Opinion
A129323 A133111
02-14-2012
THE PEOPLE, Plaintiff and Respondent, v. CINDY NORMA SAYAD, Defendant and Appellant. In re CINDY NORMA SAYAD, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-091199-0)
After a jury trial defendant Cindy Norma Sayad was convicted of the felony offenses of driving under the influence causing injury (Veil. Code, §§ 23153, subd. (a), 23578), and driving with a blood alcohol concentration of .08 percent or more by weight causing injury (Veh. Code, § 23153, subd.(b)). The jury also made a true finding of an enhancement allegation that defendant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). At a bifurcated trial on sentence enhancements (Pen. Code, §§ 667, subds. (a)(1), (b) - (i), 1170.12; 1203(e)(4)), the jury found defendant had previously been convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)), welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)), and possession of a controlled substance (Health & Saf. Code, § 11377). Defendant was sentenced to an aggregate term of ten years in state prison.
On her direct appeal, defendant challenges her convictions on various grounds. She has also filed a petition for a writ of habeas corpus contending her trial counsel was ineffective, which we have consolidated with her direct appeal. We agree with the parties that the trial court erred in ordering defendant to pay $500 in attorney fees. However, we conclude that the appropriate remedy for the error is to modify the judgment by striking the trial court's order directing the payment of attorney fees. Because there is no merit to defendant's additional arguments challenging her convictions, we affirm the judgment as modified. We also summarily deny defendant's petition for a writ of habeas corpus.
In her petition, defendant requests that we take judicial notice of the appellate record, briefs, and all other pleadings in her direct appeal. In the absence of any opposition, we grant the request for judicial notice.
FACTUAL AND PROCEDURAL BACKGROUND
The criminal charges against defendant arose from a pedestrian-car collision that occurred March 6, 2008, some time after 6:00 p.m. at dusk, on Clayton Road near its intersection with Roselyn Drive in a business district of Concord. At its intersection with Roselyn Drive, Clayton Road runs east and west, with two lanes in each direction. There is a middle left-turn lane dividing the eastbound and westbound lanes. The speed limit on Clayton Road is 35 miles per hour and there are no stop signs controlling the traffic. There are marked crosswalks, a crosswalk sign for pedestrians crossing Clayton Road at its intersection with Roselyn Drive, and a fluorescent pedestrian sign, which is visible for about one thousand feet for drivers traveling east on Clayton Road.
While attempting to cross Clayton Road near its intersection with Roselyn Drive, Desiree Harding was struck in the eastbound number one traffic lane (the lane closest to the middle left turn lane) by a car driven by defendant, who had a blood-alcohol concentration exceeding 0.15 percent. Harding suffered severe and disabling injuries.
At the 2010 trial, the prosecution presented the testimony of several witnesses including eyewitness Christopher DeFlippo, Harding's boyfriend at the time of the collision; eyewitness Robert Fisher, who was walking near the intersection at the time of the collision; Concord City Police Officer Tony Zalec, who took a statement from defendant shortly after the collision; and collision reconstruction expert Concord Police Officer Eric Olson.
DeFlippo testified that before attempting to cross Clayton Road, he and Harding looked to see if there was any eastbound traffic. Seeing no nearby cars, they began to cross the road in a northerly direction inside the crosswalk, with Harding walking "pretty quickly" and slightly ahead of DeFlippo, who was walking with his bicycle. DeFlippo was in the eastbound number two lane (closest to the curb), when Harding was struck by defendant's car in the eastbound number one lane. Before the impact, DeFlippo saw defendant's car about 30 feet from the crosswalk and coming "very rapidly," and he tried to get Harding's attention by calling her name. Harding, who was then looking to see if there was any westbound traffic, did not react to DeFlippo, and she was struck by defendant's car before he could say her name a second time. When Harding was hit, defendant's car was partially in the crosswalk and partially outside the crosswalk. DeFlippo denied that immediately before the impact he had been riding his bicycle and he did not recall a car almost hitting him as he crossed the road.
Fisher testified that he first heard defendant's car suddenly decelerating as it approached the crosswalk on Clayton Road. As he turned in reaction to the decelerating sound, he saw defendant's car just west of the crosswalk and then heard an "impact sound," which was defendant's car striking Harding in the eastbound number one lane. Fisher could not tell if Harding had been walking in a southerly or northerly direction or if she was struck inside or outside the crosswalk. Defendant's car stopped in the middle of the crosswalk or just past the crosswalk. Before the collision between defendant's car and Harding, Fisher did not see DeFlippo or another car almost collide with DeFlippo.
In her statement to Police Officer Zalec, defendant explained that on the evening in question she was traveling at 35 miles per hour, the speed limit, in the eastbound number two lane on Clayton Road in moderate traffic. As defendant approached the eastern-most part of the intersection with Roselyn Drive a pedestrian (later identified as Harding) suddenly appeared from the right-hand side and ended up directly in front of her vehicle. "[W]hen that happened she had no time to apply the brakes so therefore there was no braking before impact." Defendant was not sure whether she had moved into the eastbound number one lane of traffic immediately before her car struck Harding who just appeared "from the sky." When asked to clarify her statement, "appeared from the sky," defendant stated that Harding came "from [defendant's] right-hand side," i.e., the south side of Clayton Road. After the collision defendant saw several pedestrians, including a man with a bicycle, but she never mentioned anything about seeing a bicyclist or a pedestrian with a bicycle before the collision.
