Summary
In People v. Villagomez (Feb. 5, 2020, G056987) [nonpub. opn.], we affirmed Villagomez's conviction for vehicular manslaughter with gross negligence.
Summary of this case from People v. JerroOpinion
G056987
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL VILLAGOMEZ, JR., Defendant and Appellant.
Law Office of Corey Evan Parker and Corey Evan Parker for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1773) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert Alan Knox, Judge. Affirmed. Law Office of Corey Evan Parker and Corey Evan Parker for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Miguel Villagomez, Jr., appeals from a judgment after a jury convicted him of vehicular manslaughter with gross negligence. Villagomez argues the following: his codefendant's counsel committed prejudicial misconduct; there was cumulative error; the trial court erred by denying his motion for a mistrial; and the court erred by denying his motion for judgment of acquittal. Although we conclude codefendant's counsel committed two instances of misconduct, Villagomez was not prejudiced. None of his other contentions have merit, and we affirm the judgment.
FACTS
I. Substantive Facts
One summer evening after dark, Villagomez drove a pickup truck through a red light and hit Roderick Jerro's car. Villagomez is Hispanic, and Jerro is Black. Villagomez sped away, and Jerro chased him. Villagomez and Jerro drove with their headlights off.
In a residential neighborhood, Villagomez, with Jerro a few seconds behind, reached speeds over 80 miles per hour, drove on the wrong side of the road, ran cars off the road, and ran stop signs and red lights.
While running a red light, Villagomez sped in front of two pedestrians, a 14-year-old girl and her nine-year-old brother, who were lawfully walking in a crosswalk towards their mother who was on the other side of the street. Frightened by Villagomez's truck, the girl stepped back. But the boy ran towards his mother. Jerro's driver side mirror struck the boy and he went flying into the intersection—he died.
Jerro continued chasing Villagomez until Villagomez crashed into a wall. Police officers detained both men.
Surveillance video captured Villagomez, with Jerro close behind him, driving on the wrong side of the road with his headlights off. The victim's DNA was discovered on Jerro's car. Additional surveillance video captured Villagomez crashing into a wall a few blocks away from the victim. II. Procedural Facts
An information charged Villagomez with vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1).
The information also charged Jerro with the same offense and others. Jerro's appeal is the subject of a separate proceeding (G057097).
At a pretrial hearing, during a discussion of Villagomez's and Jerro's statements, Villagomez's counsel stated he only made statements in response to field sobriety test questions until he invoked his right to remain silent and did not make any additional statements. The trial court asked Jerro's counsel, Jerome Bradford (Bradford), whether he had "any issues" concerning Villagomez's statements. His response was, "None at all, your honor." The court asked the prosecutor whether she intended to offer Villagomez's statements. The prosecutor replied only his statement the truck was his and he had been driving it.
At trial, Detective Craig Brown testified concerning the investigation. After direct and cross-examination, the prosecutor requested the trial court instruct counsel to not make speaking objections. Bradford said he stated grounds for every objection and did not make any speaking objections. The court told "all counsel to try to keep [their] objections non-speaking objections for the record."
During Bradford's cross-examination, Brown testified Jerro was cooperative and answered all his questions. During Bradford's recross-examination of Brown, the following colloquy occurred:
"[Bradford]: Did you interview . . . Villagomez in this case?
"[Brown]: I did.
"[Bradford]: And was he cooperative?
"[Brown]: To the point of him saying he wasn't going to speak with me, yes.
"[Villagomez's counsel]: Objection. Your honor, I can't come up with the correct grounds at this point. I may need to be heard.
"[Prosecutor]: Relevance.
"[Trial court]: Sustained. And we'll just leave it at that [Bradford].
"[Bradford]: Did he appear nervous when you attempted to interview him?
"[Villagomez's counsel]: Objection. Relevance.
"[Trial court]: Sustained." Although the trial court sustained Villagomez's counsel's objections, his counsel did not make a motion to strike Brown's testimony concerning whether Villagomez was cooperative, and thus the court did not strike that response.
At the end of that day's proceedings, out of the jury's presence, Villagomez's counsel moved for a mistrial based on Brown's testimony Villagomez was cooperative "until he refused to talk to me." Villagomez's counsel stated that although the trial court sustained her objection and granted her motion to strike, the testimony was harmful because it concerned him invoking his right against self-incrimination. Villagomez's counsel stated twice more she knew the court struck the testimony, but the harm was done.
