Opinion
A126548
01-12-2012
THE PEOPLE, Plaintiff and Respondent, v. KENNETH J. WASHINGTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County
Super. Ct. No. C159143)
I. INTRODUCTION
Defendant and appellant, Kenneth Jovan Washington, was convicted of the second degree murder of Jessica Birden with great bodily injury. He was also convicted of the forcible rape, oral copulation, penetration with a foreign object and false imprisonment by violence of Jane Doe. The trial court found true prior conviction allegations and Washington was sentenced to a total term of 49 years to life: 30 years to life for the murder of Jessica Birden, consecutive sentences of six years each for the rape, oral copulation and foreign object penetration of Jane Doe and a consecutive sentence of one year for each prior conviction. Washington was also sentenced, concurrently, to two years for the false imprisonment of Jane Doe. In this appeal, Washington argues that the trial court erred in (1) denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson)and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)with regard to the People's use of peremptory challenges against two African-American jurors, (2) denying his motion to sever the trial of the crimes against Jessica Birden from those against Jane Doe; (3) refusing to admit evidence of alleged acts of domestic violence committed by James Bradford, who was with Washington on the night Jessica Birden was murdered and who Washington contended at trial was Birden's actual killer; and (4) refusing a mistrial motion and request to strike evidence of comments he made to an acquaintance regarding violence against women. Washington also claims the prosecutor committed misconduct on four separate occasions.
We reject these arguments and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On Christmas Eve, December 24, 2007, Washington assaulted and raped Jane Doe, a 19-year-old African-American woman. The assault and rape took place in a house in the Oakland hills.
All further date references are to the year 2007, unless otherwise indicated.
A week later, in the early morning hours of New Year's Day, January 1, 2008, Washington beat and kicked Jessica Birden so brutally that she died three days later, on January 4, 2008. Like Jane Doe, Birden was 19 years old, African-American, and the assault against her took place in the Oakland hills. A. Jane Doe
Jane Doe testified that she met Washington on December 23. She thought he was cute and nice. Washington told her his name was "Shay." The next day, Doe spoke with Washington on the phone. He asked her if she wanted to hang out and see the view from the Oakland hills. She agreed, and Washington picked her up about 10 or 15 minutes after they spoke.
Washington drove her to a house about five minutes away from where he picked her up. It was a nice, large house, which Washington said belonged to his grandmother. There was no one in the house. Jane Doe and Washington stood outside on the patio, looked at the view and talked for about an hour about Jane Does' singing, her boyfriend, and what Doe referred to as "life." She was not interested in having a sexual relationship with Washington.
Jane Doe noticed that, when she talked about her boyfriend, Washington became "a little aggressive," but she didn't pay much attention to this. After their conversation turned to music, Washington asked her to come downstairs to listen to music. He played some songs for her while she stood at the door to the bedroom. She performed a rap for him that she had just written. The rap mentioned a prison gang and Washington became enraged. He said, "You can't say that." She raised her voice in response and tried to leave by walking up the stairs.
Washington pulled Jane Doe down by her hair. She fell to the ground and Washington kicked her in the stomach, chest, and head. When she tried to get back up, he slammed her head into the wall and hit her in the face. At the same time as he was beating her, he was also "talking crazy, so angry." She asked him to stop and he said that "pretty girls get what they want and he was about to take it from [her]."
Washington forced Jane Doe to take her clothing off. He then made her empty out her purse. Jane Doe had a cell phone with her, one that belonged to a friend. It was on a dresser in the bedroom next to where Washington was standing at the time.
Washington made Jane Doe sit on the edge of the bed and he asked her if she wanted to go to his "nice house" in Fairfield. He told her she was pretty and wouldn't need anything if she came with him. She told him she didn't want to do that, and he became angry. This frightened her.
Washington took something from the dresser that Jane Doe believed were cuticle cutters. He put the sharp side of the cutters on her clitoris and squeezed them. He continued to do so until she screamed in pain. At that point, he stopped.
He forced her to perform oral sex, penetrated her anally, and hit her in the head. While he was raping and beating her, he called her "bitches," and "basically just boast[ed] out of anger." He called her a "ho" and said, "Well, choose up. It's pimping." He put his penis in her vagina, without a condom and, eventually, got off her. Throughout, Jane Doe cried, tried to move Washington off her, and asked him to stop.
Washington filled a bathtub with water, forced her to get in and got in with her. He told her ". . . this is so when I kill you, they won't . . . be able to find my DNA." He put his finger in and out of her vagina, and threatened to kill one of her family members. Jane Doe believed he was going to kill her.
Jane Doe got dressed and Washington went upstairs. She heard him on the phone upstairs and thought he was going to have people come to gang rape her. She took her phone, which was next to the radio on the dresser in the room, and concealed it in her underwear. She did not use the phone, however, because Washington could see what she was doing and she was afraid he would come downstairs and beat her again.
He made her come with him in his car to the store. Before they left, he made her leave her fingerprints on mirrors and towel racks, and other objects in the house. By this time, it was dark. Washington drove down to a liquor store at 90th Avenue in Oakland. Washington went inside the store and left the keys in the ignition and the car running. He could see her from the store and even though there were people inside the store and lots of cars, she did not know how to drive a car and was too frightened to get out of the car. She saw a friend driving in the opposite direction, and beckoned to him to come to where she was. He drove away because he thought she was simply waving at him.
Washington was in the store for about a minute before he came out. He had alcohol with him. While this was happening, she did not think to take her cell phone out of her underwear and did not think to call 911.
Back at the house, Washington told her he was going to take her back to her music studio, but was waiting for a friend. She didn't believe him. Once inside, he started to drink. He made her drink and then consumed the rest of the alcohol. He took her downstairs, to the room where he had raped her. He told her he was waiting for his friend to come and kill her.
About 10 or 15 minutes after they entered the house, Jane Doe convinced him to let her call her mother. She gave him her mother's number, which Washington called from his own cell phone. When Doe's mother answered, Washington put the phone on speaker. During the conversation with her mother, Jane Doe called her mother "mommy," which was a way of letting her mother know that something was wrong. Washington told Jane Doe's mother, "I am Lucifer with legions and I'm going to bring you your daughter in pieces."
Washington then hung up and a moment later Jane Doe's brother called Washington back. After the two spoke, Washington handed the phone to Jane Doe who said, "Tay, I'm okay." She threw the phone into the next room and, when Washington went to pick it up, ran upstairs and attempted to escape. Washington caught her as she was unlocking the front door and, although Washington was bigger than she was, she slammed him down and they fell to the ground outside. She scraped her knee on glass in the gravel.
Although Jane Doe screamed for help, no one came to her aid and no lights went on in any of the neighboring houses. She ran into a backyard, and waited to hear if Washington was following her in his car. Crying, she walked toward some people who indicated that they didn't want her to approach them.
She still had the cell phone she'd put into her underwear and when she was near Castlemont and 88th, she called her mother and then ran down the street to a place where she could hide. Chris Wilson, a family friend, arrived in two or three minutes at 88th and Hillside and picked her up. Once she was at Wilson's house, Jane Doe told her mother what had happened, and told her to call 911 and take her to the hospital. She arrived at the hospital at 10:00 or 11:00 p.m.
Jane Doe's mother, Dorothy Lewis, corroborated her account. She testified that, when she arrived at her home in Union City after work, all of her children were there except Jane Doe, which made Lewis concerned. Sometime later, Jane Doe called her mother from a phone whose displayed number Lewis did not recognize. Her daughter said, "Mommy, are we still going?" Lewis said yes, asked where Doe was and as Doe was trying to say something, the line was disconnected. Lewis called back and a man, whose voice she did not recognize, answered the phone. She asked to speak to her daughter and the man responded, "I'm afraid I can't let you do that." When Lewis asked him who he was, he responded, "Lucifer Religion" before hanging up.
Lewis then had her son call the number. The first time he spoke with the man who answered, the phone was hung up, so he called him a second time and spoke to him.
Sometime later, Jane Doe called to say she had gotten away and was running down the hill from the Oakland hills. Lewis asked Christopher Wilson to find Jane Doe. Wilson testified that Jane Doe's brother told him to look for her between 86th and 88th and Hillside. When he found her, Jane Doe was "in the shadows," and although Wilson did not call out to her, she ran toward him, got in the back seat of the car and said, "Go, go, go." She looked shaken and afraid and had tears all over her face and blood stains on her knees that were the size of silver dollars.
When Wilson asked Jane Doe what had happened, she told him that she had been raped. He took her to his girlfriend's house, where he was staying. Lewis arrived at the same time as he did. Jane Doe was crying, afraid and in shock.
Doe's mother testified that they went to Kaiser Hospital, where the police responded. They were then sent to Highland Hospital for tests.
At Kaiser Hospital, Jane Doe was interviewed by Oakland Police Officer Tyman Small, who testified as an adverse witness. Small testified that he had his first contact with Jane Doe at 9:30 p.m., began writing her statement at 10:30 p.m. and finished at 12:49 a.m.
Jane Doe did not make eye contact with him and appeared to be in pain when she moved. She was also tired, and under the influence of the medication she had been given.
Does' statement was six pages long, and Small read it to her and had her sign each page to indicate that the statement was accurate. She made and initialed six corrections. Only one of the changes was substantive—she changed the time of her meeting with Washington from 7:30 p.m. to 11:30 a.m.—otherwise, the corrections she made were grammatical.