None of the eyewitnesses testified to seeing defendant traveling in the eastbound number two lane or swerving immediately before the collision with Harding. Prosecution expert Olson testified that he examined the collision scene and found skid marks only in the eastbound number one lane just before, through, and just past the crosswalk leading directly to where defendant's car was stopped in the eastbound number one lane after the collision. Olson saw no fresh skid marks at all in the eastbound number two lane or any skid marks in that lane "right up to the crosswalk . . . or immediately thereafter."
Prosecution expert Olson testified that the collision was avoidable regardless of the direction (northbound or southbound) and place (inside or outside the crosswalk) that Harding crossed Clayton Road. According to Olson, as defendant drove on Clayton Road towards the Roselyn Drive intersection, there were no "impediments of visibility" that would have precluded her from seeing Harding as she left the curb to cross the road, and defendant had sufficient time to stop her car before hitting Harding. When asked the basis of his opinion, Olson testified that he had relied on DeFlippo's version of the collision to the extent it was consistent with the physical evidence found at the collision scene, which was depicted in photographs shown to the jury. Even if DeFlippo's version of the collision was ignored, Olson would still conclude that the collision was avoidable based on the other evidence including Fisher's testimony, defendant's statement to the police, and the physical evidence found at the collision scene.
Defendant attempted to raise a reasonable doubt as to her criminal liability by presenting the testimony of eyewitness Adam Solla, and the testimony of a collision reconstruction expert forensic engineer Peter Rast. Solla testified that just prior to the collision he was inside Kasper's restaurant with his girlfriend Samantha Gilmore. As Solla looked out the open front door of the restaurant, he saw both DeFlippo riding a bicycle and Harding walking across Clayton Road in a southerly direction - outside the crosswalk. Harding stopped momentarily in the middle left turn lane while DeFlippo rode across the eastbound lanes. DeFlippo almost collided with a car traveling in the eastbound number two lane (the lane closest to the curb). After the car drove away and DeFlippo reached a safe location, he turned and indicated to Harding not to proceed. While looking in DeFlippo's direction, and not at the traffic, Harding "stumbled ran" into the middle of the eastbound number one lane of traffic where she was struck by defendant's car traveling in that lane. The impact between Harding and defendant's car occurred "maybe six to eight seconds" after the near collision between DeFlippo and another car.
After the collision, the police interviewed Gilmore, and she later testified at the preliminary hearing in this matter. However, Gilmore was not called to testify at the trial by either party.
Defense expert Rast testified that he could not ascertain either Harding's walking direction or when defendant should have first seen Harding as she left the curb to cross Clayton Road. Rast also testified that if he relied solely on DeFlippo's version of the collision, Rast would join in Olson's opinion that defendant had enough time to stop her car before hitting Harding. However, Rast opined that it was probably not within defendant's ability to avoid hitting Harding based on Solla's statement to the police and his preliminary hearing testimony. Rast conceded that if defendant had seen Harding as she left the northern curb and entered Clayton Road proceeding in a southerly direction, then defendant should have been able to stop her car before hitting Harding. However, if defendant were faced with two or more events requiring her to react, then her perception/reaction time would be greatly increased. Rast had seen studies showing "anywhere from 200 to 500 percent increase in perception/reaction time." Rast also testified that it was common knowledge that the consumption of alcohol could play a significant part in a driver's ability to timely react to different events in the road.
In closing, the prosecutor presented two theories for imposing criminal liability based on separate scenarios. First, the prosecutor argued that the evidence demonstrated that Harding was crossing Clayton Road in a northerly direction in the crosswalk when she was struck by defendant's car, that defendant had a duty to yield the right of way to a pedestrian in the crosswalk, and that defendant had sufficient time to see and react to Harding but failed to avoid hitting Harding because defendant was driving under the influence of alcohol. Alternatively, the prosecutor argued that even if Harding was crossing Clayton Road in a southerly direction outside the crosswalk, as testified to by Solla, defendant still had a duty to use reasonable care towards a pedestrian crossing the road, and that defendant had sufficient time to see and react to Harding and could have avoided hitting Harding had defendant not been driving under the influence of alcohol.
Defense counsel argued in her closing argument that defendant's drunk driving was not the cause of the collision because even if she had been driving sober she would not have had sufficient time to avoid hitting Harding. Defense counsel asked the jury to infer that defendant must have been distracted by the near collision between DeFlippo and another car and, at about the same time, Harding "dart[ed]" or "jump[ed]" from the middle left-turn lane onto the eastbound number one lane of traffic leaving defendant with insufficient time to avoid hitting Harding.
DISCUSSION
I. Trial Court's In Limine Exclusion of Evidence of Methamphetamine and Alcohol in Harding's Body
Before trial the prosecutor moved in limine to exclude evidence that after the collision Harding's urine had tested positive for methamphetamine and alcohol. The motion was opposed by defense counsel, who argued that she was prepared to present evidence (medical records) that Harding had "methamphetamine in her system" and that a toxicologist "could testify that methamphetamine affects people's judgment." Harding's medical records also showed that after the collision she had a .005 blood alcohol level, which was roughly "1/20th of what you have to have to be under the influence for driving." Because the matter required further consideration, the trial court made a tentative ruling that there would be no mention during voir dire examination or opening statements of the evidence of methamphetamine or alcohol in Harding's urine. In so ruling, the trial court stated: "[I]t would be pure speculation for a jury to be able to decide that because somebody had a certain amount later on of methamphetamine in their urine that that person acted in some way or didn't act in some way. People can be very sharp sometimes when they're under the influence of drugs, and people can be very careless when they're not." The trial court also had serious doubts as to the probative value of such evidence, noting "it is highly prejudicial to tell the jury that the victim is a meth user." Nevertheless, the trial court told defense counsel that she would be given an opportunity to make an offer of proof regarding the admissibility of the evidence, and defense counsel confirmed on the record that she understood that she could bring up the issue again. However, defense counsel made no further effort to introduce such evidence or otherwise question the witnesses about Harding's use of methamphetamine or alcohol at any time including the day of the collision.