The trial court agreed it had stricken the testimony and stated the following: "The jury has been and will be instructed not to consider any answers or questions that have been stricken from the record, and the court is going to deny your motion for mistrial at this time. I will instruct counsel not to go into that line of questioning with respect to . . . Villagomez's willingness to speak to the officers since, apparently, he did invoke his right to remain silent, and that is a constitutional right." Villagomez's counsel asserted Bradford violated the pretrial order concerning Villagomez's statements. Out of the jury's presence, the court struck the question and Brown's answer, and instructed counsel not to inquire on the issue further. Bradford clarified he was not going to inquire about Villagomez's statements but instead his demeanor. The day's proceedings ended. The next morning, neither the trial court nor counsel addressed the issue.
The prosecutor later recalled Brown to testify. During Villagomez's counsel's recross-examination, the following colloquy occurred:
"[Villagomez's counsel]: Are there specific policies in general that your department has about police pursuits in regards to the safety of the public and the officers?
"[Bradford]: I object, your honor. Irrelevant.
"[Trial court]: [Villagomez's counsel], what's the relevance?
"[Villagomez's counsel]: The relevance is this officer is testifying as an expert this morning, and I'm going to ask him about his training and experience in regards to the safety of pursuing someone at high speeds.
"[Bradford]: My objection is the officer is not on trial, your honor.
"[Trial court]: That's true.
"[Bradford]: I think her motive is different.
"[Trial court]: Yes. I'm going to sustain the objection. [Villagomez's counsel], why don't you move on to something else?"
At the close of the prosecution's case-in-chief, Villagomez's counsel made a section 1118.1 motion "to discharge [him] from this case because there [was] no substantial evidence or legal theory from which the jury could reasonably conclude [he] [was] guilty of vehicular manslaughter felony." Counsel argued Villagomez did not kill the boy and the prosecution "stated a couple legal theories" without specifying which theory it was proceeding on. She added, "I haven't heard evidence that supports any of the [prosecution's] proper theories as laid out in their moving papers . . . ." The trial court denied the motion because the jury could conclude the boy's death was a natural and probable consequence of Villagomez's driving.
A police officer who testified for Villagomez stated he responded to the scene of the incident and detained both Villagomez and Jerro. He described Villagomez as cooperative.
Gloria T. (Gloria) was a witness to the incident and testified for Jerro. On redirect examination, Bradford asked Gloria whether after giving her initial statement to police she subsequently contacted the police and said she needed to change her statement. Villagomez's counsel objected based on a lack of foundation. The following colloquy occurred:
"[Trial court]: [Bradford], she's already said that she made the assumption it was the truck because the truck went through the intersection first.
"[Bradford]: I'm disputing that, your honor, because I have a police officer's statement under penalty of perjury.
"[Villagomez's counsel]: Objection.
"[Trial court]: She described what she saw when the incident happened.
"[Bradford]: I apologize, your honor. I know we want to get out of here at 1:30, but I want fairness. I want to be able -- I think -- can I approach? I don't want to do a speaking objection. Can I approach on the record?"
Out of the jury's presence, Bradford requested the trial court "to refrain from making comments and characterizations of evidence on the record." After Bradford said he found the trial judge "to be a gentleman," Bradford said, "I think the Judicial Commission can prohibit that, and it definitely can have an affect on the jury." The trial court offered to remind the jury its statements were not to influence the jury in any way, but Bradford stated it was unnecessary.
Villagomez offered evidence from family members who testified he was generally a cautious driver, a law-abiding citizen, and a timid person. One witness testified he was outgoing with people he knew, but shy with people he did not know.
Villagomez's counsel argued that because of Jerro's aggressive driving, Villagomez was reasonably in fear for his life and deviated from his customary cautious driving. Counsel stated she never argued for or against someone's guilt in a case but Jerro was guilty. She stated causation was a significant issue and the boy's death was not a natural and probable consequence of his driving. Jerro's counsel argued there was a reasonable doubt whether Jerro's car or Villagomez's truck hit the boy.
The majority of the alleged misconduct occurred during Bradford's closing argument. We provide the portions relevant to the issues on appeal.
Bradford began by stating there were no "winners" in this case. He returned to this theme a little later when discussing gross vehicular manslaughter. He stated, "There's no winners here. This is not -- excuse my language -- a pissing contest. . . . [¶] For [Villagomez's counsel] to stand before you with a straight face and say that . . . Villagomez had faced a sudden and unexpected emergency that was not caused by his negligence, come on. Get real."
Bradford added the following: "Now, who had the sudden emergency that wasn't caused by their negligence? This incident occurred from the negligence of . . . Villagomez. Now, [Villagomez's counsel] would like to argue that it was because of his inattentiveness. That's where we get tricky here. That's why the judge gave you instructions about what is evidence."
