Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. SA064520 Cynthia Rayvis, Judge.
The Law Offices of Liberman & Sigal and Vitaly B. Sigal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD J.
A jury convicted Charles Andrew Satrustegui (appellant) of one count of making criminal threats (Pen. Code, § 422) (count 1) and one count of resisting arrest (§ 69) (count 2). The trial court suspended imposition of sentence and placed appellant on probation for a period of three years. Appellant was required to serve 43 days in county jail.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the grounds that he was deprived of his due process right to a fair trial by: (1) the last-minute amendment of the information before trial; (2) ineffective assistance of counsel; and (3) prosecutorial misconduct sanctioned by the trial court. Appellant also argues that the trial court was without jurisdiction to enter a judgment under Kellett v. SuperiorCourt (1966) 63 Cal.2d 822 (Kellett).
FACTS
Prosecution Evidence
On June 17, 2007, at approximately midnight, Officer Alberto Echevveria, a police officer for Santa Monica City College, was driving a marked police car on Pico Boulevard. He saw a car leaving the parking lot of a closed restaurant at a high rate of speed. Officer Echevveria followed the car, a black Mercedes, until it stopped on Michigan Avenue. On the way, the officer noticed that the car’s windows were improperly tinted, and it had a broken taillight. The officer called for backup to assist him before approaching the car, since it was an area known for gangs and drugs. Three persons quickly exited the Mercedes, and Officer Echevveria activated his red lights and told all three occupants to get back in the car, which they did. When the backup unit arrived, Officer Echevveria approached the car and yelled from the trunk area to the driver to roll down his window. The driver did not comply despite several requests. Finally, the driver, appellant, got out of the car, and Officer Echevveria ordered him to go to the sidewalk.
Appellant began “mouthing off, ” accusing Officer Echevveria of pulling him over because he drove a Mercedes. Appellant was jumpy, and Officer Hearn, the backup officer, patted him down for weapons. Appellant became angry when Officer Hearn checked his groin area for weapons. Appellant continued to protest being pulled over. From his position on the curb, appellant stood up abruptly and got into a fighting stance with his fists clenched. He said, “I’ll fucking kick your ass, Echevveria. You have no fucking right to do this, ” and “Take me to jail. I’ll kill you.” His actions scared Officer Echevveria, and the officer used a take-down movement called a straight-arm bar on appellant. Both the officer and appellant fell to the ground.
Appellant stiffened and began wailing and kicking. He said “Echevveria, I know who you are. I know where you work. I’ll kill you. I’ll fuck you up.” Officer Echevveria shouted commands to stop resisting. Both officers together tried to handcuff appellant. Officer Hearn heard Officer Echevveria repeatedly say, “Stop resisting. Stop resisting.” Appellant was very uncooperative and violent.
Officer Hearn called in a “Code 3” for backup from the City of Santa Monica as appellant continued to struggle with Officer Echevveria. Officer Hearn testified that a Code 3 is not done lightly, and it indicates a serious situation is occurring. A Code 3 causes all the officers who hear the call to stop what they are doing and go to the location where officers are requesting help. Appellant was pushing Officer Echevveria off of him and trying to get up. Santa Monica police officers arrived in approximately a dozen cars, and five or six officers began struggling with appellant. One of the other occupants of the Mercedes fled, and Officer Hearn gave chase. Officer Eric Uyena testified that he saw appellant “actively resisting, ” yelling, cursing, flailing and kicking, and this continued as he was finally led to a police car. He pushed two officers against the police car. Instead of walking, appellant forced officers to push him forward. Appellant eventually had to be hobbled. Officer Echevveria sustained an injury to his hand.
An instructor on use of force, Officer Andres Rios, who hobbled appellant at the scene, testified that the straight-arm bar was the minimum amount of force required for an officer to defend himself. He was one of the last officers to arrive and was surprised that the other officers still did not have appellant in complete control. Appellant was spreading his legs and wrapping them in the officers’ legs in order to prevent being moved. Officer Rios hobbled appellant at knee level so that he could not get a wide stance. Appellant leaned his weight on Officer Rios and went limp. The officers decided to grab appellant and physically put him in the car. They could not put the seat belt on him because he began rocking his body back and forth, and they were concerned with their own safety from possible bites or spitting.
Officer Echevveria later took his booking paperwork to the jail. Appellant saw him from his holding cell window and started threatening the officer through the window. He said, “You’re done, Echevveria. You’re fucking done.” Appellant simulated pressing a trigger and said, “pow” about three times.
Defense Evidence
Appellant testified in his defense. He was driving with two friends from a party and cut through the restaurant parking lot. He had not been drinking or using drugs. He was not speeding. He stopped on Michigan Avenue to meet four girls from the party. When he got out of the car, Officer Echevveria drew his gun on appellant and told the three men to get back in the car. Appellant was trying to start his car in order to roll down his window when the officer told him to get out of the car. Appellant handed over his license and respectfully asked what he had done wrong. Instead of answering him, Officer Echevveria asked appellant questions about his activities. Officer Echevveria was disrespectful and seemed agitated. Officer Echevveria asked to search appellant, and appellant asked him “what [his] probable cause [was].” Officer Echevveria ignored appellant’s question and searched him. Officer Hearn searched him again. Officer Echevveria asked appellant more questions.