We conclude that defendant's challenge to the trial court's in limine ruling is without merit. The court correctly explained in substance that defense counsel had not demonstrated the relevancy of the proffered evidence. "Except as otherwise provided by statute, no evidence is admissible except relevant evidence. (Evid. Code, § 350.) Relevant evidence is evidence 'having any tendency in reason to prove or disprove any disputed fact . . . .' (Id., § 210.) The trial court is vested with wide discretion in determining the relevance of evidence. [Citation.] The court, however, has no discretion to admit irrelevant evidence. [Citation.] 'Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.' [Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 681-682 (Babbitt);see People v. Kraft (2000) 23 Cal.4th 978, 1035 ["evidence leading only to speculative inferences is irrelevant"].)
Defendant asserts that the evidence in question "was highly relevant to the defense" because "it contributed to the defense theory of superseding cause by allowing the defense to argue that Ms. Harding darted out suddenly into a busy street, leaving [defendant] insufficient reaction time. [Harding's] impairment would have been consistent with [Solla's] testimony that he saw Harding cross the street outside the crosswalk, that she was looking directly across the street at De[F]lippo when she entered the roadway, and that she did not look left or right before doing so." However, without an expert's testimony that the amount of methamphetamine or alcohol in Harding's urine would likely have impaired her judgment on the day of the collision, "[t]he inference which defendant sought to have drawn from the [proffered evidence] is clearly speculative, and evidence which produces only speculative inferences is irrelevant evidence. [Citation.]" (Babbitt, supra, 45 Cal.3d at p. 682; see People v. Stitely (2005) 35 Cal.4th 514, 549-550 (Stitely).)Because the trial court made no error in its in limine ruling, defendant's argument that the ruling was prejudicial constitutional error necessarily fails. (See People v. Rubin (2008) 168 Cal.App.4th 1144, 1148 ["there is no due process right to present irrelevant evidence"].)
Contrary to defendant's contention, Stitely, supra, 35 Cal.4th 514, is directly on point. In that case, the defendant sought to admit expert testimony that would establish the amount of alcohol the victim had consumed on the night that she was sexually assaulted and killed, and how a certain level of intoxication would affect people in general, but not the victim. (Id. at p. 549 & fn. 17.) In upholding the trial court's exclusion of the evidence, the Stitely court held that "[t]he trial court properly excluded defendant's evidence on relevance grounds. (See Evid. Code, § 210.) Nothing in the offer of proof showed how [the victim's] blood-alcohol content and intoxication affected her judgment and behavior the night she was killed, or increased the chance that she did, in fact, consent to vaginal and anal intercourse. Defendant essentially wanted jurors to speculate on intoxication, inhibition, and impulse. Speculative inferences are, of course, irrelevant. [Citation.]" (Id. at pp. 549-550.) Defendant asks us to disregard Stitely because in that case the jury had been given evidence that the victim was intoxicated, and the issue was whether the defense was entitled to admit additional evidence on the issue. However, the Stitely court's ruling was not based on the fact that the jury had already been given evidence that the victim was intoxicated. We therefore reject defendant's argument that Stitely is "inapt."
Defendant also argues that the exclusion of the evidence of the presence of methamphetamine and alcohol in Harding's urine impaired her trial counsel's ability to cross-examine adverse witnesses, particularly DeFlippo. However, at no time either before or during trial did defense counsel inform the trial court that she wanted to use the evidence to impeach DeFlippo. Consequently, the contention is forfeited for review. (People v. Anderson (2001) 25 Cal.4th 543, 580 ["a judgment may not be reversed for the erroneous exclusion of evidence unless 'the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means' "].)
We also see no merit to defendant's contention that her trial counsel was ineffective for failing to renew her effort to introduce evidence of the presence of methamphetamine or alcohol in Harding's urine or use the evidence to cross-examine DeFlippo. "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, [reviewing courts] will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) Contrary to defendant's contention, this is the usual case. The record contains no indication as to why counsel chose not to renew her request to admit or otherwise use the evidence in question. Among many other possibilities, it may well be that counsel could not secure evidence that would demonstrate that Harding's judgment was likely impaired based on the amount of methamphetamine or alcohol in her urine on the day of the collision. Nor can we conclude that counsel's failure to use the evidence to impeach DeFlippo demonstrates incompetency. Counsel was able to impeach DeFlippo's trial testimony by his prior statements to the police and the photographs depicting the physical evidence found at the collision scene, which inconsistencies the prosecutor was forced to explain in his closing argument. Because the record does not shed light on counsel's reasons for not pursing the matter, we cannot conclude " 'there simply could be no satisfactory explanation' " for counsel's conduct. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) "Without that showing we cannot find incompetence." (People v. Robinson (2004) 122 Cal.App.4th 275, 282.)
While defendant has filed a petition for a writ of habeas corpus based on ineffective assistance of trial counsel, she does not include a claim based on counsel's failure to renew her request for the admissibility or use of evidence of the presence of methamphetamine or alcohol in Harding's urine.
II. Trial Court's Limitation on Hypothetical Questions Posed by Defense Counsel to Expert Witnesses
Defendant argues that the trial court committed prejudicial error by placing limitations on several hypothetical questions posed by her trial counsel to both collision reconstruction experts, which severely impinged on her right to present a defense. We disagree. "Generally, an expert may render opinion testimony on the basis of facts given 'in a hypothetical question that asks the expert to assume their truth.' [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley).)However, "[s]uch a hypothetical question must be rooted in facts shown by the evidence" (ibid.), and "must not be unfair or misleading" (People v. Castillo (1935) 5 Cal.App.2d 194, 197-198 (Castillo)).