The defense pointed to six discrepancies between her testimony and her statement. Specifically, in her statement Doe said that the number of steps she fell down when the assault began was 12 rather than two or three; she did not mention in her statement that she was forced to go to the liquor store; she described the tool Washington used to squeeze her clitoris as pliers rather than a cuticle cutter and that Washington used it after they went to the liquor store rather than before, and that he pulled down her pants before using the pliers. She also said she escaped by running through bushes and then ran to 82nd and Hillside and hid in a creek. Otherwise, her statement to Small regarding Washington's references to prostitution, the assault, the sex acts, the bath, the fact that she cooperated with Washington because she was afraid he would kill her and rape her again, that she was unable to leave the car because it was parked where he could see her while in the liquor store and, before her escape, she had a struggle with appellant in the street and yelled for help, were all consistent with her testimony.
Doe was in bed and asleep in the hospital when Small came in for the interview. She was drugged and sleepy, but recounted the events as well as she was able to, although she did not remember what she said or what sequence she put the events in. Where there were discrepancies in her statement with Small and her testimony, Doe testified her memory was different when she spoke to Small than it was now.
When Small asked her to return to the crime scene following the sexual assault examination she was given at Highland Hospital (an examination that began at 3:15 a.m. on December 25), she said she could not do it because she was dozing off from the medication. Her mother stayed all night with her and confirmed that Doe was in pain and exhausted.
Dana Kelly examined Doe at Highland Hospital. Kelly is an expert on the sexual assault examinations. Kelly testified that Doe's physical injuries were consistent with her report of the assault and rape. Doe had an abrasion on her neck, bruises on the right deltoid area of her arm, and her left knee was swollen and had a two-centimeter abrasion in its center. The left side of Doe's mouth was bruised and swollen, and she had a surface abrasion on the inside of her left upper lip. The left side of her labia and her clitoris were swollen.
When she touched Jane Doe above the right pelvic area, the left buttock, the left side of the mouth, in the anus and in the opening to the vagina, Doe was "tender to palpitation," which meant she either winced or verbally expressed discomfort. The outside of her genital area "was very tender." Jane Doe had severe vaginal and anal tenderness and could not tolerate the insertion of a speculum in her vagina, something that generally only occurred with very young girls of about 14 years old and women with infections. Unless something "major" was going on, women tolerated the insertion of a speculum. Kelly described a study she had conducted which compared the condition of women who had had consensual sexual intercourse with sexual assault victims. She had never seen in any of the women who had consensual intercourse injuries similar to those she saw in Jane Doe.
Kelly had never examined a woman who had experienced the squeezing of the clitoris that Jane Doe reported. She observed swelling in Jane Doe's clitoris but it could have normally appeared that way. However, there was asymmetrical swelling of the labia in which the left side was swollen rather than the right side, which indicated that it was not normally the way it was when she examined Jane Doe.
The next day, Jane Doe met with Oakland Police Officer Herbert Webber and told him she wanted to pursue the matter. The next day, she made a taped statement to Webber and Officer Pinzon. Doe described a severe beating, although Webber did not recall seeing any injuries. According to Webber, Doe told him that Washington squeezed her clitoris and then had anal, vaginal and oral sex with her. After this, they took a bath. She did not tell Webber that Washington had put a finger inside her. She told Webber that when Washington went upstairs to use the phone, she thought he was calling other men to come and rape her. She also reported that Washington made her put her fingerprints on a mirror, a towel rack, and a doorknob. She told Washington she wanted to go to the store with him because she did not want to stay in the house. She showed Webber and Pinzon the location of the house where the sexual assault took place.
That same day, Pinzon and Webber showed her a black and white photo lineup, apparently because their color printer had been broken when they assembled the first photo lineup. She did not identify Washington in this lineup.
On January 3, 2008, she identified Washington in a color photo lineup and immediately began to cry. She did not know why she did not identify Washington in the black and white photo lineup but was able to identify him in the color lineup.
Washington was arrested on January 4, 2008, between 1:15 and 1:55 a.m. as he was entering his mother's home. He did not comply with instructions to surrender. Instead, he went into the house. He told the officers, "you're just going to have to do me." An officer stepped into the house, grabbed him and handcuffed him.
At 7:36 a.m. on the day of his arrest, Washington was interviewed. The jury heard the recorded portion of his statement, which was recorded in four parts. The first three parts of this interview concerned the sexual assault of Jane Doe.
Washington stated that he had met Jane Doe several weeks earlier, and did not remember where because he was drunk. At some point, she called him and they arranged to meet. After they met, they bought fast food, stopped at a liquor store on 90th Street and went to his grandmother's house at 8718 Burr Street in Oakland. No one lived at this house and it was empty. They went out on the balcony and he had a drink. She asked for some and he told her no because she wasn't yet 21. Washington thought she was 18 or 19 years old.
After talking for a long time, they went downstairs and listened to music. She also sang for him. They were, in Washington's words, "intimate with each other," in the bedroom downstairs. They had oral and vaginal sex. He did not wear a condom. They did not have any other kind of intercourse. Afterward they each took a shower. He said he wanted to go back to the liquor store. By this time, it was dark. He left her in the car and bought half a pint of brandy. They went back to the house where they talked more on the balcony and looked at the view.
Doe told Washington that she was mad at herself for having sex with him so soon after meeting him and that she believed that, as a result, they were now "together." When he told her that they were only getting to know each other she was "perturbed . . . ." He went to the bathroom and when he came out he thought she'd had a drink.
He told her he couldn't make a commitment to her and tried to calm her down. He told her that he would take her to her studio and, when she complained that her mother would have to pick her up there to take her back to her house in Union City, he said he would take her home.
As they were leaving, Jane Doe blocked the door. He refused to kiss her and she got mad, cursed at him and threatened him. He pushed her out of the door at the same time she was fighting to stay inside. He shoved her outside and went downstairs to get her things. When she came back inside, he threw her things up to her and told her to "[g]et your shit and get out of here . . . ." She didn't want to leave and threatened to "fuck [him] up." He "got her out the door and that was that."
Jane Doe's brother called a few minutes later and asked Washington what he had done to Doe. Washington denied doing anything and the brother said, "[m]an I gone fuck you up." Jane Doe and "some dudes" called him a number of times in the next three days so he changed his number.
In the interview, Washington speculated that Jane Doe had accused him of sexual assault because "she's mad because I didn't wanna deal with [her] after I had sex with her." He also speculated that she was attempting to get money to help pay for her studio.
Washington denied using tweezers or pliers on Jane Doe, hitting her, or having anal sex with her. He was not angry with her after she sang. After they had sex, he "drove her ass down" to the liquor store. He left her in the car and if she thought he had "done something to her," all she had to do was "pull the silver handle."
According to Washington, Jane Doe told him that she had worked as a prostitute on East 14th. He did not ask her to work for him. He didn't have girls work for him. He had a job that paid $28 an hour, was working 10-hour days and didn't need to "get out there and do that." B. Jessica Birden
On New Year's Day, January 1, 2008, Philip Dow discovered Jessica Birden lying to the right of the pavement where he was walking his dog on Old Crest Road in King Estates Park. She was breathing, but unresponsive. He called 911 and five minutes later the fire department arrived. Oakland Fire Department Lieutenant Gregory Williams discovered Birden just to the right of the paved path as he walked toward Crest and McCormick. Birden had been severely beaten. According to Williams it was one of the worst beatings he had seen in 18 years.
Birden had suffered multiple injuries, including facial fractures. Her body temperature indicated that she had been out in the cold. A sexual assault examination found no sperm or evidence of sexual assault. After her arrival at the hospital, Birden's brain functioning decreased to the point where she could not survive on her own. Her grandmother allowed treatment to be discontinued, and Jessica Birden died at 2:14 p.m. on January 4, 2008.
An autopsy was performed and the cause of Birden's death was found to be blunt trauma to the head and brain. The left side of her face, both eyes and her eyelids were swollen. She had black eyes. Large abrasions covered both cheeks, and there were abrasions on both ears. One of her ears had been torn nearly completely off her face. There were minor abrasions on the backs of her hands and on a knee. There were extensive contusions of the surface of her brain as well as hemorrhaging on the surface and inside of her brain and extensive brain swelling. A great deal of force would have had to be inflicted on Birden to cause the type of injuries found in the brain. After suffering these injuries, she would not have moved.
For significant parts of the evening on the night the fatal assault on Jessica Birden took place, including the assault itself, Washington was with Ricky Bradford. Bradford's girlfriend, Colette Walker, was with the two men earlier in the evening. Both Bradford and Walker testified about the events of that evening.
Bradford testified he had recently been released on parole into the custody of Volunteers of America after a conviction for attempted robbery. Washington was friendly and helpful to Bradford, who was about nine years his junior. Volunteers of America gave Bradford a two-week pass for the Christmas holidays. During that time, Bradford talked, ate, went to parties and drank with Washington, whom he saw often during this time period.
On December 30, Bradford spent the night at his mother's house on MacArthur near 61st Street in Oakland. On the morning of December 31, one of Bradford's girlfriends, Colette Walker, called him. Walker had not seen Bradford since he had gotten out of prison and wanted to see him. Bradford asked Walker for $300 to buy clothes. She agreed and asked him to meet her at the Fruitvale BART station. Bradford asked Washington to give him a ride to meet Walker.
Washington arrived at Bradford's mother's house at about 9:00 or 10:00 a.m. He parked around the corner from the house. Bradford's mother allowed Bradford to use her white Toyota. Bradford first drove to the Fruitvale BART station, met Walker, and drove her home. He told her he would be back later.
Washington and Bradford next went to Andre Thomas's house. Thomas was a friend of Washington's. There were two African-American women there, both about 19 years old. The first woman was named Jasmine, and Thomas said she was his girlfriend. There was also a second woman there. Bradford did not know her, but later learned from the news that this was Jessica Birden, the woman who had been killed.
Washington and Thomas agreed to have a barbeque at Washington's house later that day. Washington gave Thomas his house keys and then Washington and Bradford left Thomas's house. Jasmine and Birden were with them.