Bradford addressed Villagomez's character witnesses as follows: "[Villagomez's counsel] wants you to believe that . . . Villagomez has this great character because she called his family. Well, if we can pick on the jury, guess who would be on the jury. . . . But the young kid admitted that, hey, [Villagomez is] kind of outgoing, and [Villagomez's counsel] tried to pull him in and change it. Oh, no, he gets out and parties. He's outgoing. We're not talking about some shy, timid kid."
When discussing Villagomez's claimed fear for his life, Bradford stated the following: "Think about this: Villagomez's [counsel] is arguing that he feared for his life. Is that the most ridiculous argument under these facts and circumstances when he never, ever stopped? . . . So is the defense, anyone that hits and runs someone, say I was scared? In other words, she's saying he shouldn't chase him. Well, under the law, he had a right to chase him."
While discussing the driving pattern, Bradford stated the following: "But when you stand in front of a jury and you blame . . . Jerro for the driving pattern because he's following the guy that just hit him and took off, come on now. It's . . . Jerro's fault when we know for a fact that . . . Jerro would have pulled over and exchanged information if Villagomez stops. Who initiated every -- the speed, the turns, the lane change? Who initiated all of that driving? Are you kidding me? You standing in front of this jury, and you say that when -- this young man never even had a conversation."
Bradford returned to Villagomez's character witnesses and stated the following: "You can't stand up here and talk about a man's character with these facts. When you call his cousin that lived -- call somebody that was his school teacher. Call somebody that he works with. . . . But you got to do better than that with some character witnesses."
Bradford addressed the emotional nature of the case and stated the following: "I know in my heart you're going to make a decision based on the law and the facts. [¶] The reality is is [sic] that seemed like, for whatever reason -- just his luck again. Pile on the Black man. Pile on . . . Jerro. He could have been Hispanic. I don't think it mattered."
Bradford returned to Villagomez's character witnesses again. Bradford stated a character witness testified Villagomez was previously involved in a road rage incident. The following colloquy occurred:
"[Bradford]: What history of road rage do we have to justify his reaction? Nothing. You think . . . [Villagomez's counsel] is not smart enough to put that on if that was the case?
"[Villagomez's counsel]: Objection. I'm not that smart.
"[Trial court]: Sustained.
"[Bradford]: Don't sustain that, your honor. Just a second, your honor. [¶] . . . While the prosecution started off with this thing about sympathy, anger, bias, and all of that, don't think the emotion card hasn't been played, and don't think, in some instances, the race card hasn't been played. I'm not going there. Because it's unfortunate for both of these young men. When [Villagomez's counsel] says a Black man chasing a Hispanic repeatedly, is that necessary? We have Hispanic jurors. To me, I would hope that the Hispanic jurors in this case -- I know they will be fair. I know you will. There's no winners. There's no winners. Let's not make this a race thing."
The jury convicted Villagomez of count 1. The trial court sentenced Villagomez to prison for the middle term of four years.
DISCUSSION
I. Codefendant's Counsel's Misconduct
Relying on People v. Estrada (1998) 63 Cal.App.4th 1090 (Estrada), Villagomez argues Bradford committed prejudicial misconduct that "was so egregious" he was denied due process and a fair trial. We conclude Bradford committed two instances of misconduct, but Villagomez was not prejudiced. A. Applicable Law
In Estrada, supra, 63 Cal.App.4th at pages 1095-1096, the court stated that "[w]hile it is clear that the conduct of counsel for a codefendant can violate a defendant's constitutional rights [citations], there are few cases on the matter, and the law generally applicable to such situations is not well developed." The court opined the prosecutorial misconduct analysis template although not perfect was a useful guide for reviewing codefendant's counsel's conduct—a prosecutor's conduct violates a defendant's federal constitutional rights when it 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. (Id. at p. 1096.) The court detailed codefendant's counsel's "inflammatory and prejudicial misconduct" that began in opening statement and ended in closing argument, in defiance of the trial court's orders. (Id. at p. 1095.) The court explained codefendant's counsel's conduct included his comments concerning defendant's prior arrests, other evidence not presented at trial demonstrating defendant's guilt, defendant's refusal to testify at [codefendant's] preliminary hearing, defendant's first attorney believed he was guilty, defendant's prior convictions, and defendant's second attorney did not believe him. (Id. at pp. 1095, 1096, 1099, 1100, 1103, 1105, 1106.)