Contrary to defendant's contention, the trial court did not preclude defense counsel from proffering hypothetical questions to the expert witnesses based on Solla's testimony. Rather, the trial court precluded only a hypothetical question that assumed that defendant's time to see and react to Harding's presence in the road began when Harding was in the middle left-turn lane and not from the time Harding left the curb. "The vice of the question was that in effect . . . it omitted material parts of the evidence going to the circumstances surrounding [the collision]" (Castillo, supra, 5 Cal.App.2d at p. 198), and it turned the law "upside down" concerning the duties of a driver and pedestrian applicable to this case. "An answer, based upon such a question, wholly fails to meet the demands of competent evidence. [Citation.]" (Ibid.) Therefore, we see no error in the trial court's ruling.
When the issue arose during the direct testimony of defense expert Rast, the trial court advised defense counsel that the expert "can testify that, 'In my opinion based on Solla's testimony when the car was at this point, . . . and she [referring to defendant] was distracted, that at that point it would take so many feet and there weren't enough feet left to stop. . . . [H]e can state that. The footage and time from the footage of the car is relevant because it could be a superseding cause. [¶] I could see a pedestrian and then I could see somebody in imminent danger, a guy on a bicycle, so I'm distracted [by] the bicycle, and I'm going to steer away from the bicycle and I forgot about the . . . pedestrian in the middle. That's a perfectly valid argument. And the fact of the footage that it takes to stop at that point is admissible and relevant."
Thus, for example, during the direct testimony of defense expert Rast, the trial court struck the witness's answer and opinion that if defendant began to react to Harding as Harding moved from the middle left-turn lane then defendant had about one second to react before Harding got to the area of impact. The trial court explained that such an opinion lacked sufficient foundation because it failed to consider defendant's perception/reaction time as Harding began to cross the road from the curb.
Contrary to defendant's contention, the trial court correctly recognized that "the duty of a driver to exercise due care does not arise only when he sees the pedestrian but is a constant duty which would be breached if under the circumstances he failed to see what an ordinarily prudent person exercising due care would have seen." (Jacoby v. Johnson (1948) 84 Cal.App.2d 271, 275; see Quinn v. Rosenfeld (1940) 15 Cal.2d 486, 491 [in accord].)
III. Trial Court's Ruling Concerning Defense Counsel's Use of Samantha Gilmore's Preliminary Hearing Testimony
Defendant argues that the trial court committed prejudicial error by ruling that her trial counsel could not use Samantha Gilmore's preliminary hearing testimony to cross-examine prosecution expert Olson regarding the information that he used to form his opinion that the collision was avoidable. We conclude there is no merit to the argument, which is based on a misreading of the record.
The law is well-settled on this matter. " 'While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. [Citations.] The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matter he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.] Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved, but in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem. [Citations.]' [Citation.] [¶] The courts have traditionally given both parties wide latitude in the cross-examination of experts in order to test their credibility. [Citations.] Thus, a broader range of evidence may be properly used on cross-examination to test and diminish the weight to be given the expert opinion than is admissible on direct examination to fortify the opinion. [Citation.] [¶] Nevertheless, the trial court must exercise its discretion pursuant to Evidence Code section 352 in order to limit the evidence to its proper uses. The exercise of this discretion may require exclusion of portions of inadmissible hearsay which were not related to the expert opinion. [Citation.] Or it may be necessary to sever portions of the testimony in order to protect the rights of the defendant without totally destroying the value of the expert witness' testimony. [Citation.] In still other cases where the risk of improper use of the hearsay outweighs its probative value as a basis for the expert opinion it may be necessary to exclude the evidence altogether. [Citations.]" (People v. Coleman ( 1985) 38 Cal.3d 69, 92-93; see Gardeley, supra, 14 Cal.4th at pp. 618-619.)
When the issue of defense counsel's use of Gilmore's preliminary hearing testimony was first raised during the cross-examination of Olson, the trial court initially ruled that if the expert testified that he had not considered Gilmore's testimony in reaching his opinion, then the jury would not be allowed to hear her testimony. After further argument, however, the trial court modified its ruling, and told defense counsel that she could ask the expert if he had heard, but disregarded Gilmore's preliminary hearing testimony. If the witness responded affirmatively, and offered an explanation for his rejection of the testimony, then the door would be opened for defense counsel to explore the expert's reasons for his rejection of the testimony. When cross-examination resumed, defense counsel, without objection, laid the proper foundation to inquire as to Olson's consideration of Gilmore's preliminary hearing testimony. Defense counsel asked Olson if he had considered Gilmore's "statement" at the preliminary hearing. Olson replied, "I considered her statement, and I rejected it, wasn't consistent with the physical evidence." Although Olson's answer opened the door to additional questions, defense counsel apparently chose not to further explore the matter. Because the trial court's rulings did not preclude defense counsel's use of Gilmore's preliminary hearing testimony to cross-examine Olson, defendant's argument that the rulings violated her due process rights to a fair trial or present a defense necessarily fails.
Given that the expert's testimony might not have been favorable to the defense, we cannot conclude on this record that defense counsel's failure to pursue the matter constitutes incompetency.
