Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04F09442, 04F03839
RAYE, J.
A jury convicted defendant Russell G. Rawlinson of unlawfully driving and taking a vehicle (Veh. Code, § 10851, subd. (a) -- count one), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a) -- count two), and willful and wanton evading (Veh. Code, § 2800.2, subd. (a) -- count three). Defendant admitted an on-bail enhancement (Pen. Code, § 12022.1) and a strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
Sentenced to state prison, defendant appeals, contending the prosecutor committed prejudicial misconduct in closing argument. We disagree and will affirm the judgment.
FACTS
About midnight on October 29, 2004, Rancho Cordova Police Officer James Hatfield ran a records check on a black Corvette and learned it had stolen license plates. Officer Hatfield activated his overhead lights, his “take down” lights, and his siren to stop the Corvette, which had only a driver. The Corvette slowed and then sped away, reaching speeds between 65 and 85 miles per hour and failing to stop at signs and lights, with Officer Hatfield in pursuit.
Sacramento County Sheriff’s Deputies Mark Atkins and Christopher Baker joined the pursuit. The Corvette came to a stop in a cul-de-sac. Deputies Atkins and Baker observed that the driver’s door was open, the passenger’s door was closed, and defendant was five to ten feet away from the Corvette, running away. The deputies chased defendant but stopped when they learned a canine unit had been released. Deputy Gordon Beamer and his dog, Hunter, found defendant hiding behind a fence.
The black Corvette had been stolen and the license plate on it had been stolen from another Corvette.
Defendant testified that he was the passenger in the Corvette driven by a woman named “Bird” or “Birdie,” whom he described as in her late 20’s or early 30’s, 5 feet 8 inches tall and 130 pounds, with dyed purplish-red hair. He is 6 feet tall and weighed about 220 pounds. He had ridden as a passenger in the Corvette with Bird three times, the first time to the store, the second time to his mother’s to pick up a check, and the third time when he was arrested. He denied knowing the Corvette was stolen. He explained that he fled because he panicked, had previously been convicted of a felony, and was on bail. Defendant did not recall the Corvette’s slowing down when the officer activated his overhead lights and did not recall that the overhead lights or the take-down light lit up the Corvette. Defendant believed Officer Hatfield was mistaken, not lying, about using the take-down light and seeing only one occupant in the Corvette. He also claimed all three officers were mistaken as to the Corvette’s location in the cul-de-sac when it came to a stop. Defendant did not slouch in the passenger seat. He admitted Bird sped away from the police officer. He claimed that when the Corvette stopped in the cul-de-sac, Bird got out of the driver’s seat and ran behind a van leaving the cul-de-sac. At the same time, he got out of the passenger’s seat, shut the door, and ran in the opposite direction. Defendant was impeached with his prior felony convictions for first degree burglary (three counts) in 1993 and identity theft in 2005.
Defendant’s mother testified that on October 27, 2004, defendant came to her house and picked up a check. She looked out her bedroom window and saw a Corvette with a woman in the driver’s seat and the passenger door open; when defendant left, a car door slammed and the Corvette drove away.
DISCUSSION
I
Defendant contends the prosecutor committed prejudicial misconduct during closing argument in that he vouched for the credibility of the officers and “based his argument on matters outside the record.” We reject defendant’s contention.
Background
In opening argument, the prosecutor recounted the evidence, reminding the jury that its decision must be based on the evidence adduced at trial. The prosecutor discussed the jury’s role in determining the credibility of the witnesses, referring to the applicable jury instruction. Focusing on bias, interest, and motive, the prosecutor argued that the officers had none while defendant did, noting he had prior felony convictions and faced the current charges. The prosecutor claimed defendant lacked credibility and should be convicted.
Defense counsel argued that defendant was not driving the car. Defense counsel claimed there were significant discrepancies in the officers’ testimony, particularly Deputies Atkins and Baker.
With respect to Officer Hatfield, defense counsel noted that the officer had not mentioned the take-down light in his written report, commenting: “There is a plausible explanation. I believe that [the prosecutor] is a dedicated and intelligent prosecutor, who thoroughly reviews his witness’s testimony, which is what every lawyer has to do. We have to know what is going to be said on that witness stand. Now, when he did it, when he went over the questions, I don’t believe he just said, now, I want you to say this. I don’t believe that. But I do believe that as the officers, all of them, stood there together with [the prosecutor] and listened to him talk to each individual officer, that impressions can be gathered. And as I said, this goes back to the other thing I talked about earlier that the weird duplication in some of their testimony, but it’s not weird, if you remember, that they all read the same report. And if there were any differences in their memories or parts that they forgot, it would be cleared up by reading Officer Atkins’s report.”
Defense counsel implied the officers might have a bias against defendant: “Why would they be biased against him? I don’t know why they would be biased against him. But that doesn’t prove it doesn’t exist . . . .” Defense counsel claimed that the officers testified identically and that there was no evidence of fingerprints or to whom the keys belonged.