Andre Thomas testified that, when Washington and Bradford arrived at his house on the morning of December 31, both men had been drinking. Washington arranged to have Thomas buy the food and supplies for the barbeque and then told Thomas he was going to a motel in Hayward and would meet him later at his (Washington's) house.
Bradford testified that after he, Jasmine, Birden and Washington left Andre Thomas's house, it became clear that Birden was a prostitute and Washington was her pimp and, in fact, referred to himself as "Pimping Ken." Washington asked Birden where she wanted to get money. Birden suggested they go to Hayward.
Washington rented a motel room in Hayward. The general manager of the Best Western Motel in Hayward testified that Washington rented room 133 at about 5:30 p.m. on December 31. Still photographs from the motel's surveillance camera confirmed that Bradford's car drove in to the motel parking lot at 5:22 p.m.
Washington, Bradford, Jasmine and Birden went into room 133. Washington told Jasmine and Birden to take pictures with his camera and put them on the internet using his computer.
After about an hour or two, according to Bradford, he and Washington left. It was dark and Jasmine and Birden stayed behind. The motel manager testified that a still photo from the motel's surveillance video showed Washington leaving the room at 5:33 p.m.
When they left the motel, Bradford and Washington were still drinking and Bradford felt intoxicated. They returned to Washington's house where the barbeque was taking place. Washington was drinking and appeared to be drunk. Washington called Tanisha Pierce, the mother of his infant son, and she agreed to bring their son to the party. When she arrived, she and Washington got into an argument. Washington was drunk and crying, and threw a shoe, which didn't hit anyone. During the argument, he ran after Tanisha Pierce as she ran up the stairs. He called her an obscene name. Washington said he was angry that Pierce was there, and that he had business to handle. Pierce and her son left the party.
After the barbeque, Washington fell asleep and Bradford called a girlfriend who lived next door to his mother. He and Washington picked up Bradford's girlfriend and another girl from the neighbor's house. They went out to a restaurant and ordered two drinks, and then dropped off the girls where they'd picked them up.
Washington picked his car up at Bradford's mother's house, and drove it to his (Washington's) house, while Bradford followed him. The two men got into Bradford's Toyota and Bradford drove them to the motel in Hayward.
When they arrived, no one was in the motel room and Washington was upset. Bradford drove him back to Thomas's house, where Jasmine was sitting on the couch. Neither Thomas nor Birden were there, however. Washington told Jasmine to get in the car and she went with Bradford and Washington to look for Birden.
Bradford stopped to pick up Collette Walker. At this point, Washington was driving and Bradford was in the back seat with Walker. Washington drove to the motel and let Bradford use the room to have sex with Walker. Afterwards, Bradford saw Birden walking away from him across the motel parking lot and toward a car. She was with a man Bradford did not know. Washington got out of the car and asked Birden what she was doing. Birden seemed confused, as though she was uncertain whom she should go with. Both Washington and the man asked Birden whom she wanted to leave with and Birden got into the Toyota. Washington gave the man money, which he said was for his gas. Bradford drove and Jasmine sat next to him. Washington was in the back seat behind Bradford, and Birden was in the middle between Walker and Washington.
Collette Walker testified that after Bradford picked her up at her house at 2:00 a.m. that night, Washington drove her, Bradford and a woman she did not know to a motel in Hayward. At the motel, she had sex with Bradford and then they got back in the car. Washington, Bradford, Walker, Birden and the woman whom Walker did not know got into the car.
Bradford drove to East Oakland, at Washington's request. On the way there, Washington told Birden that she was going to make back the money. He told her he didn't trust her, that she was scandalous and said, "Man, bitch, you just set me up." They stopped at a gas station, and Washington, who was upset, slapped Birden. Walker was frightened and Bradford was beginning to feel nervous. Birden said, "Daddy, I'm sorry." She put her head down.
Bradford dropped Walker off at her house and told her he was tired, and going to go home. However, after dropping off Walker, Bradford drove into the hills, at Washington's request. Bradford hadn't been there before and Washington gave him directions. It was dark. He didn't go home because Washington was his friend, and Bradford was doing him a favor.
Washington directed Bradford to a secluded location. Bradford pulled over and heard gravel when he parked. He did not recall any streetlights, saw no other cars, and turned off the engine and lights. The car pointed downhill.
Washington told Birden, "Get out, bitch." Birden got out and said, "Oh daddy, please don't rape me." Washington said, "Don't nobody want your pussy." Washington and Birden walked toward the back of the car.
Bradford watched them in the rear view mirror as they walked away. He could not see their faces, was not sure how far back they walked and he did not turn around. He was nervous and tired and his mother had been calling him about the car because she had to get up at six to go to work. Bradford thought it was almost that time.
The doors were closed and the windows up, but Bradford could still hear muffled screams. In the rear view mirror he saw a lot of shuffling and a lot of body movement. He thought Washington was "hitting her and stuff."
Bradford saw a small figure fall to the ground, and he saw Washington kick her, although he did not know how often because he did not watch the whole thing.
Five or 10 minutes later, Washington returned to the car without Birden. He was sweating and breathing hard. When Jasmine asked what had happened to Birden, he said she "walked off." Bradford did not see her when he drove away.
Bradford dropped Washington and Jasmine off at Washington's house. Bradford did not call the police after he returned home because he did not want to "get caught up in it."
At the location where Birden's body was found at about 8:00 a.m. on January 1 in King Estates Park in the Oakland Hills, Oakland Park rangers found a condom wrapper, a candy wrapper, and a piece of candy similar in size and shape to the wrapper. The police found, in Birden's clothing, candy and candy wrappers similar to the candy and wrappers found on the ground.
On New Year's Day, Thomas, the man who helped host the barbeque the night before, went to Washington's house. He took Washington first to a liquor store and then to the motel in Hayward, where Washington checked out at 10:34 a.m.
The police found a Best Western room key envelope in Birden's clothing but when they arrived at the motel room Washington had rented in Hayward, it had been cleaned and they found nothing there.
On January 4, 2008, a few hours before Birden died, the police searched the Burr Street address where Washington had been staying. In the downstairs bathroom, the police found two used condoms in a plastic bag.
With regard to the first condom, Birden's DNA matched that of a major donor of epithelial cells found on the outside of the condom and Washington's DNA matched that of a major donor of sperm found in the condom. With regard to the second condom, Birden's could have been the major source of the DNA from the epithelial cells found on the outside of the condom and Washington could have been the major donor of DNA to the sperm found in the condom. The police also recovered tweezers, scissors and cocoa butter. In the bedroom, the police found a digital camera. Images downloaded from the camera's memory card included two showing Birden and Washington. There was also a video in the camera that showed Washington with Birden's voice referring to him as "sleeping beauty."
In the fourth part of his tape recorded statement to the police following his arrest, Washington was asked about the events of New Years Eve. Washington told the police that he had a house full of guests that night because he was having a barbeque. His contribution to the party was a $50 Safeway gift card. Other people did the cooking and party preparation.
He arrived at the party between 5:00 or 6:30 p.m. He could not remember where he had been before arriving at the party. Bradford was one of the guests at the party, as well as his son's mother and a few friends. He got drunk and went downstairs to sleep. When he woke up, he got into an argument with his son's mother, and when one of his friends tried to defend her, Washington "got into it" with him. Washington had an abrasion on his knuckle and explained that he had gotten it when he punched a wall a single time.
When the party ended, Washington and Ricky Bradford went to a Mexican restaurant with two women where they had drinks that Washington paid for. They left the restaurant with the two women and drove around. Ricky drove the car.
They went to a liquor store that was closed, and possibly to the San Leandro Marina. Mainly, they were on the freeway. At one point, when Ricky was tired, one of the girls drove the car.
At around 3:00 or 4:00 a.m., he returned to the house on Burr street and spent the night. He woke up the next morning at around 10:00 a.m., drove to a friends house and then picked up some clothes in Fairfield.
When he was shown a photo from Jessica Birden's driver's license, he said he recognized her but could not remember her name and then asked "What's up with her?" The interviewer told him he was just showing him a picture, and he replied, "Well, there's gotta be a reason." Oakland Police Sergeant Louis Cruz testified that after he showed Birden's photo to Washington, he (Washington) began to speak much more quietly. He also became indirect in his answers.
Washington again said that he didn't know Birden, although he had seen her, possibly a couple of days before New Year. He said Birden was homeless and he gave her a ride when she called him from a pay phone and told him she was locked out of her house. He also said that Birden, who had many different names and was a "hoe," had been "jumped by some girls," and he had picked her up at 5:30 a.m., after this event. When he was asked again whether he could remember when he had seen Birden last, Washington said he was tired, that he had been awake for 20 hours. He didn't know what day it was and he wanted to go to sleep.
Cruz told Washington that New Year's Day was Tuesday, Washington said he had last seen Birden on Saturday or Sunday night at a liquor store in Hayward when he was there with Bradford.
At this point, Washington asked for a bathroom break, and when he returned, he said he didn't want to have the tape recorder on.
During the off-tape interview, Washington asked Cruz how many pictures he was going to show him of Birden. He also asked whether Birden was dead.
Cruz did not answer Washington's questions, nor did he tell Washington anything about Birden. He said that there was evidence that Washington had been in a motel room with Birden. Washington said that he did not hurt Birden and she could not say that he did. He also said that prostitutes were habitual liars. With regard to the motel room he said that he may have been at one, that he may have had access to one, and that those two facts did not mean he was there. He then said that he was never at a motel.
Shown two photographs of Birden, Washington said she looked all right. He then told Cruz that girls had been in "his room" and had been okay before.
As the interview wound down, he became increasingly unspecific and at one point said that some things cannot be explained and this had something to do with fate.