The Estrada court noted defendant's counsel did not object to all of what he complained denied him due process and a fair trial, but the court did not find forfeiture because there was a pattern of misconduct and defendant's counsel did object to some of the misconduct and make mistrial motions. (Estrada, supra, 63 Cal.App.4th at pp. 1100, 1105.) The Estrada court opined this was the most extreme example of misconduct it had seen and stated codefendant's counsel did "everything in his power, ethical and otherwise, to destroy [defendant's] credibility." (Id. at p. 1106.) In reversing defendant's conviction, the Estrada court concluded codefendant's counsel's "acts of misconduct, inadequately checked by the trial court, were so egregious they infected the trial with such unfairness they denied appellant due process." (Id. at pp. 1106-1107.) We find the law relating to prosecutorial misconduct instructive for the issues of misconduct alleged here. B. Forfeiture
Generally, to preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 92 (Coffman and Marlow).) Here, Villagomez raises 12 separate claims of alleged misconduct on appeal. As to nine of his claims, his trial counsel did not object. With respect to the remaining three claims, his trial counsel did not object on the grounds he now asserts. His 12 claims are forfeited.
Villagomez cites to People v. Hill (1998) 17 Cal.4th 800, 821, for the proposition forfeiture does not apply when there is "'a constant barrage of . . . unethical conduct.'" But in Hill, defendant's counsel objected to some of the prosecutorial misconduct. (Ibid.) Here, Villagomez's defense counsel did not once object on the ground Bradford committed misconduct. However, to avoid the inevitable ineffective assistance of counsel claim, we address the merits. (Coffman and Marlow, supra, 34 Cal.4th at p. 92.) C. Analysis of Alleged Misconduct 1. Doyle Error
Villagomez contends Bradford committed error when he elicited testimony from Brown during cross-examination that Villagomez invoked his right to remain silent. We agree.
In Doyle v. Ohio (1976) 426 U.S. 610, 619 (Doyle), the Supreme Court of the United States held it is a violation of due process for a prosecutor to impeach a defendant at trial using his post-arrest silence after receiving warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). (See Wainwright v. Greenfield (1986) 474 U.S. 284, 295, fn. 13 ["silence does not mean only muteness; it includes the statement of a desire to remain silent"].) Doyle error occurs when a prosecutor refers to a defendant's post-Miranda silence, either in questioning a witness or during jury argument, thereby impeaching the defendant and penalizing his exercise of his constitutional rights. (Coffman and Marlow, supra, 34 Cal.4th at p. 118.) Our Supreme Court expanded the Doyle rule to preclude the use of a defendant's silence as part of the prosecutor's case-in-chief. (Coffman and Marlow, supra, 34 Cal.4th at p. 118.) A prosecutor can commit a prejudicial Doyle error by asking a single question that improperly refers to the defendant's silence during cross-examination of a witness. (People v. Lewis (2004) 117 Cal.App.4th 246, 256.) Improper comments may violate Doyle whether they are made by the prosecutor or by counsel for a codefendant. (Coffman and Marlow, supra, 34 Cal.4th at p. 65; People v. Hardy (1992) 2 Cal.4th 86, 157 (Hardy).)
Here, there was a pretrial hearing concerning Villagomez's and Jerro's statements. Immediately after Villagomez's counsel referred to his invocation and the trial court inquired of Bradford's intentions concerning Villagomez's statements, Bradford replied he had no issues. This would have been the time Bradford should have indicated he intended to ask Brown about Villagomez's cooperation. But he did not. During cross-examination, Bradford elicited testimony from Brown that Villagomez was cooperative until he invoked his right to remain silent.
In Hardy, supra, 2 Cal.4th at page 157, our Supreme Court explained the identity of the speaker, i.e., the prosecutor or codefendant's counsel, can make a difference in determining whether the comment is "harmless—or even not error[.]" Although here it was codefendant's counsel who elicited the testimony, we conclude there was Doyle error. The jury heard testimony from a police officer that Villagomez cooperated until he refused to speak further. From this evidence, the jury could infer Villagomez had a guilty conscience by refusing to speak with an officer who had the authority to arrest him.
The parties spend much time discussing whether the trial court struck Brown's answer. When Brown answered, Villagomez's counsel objected, but she did not ask the trial court to strike the testimony or admonish the jury to not consider the answer. Later, when Villagomez made a motion for mistrial, out of the jury's presence, the court struck Bradford's question and Brown's answer from the record. But the court had excused the jury for the day. The next morning, the court neither informed the jury it struck the question and answer nor admonished the jury to not consider it. Villagomez's counsel did not remind the court to do so. Thus, the instructions the court gave concerning sustaining objections and striking testimony were without effect. Although the court later instructed the jury a defendant has a constitutional right not to testify (CALCRIM No. 355), we cannot conclude this prevented the jury from inferring Villagomez's pretrial invocation demonstrated his guilty conscience. We evaluate this error pursuant to the beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). We will do that below after discussing the remainder of the alleged misconduct. 2. Denigrate Villagomez's Counsel & Defense
Villagomez asserts there were seven instances where Bradford denigrated his counsel during closing argument. Villagomez's counsel did not object to six of those instances and objected to only one on relevancy grounds. Again, the claims are forfeited, but we address the merits. (Coffman and Marlow, supra, 34 Cal.4th at p. 110.) We will address each of the seven instances in turn. We again borrow from the prosecutorial misconduct framework in judging Bradford's actions, recognizing misconduct from an attorney with an institutional interest in the defendant's guilt, i.e., a prosecutor, is greater than misconduct from an attorney without an institutional interest in the defendant's guilt, i.e., codefendant's counsel. (Hardy, supra, 2 Cal.4th at pp. 158-159.)