Appellant stood up from his seat on the curb because Officer Echevveria told him to do so. The officer said appellant was being arrested but did not tell him the reason. When appellant stood up, he gave Officer Echevveria his left wrist to cuff. Officer Echevveria twisted him around and, without warning, appellant was face down on the ground. Officer Echevveria put his knee on appellant’s back and called him a punk.
Appellant refused consent to search his vehicle and Officer Echevveria “got really mad” and said they were going to search it anyway. The officer said he was going to put handcuffs on appellant, and appellant knew that the officer was trying to arrest him so that he could search his car. Appellant was arrested, thrown in the police car, and taken away to Santa Monica police station.
Appellant never stood with his fists clenched and never said he was going to kill Officer Echevveria. He did not provoke the officer into slamming him on the ground. Appellant was being respectful in his language. He never made any threats to anybody. Officer Hearn was not truthful when he said appellant was uncooperative and resisting arrest; appellant was just complying. Appellant did mention the “F” word because he was expressing his strong feelings. He was being mistreated and could not breathe. He never kicked at the officers.
Appellant made no gesture to Officer Echevveria at the jail. Appellant sustained injuries to his knee, wrist, elbow, and head. The officers tortured him for no reason. When shown his booking photograph, appellant denied that the photograph showed he was refusing to look at the camera. Appellant stated that the officer pointed at an arrow to look at, and appellant was following directions. The booking form showed that appellant refused to name his occupation and employer and refused to sign the form. Appellant stated he was never asked to answer those questions or asked to sign.
Rebuttal Evidence
Detective Daniel Larios interviewed appellant. Appellant never said that Officer Echevveria drew his gun. Appellant said that Officer Echevveria was probably scared of appellant or saw him as a threat. Appellant said he did not know at first that the first officers were with the Santa Monica City College Police, and he thought they were the “real deal.” Appellant said that, when he saw Officer Echevveria at the jail, appellant raised his middle finger to him and said something like, “Fuck you for doing this to me.” Suspects are instructed to look at the camera mounted on the ceiling for their booking photographs, and there is no arrow. If a suspect is looking down, he is not complying with the request of the booking officer. When Detective Larios commented that appellant’s passenger who ran away would not be a credible witness, it seemed that appellant agreed with him.
DISCUSSION
I. Amendment of Information
A. Appellant’s Argument
Appellant contends he was not afforded the right to notice of the charge that he deterred an officer during the course of his duties (count 2). Moreover, his attorney was not afforded the right to cross-examine the testifying officer at the preliminary hearing regarding the actions by appellant that formed the basis for the additional charge. Thus, appellant was denied his substantial right to adequate notice of the charges against him, as well as his right to due process and a fair trial. Appellant also argues that he should have been given a continuance to prepare his defense to the new charge, and that he was never arraigned on the new charges. According to appellant, the judgment is reversible per se.
B. Proceedings Below
Appellant’s preliminary hearing was held on August 31, 2007. Officer Echevveria testified that he stopped a vehicle occupied by appellant, who was driving, and two others. Appellant did not wish to roll down his window and tried to get out of his car. Officer Echevveria became concerned for his safety. Appellant got out of the car and asked why he was pulled over. Officer Echevveria believed appellant was jumpy. Appellant shifted his body, clenched his fists and took steps toward Officer Echevveria. Appellant said, “Fuck you” and “I’m going to kick your ass. You are done. I’m going to kill you. You are Echevveria, I know where you are. I know your name.” Officer Echevveria feared for his safety and placed appellant under arrest. He used a “bar take down” to put appellant in handcuffs. Appellant went down to the ground and was struggling. He kept moving and kicking. Officer Echevveria commanded him to stop resisting and to stop fighting. Santa Monica police officers arrived and assisted Officer Echevveria and his partner, who then undertook pursuit of a fleeing occupant of the car. Later, Officer Echevveria saw appellant as he waited in the holding cell. Appellant simulated a weapon with his finger and pointed it at Officer Echevveria and made a noise like a gun. Officer Echevveria was in fear for his life.
At the close of the hearing, the trial court denied the defense motion to dismiss for lack of evidence. The court stated that it appeared that appellant had committed a violation of section 422.
On September 13, 2007, the People filed an information charging appellant with one count of violating section 422. On February 28, 2008, prior to voir dire, the trial court asked the prosecutor on the record if he had “the amended information.” The trial court confirmed that the prosecutor was adding “just a Penal Code Section 69.” Defense counsel said, “As I stated in this court earlier, if I could just get a written amendment please. I understand the D.A. is busy, but if I can get that as soon as possible.” The trial court stated it would read the charge to the jury based on the statute, which it did. The amended information shows that count 2 was charged almost verbatim in the language of section 69.
C. Relevant Authority
“Article I, section 14, of the California Constitution provides in pertinent part: ‘Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.’ Our Constitution thus requires that ‘one may not be prosecuted in the absence of a prior determination of a magistrate or grand jury that such action is justified.’ [Citation.] ‘Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to a preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial.’ [Citation.]” (People v. Burnett (1999) 71 Cal.App.4th 151, 165.)