On January 27, 2008, Bradford was arrested on a parole violation. Over the course of that day, he gave his interviewers three statements about the events of New Year's Eve that were, according to him, increasingly truthful. When he was first asked about the evening, Bradford told the police what he later said was a lie: that he had not driven a car that night, that he went home with a few women, and that he took the bus. He did not mention going to Hayward. In a second interview, he was confronted with the fact that the police believed he was lying about taking public transportation because witnesses saw him driving a white car. His interviewers also told him he would be charged for his involvement in Jessica Birden's murder.
Over the course of an hour-long interview, Bradford admitted he had lied in his first statement because he didn't want his mother involved and also because he didn't want to be a snitch. He also liked and admired Washington. With the exception of denying that he had been present when Washington assaulted Birden, Bradford recounted the events of that evening in much the same manner as he did at trial.
Before he made his last and final statement, Bradford's interviewers told him that they were considering him a suspect and that he might be charged as an accessory after the fact or even as an accomplice to murder. Bradford denied that the police promised him anything. They told him that they wanted him to tell the truth and to say that Washington killed Birden. Bradford's interviewer also told him that he would be arrested on a parole violation and the district attorney would have to review anything that Bradford said during the interview. The interviewer also told Bradford during the course of his third statement, that he could speak at Bradford's parole hearing.
In his next and final statement, Bradford, who was by this time very tired and felt worn down by the police, gave an account of the evening's events that was consistent with his trial testimony and, according to him, the truth. Bradford said that he saw Washington assault Birden, that he was parked on a dirt road and that he saw the assault in the rear view mirror. He drew a diagram for the police depicting how he was parked and where he had seen movement. The drawing depicted Bradford's car positioned away from the park, which was consistent with his testimony that he watched the assault in his rear view mirror.
Ultimately, Bradford was not charged as an accessory to murder. Instead, the prosecutor decided to use Bradford as a witness. Bradford could not remember if Cruz, his interviewer, testified for him at the parole hearing. The charges against him were dismissed.
Cruz, on the other hand, testified that he did attend Bradford's parole revocation hearing, and gave testimony in which he told the parole board that Bradford had witnessed a murder and that the prosecutor's office did not want to hold Bradford in custody, although the charge at the revocation hearing was accessory to murder. Cruz told the parole board that he did not know of any criminal activity in which Bradford engaged.
When asked at trial about the fact that Bradford had driven on a suspended license, aided and abetted prostitution, engaged in underage drinking, drinking and driving, and hit and run driving, Cruz stated that these activities were too minor to be considered significant by the parole board and in any event, they knew about these activities already.
A year later, Bradford took the prosecutor's inspector to the crime scene. Bradford gave the investigator the approximate location where he had parked. He also showed the inspector the approximate location where the assault occurred.
Officer Cruz, who had interviewed Bradford, testified that a few days after Birden's assault, Birden's niece contacted him. She told Cruz that Birden had a pimp named Bobby who had beaten her in the past. Cruz, however, developed no information that Birden was with Bobby Wells on New Years Eve or had any involvement in her death. He did not know where Wells was at the time of Birden's assault and he was aware that the relationship between Wells and Birden ended badly. Sergeant Nolan spoke to Wells, but Wells refused to come in for questioning, and Nolan could not arrest him.
Bradford testified that he had been given use immunity to testify after he had refused to testify without it. He was required to tell the truth. He "guessed" that it was true that he wouldn't be charged with any crime if the prosecutor thought he was truthful in his testimony. Bradford also admitted that, at the time of trial, he was on probation for possession of a firearm. In addition, a week before the trial, Bradford was arrested after an incident with his pregnant girlfriend. He was charged with assault and domestic violence and his parole was violated. He did not receive any promises in the domestic violence case and he knew he could be returned to prison because of it, regardless of how he testified in this case. C. Washington's Defense
Washington's defense to the Jane Doe case was that they had consensual sex. Three people who lived on Burr Street, testified that they were home Christmas Eve and they did not hear any loud noises. The defense put on as a witness the police officer who interviewed Jane Doe at Kaiser Hospital after the rape and pointed out inconsistencies between Doe's account of the rape at that time, and her later accounts of the rape, as described ante. His defense to Jessica Birden's murder was based mainly on Bradford's testimony, and consisted of the theory that someone else, most likely Ricky Bradford, had killed Birden.
After deliberating for four and a half days, the jury acquitted Washington of first degree murder, convicted him of second degree murder and found true the allegation that he intentionally and personally inflicted great bodily injury on Jessica Birden. With regard to Jane Doe, the jury acquitted Washington of attempted torture, reached no verdict on the charge of forcible sodomy and convicted him of forcible foreign object penetration, forcible oral copulation, forcible rape and false imprisonment by violence. The trial court found true the prior conviction allegations.
Washington was sentenced to a total term of 49 years to life: 30 years to life for the murder of Jessica Birden, consecutive sentences of six years each for the crimes against Jane Doe—foreign object penetration, oral copulation and rape. He also received a consecutive sentence of one year for his prior convictions and a concurrent sentence of two years for false imprisonment.
This timely appeal followed.
III. DISCUSSION
A. Wheeler/Batson Challenge
1. Factual Background
During voir dire, the prosecutor excused two African-American prospective jurors. (For the purposes of this appeal, we will refer to these jurors as Juror 1 and Juror 2.) The defense challenged the prosecutor's use of peremptory challenges to excuse these jurors. Although the trial court was "hesitant to say there's a prima facie case here," it nevertheless asked the prosecutor to explain his reasons for making these challenges.
The prosecutor did so as follows: "The first individual was [Juror 1]. The reasons for him being kicked are quite extensive. First of all, his mother is a paralegal, and not just any paralegal, but a paralegal for the Berkeley City Attorney's office. The Berkeley City Attorney's office is often finding itself, especially with respect to issues that confront the Berkeley City Council, in a number of liberal or left wing causes. [¶] He indicated under 'friends' that a number of friends that he has are public defenders. [¶] He indicated on his questionnaire that he had a negative experience with respect to cops specifically, where he received a traffic ticket that he didn't agree with. [¶] Now, he's not the only one whose [sic] ever indicated a negative experience with police officers, but if we take the totality of his answers, I felt that that was significant, most profound to me, and something that I frankly thought started to broach upon possibly being a challenge for cause. I didn't bring it because I didn't think we'd gotten that far, but he expressed some very serious reservations about being able to pass judgment in this case. In fact, he's one of the individuals I had a colloquy with who indicated how he would try to do it or he would make his best effort but wasn't able to say hard-and-fast that yes, I'll be able to do this. [¶] He made it very clear that he had some reservations about judging based upon some of the religious and moral beliefs that he had. And obviously what we need from jurors in this case is an ability to make their decisions free of any encumbrance based upon their religious or moral beliefs."
The prosecutor explained, with regard to Juror 2, "I noted that [she] belongs to one particular group, specifically Moveon.org. I noted there were a number of our prospective jurors who were a member of that group. As I understand it, that is a democratic action group. It's something that traditionally leans toward the left. I dismissed every juror who came up who did, in fact, affiliate themselves with Moveon.org, no matter what particular background or class that they happened to come from. [¶] In addition, she, although she's not alone in indicating that she had a family member who was involved in some sort of criminal enterprise, hers, I noted, were fairly extensive. Her husband has been arrested. Both of her sons have been arrested. [¶] She indicated that the criminal justice system is, quote—or she indicated, however, that the criminal justice system is, quote, I do not believe it's always fair. [¶] And she also indicated that the fact that her husband and a family member has a cousin who is currently in federal prison, not county jail, not something that appears to be something of a minor infraction that people pick up through the course of their lives but certainly that would at least merit federal incarceration. [¶] So based upon all of those answers, we went ahead and chose to use a peremptory as it pertains to [Juror 2]."
The prosecutor also explained that the exercise of peremptory challenges as to these two jurors was a strategic decision because several jurors who had not yet been examined were, in his opinion, potentially better jurors and, therefore, the peremptory challenges would move these potential jurors forward in the jury pool.
Finally, a third juror, who identified himself on his jury questionnaire as "multiracial," was described by the prosecutor as "appear[ing] to be African-American or black . . . ." This juror was not excused.
Defense counsel argued that the prosecutor had failed to meet his burden of establishing a race neutral explanation for exercising its peremptory challenges as to Juror 1 and Juror 2. Specifically, defense counsel argued that other jurors had expressed views similar to those expressed by Jurors 1 and 2 and were not excused. Counsel stated: ". . . the courts have indicated that there needs to be some kind of comparison. How can a Court of Appeal evaluate whether or not these were race-based reasons and there are jurors sitting on the panel with the same type of problem with [Juror 1]. [¶] The fact that he had a negative experience with cops or has people working in the legal system, clearly most of the people on this panel indicated that they have some people working within the legal system. And clearly there were other people that are seated on the jury that indicated that they had bad experiences with the police." Defense counsel also pointed out that a juror had been placed on the panel without challenge by the prosecutor although "there have been a number of arrests with [the juror's] family. And her situation, she had a brother charged with a Vehicle Code violation 23103. . . . [¶] . . . She actually has had brothers, a brother that was charged and a coworker that was investigated for murder and released. And so that she has been associated with a number of arrests and yet she remained on the jury."
The trial court rejected these comparisons, noting that the prosecutor did not have "to get rid of every single person that has that same propensity or feeling." The court ruled that the prosecutor "has given satisfactory non-race based reasons for his exclusion of [Juror 1]" and for "peremptory challenging . . . [Juror 2]." The Wheeler/Batson motion was denied.
2. Legal Principles
In People v. Lenix (2008) 44 Cal.4th 602 (Lenix),our Supreme Court summarized the general principles applicable to a Wheeler/Batson claim. "Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.]" (Lenix, supra, 44 Cal.4th at p. 612.)