"Personal attacks on the integrity of opposing counsel can constitute misconduct. [Citation.] 'It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]. Such attacks on counsel's credibility risk focusing the jury's attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom.' [Citation.] However, 'the prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account.' [Citation.]" (People v. Winbush (2017) 2 Cal.5th 402, 484.)
First, Bradford stated the following: "For [Villagomez's counsel] to stand before you with a straight face and say that . . . Villagomez had faced a sudden and unexpected emergency that was not caused by his negligence, come on. Get real." This was not misconduct. "'"To observe that an experienced defense counsel will attempt to 'twist' and 'poke' at the prosecution's case does not amount to a personal attack on counsel's integrity." [Citation.]'" (People v. Wilson (2005) 36 Cal.4th 309, 338-339.) Bradford was simply trying to urge the jury to draw different inferences from the evidence than Villagomez's counsel.
Second, Bradford stated the following: "Now, [Villagomez's counsel] would like to argue that it was because of his inattentiveness. That's where we get tricky here. That's why the judge gave you instructions about what is evidence." When the statement is read in context, we cannot conclude Bradford denigrated Villagomez's counsel. (People v. Bell (2019) 7 Cal.5th 70, 111 [we do "not '"'lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements"'"].) Bradford invited the jury to focus on the evidence and not Villagomez's counsel's arguments, which was proper. In any event, "referring to defense 'tricks' or 'moves'" is not a personal attack on defense counsel's integrity. (People v. Cole (2004) 33 Cal.4th 1158, 1203-1204.)
Third, Bradford stated the following: "[Villagomez's counsel] wants you to believe that . . . Villagomez has this great character because she called his family. . . . But the young kid admitted that, hey, [Villagomez is] kind of outgoing, and [Villagomez's counsel] tried to pull him in and change it." This was not misconduct—it is what lawyers do, highlighting evidence favorable to their client, and minimizing evidence unfavorable to their client. Bradford did not accuse Villagomez's counsel of factually deceiving the jury or fabricating a defense. (People v. Zambrano (2007) 41 Cal.4th 1082, 1154-1155 [no misconduct where prosecutor called defendant's argument "'lawyer's game'"], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Fourth, Bradford stated the following: "Think about this: Villagomez's [counsel] is arguing that he feared for his life. Is that the most ridiculous argument under these facts and circumstances when he never, ever stopped?" This was not misconduct. Characterizing defense's counsel's argument as "'ridiculous'" and "'outrageous'" is not misconduct. (People v. Peoples (2016) 62 Cal.4th 718, 793.)
Fifth, Bradford stated the following: "But when you stand in front of a jury and you blame . . . Jerro for the driving pattern because he's following the guy that just hit him and took off, come on now. . . . Are you kidding me? You standing in front of this jury, and you say that when -- this young man never even had a conversation." This was not misconduct. Villagomez's counsel argued Jerro drove aggressively and was to blame for the driving pattern. Bradford's statements were a fair response to Villagomez's counsel's argument. (People v. Edwards (2013) 57 Cal.4th 658, 738 ["'[i]n evaluating a claim of such misconduct, we determine whether the prosecutor's comments were a fair response to defense counsel's remarks'"].)
Sixth, Bradford stated the following: "You can't stand up here and talk about a man's character with these facts. When you call his cousin that lived -- call somebody that was his school teacher. Call somebody that he works with. . . . But you got to do better than that with some character witnesses." This was not misconduct. "Harsh and colorful attacks on the credibility of opposing witnesses are permissible if fairly based on the evidence. [Citations.]" (People v. Shazier (2014) 60 Cal.4th 109, 146.) The Shazier court concluded the prosecutor's argument defendant called a child molester and two serial rapists as character witnesses was not misconduct. (Ibid.) Bradford simply made the point Villagomez's character witnesses were all family members who were biased in his favor, which was proper.