“Section 739 provides in part: ‘When a defendant has been examined and committed, ... it shall be the duty of the district attorney... to file in the superior court... an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed....’ [¶] ‘[A]n information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed [citation], and (2) that the offense “arose out of the transaction which was the basis for the commitment” on a related offense. [Citations.]”’ (People v. Pitts (1990) 223 Cal.App.3d 606, 903, quoting Jones v. Superior Court (1971) 4 Cal.3d 660, 664–665.)
“The general framework within which criminal pleadings are amended is statutorily derived and has remained constant since 1911. [Citation.] Section 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination.” (People v. Winters (1990) 221 Cal.App.3d 997, 1005.) If “the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense.” (People v. Pitts, supra, 223 Cal.App.3d at p. 905.)
Notice of the true charges against a defendant is “the first and most universally recognized requirement of due process.” (Smith v. O’Grady (1941) 312 U.S. 329, 334.) “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.... It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” (Cole v. Arkansas (1948) 333 U.S. 196, 201.)
D. Forfeiture
We agree with respondent that appellant has forfeited this issue on appeal. First, even if the trial court failed to arraign appellant on the amended information, the error does not require reversal, since no objection was raised below. (People v. Murphy (1963) 59 Cal.2d 818, 828, fn. 3; see also People v. Turner (1994) 8 Cal.4th 137, 187.) With respect to the amendment itself, defense counsel was clearly a participant in earlier discussions among the parties regarding the new charge. There is no showing in the record that appellant objected to the amendment or requested a continuance for time to prepare. “The claim that the court erred in ordering the filing of an amended information cannot be raised for the first time on appeal.” (People v. Spencer (1972) 22 Cal.App.3d 786, 799; see also People v. Walker (1959) 170 Cal.App.2d 159, 164.) In any event, since appellant alleges other grounds of ineffective assistance of counsel, we address the merits of his claim.
E. No Violation of Due Process or Other Constitutional Provision
It is clear from a reading of the preliminary hearing transcript that appellant’s argument regarding lack of notice is without merit. Officer Echevveria testified that appellant resisted the officer’s efforts to handcuff him. The officer had to tell appellant to stop resisting and to stop fighting. Officer Echevveria testified that appellant was still struggling when police officers from the city arrived. Defense counsel brought out this information on cross-examination and had every opportunity to cross-examine further on these issues. Furthermore, appellant needed no additional time to prepare his defense to this second charge, since his defense was to deny that he was anything but compliant and respectful during the entire incident and that it was Officer Echevveria who was disrespectful and abusive.
In his reply brief, appellant adds that there was no testimony at the preliminary hearing regarding the issue of whether Officer Echevveria was performing his duties lawfully. We note that points raised for the first time in a reply brief need not be considered. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) In any event, there was sufficient evidence to show preliminarily that the officer acted within the law and in accordance with his training. Officer Echevveria testified at the preliminary hearing that he followed appellant in order to make a traffic stop and that he used the “arm bar takedown” rather than draw his weapon.
Appellant’s argument that the trial court should have granted a continuance is also without merit. As noted, appellant did not request a continuance, and the trial court has no sua sponte duty to continue a trial. (People v. Medina (1995) 11 Cal.4th 694, 739.)
Finally, appellant’s contention that he was not arraigned on the new charge is not supported by the record. The clerk’s transcript shows that at 10:30 a.m. on March 3, 2008, appellant was present in court, and the court ordered the information amended by interlineations to add the violation of section 69. Appellant pleaded not guilty. At 10:39 a.m. the parties and the jurors were present and seated. There is no reporter’s transcript of the proceedings prior to 10:40 a.m. We must presume the trial court conducted the arraignment as reflected in the clerk’s transcript. The trial court is presumed to adhere to established law absent evidence to the contrary. (People v. Guerra (2006) 37 Cal.4th 1067, 1101; Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) The same holds true for appellant’s claim that he was absent in any discussion of the amendment to include count 2 and in the actual amendment. The reporter’s transcript of the afternoon session on February 29, 2008, when voir dire commenced, shows that appellant was present. The clerk’s transcript for March 3, 2008, shows that appellant was present and represented by counsel when the information was amended and when appellant pleaded not guilty. Appellant’s arguments are without merit.
The record contains an affidavit from the court reporter stating that she had no notes from the amendment of information and arraignment at 10:30 a.m. on March 3, 2008.
II. Alleged Ineffective Assistance of Counsel
A. Appellant’s Argument
Appellant contends his trial counsel committed numerous errors “both large and small.” Specifically, he contends that counsel prejudicially erred in not calling two corroborating defense witnesses and in failing to conduct discovery regarding the police officers’ backgrounds, both of which denied appellant his right to a fair trial and to present witnesses on his behalf.
B. Relevant Authority
“‘To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” [Citations.]’” (People v. Thompson (2010) 49 Cal.4th 79, 122.)