A trial court employs a three-step inquiry to determine whether the exclusion of potential jurors violates the United States and California Constitutions. "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims. [Citations.]" (Lenix, supra, 44 Cal.4th at pp. 612-613.) In the second step, the prosecutor must give a " ' "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] 'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason.
"At the third stage of the Wheeler/Batson inquiry, 'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.]" (Lenix, supra, 44 Cal.4th at p. 613.)
" 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' " [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]' [Citation.]" (Lenix, supra, 44 Cal.4th at pp. 613-614.)
One factor in evaluating the prosecutor's race-neutral explanation is whether "a prosecutor's proffered reason for striking a . . . panelist [who is a member of a protected group] applies just as well to an otherwise-similar [non-member of a protected group] who is permitted to serve . . . ." Such "evidence tend[s] to prove purposeful discrimination to be considered at Batson's third step." (Miller-El v. Dretke (2005) 545 U.S. 231, 241 (Miller-El II).) " 'Proof that the defendant's explanation is unworthy of credence' " is, as the Miller-El II court observed, " 'simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.' " (Ibid.)
However, we are also mindful of the "potentially misleading nature of a retrospective comparative juror analysis performed on a cold record . . . ." (Lenix, supra, 44 Cal.4th at p. 621) and that "comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination." (Id. at p. 622.) In conducting this type of analysis, "such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent. [Citation.]" (Id. at p. 624.) In addition, "the question of purposeful discrimination continues to involve an examination of all relevant circumstances. Comparative juror analysis was only one part of the [United States] Supreme Court's exhaustive review in an egregious case. The court did not rule that comparative juror analysis, standing alone, would be sufficient to overturn a trial court's factual finding. Instead the court emphasized: 'The case for discrimination goes beyond these [juror] comparisons to include broader patterns of practice during the jury selection.' (Miller-El II, supra, 545 U.S. at p. 253.)" (Lenix, supra, 44 Cal.4th at p. 626.) "As a reviewing court, we presume the advocate uses peremptory challenges in a constitutional manner, and defer to the trial court's ability 'to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' (Wheeler, supra, 22 Cal.3d at p. 282.)" (Lenix, supra, 44 Cal.4th at p. 626.)
Therefore, "[u]nder our deferential standard, we consider whether substantial evidence supports the trial court's conclusions. [Citation.] Evidence is substantial if it is reasonable, credible and of solid value. [Citations.] Comparative juror analysis is a form of circumstantial evidence. [Citation.] The law has long recognized that particular care must be taken when relying on circumstantial evidence. For example, jurors in criminal cases are instructed that before they can rely on circumstantial evidence to find a defendant guilty, they 'must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.' [Citation.]" (Lenix, supra, 44 Cal.4th at p. 627.) "This same principle of appellate restraint applies in reviewing the circumstantial evidence supporting the trial court's factual findings in a Wheeler/Batson holding." (Lenix, supra, 44 Cal.4th at p. 628.)
3. Wheeler/Batson Claim
With these principles in mind, we consider the prosecutor's exercise of his peremptory challenges with regard to Jurors 1 and 2. We note, preliminarily, that the issue of whether the trial court properly found a prima facie case of racial discrimination here is moot, because the court made no ruling on that issue and simply moved on to the second phase of the analysis, in which the court asked the prosecutor for his rationale for making the challenges. (People v. Booker (2011) 51 Cal.4th 141, 165.) We consider, therefore, whether substantial evidence supports the trial court's conclusion that the prosecutor's stated reasons for exercising peremptory challenges with regard to Jurors 1 and 2 were race-neutral.
With regard to Juror 1, the prosecutor explained that Juror 1 appeared to him to have a defense bias. He based this conclusion on Juror 1's mother's work (for the Berkeley City Attorney's Office), the fact that Juror 1 knew members of a public defender's office, his negative experiences with police officers and, finally, his clear reservations about making judgments. The prosecutor explained that it was the "totality" of Juror 1's answers that led to the peremptory challenge. Juror 1's jury questionnaire and his colloquy with counsel bear out the prosecutor's description of Juror 1's background and beliefs.
With regard to Juror 2, the prosecutor pointed to her membership in moveon.org, her "fairly extensive" contacts with the criminal justice system, and the fact that Juror 2 said that she did not believe the criminal justice system was always fair. Again, there is no dispute regarding the accuracy of the prosecutor's characterization of Juror 2's answers. The prosecutor's rationale for excusing Jurors 1 and 2 seems to have been that both had a potential bias toward the defense, evidenced by participation in certain organizations, personal experiences with the criminal justice system and views about the efficacy of the criminal justice system. These are, without question, race-neutral explanations for peremptorily challenging Jurors 1 and 2. Defendant, however, argues that two non-African-American jurors, who were not dismissed, expressed views similar to those which the prosecutor used to challenge Jurors 1 and 2, and, therefore, the trial court should have ruled that the challenges were impermissibly race based. As we have noted, when conducting a comparative juror analysis, we bear in mind that "if a prosecutor's proffered reason for striking a . . . panelist [who is a member of a protected group] applies just as well to an otherwise-similar [non-member of a protected group] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step." (Miller-El II, supra, 545 U.S. at p. 241.) We have reviewed the record and conclude that neither of the non-African-American jurors is similar enough to Jurors 1 and 2 to suggest bias was at the core of the prosecutor's peremptory challenges.
Defense counsel first described an Asian-American juror who he asserted was very similar to Juror 1 and Juror 2, in that he reported a "very bad experience with a police officer." In that experience, the officer "screamed" at the juror and his wife when they attempted to report a crime. The juror said he thought prostitution and marijuana should be legal and that he believed the criminal justice system was "inefficient, costly and only marginally effective in putting away criminals."
The Asian-American juror bore very little resemblance to the "liberal," pro-defense Jurors 1 and 2. A quality assurance supervisor, whose periodical reading consisted of Consumer Reports, Golf and the San Francisco Chronicle, no member of the seated juror's family, or group of close friends had any involvement with the legal system, criminology, or police/forensic science. He wrote in his questionnaire that "[n]early my entire family serves in healthcare; either as MDs, RNs or in the Pharmaceutical Industry." This juror had a B.A. in biology and the one person he knew with any attachment to the law was a "a friend who is a family lawyer/judge in Redwood City." He had no religious or philosophical beliefs that would interfere with his ability to serve on the case, neither he nor any member of his family or friends had ever been arrested for, accused of or charged with a crime. He had, however, been the victim of a crime ("Auto Break in and Theft"), and had witnessed a purse snatching. His one "good or bad" experience with the police was "a disappointing experience with an unprofessional Newark officer in which he screamed at myself and my ex-wife for attempting to report the purse snatching during the perp. arrest." This juror participated in a neighborhood watch and was on the board of directors of his homeowners association. He did not believe the criminal justice system was particularly effective, because it "is inefficient, costly and only marginally effective in putting away criminals. In addition the jail system is overcrowded and I am against early release." He believed that prostitution "should be legalized and regulated for health issues and tax revenue" and believed the "DEA is ineffective in regulation/controlling trafficking." He "favor[s] marijuana legalization for regulation and taxation purposes," had no personal experience with the use or sale of illegal drugs and felt that the use or sale of drugs "invariably brings additional associated crime and violence." In sum, this juror believed the criminal justice system did not respond favorably to his own effort to report a crime and was not effective in putting and keeping criminals in jail. This, along with his participation in a neighborhood crime watch, is not the profile of a person who could be characterized as "pro-defense."
In contrast, Jurors 1 and 2 gave answers which indicated to the prosecutor a strong likelihood of a pro-defense leaning, such as a feeling that the criminal justice system was unfair, a difficulty passing judgment, familiarity with persons involved in the criminal defense bar (or who worked for the "liberal" Berkeley City Attorney), family members who had been incarcerated, and participation in moveon.org, which the prosecutor had identified as an organization whose membership was "liberal," and therefore likely to lean toward the defense. The Asian/Caucasian juror, in contrast, had experienced the criminal justice system only as a victim and witness who had unsuccessfully attempted to report a crime, and believed the criminal justice system could be improved by putting and keeping more criminals in jail. This juror is not so comparable to Jurors 1 and 2 as to suggest the prosecution engaged in impermissible racial bias in exercising its peremptory challenges.
Washington also points to a Caucasian female juror who he characterizes as substantially similar to Jurors 1 and 2. This comparison does not, however, hold up. This juror, an architect, had a sister-in-law and brother-in-law who were retired police officers. The brother-in-law was currently a private investigator. The juror belonged to an organization called "Democracy for America," made "occasional donations to MADD [and] Emily's List." She was also a member of the American Institute of Architects and made occasional donations to "Vanished Children's Alliance." Her brother had once been charged with, accused of, or arrested for "reckless driving." She visited him in jail in Stanislaus County once. A co-worker had been charged with murder but it "never went to trial, released." As for her feelings about the effectiveness of the criminal justice system, she stated on her questionnaire that "it has its flaws, but overall I believe it functions well, provides justice and secures results for the community."
This juror, who had family members who were former police officers and believed that the criminal justice system "functions well," is not comparable to Juror 2, as Washington contends. Washington's only argument with regard to the similarity between these two jurors is that Juror 2 was a member of moveon.org and this juror was a member of an organization he contends, based on an internet citation, is a liberal organization similar to moveon.org. There is no evidence, however, that the prosecutor knew that this organization was similar to moveon.org, which he had chosen as a way to characterize the defense leanings of potential jurors.
Finally, Washington points to two alternate jurors who he also contends are similar to Juror 1 and Juror 2. However, as the People note, alternate jurors in this matter were not comparable to empanelled jurors and, therefore, do not factor into Wheeler/Batson claims. (People v. Lewis (2006) 39 Cal.4th 970, 1018, fn. 13.)