Seventh, Bradford stated the following: "What history of road rage do we have to justify his reaction? Nothing. You think [Villagomez's counsel] is not smart enough to put that on if that was the case?" This was not misconduct. Although a prosecutor may not suggest "'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence[,]'" a prosecutor may argue "a defendant has not produced any evidence[.]" (People v. Young (2005) 34 Cal.4th 1149, 1195-1196.) Bradford simply stated that had Villagomez's counsel had evidence supporting the defense's theory she would have produced it.
Villagomez cites to several instances where Bradford allegedly ran roughshod over the trial judge and challenged his authority. None of these instances implicated Villagomez's due process rights or deprived him of a fair trial. Villagomez faults the trial court for not intervening to put a stop to Bradford's "antics." Admittedly, the trial judge should have been more engaged in the process. But to the extent Bradford's conduct implicated Villagomez's constitutional rights, it was his counsel's duty to object, not wait for the trial judge to intervene. 3. Racial Statements
Villagomez argues Bradford improperly accused his counsel of being a racist and appealed to the jury's racial passions. We disagree.
"'[T]he Constitution prohibits racially biased prosecutorial arguments.' [Citations.]" (People v. Gomez (2018) 6 Cal.5th 243, 311.) "Prosecutorial argument that includes racial references appealing to or likely to incite racial prejudice violates the due process and equal protection guarantees of the Fourteenth Amendment to the federal Constitution. [Citations.]" (People v. Cudjo (1993) 6 Cal.4th 585, 625.)
Bradford stated the following: "I know in my heart you're going to make a decision based on the law and the facts. [¶] The reality is that seemed like, for whatever reason -- just his luck again. Pile on the Black man. Pile on . . . Jerro. He could have been Hispanic. I don't think it mattered."
A little later, Bradford added the following: "While the prosecution started off with this thing about sympathy, anger, bias, and all of that, don't think the emotion card hasn't been played, and don't think, in some instances, the race card hasn't been played. I'm not going there. Because it's unfortunate for both of these young men. When [Villagomez's counsel] says a Black man chasing a Hispanic repeatedly, is that necessary? We have Hispanic jurors. To me, I would hope that the Hispanic jurors in this case -- I know they will be fair. I know you will. There's no winners. There's no winners. Let's not make this a race thing."
The parties argue about who was the first to mention race and how many times opposing counsel mentioned it. Counsel should avoid unsupported references to race. When read in context though, we conclude Bradford asked the jury to base its decision on the facts and the law, and not race. Although inartful, he said he did not think it mattered whether Jerro was Black or Hispanic. Additionally, his suggestion the prosecution played the race card did not denigrate Villagomez's counsel. Bradford's comment it was unnecessary for Villagomez's counsel to mention race was not tantamount to accusing her of being racist. Bradford, again inartfully, requested the jury not consider race but instead base its decision on the facts and the law. This was not misconduct. D. Speaking Objections
Villagomez contends Bradford made two improper speaking objections that questioned his counsel's motives and integrity. The Attorney General concedes one of the claims but disputes the other. We accept the concession and conclude Villagomez's other claim is meritless.
"[B]aseless objection[s] or other statement[s] made in the presence of a juror can amount to misconduct if it imputes improper motives to defense counsel. [Citation.] Of course, it is not misconduct to challenge the propriety of opposing counsel's question to a witness or prospective juror, for this is the purpose of virtually all trial objections. Objections constitute misconduct only if they go beyond the charge of legal or procedural violation and directly or by clear inference question the motives or integrity of opposing counsel." (People v. Price (1991) 1 Cal.4th 324, 448.)
First, during cross-examination, Villagomez's counsel attempted to ask Brown about department policies for police pursuits. After Bradford objected and stated the officer was not on trial, to which the trial court agreed, Bradford stated, "I think her motive is different." The Attorney General concedes this was misconduct, although again asserting the claim is forfeited because Villagomez's counsel did not object. We accept the Attorney General's concession and will address whether he was prejudiced below.
Second, during his direct examination of Gloria, Bradford attempted to question her regarding her statement to the police. After Villagomez's counsel objected and the trial court repeated her testimony, Bradford stated, "I'm disputing that, your honor, because I have a police officer's statement under penalty of perjury." After Villagomez's counsel objected and the court again repeated her testimony, Bradford stated the following: "I apologize, your honor. I know we want to get out of here at 1:30, but I want fairness. . . . [C]an I approach? I don't want to do a speaking objection."
Bradford's statements did not question Villagomez's counsel's motives or integrity. Bradford was attempting to question Gloria based on her version of the incident based on a police report that undermined her testimony. Finally, Bradford's plea for fairness did not impute an improper motive to Villagomez's counsel. Although inartfully phrased, it was his attempt to provide Jerro a full and vigorous defense through a rigorous and complete examination of Gloria.