C. Failure to Call Witnesses
Appellant identified the passengers in his car as Michael Klawans (Klawans) and Jeff Cothren (Cothren). Appellant argues that Klawans would have corroborated the evidence in favor of appellant. Despite this, trial counsel made only a last-minute, unsuccessful attempt to subpoena Klawans. According to appellant, a statement submitted with appellant’s motion for a new trial, where he was represented by new counsel, substantiated that Klawans would have corroborated appellant’s version. With respect to Cothren, no subpoena was ever issued for him, and no effort was made by counsel to secure his statement. Appellant points out that the prosecutor questioned appellant, in front of the jury, about the reason for the witnesses not coming forward, with the result that the prosecution’s case was strengthened.
With respect to Klawans, we perceive no ineffective assistance on the part of trial counsel and certainly no prejudice to appellant from a failure to subpoena Klawans at an earlier date. Klawans was arrested at the same time as appellant, and counsel may have decided that his credibility as a witness was suspect. In addition, although appellant characterizes Klawans and Cothren as “completely independent, ” we believe that appellant’s two companions could readily be seen as biased witnesses whose testimony would not carry much weight with the jury. Moreover, Klawans was likely to invoke his Fifth Amendment right to remain silent, since he faced charges for fleeing the scene, and counsel would have been aware of that. Even appellant agreed with Detective Larios that Klawans would not be a credible witness. Defense counsel may have subpoenaed Klawans at the last minute at the insistence of appellant or merely to have the option of calling him if he later thought it beneficial. Finally, the statement by Klawans to which appellant alludes as corroborating his version of events is not reliable. It is not an affidavit, but rather a typed paragraph on a sheet of paper with Klawans’s name and apparently his address handwritten on it. It is neither signed nor dated. The record here does not show that trial counsel failed to exercise proper judgment in not calling Klawans. (See People v. Hill (1969) 70 Cal.2d 678, 690–691 [a claim of ineffective assistance in failing to call a witness requires a showing that the witness’s testimony was material, necessary, and admissible, or that defense counsel did not exhibit proper judgment in failing to call the witness].)
With respect to Cothren, nothing at all is known about this potential witness and what his testimony might have been. Moreover, appellant’s new attorney did not mention the failure to call Cothren as one of the grounds for ineffective assistance of counsel in his new trial motion, indicating that his testimony was not crucial to the defense.
Finally, appellant was not prejudiced by his trial counsel’s decision not to call these two witnesses. Apart from the testimony of campus police officers Echevveria and Hearn, the jury heard the testimony of two police officers from the Santa Monica Police Department in which appellant’s violent resistive behavior was described. These officers had nothing to gain from not telling the truth about appellant’s conduct. Appellant’s testimony, on the other hand, strained credulity, especially since his statement to Detective Larios did not match his trial testimony in several points. At trial appellant claimed that Officer Echevveria drew his gun, yet he never mentioned this to Detective Larios. When this was pointed out to him on cross-examination, appellant said the prosecutor was incorrect and that he did talk about Officer Echevveria having a gun to Detective Larios. At trial appellant said he made no gesture to Officer Echevveria when he saw him at the jail; indeed, appellant said he “never made any communication with Officer Echeverria” at the jail. Appellant told Detective Larios, however, that he raised his middle finger to Officer Echevveria and cursed at him. Appellant’s attempt to paint himself as a respectful and compliant innocent failed, and we see no reasonable probability (a probability sufficient to undermine confidence in the outcome) that, but for trial counsel’s alleged errors, a result more favorable to appellant would have occurred. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).)
D. Failure to Make Pitchess Motion
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
After his conviction, appellant hired new counsel who filed a Pitchess motion. Appellant argues that trial counsel’s failure to file a Pitchess motion before trial deprived him of the opportunity to ask questions of the officers regarding the information that was later revealed to appellant’s new counsel.
Even if counsel’s failure to file a Pitchess motion were deemed to fall below the standard of a reasonably competent attorney, we conclude that appellant suffered no prejudice from this failure. Our examination of the reporter’s transcript of the Pitchess in camera proceeding reveals that, under the circumstances of this case, the information revealed was only marginally relevant to the types of behavior for which appellant sought information, i.e., “allegations of false arrest, dishonesty, falsification of police reports, and use of excessive force.” Indeed, appellant’s new counsel did not include this information as one of the bases of his new trial motion, which was filed more than three months after the in camera hearing and the disclosure of the information to counsel.
Furthermore, as noted previously, the evidence against appellant was strong, and appellant’s testimony lacked credibility. Because appellant suffered no prejudice, his ineffective assistance claim fails. (Strickland, supra, 466 U.S. at p. 687 [if it is easier to decide a claim of ineffective assistance on the ground of lack of prejudice, a reviewing court should do so].)
E. Failure to Move to Exclude Certain Evidence
In his reply brief, appellant makes an additional argument within the rubric of ineffective assistance of counsel, claiming that defense counsel should have moved to exclude evidence about marijuana and knives being found in appellant’s car. As noted previously, we need not consider this issue, since appellant failed to raise it in his opening brief. (Campos v. Anderson, supra, 57 Cal.App.4th at p. 794, fn. 3.) In any event, we believe that the brief mention in the prosecutor’s opening statement of “a bunch of marijuana” being found in appellant’s car did not prejudice appellant. There was no further mention of the results of the search. Prior to opening statements and also before argument and the commencement of deliberations, the trial court told the jury that what the attorneys said in opening statements was not evidence. (CALCRIM No. 222.) Lastly, there was overwhelming evidence of appellant’s guilt, as we have observed elsewhere in this opinion.