Finally, we reject Washington's argument that the trial court refused to engage in comparative juror analysis. As we read the record, the court simply pointed out that a comparative juror analysis did not mean that if any retained juror shared a characteristic similar to that of a dismissed juror the court must find a Wheeler/Batson violation. As the court pointed out, "otherwise you wouldn't have anybody on the jury because everybody had something." The court's understanding of the limits of comparative juror analysis is in line with our Supreme Court's observation that "[a] party concerned about one factor need not challenge every prospective juror to whom that concern applies in order to legitimately challenge any of them." (People v. Jones (2011) 51 Cal.4th, 346, 365.) Accordingly, we find that the trial court did not err in rejecting Washington's Wheeler/Batson claim. B. Motion to Sever
Washington filed a pre-trial motion to sever count 1, involving the murder of Jessica Birden, from counts 2-7, involving the rape and assault of Jane Doe. He argued that the evidence in these cases was not cross-admissible, that the two cases were weak and that trying them together would unfairly and impermissibly strengthen both cases. Washington also claimed that he wanted to testify in the case involving Jane Doe, but not in the case involving Jessica Birden. He contends that joining the two cases impinged on his constitutional right to testify and against self-incrimination.
The trial court denied the severance motion: "I don't see that there would be any prejudice. . . . [N]ot only are [the two cases] the same class of cases, but I don't think one is a heavier weight case than the other. There's not one that's weak and one is heavy. I think they're both about similar because you basically have more or less percipient witness[es] in both of them." When Washington renewed the severance motion after People v. Earle (2009) 172 Cal.App.4th 372 was filed, the trial court denied it again. It did not abuse its discretion in so doing.
Penal Code section 954, which governs this issue, provides that "[a]n accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. . . ." There is no dispute that the two joined crimes—murder and rape— are assaultive crimes against the person and, therefore properly joinable under section 954 as " 'offenses of the same class of crimes . . . .' " (People v. Maury (2003) 30 Cal.4th 342, 395.)
When, as they are here, the statutory requirements for joinder are met, the defendant bears the burden of showing that the significant benefits of joinder are outweighed by a substantial danger of undue prejudice. (People v. Soper (2009) 45 Cal.4th 759, 773 (Soper).) A defendant must make a clear showing of undue prejudice, a showing that is stronger than that which would be necessary to exclude other-crimes evidence in a severed trial. (Id. at p. 774.) In addition, we bear in mind that "the benefits to the state, in the form of conservation of judicial resources and public funds . . . often weigh strongly against severance of properly joined charges." (Ibid.)
That the evidence from the joined crimes is cross-admissible is an important factor in determining whether there is prejudice. (Soper, supra, 45 Cal.4th at pp. 774-775; People v. Stitely (2005) 35 Cal.4th 514, 531.) In fact, the cross-admissibility of evidence usually dispels any inference of prejudice. (Soper, supra, 45 Cal.4th at pp. 774-775; People v. Catlin (2001) 26 Cal.4th 81, 110.) Although the trial court mentioned one possible area of cross-admissibility having to do with the testimony of a police officer involved in both cases, neither the People nor Washington focused on this issue at trial. On appeal, however, the People contend that joinder was appropriate because the evidence from the two crimes would have been cross-admissible. We agree.
Washington's defense to the murder of Jessica Birden was that the police had mistakenly identified him as the murderer when Ricky Bradford, who was in the car that night, actually committed the murder. Therefore, evidence of the rape of Jane Doe would have been cross-admissible to show identity in the trial of the murder of Jessica Birden so long as it met the requirements for admission of other crimes evidence under Evidence Code sections 1101, subdivision (b), and 352. With regard to the rape of Jane Doe, Washington's defense to this crime was that Doe consented and had falsely accused him of rape in order to punish him for not wanting a romantic relationship. Evidence of Washington's violent actions toward Jessica Birden would have been cross-admissible to show Washington's intent with regard to Jane Doe again so long as it met the applicable legal requirements.
As a general matter, evidence of other crimes is admissible if there is sufficient similarity between the two crimes. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) "A greater degree of similarity is required in order to prove the existence of a common design or plan." (Ibid.) "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity." (Id. at p. 403.) Not only was the evidence of these crimes sufficiently similar to support cross-admissibility on the issue of intent, it was also sufficiently similar to support cross-admissibility on the issue of the identity of Birden's murderer.
First, the victims were the same age (19) the same race (African American), the same gender (female), and the same body type (small and thin). They were both acquainted with Washington. The crimes were geographically proximate—both occurred in the Oakland hills within a five minute driving distance of each other. They occurred within one week of each other. Each woman was driven to the site of the crime and was placed in a position in which it was difficult to impossible to leave. Washington had been drinking heavily on both occasions. His assaults on both women utilized a similar form of violence: he slapped them with his open hand, hit them with his fists, knocked them to the ground and, once they were on the ground, he kicked them brutally and repeatedly. Washington's primary relationship with both women was sexual and sexually violent. Washington was Birden's pimp and had had sex with her on at least one occasion. Before she was assaulted by Washington, Birden asked him not to rape her. And Washington did sexually assault Jane Doe.
The similarity between the two crimes—the age, race, gender and body types of the victims, the geographical and temporal proximity, Washington's drinking on both occasions, the similarity of the assaults, and the sexual nature of Washington's relationship with both victims supports cross-admissibility in order to prove both intent with regard to the rape of Jane Doe and identity with regard to Jessica Birden's murder.
We find Washington's contrary arguments unconvincing. Mainly, he contends that the two incidents lack sufficient similarity to justify admission. He points out that Jane Doe and Birden had different relationships with Washington in that Jane Doe and Washington were on a "first date," when the rape and assault occurred and Washington was Birden's pimp and did not sexually assault her. He also argues that the only similarity between the two cases was that Washington made comments to Doe about prostitution and pimping and both victims "may have been" kicked. He goes on to state that he was unable to find a single case in which a non-sexual homicide and a non-homicidal sex offense were found sufficiently similar to be cross-admissible and cites a number of cases in which evidence was admitted because the crimes were sufficiently similar.
The gist of these arguments is simply that Washington does not agree that the crimes are sufficiently similar to justify admission, and therefore, to support joinder. He can only make this argument, however, by being selective about the facts he chooses to support his position. He fails to acknowledge that both crimes took place quite close to each other geographically, were only a week apart, involved women of similar age, race and body type, that both were women with whom he had had sex, or that he had been drinking before his assaults on each woman, and the assaults were similar in kind. Washington also repeatedly refers to the admissibility of the evidence as turning on whether a common plan existed. Because we have concluded that the events were similar enough to justify admissibility to show identity, which requires a greater showing than that which must be made to show a common plan, his argument here is misplaced.
For all these reasons Washington's argument against the cross-admissibility of the crimes fails. Because evidence of the murders was cross-admissible, any likelihood of prejudice was dispelled. (People v. Arias (1996) 13 Cal.4th 92, 126.) For that reason alone, no abuse of discretion would have occurred in denying severance. (Id. at p. 128.)
However, even if the evidence was not cross-admissible, Washington has failed to show prejudice. "In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 161.) In addition to the cross-admissibility of the evidence, which we discuss ante, the court may also consider three other factors: "whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. . . ." (Ibid.) Another factor is "whether some of the charges are likely to unusually inflame the jury against the defendant" (ibid.) and, finally, "whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges . . . ." (Ibid.) Washington failed to make such a showing.
The parties seem unaware of this requirement and refer to the trial evidence in their arguments, evidence that was not before the trial court when it ruled on Washington's motion to sever. Here, we refer to the evidence contained in the preliminary hearing.
Certainly, this is not a capital case. Nor are the charges likely to unusually inflame the jury. With regard to the inflammatory nature of the two crimes, Washington, citing Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 941, argues that the evidence in the Jane Doe case was so inflammatory that it would prejudice the jury in the Jessica Birden matter, and vice versa. We disagree. In Calderon, one of the crimes, a gratuitous, execution-style murder, was far more likely to inflame the jury than the other, an attempted murder involving the exchange of shots from one car to another. Here, both crimes of which Washington was accused were egregious and, thus, a jury would not be likely to see Washington as any more or less despicable than it would have had it considered the evidence as to these crimes separately.
Considering the relative strength and weakness of the two cases against him, Washington does not argue that one of the cases was more inflammatory or weaker than the other. Rather, he contends that the court erred in joining what he characterizes as two weak cases, with the result that the combined weight of the evidence would bolster the case against Washington in each matter. When Washington made this argument at trial, the trial court disagreed: "I don't think one is a heavier weight case than the other. There's not one that's weak and one is heavy. I think they're both about similar because you basically have more or less percipient witness[es] in both of them."
We agree. Jane Doe's testimony regarding the events the night of the rape was corroborated by a number of witnesses. Christopher Wilson testified that when he picked Jane Doe up after she escaped from Washington's house, she was frightened, shaken and crying. She told Wilson that she had been raped. Jane Doe's mother corroborated the phone call she (Jane Doe) made from the Burr Street house, mentioning the same detail Jane Doe did regarding appellant's identification of himself as "Lucifer."
The results of Jane Doe's sexual assault examination, conducted hours after the rape was particularly compelling corroborative evidence. Dr. Kelly, who examined Doe, testified that Doe's physical injuries were consistent with Doe's report of the assault and rape. Jane Doe's injuries were not similar to the physical condition of women who had had consensual sexual intercourse.
Washington's contrary account of the rape—that he and Jane Doe had consensual sex and, because she was upset that he did not want a relationship with her, she pursued a vendetta against him—was unconvincing, and certainly not so strong as to substantially weaken Jane Doe's case.