IV. Trial Court's Other Conduct
Defendant asserts that three additional errors rendered her trial fundamentally unfair. Relying on isolated portions of the record, she asks us to consider that: (a) in front of the jury, the trial court became frustrated with Solla, "a key defense witness," and threatened to hold him in contempt of court and remand him to jail; (b) the trial court made a mid-trial advisement to the jury in a way that improperly bolstered the credibility of the prosecution's "star" expert witness Olson; and (c) during defense counsel's closing argument, the trial court commented on the evidence in a manner that diminished the defense theory of the case. As we now discuss, we conclude that defendant's contentions do not warrant reversal.
A. Trial Court's Admonishments of Defense Witness Solla
During defense counsel's direct examination of Solla, the trial court admonished the witness on four occasions regarding the manner in which he responded to questions. On the first occasion, in response to a question as to whether he saw a bicyclist before he heard a car screeching, Solla responded: "Yes, but it wasn't drawn to my attention that anything was happening until . . . I heard the screech and where the bicycle was traveling." Without waiting for an additional question, Solla continued: "There w[ere] two people in the center of the lane, and they were - one of them was on a bicycle and traveled towards Kasper's at which time when he was traveling towards Kasper's he got to - on the side of the street where Kasper's was and because he wasn't - didn't seem to be paying attention, a car . . . . At this point, the prosecutor objected on the grounds that the answer was "speculation" and "narrative." The trial court replied by telling the witness: "Don't want your opinion, sir, just the facts, you know." On the second occasion, in response to a question as to what occurred after the near collision between DeFlippo and another car, Solla testified: "One car passed, and this is from memory, it's kind of tough, but one car passed afterwards screaming, 'Hey,' blah, blah, blah, blah, 'get out of the way.' " The prosecutor moved to strike the answer on the ground of hearsay. Before the trial court could rule on the objection, Solla blurted out, "No, that's what I heard, just didn't feel like cussing." To which the trial court replied: "You want to make the ruling or should I do it?, to which Solla said he was sorry. The trial court then continued: "I'm just teasing you. Disregard the last statement, ladies and gentlemen. We got to do it on a question and answer basis. A car passed and [he] heard screaming. Let's go from there." On the third occasion, when Solla was asked how many feet Harding had walked in the eastbound number one lane before she was hit by defendant's car, Solla replied: "I don't know the footage. Each of the lanes were different in size. I mean, by law they're supposed to be the same so it was approximately halfway from that lane to lane 1." The prosecutor objected and moved to strike the "by law" portion and knowledge that each lane is different as speculation. The trial court agreed, stating: "Yeah, everything after, 'I don't know the footage,' will be stricken. It's irrelevant." On the fourth occasion, when Solla was questioned about DeFlippo's physical appearance after the collision, the witness responded that DeFlippo lisped. Solla then continued: "He spoke as if he was not [sic] - aside from being preoccupied on the person that got hit, intoxicated." The prosecutor objected and moved to strike the answer on the ground of lack of foundation. The trial court agreed, ruling that the witness "doesn't have the foundation to tell us if someone was intoxicated." When defense counsel asked the next question, Solla interrupted and said, "I do actually but . . ." The trial court then said: "Hey, the next time you mouth off with some comment, I'm going to hold you in contempt of court, and you're going to see what our jail looks like. Now, you answer the questions, and you stick to the questions. Next question." Without comment, defense counsel continued to question Solla, which included questions regarding his ability to determine if a person was under the influence of alcohol. After laying a proper foundation, defense counsel elicited Solla's opinion that DeFlippo was under the influence of alcohol.
Consequently, we reject defendant's argument that the trial court excluded lay opinion about whether DeFlippo appeared intoxicated.
During the prosecutor's cross-examination of Solla, the trial court sustained several of defense counsel's objections made on the grounds that the questions were argumentative or vague and, when appropriate, the trial court admonished the jury to disregard either the question or the answer or both. On other occasions, the trial court overruled defense counsel's objections made on the grounds that the questions were irrelevant, argumentative, assumed facts not in evidence, misstated the testimony or evidence, or were asked and answered.
After Solla's testimony, defense counsel expressed her concern that the trial court had made some comments from which the jury might infer "some negative impressions about [Solla's] credibility and the nature of how he testified." Defense counsel asked the trial court to give the jurors "a brief statement" out of concern that they might infer something from the trial court's comments other than that Solla was admittedly "rambling" and "being nonresponsive" in his testimony at the time of the trial court's comments. The trial court agreed to give a curative instruction. In its closing instructions, the trial court advised the jury: "Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be. In particular, if I criticized or admonished any witness, you should not consider that in any manner in determining the believability or importance of the testimony of that witness."
We conclude there is no merit to defendant's challenge to the trial court's admonishments of Solla. The trial court "has the power and duty to ensure a fair and orderly trial proceeding. [Citations.] [It] should ' "see to it that all persons whomsoever, . . . indulge in no act or conduct calculated to obstruct the administration of justice." ' [Citation.]" (People v. Melton (1988) 44 Cal.3d 713, 734.) The trial court's contempt comment did not denigrate Solla by impugning his credibility, as defendant suggests. Rather, the trial court's contempt comment, as well as its earlier admonishments, "exhorted the witness . . . to behave in a manner reasonably expected of a witness." (Ibid.) Defense counsel was present and apparently observed the effect of the trial court's comments on the jury. She did not immediately object to any of the trial court's comments addressed to Solla. Instead, she believed that a curative instruction to the jury could and would dissipate any potential prejudice. The trial court agreed, and gave the requested curative instruction to which no objection was made. We therefore concur with defendant's concession that a finding of prejudicial error is precluded because the closing instruction cured any harm arising from the trial court's comments.