III. Alleged Prosecutorial Misconduct
A. Appellant’s Argument
Appellant contends the prosecutor committed misconduct by alluding to and questioning him regarding the absent defense witnesses. This was especially true because the prosecutor, in her opposition to appellant’s new trial motion, admitted having a conversation with Klawans’s criminal defense attorney, who said she would advise Klawans to assert his Fifth Amendment rights if called to testify.
B. Relevant Authority
“A prosecutor’s conduct violates a defendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ‘“the trial with unfairness as to make the resulting conviction a denial of due process.” [Citation.]’ [Citation.] The focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citation.]’ [Citation.]” (People v. Mendoza (2007) 42 Cal.4th 686, 700.)
“A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)
C. Proceedings Below
During cross-examination of appellant, the following exchange occurred:
“Q Okay. So it’s actually your testimony that these officers started using force with you for absolutely no reason, you were just being Mr. Good Citizen? Mr. Compliant?
“A Yes.
“Q And you told Detective Larios that your witnesses could corroborate this use of force; correct?
“A That’s correct. I had two witnesses there.
“Q And exactly what you said was: ‘I was compliant. And all that is a lie, sir, to fucking put that charge against me, an additional charge, and that—that I was—and all my witnesses can tell you the same thing, sir, anything, sir.’ Isn’t that right? Is that what you said?
“A The part that I repeated to the officer that I was going to file a complaint with internal affairs for his police misconduct, yeah.
“Q Well, I just read you a quote and was wondering if that’s what you said. Is that what you said?
“A No, I didn’t say that.
“Q You didn’t say: ‘I was compliant and all that is a lie, sir, to try to fucking put that charge against me, an additional charge, and that—that I was—and all my witnesses can tell you the same thing, sir, anything, sir?’ You didn’t say that?
“A No. Sorry. Strike that. I do admit I said that. I think I may have said that. I just—I just wanted to clarify I was trying to say that additional charge that he’s putting on me was, you know, criminal threats. I never threatened to kill him.
“Q Did you hear the quote that I just read to you?
“A I didn’t hear it too clearly. If you could slow down a little bit, I can hear better.
“Q Okay. I’ll try again. Did you say: ‘I was compliant and all that is a lie, sir, to try to fucking put that charge against me, an additional charge. And that—that I was—and all my witnesses can tell you the same thing, sir, anything, sir?’ My question to you is whether you told Detective Larios that your witnesses would come in and corroborate the excessive force that the police used with you.
“A Okay. I agree.
“Q That, yes, your witnesses would come in?
“A Yes.
“Q But you also admitted to Detective Larios that at least one of your witnesses totally lacked credibility because he ran from the police?
“A That’s incorrect. I believe he stated that, but I didn’t agree to that.
“Q Oh, Detective Larios said to you: ‘One of your witnesses was arrested because he ran from the police. How credible a witness do you think that is?’ And you answered: ‘That’s not a credible witness.’ Is that true?
“A That’s because maybe, like, the transcripts, like the transcriber, the lady that wrote the transcripts forgot to put a question mark behind that. I said that in a question mark form. In a questioning form. I wasn’t agreeing with him....”
During re-direct examination of appellant, his counsel asked:
“Q Where’s Michael Klawans right now, the passenger who
“Ms. Kravetz (prosecutor): Objection. Irrelevant.
“Mr. Voll [defense counsel]: He was asked on cross, your honor.
“The Court: No.
“Mr. Voll: See if I can ask this question.
“Q: Did we attempt to subpoena
“Ms. Kravetz: Objection. Relevance.
“The Court: Sustained.”
During argument, in pointing out the inconsistencies in appellant’s testimony, the prosecutor stated, “None of his supposedly credible witnesses showed up to corroborate the police brutality that he claims. The girls that he supposedly went to meet in this dark location in front of an abandoned building on a corner never showed up to tell you that they were supposed to meet him there. In fact, they never even showed up at the location. You never heard from Michael Klawans or Jeff Cothren to come in here to say they saw these officers using any unreasonable force with their friend.” In closing argument, she stated, “The defendant’s witnesses never showed up to court to corroborate his story of excessive force. He told you he thought his witnesses were credible and he told the detective that they would be here to corroborate his story.”
D. Forfeiture
Respondent argues that prosecutorial misconduct is subject to a strict rule of forfeiture. The requirement of an objection and request for admonishment is forfeited unless an objection would have been futile, an admonishment would not have cured the harm, or an objection was made and overruled.
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’” (People v. Hill (1998) 17 Cal.4th 800, 820.) The record shows that defense counsel did not object to the complained-of questions and argument on the basis of prosecutorial misconduct, nor did he request an admonition based on this ground. None of the exceptions to these requirements apply in this case, and the issue is therefore forfeited. In any event, appellant’s contentions are without merit.
