joe Zuniga and Destiny Duran were walking along the track on a recreational yard at Kern Valley State Prison as they headed toward one of the buildings. Zuniga had just arrived to start his shift and was in uniform but did not yet have his equipment on him. Defendant was walking toward them on the track and, when he passed them, he said, "Hey, Zuniga." As Zuniga and Duran turned to look at defendant, he "sucker-punched" Zuniga twice in the face.
Duran called in a staff assault over her radio and yelled at defendant to get down. Defendant did not comply with the order, and he circled and advanced on Zuniga with his fists up. Zuniga also had his hands up to defend himself. Duran sprayed defendant in the face with her pepper spray but he continued to be noncompliant with her orders to get down and she sprayed him a second time.
Duran then handed Zuniga her pepper spray and she took out her expandable baton, although she did not use it on defendant at any time during the incident. After defendant assumed a prone position on the ground, Duran ordered him to put his hands behind his back. He then tried to get up and Zuniga sprayed him with the pepper spray, which emptied the canister. As defendant continued to try to get up, Zuniga pinned defendant down by placing his knee on defendant's back and his hand on the back of defendant's head. Other officers responded to the scene and defendant was removed without further incident.
The registered nurse who evaluated Zuniga at the prison after the incident testified Zuniga complained of pain, and had redness and swelling to his nose and lips as well as pepper spray on his arms and legs. The jury also saw a photograph of defendant's swollen knuckles that was taken after the incident.
DISCUSSION
I. Relevant Procedural Background
Prior to trial, the court ordered the prosecutor to instruct her witnesses not to discuss the case or their testimony with one another, in accordance with the parties' mutual motions in limine. The court also informed the parties they could reserve their right to designate an investigating officer under Evidence Code section 777, which provides:
"(a) Subject to subdivisions (b) and (c), the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.
"(b) A party to the action cannot be excluded under this section.
"(c) If a person other than a natural person is a party to the action, an officer or employee designated by its attorney is entitled to be present." (Italics added.)
The prosecutor subsequently selected Zuniga as her designated officer and he sat at the counsel table during trial.
Duran, who was the first witness called, testified that she did not discuss the incident with the other witnesses prior to testifying. However, Correctional Officer Cueto testified that he, Duran and Zuniga briefly discussed the facts of the case that morning, limited to telling one another what each observed. Cueto testified they did not correct or weigh in on one another's version of events.
Defendant subsequently moved for a mistrial based on violation of the court's in limine ruling and, after hearing argument, the court denied the motion. The court concluded that the prosecutor, who stated she informed her witnesses of the in limine order as soon as she could and had no explanation for Cueto's testimony, did not violate the order and that the witnesses' conduct did not result in a miscarriage of justice or deny defendant a fair trial. Zuniga subsequently testified that he and Duran only discussed the date the incident occurred and, although Cueto was nearby, he was not really part of the discussion.
II. Summary of Parties' Positions
A crime victim has the right to be present during criminal proceedings (§ 1102.6, subd. (a)), unless a movant seeking to exclude the victim "demonstrates that there is a substantial probability that overriding interests will be prejudiced by the presence of the victim" and subject to other limitations. (§ 1102.6, subd. (b)(1).) Such overriding interests include "[t]he defendant's right to a fair trial." (§ 1102.6, subd. (b)(1)(A).) "The purpose of [an exclusion] order is to prevent tailored testimony and aid in the detection of less than candid testimony." (People v. Valdez (1986) 177 Cal.App.3d 680, 687; accord, People v. Griffin (2004) 33 Cal.4th 536, 573-574, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) However, defendant did not move to exclude Zuniga under section 1102.6 during trial nor does he challenge on appeal the denial of his mistrial motion.
Rather, he claims the trial court erred in permitting the prosecutor to select the crime victim as her designated officer under Evidence Code section 777, as it resulted in Zuniga remaining in the courtroom during the other witnesses' testimony. Defendant argues that Zuniga did not perform any investigation and, therefore, his selection as the designated officer served no purpose. He also argues that Zuniga's selection as the designated officer resulted in prejudice to him because it allowed Zuniga, who testified after all of the other witnesses, to tailor his own testimony and because his presence at the counsel table with the prosecutor constituted, in effect, vouching for a witness. Finally, defendant argues that the fact the witnesses spoke to one another shortly before trial began, in violation of the court's in limine ruling, created an appearance of impropriety and exacerbated the prejudice to him. In addition to error under state law, defendant claims that Zuniga's selection as the designated officer violated his federal constitutional right to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments.