Nor do we see any merit to defendant's argument that her trial was unfair because the trial court's contempt comment set the tone for the rest of the defense case. After the contempt comment, Solla completed his direct and cross-examination testimony, covering 42 pages of trial transcript, without further incident. Defendant notes that on two occasions during cross-examination, the trial court overruled defense counsel's objections to "argumentative questions" asked by the prosecutor. However, defendant makes no substantive argument demonstrating that the trial court erred in overruling defense counsel's objections, either on the two occasions cited in her brief or on any other occasion during the prosecutor's cross-examination. Consequently, we reject defendant's argument that the trial court's conduct towards Solla "was a contributing factor that overall led to an unfair trial."
B. Trial Court's Mid-Trial Advisement to Jury Regarding Expert Witness Testimony
During the prosecutor's direct examination of collision reconstruction expert Olson, the witness was asked in which direction defendant's car was traveling. Olson stated: "[Defendant's car] was traveling eastbound in the number 1 lane of traffic, and by number 1 lane of traffic I mean the lane of traffic that is closest to the center, and the center's a two-way left-turn lane." The court interrupted, asking "when you answered that, you're saying at the time of impact and immediately before it? The witness replied, "Correct." The court then stated: "I mean, you don't know 2 blocks back or 5 blocks back?" The witness replied: "Based on - based on statements, I do know 2 blocks back." The court then queried: "Based on statements?" The witness replied: "Yes." The prosecutor then continued, and stated: "But what we're focused on right now is at the time of impact and immediately before the time of impact," to which the witness replied: "Yes." The trial court then interrupted the prosecutor's next question, and advised the jury: "I feel an obligation to advise the jury so that you hear this testimony, it is your role and your role only, ladies and gentlemen of the jury, to believe or disbelieve a witness. He can believe a witness and then if you don't believe that witness then his opinions don't - fail [sic].But I want you to understand that your role as jurors is to determine the accuracy of statements of witnesses, not the police officer. [¶] You may proceed." Defense counsel made no objection to the trial court's advisement to the jury, and the prosecutor continued his questioning of the witness.
Defendant challenges the trial court's mid-trial advisement as to how the jury should consider an expert's testimony, arguing that the court "essentially told the jury that the police officer's accuracy was unimpeachable and distinguished the officer from 'witnesses' whose accuracy the jury could consider." However, we question whether the record supports defendant's interpretation of the mid-trial advisement. As reported, the trial court told the jury that the expert's testimony would fail if the jury did not believe the testimony of the witnesses that the expert relied on in reaching his opinion. To the extent the mid-trial advisement is "susceptible of the interpretation defendant now asserts, [defense] counsel likely would have objected at trial on this basis. Such an omission suggests that " ' "the potential for [confusion] argued now was not apparent to one on the spot." ' [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1203.) Additionally, during closing instructions, the jurors were correctly advised, in pertinent part, that they were to determine whether the information on which an expert relied "was true and accurate," and they were free to "disregard any opinion" that they found to be "unbelievable, unreasonable, or unsupported by the evidence." Any confusion that might have been caused by the mid-trial advisement was rendered harmless by the trial court's closing instructions.
C. Trial Court's Comment During Defense Counsel's Closing Argument
During closing argument, defense counsel stated: "Imagine what it would be as a driver if the government would hold you criminally liable if a pedestrian in a busy five-lane street crosses in front of you outside of the crosswalk. Crosswalks serve a purpose for drivers, for pedestrians. It's not something to be ignored. It is reasonable for a driver to expect pedestrians to cross within the crosswalk, and when they don't, that raises reasonable doubt as to whether Ms. Sayad used reasonable care or didn't. [¶] Now, imagine a situation as a driver in which you would be criminally liable if you hit a pedestrian even if they were jaywalking. That was ridiculous. That is important because as a reasonable driver we can't be responsible for people doing unexpected things. It would be unfair. And to hold them criminally liable for jaywalkers is not what you should do here." At this point, the prosecutor objected on the ground that defense counsel's statement "misstates the law." The trial court replied: "Yeah, sustained. We're not in a jaywalking situation. You can use other words, counsel." Defense counsel made no objection and continued: "I believe the testimony has been that she crossed outside of the crosswalk. [¶] Now, imagine also a situation in which pedestrians would enter a roadway without looking for oncoming traffic in a busy five-lane street. That is not what you're expected to do here, hold a driver to a higher standard than you would hold any reasonable driver."
Defendant challenges the trial court's comment that "we're not in a jaywalking situation." She asserts that defense counsel appropriately used the term "jaywalking," and that the trial court's comment effectively told the jury that there was nothing wrong with the way Harding crossed the street. We see no merit to the arguments.
The trial court's comment, that "we're not in a jaywalking situation," was a correct statement of the law regarding the duties of pedestrians and drivers applicable to this criminal prosecution. The jury was specifically instructed on the law as set forth in Vehicle Code sections 21950 (right of way at crosswalks) and 21954 (pedestrians outside crosswalks). Vehicle Code section 21954 "impliedly permits the pedestrian to jaywalk, subject only to the obligation to yield to approaching vehicles. [Citation.]" (Sehgal v. Knight (1967) 253 Cal.App.2d 170, 173.) The only time that a pedestrian is considered to be jaywalking is when he is crossing outside a crosswalk and "[b]etween adjacent intersections controlled by traffic control signal devices or by police officers . . . ." (Veh. Code, § 21955; see People v. Blazina (1976) 55 Cal.App.3d Supp. 35, 36, 37 [describing Veh. Code, § 21955, as "jaywalking" ordinance].) Because there was no evidence that Harding was crossing a road between intersections controlled by traffic control signal devices or by police officers in violation of Vehicle Code section 21955, she was not jaywalking as a matter of law and the trial court appropriately admonished defense counsel not to use that term to describe Harding's conduct.