E. No Misconduct; No Prejudice
We conclude that the prosecutor’s questions and argument were proper and, in any event, they caused no prejudice to appellant in the context of the strong evidence against him. The prosecutor’s questions regarding the witnesses were proper cross-examination given the emphasis in the defense case on appellant’s interview with Detective Larios. The defense called Detective Larios as a witness and elicited that the interview was long, lasting 45 minutes. During direct examination of appellant, counsel asked him two times if he had said everything he said in court to Detective Larios when he was interviewed in jail. The prosecutor was therefore entitled to question appellant about things he said during the interview with Detective Larios, which she did largely without objection. Within the confines of direct examination, the cross-examination of a defendant may be vigorous. (People v. Cooper (1991) 53 Cal.3d 771, 822.) “Although a defendant cannot be compelled to be a witness against himself, if he takes the stand and makes a general denial of the crime with which he is charged, the permissible scope of cross-examination is ‘very wide.’ [Citation.] When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.]” (Ibid.) Also, it is the function of cross-examination to develop facts going to a defendant’s credibility. (Ibid.)
As for the prosecutor’s comments during argument, it is well established that a prosecutor is permitted to comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Mincey (1992) 2 Cal.4th 408, 446;see also People v. Bradford (1997) 15 Cal.4th 1229, 1339 [prosecutor noted absence of evidence contradicting what was produced by prosecution on several points, and the failure of defense to introduce material evidence or any alibi witnesses]; People v. Hughes (2002) 27 Cal.4th 287, 372–373 [prosecutor asked jury where was the evidence and the witnesses to support the defense].) The comment constituted fair comment on the evidence, and appellant has not shown there was a reasonable likelihood that the jury construed it in an improper manner. (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
We note that the prosecutor commented broadly that appellant had not called any witnesses in the plural—including the girls he was supposedly going to meet at the spot where he stopped the car. To the extent that the prosecutor referred to Klawans, there was no evidence that Klawans was unavailable. Klawans’s unavailability had to be upheld by the court. (People v. Ford (1988) 45 Cal.3d 431, 447–448.) It is not sufficient to assert that Klawans would have invoked his Fifth Amendment rights merely because Klawans’s attorney stated she would so advise him. A witness who might possibly assert his or her Fifth Amendment rights but who has not done so is not deemed unavailable. (Id. at pp. 435–436; see also People v. Gonzalez (1990) 51 Cal.3d 1179, 1216, fn. 9 [a witness becomes unavailable on self-incrimination grounds (and immune from his absence being commented upon) only when the sworn assertion of the privilege is upheld by the trial court, or the parties stipulate, or the defendant otherwise shows the trial court that an adverse inference should not be drawn from his failure to call this witness].) The prosecutor in this case could properly comment on appellant’s failure to call his witnesses.
The cases cited by appellant are distinguishable. People v. Rios (1985) 163 Cal.App.3d 852 addressed a confrontation clause issue. (Id. at p. 862.) In that case, two key witnesses refused to answer questions at trial, and the trial court admitted their earlier statements to an investigating police detective as inconsistent statements. (Id. at p. 860.) The prosecutor posed questions to these witnesses by repeating portions of their prior statements and then asking the witnesses if they had said that. (Id. at p. 861, fn. 2.) The prosecutor then asked a police detective about the prior statements. (Id. at p. 862.) The Court of Appeal reversed, in part, because it concluded that the defendant was denied “the right to confrontation which contemplates a meaningful opportunity to cross-examine the witness.” (Id. at p. 864.)
In People v. Varona (1983) 143 Cal.App.3d 566 (Varona), the issue involved an evidentiary ruling in which the trial court excluded admissible evidence proffered by the defense in a sexual-offense case. The evidence of the victim’s history of prostitution was critical to the jury’s evaluation of her credibility. On appeal, the reviewing court found misconduct because the prosecutor argued to the jury that there was no proof the victim was a prostitute, even though the defense had been ready and willing to produce such evidence. Moreover, the prosecutor had compounded the issue by actually arguing that the woman was not a prostitute, despite having seen the official records and knowing he was arguing a falsehood. (Id. at p. 570.)
The instant matter is easily distinguishable from Varona. There was no evidentiary ruling that could be construed as prohibiting the prosecutor’s comments, and the prosecutor did not argue a falsehood. As explained ante, there was no declaration of Klawans’s availability. Thus, this is not a situation in which the prosecutor obtained the exclusion of evidence and then argued the lack of that same evidence was evidence of guilt. Moreover, the Varona court agreed that “in a proper case, a prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story.” (Varona, supra, 143 Cal.App.3d at p. 570.)
In People v. Gaines (1997) 54 Cal.App.4th 821 (Gaines), the court held that “a prosecutor commits misconduct when he purports to tell the jury why a defense witness did not testify and what the testimony of that witness would have been.” (Id. at p. 822.) Clearly, this did not occur in the instant case. The Gaines prosecutor’s argument was egregious in that it stated that an absent witness would have impeached the defendant’s version of events, that the defense had ensured the witness did not appear, and that the People had tried to find the witness when it was clear the defense would not call him as an alibi witness. (Id. at pp. 824–825.)