In rebuttal, the prosecutor referred to the instructions on circumstantial evidence and discrepancies in witnesses’ testimony. The prosecutor framed defense counsel’s argument as a claim that the officers were lying. The prosecutor argued that the jury should reject defendant’s testimony because he had a motive to lie and prior felony convictions, and accept the officers’ testimony. “Now, you have to think about it for a minute. Now, these officers, obviously, this is their career. They are testifying here under oath. Would these officers risk their career, file false reports, commit perjury on the stand?” In overruling defense counsel’s objection on the ground of “improper argument,” the trial court stated that the argument went to bias. The prosecutor thereafter repeated the argument: “Again, would these officers -- this is their career. Would they file false police reports, subject themselves to criminal liability, commit perjury, all for what? All to get this defendant on a vehicle theft?” The prosecutor argued that defense counsel’s claim of a “grand conspiracy” was not logical.
Analysis
A prosecutor’s behavior “‘“‘violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’” (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
To constitute misconduct, the prosecutor’s argument must “cross the ‘line of acceptable argument, which is traditionally vigorous and therefore accorded wide latitude.’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 529.)
Defendant contends the prosecutor was allowed over objection to vouch for the credibility of the law enforcement officers by stating there was no evidence they would risk their careers or risk being prosecuted for perjury if they lied about the facts in the case.
“[A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.] It is misconduct, however, to suggest to the jury in arguing the veracity of a witness that the prosecutor has information undisclosed to the trier of fact bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that the jury will believe that inculpatory evidence, known only to the prosecution, has been withheld from them. [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 945-946 (Padilla), overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
In Padilla, the prosecutor argued that had the prosecution’s ballistics expert lied, he “would have ‘risked his whole career of 17 years.’” (Padilla, supra, 11 Cal.4th at p. 946.) Citing United States v. Martinez (6th Cir. 1992) 981 F.2d 867 for its holding that a similar argument was improper, Padilla expressed “doubt that the argument was proper” but found “no reasonable probability that defendant was prejudiced by the prosecutor’s argument in this case.” (Padilla, at p. 946.)
The prosecutor’s argument in Padilla and the prosecutor’s argument here are different. In arguing the expert witness “would have ‘risked his whole career of 17 years’” if he had lied, the prosecutor in Padilla implied that he had information undisclosed to the jury. Here, the prosecutor queried whether the officers had a motive to lie, that is, would they risk their careers, file false police reports, and commit perjury to convict defendant for vehicle theft. By asking the jury to consider whether the officers would do such acts, the prosecutor was not vouching but rather was asking the jury to consider the possible, but not guaranteed, consequences to a police officer for falsifying information about a suspect. Defense counsel’s objection based on improper argument was properly overruled.
Moreover, defendant cannot demonstrate prejudice. The evidence was overwhelming. Officer Hatfield saw one occupant in the vehicle. Deputies Atkins and Baker saw defendant, and defendant only, fleeing from the Corvette once it stopped in the cul-de-sac. Only the driver’s door was open. Defendant’s claim that Bird was driving was not corroborated. Only defendant’s mother claimed to have seen some unidentified woman in the driver’s seat of the Corvette a couple of days before the high-speed chase. Further, defendant’s prior convictions cast doubt on his credibility.
The jury was instructed that statements of counsel are not evidence, and we presume the jury followed the instruction. (People v. Bryden (1998) 63 Cal.App.4th 159, 184.)
Defendant notes that in cross-examination, the prosecutor twice attempted to get defendant to call Officer Hatfield a liar with respect to the take-down lights and the presence of only one person in the Corvette. Defense counsel’s first unspecified objection was overruled. Later the court indicated that it should have sustained defense counsel’s objection. Defense counsel chose not to have the court correct its rulings for the jury and noted that the prosecutor had been admonished. Defendant’s insistence that the officers were mistaken, not lying, negated any harm.
II
The Attorney General notes an error in sentencing and errors in the abstract of judgment. In sentencing defendant, the court imposed 180 days in county jail with credit for time served for count four. Count four, misdemeanor resisting, was dismissed prior to trial. The trial court imposed an unauthorized sentence and we will modify the judgment, vacating the sentence imposed for count four. The abstract does not reflect the sentence given for count four under “Other orders,” so no amendment of the abstract is required in that regard.
As the Attorney General observes, the abstract should be corrected to reflect that defendant’s conviction for violation of Vehicle Code section 2800.2, subdivision (a) is count “3B” rather than “2C”; in addition, the box next to the statement that defendant was sentenced pursuant to Penal Code section 667, subdivisions (b) through (i) or 1170.12 should be checked. We also note the abstract fails to reflect the consecutive two-year term imposed for the on-bail enhancement. We will correct the abstract accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 188.) The two-year term is already reflected in the total sentence time on the abstract.
DISPOSITION
The judgment is modified to vacate the sentence imposed for count four, which was dismissed prior to trial. The trial court is directed to prepare a corrected abstract of judgment reflecting “3B” as the count for defendant’s Vehicle Code section 2800.2, subdivision (a) conviction; to check the box for sentencing pursuant to Penal Code section 667, subdivisions (b) through (i) or 1170.12; and to add the on-bail enhancement of two years, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: NICHOLSON, Acting P.J., ROBIE, J.