The People counter that defendant failed to preserve for appeal any challenge to Zuniga's selection as the designated officer under state or federal law because he failed to object at trial. On the merits, the People contend that the prosecutor had an unqualified right to select Zuniga as the designated officer under Evidence Code section 777, the statute does not preclude the designation of an officer who is also the victim, and Zuniga's status as a victim under Penal Code section 1102.6 yields to his selection as the designated officer. The People also dispute defendant's claim that Zuniga's selection under Evidence Code section 777 constituted vouching by the prosecutor, but they contend that regardless, any arguable error was harmless. With respect to defendant's federal constitutional claim, the People contend the error he complains of did not deprive him of a fair trial.
The parties acknowledge unreported bench conferences occurred during trial, but as the People point out, to the extent defendant objected during such a conference, he was required to object on the record.
III. Analysis
A. Claim Trial Court Erred in Permitting Prosecutor to Select Victim as Designated Officer Under Evidence Code Section 777
1. Standard of Review
We review the trial court's ruling for abuse of discretion. (People v. Tully (2012) 54 Cal.4th 952, 1004; People v. Griffin, supra, 33 Cal.4th at pp. 573-574; People v. Valdez, supra, 177 Cal.App.3d at p. 687.) "To establish an abuse of discretion, defendants must demonstrate that the trial court's decision was so erroneous that it 'falls outside the bounds of reason.' A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will be 'established by "a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 (Bryant).)
2. Forfeiture
The failure to object to a trial court's ruling generally forfeits the claim on appeal and this principle applies to constitutional claims as well as claimed error under state law, but there are exceptions to the general rule and courts have the discretion to consider an issue notwithstanding the failure to object. (People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880-881, 887, fn. 7.) In this case, given our determination that there was neither an abuse of discretion nor prejudice, we need not decide whether to apply the forfeiture rule here.
3. No Error
Turning to the merits of defendant's claim that the trial court erred in permitting the prosecutor to select the victim as the designated officer, we reiterate the longstanding principle that "[o]n appeal, we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.) The moving party bears the burden of demonstrating error. (People v. Gamache (2010) 48 Cal.4th 347, 378; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523; People v. Clifton (1969) 270 Cal.App.2d 860, 862.)
As stated, defendant neither objected to Zuniga's selection as the designated officer nor moved to exclude Zuniga from the courtroom during Duran's or Cueto's testimony. Although defendant argues it was error to permit Zuniga to serve as the designated officer because he was the victim and because he did not perform any investigation as is usually contemplated by the designation (see People ex. rel. Curtis v. Peters (1983) 143 Cal.App.3d 597, 602 (Peters) ["Unquestionably, [the civil prosecutor] was at a serious tactical disadvantage in being deprived of the assistance of the informed investigator in assessing the effects of witnesses' testimony and suggesting areas which should be probed, sifting through the documentary evidence in determining its significance and materiality and otherwise providing useful information to guide the prosecutor in the conduct of his case."]), he cites no authority for either proposition and the statute itself contains no such restrictions (Evid. Code, § 777). Defendant asserts that cases addressing the right to designate an officer to be present do not involve the selection of a victim, but the cases cited by defendant also do not involve crimes committed in prison against an officer. (E.g., People v. Nunley (1904) 142 Cal. 441, 445; Peters, supra, at pp. 602-603; People v. Boyden (1953) 116 Cal.App.2d 278, 283-284; People v. Chapman (1949) 93 Cal.App.2d 365, 373-374; People v. Oliver (1908) 7 Cal.App. 601, 604-605.)
Defendant acknowledges the California Supreme Court's decision in People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez), but contends the decision is not controlling. In Gonzalez, the prosecutor's designated officer had interviewed a critical witness. (Id. at p. 950.) The trial court denied the defendant's motion to exclude the officer from the courtroom during that witness's testimony and the defendant challenged the ruling on appeal. (Ibid.) The high court concluded that the officer had the statutory right to be present under Evidence Code section 777 and the fact that he interviewed a witness did not undermine his right to be present. (Gonzalez, supra, at pp. 950-951.) While we agree with defendant that Gonzalez did not involve a designated officer who was also the crime victim, it nevertheless articulates the rule that an officer designated by a party under Evidence Code section 777 is entitled to be present during trial. (Gonzalez, supra, at p. 951.)