Finally, no harm could have resulted. The court properly instructed the jury with CALCRIM No. 222, which told jurors that statements of counsel and remarks during opening statements and closing arguments were not evidence. We presume the jury followed this instruction, which was sufficient to dispel any prejudice created by the prosecutor’s argument. (People v. Waidla (2000) 22 Cal.4th 690, 725 [“The presumption is that limiting instructions are followed by the jury”]; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [“The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions”].)
Moreover, the challenged remarks were very brief, consuming only a few lines of the prosecutor’s approximately 30 pages of argument. In light of the record, there is no reasonable likelihood appellant was prejudiced by the prosecutor’s remarks under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error].)
IV. Alleged Multiple Prosecutions and Kellett Rule
A. Appellant’s Argument
Appellant contends that his convictions in both counts are void for lack of jurisdiction in light of Kellett. He argues that, because he was cited for the three Vehicle Code violations that were the cause of Officer Echevveria’s intended traffic stop, and because these citations were later voided, there was a final disposition that barred the later felony prosecution of the charges that arose from this single incident.
B. Procedural History
Appellant relies on a supplemental police report, apparently written by Detective Larios, for the specifics of his claim. Detective Larios reported that the district attorney rejected the detective’s first attempt to file the case against appellant, on June 19, 2007 (two days after the incident), because evidence of certain elements was lacking. Appellant was cited for three traffic infractions stemming from the incident, which were violations of Vehicle Code sections 22349 (speeding), 24252, subdivision (a) (failure to maintain the vehicle), and 26708.5 (window tint). In his supplemental report, Detective Larios stated, “I now request that citation to be void.” Detective Larios had contacted the Santa Monica City Attorney’s Office, which in turn had contacted the Santa Monica Traffic Court and the traffic court had taken measures to dishonor the citation.
C. Relevant Authority
Section 654 provides in pertinent part: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (Italics added.) Section 954 provides for joinder of offenses connected together in their commission or offenses of the same class.
“When... the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.) The Kellett rule is a procedural one that is designed to prevent harassment and to save unnecessary use of the state’s and defendants’ time and resources. (In re Dennis B. (1976) 18 Cal.3d 687, 692, 694 (Dennis B.).)
D. No Violation of Section 654 or Kellett Rule
Whether the Kellett rule applies must be determined on a case-by-case basis. (People v. Britt (2004) 32 Cal.4th 944, 955 (Britt).) “What matters... is the totality of the facts, examined in light of the legislative goals of sections 654 and 954, as explained in Kellett.” (People v. Flint (1975) 51 Cal.App.3d 333, 336, fn. omitted.)
In Kellett, the defendant was arrested for standing on a public sidewalk with a pistol in his hand. He was first charged in municipal court with a misdemeanor violation of section 417 (exhibiting a firearm in a threatening manner). After a preliminary hearing revealed that the defendant had previously been convicted of a felony, he was charged in superior court with felony possession of a concealable weapon. (§ 12021.) He pleaded guilty to the misdemeanor and then moved to dismiss the felony information on the ground that it was barred by section 654. (Kellett, supra, 63 Cal.2d at p. 824.) The motion was denied, and the defendant sought and obtained a peremptory writ of prohibition to prevent his trial. (Id. at pp. 824, 829.)
In interpreting sections 654 and 954 in conjunction with the due process clause of the Constitution, the court stated in Kellett that “[i]f needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively. When there is a course of conduct involving several physical acts, the actor’s intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted.” (Kellett, supra, 63 Cal.2d at p. 827, fn. omitted.)
In appellant’s case, the Kellett rule is not applicable and appellant suffered no harassment caused by multiple prosecutions. The case of Dennis B. is instructive. In that case, the minor was charged in separate, successive proceedings with a traffic court infraction of making an unsafe lane change, on which he was fined $10, and a petition filed three weeks later alleging vehicular manslaughter for the same incident. (Dennis B., supra, 18 Cal.3d at p. 695.) After the allegation of vehicular manslaughter was sustained, the minor appealed, inter alia, on multiple-prosecution grounds. (Id. at pp. 690, 691.) The court found that “[o]n balance, ... the minimal potential for harassment and waste caused by defendant’s multiple prosecution... is outweighed by the state’s interests in preserving the summary nature of traffic proceedings and insuring that a defendant charged with a felony or misdemeanor does not evade appropriate disposition.” The court found that the juvenile proceedings in the manslaughter charge were not barred by the traffic conviction. (Id. at p. 696.) Appellant’s case is even weaker than Dennis B.’s. Unlike that case, where one act—an unsafe lane change—resulted in two offenses, appellant’s behavior in resisting arrest cannot be seen as the result of his having illegally tinted windows, a broken taillight, or speeding.