Nor could the case involving Jessica Birden be described as weak. The main prosecution witness, Ricky Bradford, was with Washington throughout the day and described Washington's role as Birden's pimp, the fact that Washington grew increasingly drunk as the night proceeded, and his behavior toward Birden in the car on the way to the location where Birden was found the next day. Bradford also testified that he saw a portion of the assault, and that Birden did not return to the car after she and Washington left it that evening. Bradford's testimony was corroborated by a number of witnesses, including Washington, whose account of the events of the day, with the exception of the murder of Birden, is similar to Bradford's. Although Washington suggested that Bradford was Birden's assailant, this theory is far fetched, considering the pre-existing relationship between Birden and Washington and the fact that Washington was angry with Birden that evening.
Washington also contends, citing United States v. Armstrong (9th Cir. 1980) 621 F.2d 951, 954 (Armstrong)and Zafiro v. United States (1993) 506 U.S. 534, 539, that joinder impinged on Washington's right to testify and against self-incrimination. He argues that because he had important testimony to give in the case involving Jane Doe, and did not wish to testify about his relationship with Birden, the court should have severed the trial of the two cases. We disagree.
Although Washington cites Armstrong in support of his argument, he fails to acknowledge the Armstrong court's discussion of this issue. The court in that case wrote: "No need for severance on self-incrimination grounds exists 'until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.' [Citations.] Though it is arguable whether the defense established that Armstrong had a strong need to refrain from testifying on count I, the defense made no showing at all in arguing the severance motion that Armstrong had important testimony to give on counts II and III." (Armstrong, supra, 621 F.2d at p. 954.) When counsel argued the severance motion in this matter, he made no showing that Washington had important testimony to give in the Jane Doe case or a strong need to refrain from testifying in the Jessica Birden matter. Accordingly, we reject this argument.
After the publication of People v. Earle, supra, 172 Cal.App.4th 372, a case involving a motion to sever, Washington renewed his severance motion and the trial court again denied it. It did not err in so doing because Earle is factually inapposite. In Earle, the trial court joined a strong case involving misdemeanor indecent exposure, which the defendant tacitly admitted, with two assault charges that were much weaker because the defendant did not match the victim's description of her attacker. The appellate court found the joinder of these charges an abuse of discretion. As we have found, this case involved the joinder of two similarly strong cases, of similar seriousness. Therefore, it bears no resemblance to Earle.
Washington also argues that, even if the trial court did not abuse its discretion by denying the severance motion, the joint trial was fundamentally unfair. Here, too, we disagree.
It is well established that, "even if a trial court's ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts . . . for trial resulted in gross unfairness depriving the defendant of due process of law." (People v. Rogers (2006) 39 Cal.4th 826, 851.) Washington argues that he was denied due process because the prosecutor used the joint trial to (1) present otherwise inadmissible character evidence to bolster problematic witnesses, (2) prevent Washington from testifying in his defense in the Jane Doe matter, and (3) to portray Washington as a "violent, sexual deviant who should be locked away."
We disagree. The two crimes were, in fact, cross-admissible to show Washington's intent and identity, and, therefore, were not character evidence of Washington's predilection for violence and sexual deviancy. As for Washington's desire to testify in his defense with regard to the Jane Doe matter, there is no evidence, other than one passing reference by defense counsel, that Washington intended to or was prevented from testifying in his own defense. C. Evidence of Third Party Culpability
Washington argues that the trial court erred in excluding testimony of the specifics of charges of domestic violence against Bradford, which, he contends were similar enough to the crime against Jessica Birden to merit admission. We disagree.
Prior to Bradford's testimony, a lawyer appeared to represent Bradford with regard to the prosecution's request for a granting of use immunity and an order requiring Bradford to answer questions. After immunity was approved, Bradford's lawyer brought up a pending domestic violence case against Bradford. Bradford's lawyer told the court that he had advised Bradford not to answer specific questions about the pending case. The prosecutor stated that the People "[had] no issue or quarrel with Mr. Ogas telling Mr. Bradford that he shouldn't answer those questions because I think it's his right. And as a consequence, I don't intend to go into any of the underlying facts as it pertains to that case." Defense counsel's position was that "he can be asked by the defense if he's in custody and if he's currently facing felony charges, what the nature of those charges are, and just the basics that relate to that. [¶] I do, in fact, think everything that's alleged in that case is very material to this case and intend to call witnesses to that incident in my case-in-chief. It is my understanding that this involved a beating of a woman who was eight months pregnant and kicking her in the stomach, and I think that is very material to my case."
The prosecution argued that "to ask this witness about the facts of it [Bradford's pending case] would clearly tend to incriminate him, and he's entitled not to answer that." Defense counsel replied, "And I agree with that. There's no—I have no quarrel with that." The court instructed Bradford that "they can ask you the general nature of what it is; for example, it's domestic violence, period. Okay. But don't answer, don't say any of the details about that case." The court asked if that was agreeable with counsel and no further objections were raised with regard to Bradford's testimony on the question of the pending domestic violence case.
Bradford testified in accordance with the court's instructions. However, on cross-examination, defense counsel asked, "[I]sn't it true you're charged with kicking" — before she was interrupted by the prosecutor's objection, which the court sustained. At the end of the day, defense counsel requested that she be permitted to brief the matter. She then filed a motion to "introduce the misconduct of prosecution witness Bradford." The substance of the evidence the defense proposed to introduce was contained in the Alameda County Sheriff's report regarding an incident that occurred on April 8, 2009, between Bradford and his girlfriend, who was, at the time, eight months pregnant. Bradford pushed his girlfriend, she fell to the ground and hit her head. Bradford kicked his girlfriend in the stomach and then left the scene. Defense counsel argued that evidence regarding this incident was admissible on two grounds: as an act of moral turpitude to impeach Bradford's credibility and as "evidence of third party culpability" that was admissible "as common design and plan."
The next day, the parties argued the motion. Defense counsel contended that the domestic violence incident was similar to the assault on Birden. Counsel stated that she had no evidence that Bradford had had any relationship with Birden, but that such a relationship was not necessary to show a common scheme or plan. The prosecutor argued that there were significant differences between the attack on Birden and the domestic violence incident in that Bradford knew the latter victim, who was his girlfriend, and kicked her only once before leaving the scene. The trial court denied the motion, holding that there had been no showing of a common plan or scheme, which requires "common features [that] indicate the existence of a plan, not just a series of similar spontaneous acts."
Although the People argue that the defense's claim that the trial erred in admitting the evidence fails (a) because it was waived, (b) because defense counsel failed to inform the court of what evidence it would introduce to put forward the details of the incident, and (c) the defense argued that the evidence should be admitted under the "common plan" theory at trial and could not now argue that the evidence was admissible to show identity, we find that regardless of these procedural issues, the claim fails on the merits.
Defendant's argument at trial that Bradford, rather than Washington, killed Jessica Birden raises the issue of identity. Evidence of other crimes is admissible to show identity if there is sufficient similarity between the two crimes. "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity." (Ewoldt, supra, 7 Cal.4th at p. 403.) Here, there was insufficient similarity between the two crimes to merit introduction of evidence of the domestic violence charges against Bradford. One of the victims was known to Bradford, the other, Jessica Birden, was a stranger. The crimes took place more than a year apart. (We note that defendant characterizes this time span as "not long," a characterization with which we disagree.) Birden was subjected to a savage beating that left her near death. Bradford kicked his girlfriend once and then left. Birden was driven to the place where she was attacked. The incident between Bradford and his girlfriend took place in their home and occurred as a result of a disagreement. There is no evidence that Birden and Bradford had any sort of disagreement. In sum, the evidence of Bradford's pending case would not have been admissible to show either identity or common plan and intent.
Defendant argues, without any citation to authority, that additional evidence linked Bradford to the crime—the fact that Bradford was present, that he had a black eye and scratches on his face, that Birden had biological material under a fingernail that was consistent with one in three members of the general population and Bradford had not been excluded as a possible source. This additional evidence was vigorously argued by the defense in closing argument. However, it is irrelevant to the question here regarding the degree of similarity between the two crimes. D. Motion for Mistrial and Motion to Strike
Charles Travenia, an acquaintance of Washington, testified at trial about conversations he had with Washington in which prostitution and pimping were discussed. Before Travenia testified, defense counsel moved to exclude testimony regarding an event in which "a couple of days before the barbecue [on New Year's Eve], he [Travenia] was with my client and that my client was really drunk. And that they were on Bancroft when a prostitute crossed the street. And that the defendant told Travenia to punch the prostitute in the face. Mr. Travenia did not. That appears to be the extent of the interchange." Washington's attorney argued that this potential testimony was irrelevant character evidence that should be excluded under Evidence Code section 352. The People argued that Washington's statement to Travenia "is highly relevant to establish that the defendant had a motive in this particular case. . . . [H]e's telling Mr. Travenia how you're supposed to deal with a woman like that."
The court stated, "Sometimes character evidence is admissible under those certain situations. In this case, though, I'm going to grant the motion to exclude, but I'm going to grant it without prejudice because, I don't know, it may become relevant. If at some point in here I see the relevancy and see how it actually would not be excludable, then I will rethink that issue, but right now we'll keep it out."
Travenia testified that Washington talked about being a pimp. Washington would say "this is how it should be with a pimp, pimping should be like this and it should be like that. I can't really remember any specifics. It's been a long time. But basically just, I don't know how you say, the rules of the game or how things go when you're dealing with women, you're dealing with pimps, and things like that." The following colloquy then took place.
"[PROSECUTOR]: Those are the types of things he'd talk about?
"A: (Nods head up and down.)
"Q: Is that a yes?
"A. Yes, I'm sorry, yes.
"Q. That's all right. [¶] Now, did you ever in the times that you saw Mr. Washington see him with a prostitute?
"A. No.
"Q. Did he ever walk up to you and say, 'Hey, look, this is a working girl'?