Although not cited by the parties, the California Supreme Court confronted a challenge to the designated officer more recently in Bryant. In that case, one of the defendants alleged that the detective who was the designated officer under Evidence Code section 777 "had tampered with a witness, attempted to intimidate a witness during testimony, withheld discovery, and tried to adversely influence [the defendant's] jail housing." (Bryant, supra, 60 Cal.4th at p. 376.) The trial court denied the defendant's request to preclude the officer from any further investigation in the case and to exclude him from trial except during his own testimony. (Ibid.) On appeal, the high court rejected the defendant's claims of error and, with respect to excluding the officer from trial, the court stated the detective was entitled to be present and the defendant's claim of unfair bolstering was "too speculative to establish error." (Id. at p. 378, citing Gonzalez, supra, 38 Cal.4th at p. 951.)
We reiterate that defendant cites no authority supporting the proposition that it was error for the trial court to permit Zuniga to be the designated officer, either because he was the crime victim or because he did not conduct an investigation. Evidence Code section 777 imposes no restrictions on the selection of a designated officer and the California Supreme Court has held that an officer designated by a party under Evidence Code section 777 is entitled to be present during trial. (Bryant, supra, 60 Cal.4th at p. 378; Gonzalez, supra, 38 Cal.4th at p. 951.) Notably, this is so even in a case where the defendant claims the designated officer intimidated a witness from his position at the counsel table and committed other alleged misconduct. (Bryant, supra, at p. 376.) Accordingly, we reject defendant's claim of error. Even if we assume error, however, it was harmless, as discussed next.
4. Any Error Harmless
State law errors are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837, which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.)
Although defendant does not advance a claim of prosecutorial misconduct, he claims Zuniga's selection as the designated officer was prejudicial because it allowed him to tailor his testimony after listening to the testimony of Duran and Cueto, and it bolstered his credibility before the jury. He also claims the prejudice was exacerbated by the fact that Zuniga, Duran and Cueto discussed the case prior to trial; he asserts "[s]uch conversations among the witnesses create an appearance of some level of impropriety which, however slight, simply adds to the balance scales that are already weighted against a defendant in these prison assault cases in which all the witnesses are correctional officers."
"As a general matter, '[i]mpermissible "vouching" may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony.'" (People v. Seumanu (2015) 61 Cal.4th 1293, 1329; accord, People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Rodriguez (2018) 26 Cal.App.5th 890, 910, review granted Nov. 28, 2018, No. S251706.) "'Similarly, it is misconduct "to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness." [Citation.] The vice of such remarks is that they "may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government's view of the evidence." [Citation.]'" (People v. Seumanu, supra, at p. 1329; accord, People v. Frye, supra, at p. 971; People v. Rodriguez, supra, at p. 905.)
This was a straightforward case, as defendant acknowledges in his brief. It was also a strong case for the prosecution, which effectively constrained defense counsel's focus during argument to emphasizing the prosecutor's burden of proof and attempting to raise questions in the jurors' minds regarding the lack of camera footage, the absence of evidence of motive for defendant to hit Zuniga and weaknesses in the witnesses' testimony. However, the jury was instructed that it was entitled to rely on a single witness's testimony to establish a fact and that motive is not an element of the crime.
As to Cueto, counsel argued he did not see much; as to Duran, counsel argued she lied about talking to the other witnesses; and, as to Zuniga, counsel argued it was "strange" he was on the yard unarmed and jurors were "not being given the whole picture."
The trial court instructed the jury pursuant to CALJIC No. 2.27 as follows: "You should give the testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness which you believe is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends." It instructed the jury pursuant to CALJIC No. 2.51 as follows: "Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty."