Appellant cannot rely on his traffic offenses and criminal offenses arising from the same course of conduct either. It is only offenses “in which the same act or course of conduct plays a significant part” that must be prosecuted in a single proceeding. (Kellett, supra, 63 Cal.2d at p. 827, italics added.) Here, the Vehicle Code violations did not play a significant part in the charges of criminal threats and resisting arrest. In People v. Hurtado (1977) 67 Cal.App.3d 633 (Hurtado), for example, the defendant was arrested for drunk driving after highway patrol officers observed him driving erratically and at excessive speed. The defendant failed a series of field sobriety tests. While the defendant was being handcuffed, he took a cigarette package from his jacket and placed it between his legs. The officers seized the package and found it contained “20 rolled balloons” filled with heroine. (Id at p. 635.) The defendant was charged with three narcotics offenses in one prosecution and with drunk driving in a separate prosecution. He pleaded guilty to the drunk driving charge. (Ibid.) When an information was later filed charging him with the narcotics offenses, he moved to dismiss the information pursuant to section 654. (Hurtado, supra, at pp. 635–636.)
Applying an “‘evidentiary test’” or “practical” interpretation of when the multiple prosecutions bar applies, the Hurtado court concluded the drunk driving and narcotics charges were properly charged and prosecuted separately. (Hurtado, supra, 67 Cal.App.3d at p. 636.) The court reasoned that “the evidentiary pictures which had to be painted to prove the drunk driving and narcotics offenses were sufficiently distinct so as to permit separate prosecutions....” (Id. at pp. 636–637.) The court explained: “Proof of the drunk driving charge was supplied primarily by the observations of the highway patrol officers made after defendant was stopped and given certain sobriety tests. Proof of the heroin charges hinged upon the discovery of the cigarette package filled with heroin, which occurred after the arrest for drunk driving had been made. Evidence in the two cases, was for the most part mutually exclusive, the only common ground being the fact that defendant was in the moving automobile in possession of the heroin at the same time that he was under the influence of alcohol. Such a trivial overlap of the evidence, however, under Kellett and Flint does not mandate the joinder of these cases. [Citation.]” (Id. at p. 637.)
Here too, proof of the traffic violations and the criminal threat and resisting arrest counts was sufficiently distinct to permit the separate prosecutions, if indeed separate prosecutions had occurred. The proof of defendant’s Vehicle Code violations would have been the physical evidence of appellant’s car and the testimony of Officer Echevveria regarding the speeding. At trial, appellant admitted all but the speeding. The proof of appellant’s criminal threats to Officer Echevveria and his resisting arrest was supplied by the testimony of four law enforcement officers.
It is true that one of the elements of section 69 (count 2) that must be proved according to CALCRIM No. 2670 is that the officer was lawfully performing his duties. The fact that appellant was speeding and that he had illegally tinted windows and a broken taillight was one of two ways in which this element of section 69 was shown. Because appellant readily admitted the window-tinting and taillight, there was no complicated method of proof required. The slight evidentiary overlap consisting of the fact that appellant was about to be cited for these violations when he began his violent conduct did not require the prosecutor to consolidate the two actions, even if we were to assume that the voiding of the citation acted as a final disposition.
CALCRIM No. 2670 provides in pertinent part: “The People have the burden of proving beyond a reasonable doubt that Albert Echeverria was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of a violation of Penal Code 69 or Penal Code section 148(a), a lesser included offense. [¶] A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention). [¶] A peace officer may legally detain someone if the person consents to the detention or if: [¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful. [¶] In deciding whether the detention was lawful, consider the evidence of the officer’s training and experience and all the circumstances known by the officer when he or she detained the person. [¶] A peace officer may legally arrest someone if he or she has probable cause to make the arrest. Any other arrest is unlawful. Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime. [¶] In deciding whether the arrest was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she arrested the person. [¶] In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer’s presence. [¶]... [¶].... However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him.”
With respect to appellant’s argument that the voiding of his traffic tickets constituted an illegal act and a final disposition, as we have discussed, the two felony convictions in this case were for acts that did not form a significant part of the same course of conduct as the Vehicle Code violations appellant accrued prior to his encounter with Officer Echevveria. Therefore a debate as to whether there was a final disposition of the traffic citations by means of their voiding by the prosecuting agency is not necessary. The detective and the City of Santa Monica took pains to ensure that appellant did not waste any of his resources (or theirs) in litigating the traffic ticket, therefore the goal of Kellett was achieved in any event. This is not a case where the People unfairly sought to increase defendant’s vulnerability to prosecution and punishment by initiating a second prosecution based on the same event. (See, e.g., In re Grossi (1967) 248 Cal.App.2d 315, 318–319.) Moreover, even if appellant’s citations had been prosecuted, as occurred in Dennis B., we would have concluded that the Kellett rule was not violated. Any traffic convictions that appellant might have suffered in traffic court would not have barred trial on the instant charges.
As we stated in People v. Eckley (1973) 33 Cal.App.3d 91, 95, courts must engage in a balancing process in light of the objectives of the Kellett rule, and each case must be decided on its own facts and circumstances. (See also Britt, supra, 32 Cal.4th at p. 955; Stackhouse v. Municipal Court (1976) 63 Cal.App.3d 243, 247.) The totality of the facts of the instant case, examined in light of the legislative purposes of sections 654 and 954 as interpreted by Kellett, lead to the conclusion that appellant’s prosecution was not improper, and the trial court had jurisdiction to try him.
DISPOSITION
The judgment is affirmed.
We concur: BOREN P. J., ASHMANN-GERST J.