Vehicle Code section 21954 reads: "(a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard. (b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway."
As noted, after the trial court sustained the prosecutor's objection, defense counsel continued her closing argument and explained to the jury that her use of the term jaywalking referred to Harding's conduct of crossing outside the crosswalk. Later, in its closing instructions, the trial court properly advised the jurors as to how they were to consider the affect of Harding's conduct on defendant's criminal liability. We therefore reject defendant's argument that the trial court's jaywalking comment "in essence" directed the jury to find that Harding was appropriately crossing the road.
V. Combined Effect of Purported Errors
We reject defendant's contention that the combined effect of the previously discussed purported errors requires reversal. Either considered individually or collectively, any purported errors were not prejudicial and did not deprive defendant of a fair trial or reliable verdicts.
VI. Trial Court's Order Defendant to Pay $500 in Attorney Fees to Public Defender's Office
At sentencing, the trial court ordered defendant to pay, among other things, "attorney's fees paid to the Public Defender's Office when ability to pay is there of $500 in accordance with the schedule." The clerk's transcript includes two documents. One document is labeled "clerk's docket and minutes," indicating that the matter was "[r]eferred to ORC for Attorney Fee Costs of $500.00." A second document is signed by defendant and stamped "Referral to Office of Revenue Collection P.C. 987.8." The referral document orders defendant to report to the Contra Costa County, Office of Revenue Collection, within 20 working days "from the date of this order, or, if in custody, within 20 working days after release from jail," for an interview regarding defendant's ability to pay all or part of the services of the attorney appointed by the court to handle her case. However, at sentencing, the court remanded defendant to state prison after the court imposed an aggregate term of 10 years with a total of 279 days credit for time served. The court's sentencing minute order and abstract of judgment unconditionally direct defendant to pay $500 in attorney fees.
Penal Code section 987.8 governs defendant's obligation to pay attorney fees to the County Public Defender's Office. Subdivision (b) of Penal Code section 987.8 reads, in pertinent part: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court . . ., the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided." Subdivision (e) of Penal Code section 987.8 states: "If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county. . . ." Subdivision (g)(2) defines the ability to pay as "the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant."
"Because defendant is a state prisoner, it has been held that the trial court must make an express finding of 'unusual circumstances' before requiring her to repay the County. [Citation.] [That] . . . holding may, however, be unnecessarily broad in these circumstances. The basis for the holding is a portion of subdivision (g)(2)(B) of [Penal Code] section 987.8, which states that a defendant who has been sentenced to state prison is deemed not to have a 'reasonably discernible future financial ability' to repay defense costs in the absence of 'unusual circumstances.' Although [it has been] held that this statement applies generally to the obligation to reimburse defense costs, its placement within subdivision (g)(2)(B) suggests it was intended only to apply to the determination of the prisoner's future prospects for income, the specific concern of subdivision (g)(2)(B). The provision does not appear to apply to the prisoner's 'present financial position' ([Pen. Code,] § 987.8, subd. (g)(2)(A)) or the 'other factor or factors which may bear upon the defendant's financial capability to reimburse the county' (id., subd. (g)(2)(D)), the critical determinations in these circumstances." (People v. Polk (2010) 190 Cal.App.4th 1183, 1211-1212, fn. 29 (Polk).)
We agree with the parties that the trial court erroneously ordered defendant to pay $500 in attorney fees without first holding a noticed hearing to determine whether she had the present ability to pay attorney fees. Defendant contends that the matter should be remanded to allow the trial court to hold a noticed hearing. Although the Attorney General indicates that the matter should be remanded, she concedes that the record does not contain any evidence of defendant's current ability to pay attorney's fees. We also see nothing in the record that would support findings that at the time of sentencing defendant had the present ability to pay attorney fees, or that, as a convicted felon sentenced to prison for the next 10 years, defendant would have the financial ability in the "reasonably discernible future" to reimburse her legal costs. (Pen. Code, § 987.8, subd. (g)(2)(B).) The trial court's comment that defendant shall make the payment of attorney fees "when the ability to pay is there of $500 in accordance with the schedule," is insufficient to meet the statutory findings that would support an order for payment of attorney fees. If we were to remand the matter, the expenditure of public resources required to determine defendant's current ability to pay would more than likely exceed the amount of $500 that the County could expect to be reimbursed by defendant to cover her legal costs. Thus, given the record before us, we believe that, in the interest of judicial economy, the appropriate remedy is to simply strike the order directing defendant to pay attorney fees of $500. (Cf. People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 [matter remanded for a hearing because the record showed that the state prisoner might be able to pay a portion of attorney fees of $5,000; at the time of sentencing defendant owned jewelry worth $1,500 and was " 'employed' "]; Polk, supra, 190 Cal.App.4th at pp. 1211-1212 [matter remanded for a hearing to allow state prisoner to present evidence and argument that, notwithstanding the value of her interest in a house and her present circumstances, she should not be required to reimburse all or a portion of the County's expenses of $212,033].)
Although there was no challenge to the order to pay attorney fees at sentencing, a defendant may raise the matter for the first time on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186, 1215 ["We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees"].)
Before sentencing, the court received the probation department's presentence report, defense counsel's sentencing statement, and letters from defendant's family and friends. The documents indicate that as a consequence of the collision, defendant lost her job of several years with no chance of being rehired. Defendant was represented by the public defender's office after private counsel stated that trial costs could be $100,000 to $200,000, in addition to $67,000 already incurred for private counsel, a private investigator and a collision reconstruction expert. Defendant's ex-husband reported that "our family's savings [are] gone [and moneys] borrowed [were] still being paid back." Harding had received a civil judgment against defendant for $50,000, and victim restitution was being sought in the minimum amount of $175,200. At sentencing, the trial court indicated that a separate hearing would be held on the matter of victim restitution. The trial court also imposed a $200 restitution fine, a $176 "pre-plea/bail study report" fee, a $30 criminal conviction assessment fee, and a $30 court security fee.