In summary, we have concluded Bradford committed two instances of misconduct, the first the Doyle error, and the second by questioning Villagomez's counsel's motives. We must now address whether Villagomez was prejudiced. E. Harmless Error
Because we have concluded there was a Doyle violation, we must apply the harmless beyond a reasonable doubt standard articulated in Chapman, supra, 386 U.S. 18. That standard requires the Attorney General to demonstrate beyond a reasonable doubt the error(s) did not contribute to the verdict obtained. (People v. Aledamat (2019) 8 Cal.5th 1, 12.) Based on the entire record, we conclude the Attorney General carried its burden.
The evidence of Villagomez's guilt was overwhelming. A witness observed Villagomez conduct a hit and run against Jerro. Surveillance video captured Villagomez, with Jerro close behind him, driving on the wrong side of the road with his headlights off. Four witnesses, including the boy's mother and sister, observed Villagomez or Jerro hit the victim while driving well above the speed limit through a red light. The victim's DNA was discovered on Jerro's car. Other surveillance video captured Villagomez crashing into a wall a few blocks away from the victim. Officers detained Villagomez and Jerro at the scene of the crash. This was overwhelming evidence of Villagomez's participation in the incident, and the primary issue was causation. Based on the record before us, Bradford's two instances of misconduct had little, if any, impact on the jury's determination of Villagomez's guilt.
Additionally, as we explain above, the misconduct Villagomez complains of was committed by Bradford, not the prosecutor, which further supports the conclusion the error was harmless beyond a reasonable doubt. (Hardy, supra, 2 Cal.4th at pp. 157-158 ["a comment alluding to the silence of a defendant that would require reversal if made by a prosecutor may be deemed harmless—or even not error—if made by a codefendant's attorney"].) Importantly, the prosecutor did not highlight the brief, isolated comment during her closing argument. And Villagomez does not argue the prosecutor denigrated his counsel. Based on the entire record, we conclude beyond a reasonable doubt the two errors did not contribute to the guilty verdict.
For these same reasons, we conclude Villagomez's cumulative error claim has no merit. Bradford committed two errors, but the cumulative effect of the two errors did not prejudice Villagomez based on the overwhelming evidence of his guilt. Finally, because we conclude the error was harmless beyond a reasonable doubt, Villagomez was not denied due process or a fair trial. (Greer v. Miller (1987) 483 U.S. 756, 765, fn. 7 ["Chapman harmless-error standard is more demanding than the 'fundamental fairness' inquiry of the Due Process Clause"].) II. Motion for Mistrial
Villagomez contends the trial court erred by denying his motion for mistrial when Bradford committed the Doyle error. Not so.
"'"'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.] A motion for a mistrial should be granted when '"'a [defendant's] chances of receiving a fair trial have been irreparably damaged.'"'" [Citation.]' [Citation.]" (People v. Dalton (2019) 7 Cal.5th 166, 240.) The admission of inadmissible evidence can warrant granting a mistrial (see People v. Harris (1994) 22 Cal.App.4th 1575, 1581), and may violate due process (Estelle v. McGuire (1991) 502 U.S. 62, 75).
Here, the trial court denied the mistrial motion based in part on the mistaken belief it had struck Brown's testimony. The Attorney General agrees the court did not strike the testimony or instruct the jury to not consider it. Nevertheless, we conclude the court did not abuse its discretion in denying the mistrial motion because Brown's brief, isolated statement was not so prejudicial it denied him due process and a fair trial. Villagomez's silence was not subsequently addressed, and the prosecutor did not rely on it during her case. Villagomez rests his claim on the fact the jury heard evidence he was uncooperative, but Jerro was cooperative. True, but the jury also heard evidence Villagomez cooperated with another officer who first responded to the scene.
Assuming there was error, it was harmless. Although there is authority from our Supreme Court that we assess the erroneous denial of a mistrial motion pursuant to the reasonably probable standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (People v. Welch (1999) 20 Cal.4th 701, 749-750 [Watson standard applies to denial of mistrial based upon erroneous admission of evidence]), the error complained of here is a Doyle violation, and thus we apply Chapman.
As we explain above, Villagomez was not prejudiced by Brown's brief, isolated statement, and the prosecutor did not rely on the statement in her case. (Coffman and Marlow, supra, 34 Cal.4th at p. 74 ["brief and mild references to a defendant's failure to testify, unaccompanied by any suggestion that the jury should draw an inference of guilt from it, are . . . generally held to be harmless"].) To the extent the trial court erred, Villagomez was not prejudiced. III. Motion for Judgment of Acquittal
Villagomez asserts the trial court erred by denying his motion for judgment of acquittal. Again, we disagree.