Here, Zuniga and Duran, both percipient witnesses, testified that defendant punched Zuniga twice in the face, unprovoked. Cueto, a third percipient witness, testified that he heard someone yell get down, saw defendant and Zuniga facing off and saw defendant throw a punch at Zuniga, although he did not see if it connected. There was also evidence that defendant's knuckles were swollen after the incident and Zuniga sustained injuries to his nose and lips consistent with his and Duran's testimony. While defendant argued before the jury that the injuries did not prove who started the altercation, it was for the jury to determine the witnesses' credibility and there was ample evidence from which the jury could conclude that the altercation occurred just as Zuniga and Duran testified.
Moreover, although the witnesses discussed the case prior to trial, Zuniga and Cueto said it was a brief discussion that did not extend to weighing in on one another's recollections, and defendant was permitted to and did attack Duran's credibility on the ground that she lied when she testified she did not talk to the other witnesses about the incident. Critically, all three witnesses wrote reports contemporaneous to the incident. Had there been any material inconsistencies between their contemporaneous reports and their testimony two years later, counsel had the ability to impeach them on the matter. These circumstances directly undercut defendant's claim that Zuniga's presence in the courtroom allowed him to tailor his testimony after listening to the other witnesses.
As to defendant's claim of implied vouching or bolstering by virtue of Zuniga's presence at the counsel table, defendant cites to nothing in the record that supports this. Officers designated under Evidence Code section 777 routinely testify based on their participation in investigations, and speculation as to "potential unfairness" does not suffice to establish error. (Bryant, supra, 60 Cal.4th at p. 378.)
We conclude that there is no reasonable probability of a more favorable result to defendant had the trial court precluded the prosecutor from selecting Zuniga as her designated officer or excluded him from the courtroom during the other witnesses' testimony. Accordingly, even if we assume error, it was harmless.
B. No Federal Constitutional Violation and Any Error Harmless
Defendant also claims the trial court's error deprived him of a fair trial, in violation of his federal constitutional rights. As previously discussed, we find no error under state law and defendant's claim of federal error in this context is unsupported by any direct authority. (See Gonzalez, supra, 38 Cal.4th at p. 951 [no authority for proposition that failure to exclude investigating officer from courtroom during witness's testimony violated the defendant's constitutional rights].) Speculation does not suffice to establish error, as we have stated. (Bryant, supra, 60 Cal.4th at p. 378.)
The People contend that the arguments advanced by defendant in this appeal were addressed under federal law in United States v. Valencia-Riascos (9th Cir. 2012) 696 F.3d 938, a criminal case that arose out of an in-custody assault between the defendant and an agent with Immigration and Customs Enforcement. The prosecutor selected the agent, who was also the victim of the assault, to sit at the counsel table during the defendant's trial. (Id. at pp. 939-940.) On appeal, the defendant argued that this "lent [the agent] an 'aura' of credibility" and facilitated his ability to change his testimony after listening to opening statements and other witnesses. (Id. at p. 942.) The appellate court considered whether the trial court abused its discretion in permitting the prosecutor to select the agent as its case agent and found no due process violation, stating, "'[N]o general constitutional principle ... render[s] it impermissible for a case agent who was also the victim in the case' to sit at the prosecution's table so as to 'prevent the district court from exercising its discretion in favor of allowing the case agent to sit there.'" (United States v. Valencia-Riascos, supra, at p. 942, quoting United States v. Charles (1st Cir. 2006) 456 F.3d 249, 260.) We find the People's argument persuasive on this point.
In United States v. Valencia-Riascos, supra, 696 F.3d at page 940, the court interpreted rule 615 of the Federal Rules of Evidence, which provides:
"At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
"(a) a party who is a natural person;
"(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;
"(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or
"(d) a person authorized by statute to be present."
Regardless, any arguable error was also harmless under the federal standard articulated in Chapman v. California (1967) 386 U.S. 18, which requires courts to "determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error" (People v. Merritt (2017) 2 Cal.5th 819, 831, citing Neder v. United States (1999) 527 U.S. 1, 15-16; see People v. Gonzalez (2012) 54 Cal.4th 643, 663). "'"To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record."'" (People v. Pearson (2013) 56 Cal.4th 393, 463.)
For the reasons discussed in the previous subsection, we have no difficulty also concluding that any error stemming from Zuniga's presence during trial at the counsel table as the designated officer did not contribute to the verdict and therefore was, under the circumstances of this case, harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
FRANSON, J.