VII. Petition for Writ of Habeas Corpus
"A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.]" (In re Visciotti (1996) 14 Cal.4th 325, 351.) If the petitioner does not state a prima facie case for relief, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an order to show cause. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) In our view, the facts alleged by defendant regarding her trial counsel's conduct do not establish a prima facie case for relief.
In her petition for habeas corpus relief, defendant argues that her trial counsel was ineffective for failing to call Samantha Gilmore as a witness. In her declaration filed with the petition, defendant's trial counsel stated that she was aware that to some extent the trial would involve a credibility contest between DeFlippo and other witnesses, but counsel chose not to call Gilmore as a witness because her preliminary hearing testimony was very similar to Solla's testimony. Defendant argues that her trial counsel's reason for not calling Gilmore as a witness was unreasonable because Gilmore's testimony would have allowed the jury to consider a second witness who would corroborate Solla's testimony.
To establish ineffective assistance of counsel, defendant "must establish either: (1) [a]s a result of counsel's performance, the prosecution's case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel's unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. [Citations.]" (In re Visciotti, supra, 14 Cal.4th at pp. 351-352.) The rule of per se reversal in cases where counsel fails to subject the prosecution's case to adversarial testing is narrowly applied. "Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage." (Id. at p. 353.) Defendant does not contend that this case meets the strict standard. She claims only that a more favorable outcome was reasonably probable had her counsel not performed ineffectively by failing to call Gilmore as a witness. Ultimately, " '[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (Id. at p. 352, quoting Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).)
In considering whether trial counsel's conduct " 'fell below an objective standard of reasonableness,' " we "must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." (Harrington v. Richter (2011) __ U.S. _, 131 S. Ct. 770, 787 (Harrington).)Defendant's "burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' " (Id. at p. 787.) Contrary to defendant's contention, the evidence submitted in support of her petition fails to demonstrate that her trial counsel was incompetent. As explained in her declaration, trial counsel chose not to call Gilmore after considering her credibility as a witness and reviewing her preliminary hearing testimony and determining that Gilmore's testimony would be very similar to Solla's testimony. That trial counsel decided not to challenge the prosecution's case by using Gilmore's testimony does not demonstrate incompetency. "To support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates. All that happened here is that counsel pursued a course that conformed to the first option." (Harrington, supra, 131 S. Ct. at p. 790.) As recognized by the United States Supreme Court, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." (Strickland, supra, 466 U.S. at p. 690.)
Additionally, even if trial counsel should have called Gilmore as a witness, defendant has not shown such failure was prejudicial. "In assessing prejudice . . ., the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, [we ask] whether it is 'reasonably likely' the result would have been different. [Citation.] . . . The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington, supra, 131 S. Ct. at pp. 791-792, quoting and citing to Strickland, supra, 466 U.S. at p. 693.) Defendant argues that Gilmore's testimony would have made a difference because it would have corroborated Solla's testimony. However, on this record, we fail to see how Gilmore's corroborative testimony would have helped defendant. Prosecution expert Olson testified that he rejected the preliminary hearing testimony of both Solla and Gilmore because it was inconsistent with the physical evidence found at the collision scene. The jurors heard Solla's testimony and could have reasonably rejected it for the same reason that Olson had discounted it. Even if Gilmore testified at trial, it is likely the jurors would have rejected her corroborative testimony for the same reason that they rejected Solla's testimony. Nor do we see any significance to the fact that during their deliberations the jury asked for Gilmore's "statement." The jurors' request could have been made for various reasons, and proves nothing by itself. Absent any indication as to why the jurors asked for Gilmore's "statement," no inference can be drawn as to how that information would have impacted the verdicts or that a more favorable outcome was reasonably probable had Gilmore testified at trial.
In their note, the jurors also requested, among other things, defendant's "statement," and clarification regarding the injuries to Harding's left leg. The trial court sent a written response, advising the jury that (1) "[s]tatements of persons who did not testify at trial are not evidence in the trial and may not be used by the jury to determine the issues before it. The decision of the jury must be solely upon the evidence that was presented in the trial;" and (2) "[t]the questions about the . . . 'leg' are subject to the same rule. If the jury may infer answers from the evidence that was provided it may do so but should not speculate." After the jury received the court's response, the prosecutor realized that the court's response was incorrect as to the jury's request for defendant's statement, which had been admitted through the testimony of a police officer, and could be considered by the jury in reaching its verdict. However, before the trial court was able to draft an amended response, the jury indicated that it had reached a verdict. The trial court accepted the verdict after denying the prosecutor's request that the verdict be held until the court amended its response.
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Contrary to defendant's contention, trial counsel's failure to call Gilmore as a witness does not shake our confidence in the outcome of the case. Instead, we conclude that on this record, defendant has failed to set forth a prima facie showing that the verdicts were "rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance." (Strickland, supra, 466 U.S. at p. 702.) Accordingly, we summarily deny defendant's petition for a writ of habeas corpus.
DISPOSITION
The judgment is modified by striking the order that directs defendant to pay $500 in attorney fees. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and forward it to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed. The petition for a writ of habeas corpus is summarily denied.
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Jenkins, J.
We concur: _____________
McGuiness, P. J.
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Siggins, J.