"[We] review[] the denial of a section 1118.1 motion under the standard employed in reviewing the sufficiency of the evidence to support a conviction. [Citation.] . . . '[W]e do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' [Citation.] Review of the denial of a section 1118.1 motion made at the close of a prosecutor's case-in-chief focuses on the state of the evidence . . . at that point. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
Section 192, subdivision (c)(1), makes it a crime to drive "a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." "Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] 'The state of mind of a person who acts with conscious indifferences to the consequences is simply, "I don't care what happens."' [Citation.] The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved. [Citation.]" (People v. Bennett (1991) 54 Cal.3d 1032, 1036.)
"In homicide cases, a 'cause of the death of [the decedent] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of [the decedent] and without which the death would not occur.' [Citation.]" (People v. Cervantes (2001) 26 Cal.4th 860, 866 (Cervantes).) To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. (People v. Jennings (2010) 50 Cal.4th 616, 643.) An extraordinary and abnormal occurrence, i.e., an independent unforeseeable intervening cause, absolves a defendant of criminal liability. (Cervantes, supra, 26 Cal.4th at p. 871.) The issue of causation is a factual question to be resolved by the jury. (Cervantes, supra, 26 Cal.4th at p. 871.)
Here, Villagomez does not dispute the trial court properly instructed the jury on the offense and causation. (CALCRIM Nos. 592, 620.)
In his opening brief, Villagomez frames his argument as one of the sufficiency of the evidence. But he does not provide the elements of the crime or explain how the evidence did not satisfy one or more of the elements. He merely recounts what happened in the trial court, and states, "[Villagomez] submits that the trial court's denial of his motion was in error and that his judgment should be reversed and the case against him dismissed." His claim is forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to specify how evidence did not support verdict forfeited sufficiency of the evidence claim].)
Nonetheless, we have reviewed the record in light of the standard of review and find it amply supports the judgment. The evidence demonstrated that after Villagomez ran a red light and struck Jerro's car, he fled, driving dangerously at excessive speeds with his headlights off to escape Jerro who was in pursuit. After Villagomez drove through an intersection and another red light with at least three pedestrians nearby, Jerro ran the same red light hitting and killing the boy. Had Villagomez remained at the scene of the initial accident, the boy would not have been killed. Thus, Villagomez's act of driving dangerously and erratically through busy city streets was a substantial factor contributing to the boy's death.
In his reply brief, for the first time, Villagomez asserts the evidence supporting his conviction "was insufficient as a matter of law." Villagomez claims he "sufficiently cited to legal authority in his opening brief and did not waive this argument." Above, we have cited his entire sufficiency of the evidence argument. It includes no mention that his conviction was erroneous "as a matter of law." Nor does his opening brief mention Cervantes, supra, 26 Cal.4th 860, a case he discusses at length in his reply brief. His claim is forfeited. (People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219 [arguments raised for first time in reply brief on appeal forfeited].)
Nevertheless, we address Villagomez's claim. He relies on Cervantes, supra, 26 Cal.4th at page 871, to support his claim. In that case, defendant and fellow gang members attended a non-rival gang's party. (Id. at p. 863.) When a woman declined defendant's invitation to go to another party, defendant insulted her. One of the other gang's members drew his gun and threatened defendant, and defendant reciprocated. A different member of the other gang tried to diffuse the situation and touched defendant, causing defendant to shoot him, nonfatally. A gang melee ensued. One of defendant's fellow gang members shot and killed a member of the other gang. (Ibid.) The jury convicted defendant of that murder under the "provocative act" theory. (Id. at pp. 864-865.) The Cervantes court held the evidence was insufficient as a matter of law to support the conviction because the essential element of proximate cause was not established. (Id. at p. 874.) The court explained defendant was not the initial aggressor, it was unclear whether the murderers were present during the provocative act, and defendant was not present at the murder. (Id. at p. 872.) Cervantes is inapposite.
The prosecution did not allege Villagomez set in motion a chain of events that caused the boy's death. The jury did not convict Villagomez under the provocative act theory. Rather, it was Villagomez's act of initially hitting Jerro's car and fleeing the scene, driving dangerously and at excessive speeds in a populated area that was a substantial factor in the boy's death. Contrary to Villagomez's claim, it was reasonably foreseeable, and not extraordinary and abnormal, that Villagomez's hitting and running would result in Jerro pursuing him and ultimately leading to a pedestrian fatality.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. THOMPSON, J.