"A. No
"Q. Did you ever hear him on the phone talking to somebody he described as a working girl?
"A. No.
"Q. Now, you did indicate that he would mention things about the rules of the game. When he would talk about the rules of the game, what types of things would he say?
"A. Man, I don't even really know. Like he told me one time about this one girl, I should have snatched her up and told her 'it's pimping' and get her for her money and tell her I'm not a trick, things like that. I mean
"Q. Now, do you have, the circle of friends you ran with, do you guys have nicknames for each other?
"A. Yeah. Everybody got a nickname.
"Q. What would you call Ken [Washington]?:
"A. 'The pimping.'
"Q. In any of the conversations where Mr. Washington over here would talk about the rules of the game, did he ever talk about the use of physical violence towards women?
"A. Never—he told me one time something physically violent towards women, and he told me one time to sock this girl in the face. And that was it."
Defense counsel objected and an unreported sidebar discussion took place. Following the discussion, the court told counsel to "[m]ove on. On cross-examination, Travenia testified that he did not take Washington seriously when he made his comment about violence toward women. Travenia did not believe Washington was a pimp. Rather, he understood Washington to be speaking about the pimping "lifestyle," when he used the phrases "in the pimping" and "respect the pimping." Travenia thought Washington's discussion of the "rules of the game," was "a suggestion."
Later, outside the presence of the jury, the defense asked that the jury be admonished "that this D.A. did not follow the court order in this case, which was to tell this witness not to testify that my client had told him to punch a prostitute in the face." Counsel requested that "the jury should be informed it was misconduct and I'm asking for an assignment of misconduct." The court ruled that, when it granted defense counsel's motion to exclude, it did so as to the specific conversation in which defendant, while drunk, pointed at a prostitute across the street from where he and the witness were standing. Because the testimony was general and not about this conversation, the court ruled that it did "not find that there's been any misconduct. And I'm not going to admonish because I don't think that that was what was going on. Everyone was asking questions about the pimping life."
The next day, defense counsel again raised the issue of the motion to exclude. Counsel again asked that the jury be informed of the misconduct and that "an assignment of misconduct be made." Counsel then stated, "actually I should be asking for a mistrial. This is the sort of glaring, to me, violation of a court order over some information that's very prejudicial, and I'm requesting a mistrial." The prosecutor pointed out that the court had already ruled that Travenia's statement did not violate the court's earlier order that counsel not elicit testimony regarding a specific conversation in which Washington, pointing out a prostitute, told Travenia that he should punch this woman.
The court denied the motion, explaining that "my order went specifically to this time two days before the barbecue when he [Travenia] was with the defendant, the defendant was really drunk, there was a prostitute across the street, and supposedly the defendant told Travenia to punch the prostitute in the face. [¶] Now, when I heard what he [Travenia] testified to, it sounded to me like it was a general thing. When I see this, the actual transcript, it says: 'And he told me one time to sock this girl in the face and that was it.' [¶] I'm not sure that it was a general time, I'm not sure if it was that specific time, but it was not really clear in the text which one, which situation he was talking about. But the ban actually went to the specific time." The trial court denied the motion for a mistrial and found that there had been no misconduct.
The court then offered to strike Travenia's testimony that "he [Washington] told me one time to sock this girl in the face and that was it." Defense counsel declined the court's offer on the ground that striking the testimony would call more attention to it. Defense counsel instead requested that the court strike the testimony without telling the jury it had been stricken, for the purpose of preventing the prosecution from using the statement during closing argument. The court denied this request. The court ruled that defense counsel could not have it two different ways. "If you want it [Travenia's testimony] considered, then he's going to have to be able to argue it. If you don't want it considered, then he won't be able to argue it."
The trial court did not err in denying the mistrial motion and in denying the defense request that the evidence be stricken without informing the jury of this fact. We review both questions under the abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953.)
A motion for mistrial "presupposes error plus incurable prejudice. . . . We examine the record to ascertain if the trial judge, in denying appellant's motion for mistrial, abused his discretion." (People v. Woodberry (1970) 10 Cal.App.3d 695, 708.)
Most fundamentally the trial court did not err in denying defense counsel's mistrial motion because there was no "improper introduction" of evidence. The court specifically ruled that Travenia's testimony did not violate the court's earlier order that he not testify regarding the specific incident. We agree.
The court ordered the prosecutor not to elicit a specific description of the circumstances under which Travenia, in a conversation with Washington, who had been drinking heavily, was told by Washington to punch a specific prostitute the two men observed while standing together. In compliance with the court's order, the prosecutor did not elicit testimony about this incident. Travenia did not refer to this conversation when he observed that Washington never talked about the use of physical violence toward women, with two exceptions, one in which he told Travenia "something physically violent towards women and he told me one time to sock this girl in the face. And that was it." The court's order went to the specific circumstances of the conversation as well as Washington's comments. Travenia's testimony was general—he did not identify the woman as a prostitute, he did not describe Washington as drunk, and he did not describe the location where this interchange took place. Given that a mistrial motion "presupposes error," and the trial court properly found no error in the introduction of this evidence, it did not abuse its discretion when it rejected counsel's request for a mistrial.
Washington, however, argues that the trial court found the testimony irrelevant when it offered to strike it. We take it that Washington is actually arguing that the court reversed its earlier ruling that Bradford's testimony had not violated its order. We have reviewed the record and conclude that the trial court's offer to exclude the evidence with a limiting instruction was not a reversal of its earlier finding. It seems to us that the court was simply exercising caution in making this offer.
In any event, even if the introduction of the evidence was in error, there was no "incurable prejudice." Travenia made clear on cross-examination that he did not take Washington's statements seriously and he did not consider Washington a pimp. Nor did the prosecutor dwell on his testimony in his closing argument. He simply pointed out that the testimony was one of several ways in which Bradford's testimony was corroborated. Therefore, not only did the prosecutor not commit misconduct in eliciting this testimony but the trial court properly found no incurable prejudice.
We also reject Washington's second argument regarding Travenia's testimony that the trial court abused its discretion when it denied defense counsel's request that the court strike the testimony without calling this fact to the jury's attention. Most basically, the trial court was not required to grant defense counsel's motion to strike testimony that the court had ruled was not erroneously admitted. Defendant's contention that the trial court could have stricken the evidence without the jury being instructed to disregard it is similarly flawed. Regardless of whether it was right or wrong to reject counsel's request to "have it both ways," the trial court did not abuse its discretion when it refused to strike admissible evidence. E. Prosecutorial Misconduct
Washington argues that prosecutorial misconduct was committed on five occasions. We disagree.
1. Elicitation of Travenia Testimony
Defendant first argues that the prosecutor in this case "deliberately elicited" Travenia's testimony regarding Washington's statement that Travenia should "sock" a woman in the face. He contends this constitutes misconduct because the evidence had been excluded by the trial court. As we have previously held, the trial court correctly concluded that the evidence was consistent with its order regarding the extent to which Travenia could testify regarding this incident. Given that the evidence was not excluded by the trial court, defendant's argument here fails.
2. Emphasis on Evidence in Opening Statement
Defendant next contends that the following statement, which defendant incorrectly states occurred during "opening argument," (it actually occurred in closing) constituted misconduct: In his closing argument, the prosecutor told the jury: "[Bradford's testimony is] also corroborated through the defendant's comments to others that this is how you handle your business. This is how you handle your women, especially when they do you wrong. Remember Charles Travenia talking about the discussion he had with the defendant about where, hey, sometimes you got to slap her in the face." Although it is misconduct for the prosecutor to argue facts not in evidence (People v. Hill (1998) 17 Cal.4th 800, 827-828 (Hill)),the evidence of the conversation between Washington and Travenia was not excluded. Therefore it was not misconduct for the prosecutor to refer to it in his closing argument.
We also reject defendant's argument that the prosecutor committed misconduct because he distorted Travenia's testimony in that Washington never directly said "this is how you handle your women, especially when they do you wrong . . . sometimes you got to slap her in the face." The People argue that defense counsel forfeited this claim because she did not object to this statement. This is correct. "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety."(People v. Samayoa (1997) 15 Cal.4th 795, 841.)
In any event, the claim fails on the merits. "Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury." (People v. Price (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Although prosecutors are given "wide latitude" in arguing their cases, they nevertheless "are held to an elevated standard of conduct." (Hill, supra, 17 Cal.4th at p. 819.) The imposition of this higher standard is justified by their "unique function . . . in representing the interests, and in exercising the sovereign power, of the state." (Id. at p. 820.)
To warrant reversal, the challenged conduct must be prejudicial. "What is crucial to a claim of prosecutorial misconduct is . . . the potential injury to the defendant." (People v. Benson (1990) 52 Cal.3d 754, 793.) When the claim "focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa, supra, 15 Cal.4th at p. 841.) To answer that question, we examine the prosecutor's statement in the context of the whole record, including arguments and instructions. (Hill, supra, 17 Cal.4th at p. 832.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The prosecutor in this case had " 'wide latitude' " to draw reasonable inferences from the evidence. (People v. Farnam (2002) 28 Cal.4th 107, 169). His summary of Washington's attitude toward women is consistent with Washington's statements to Travenia and others and did not constitute misconduct.
3. Exploitation of Joinder
Relying on the assumption that the trial court erred when it did not sever the two crimes, defendant argues that, in four closing argument references to the similarity between the two crimes, the prosecutor impermissibly "exploited" the trial court's error. We agree with the People that the defense did not object to any of these four statements. Moreover, we have previously held that evidence of the two crimes was cross-admissible and, therefore it was not improper for counsel to compare the two crimes in his closing argument.
4. Arguing Facts not in Evidence and Denigration of Counsel
In his rebuttal, the prosecutor made the following statement: "Now, yesterday afternoon, all of you were subjected to some very common defense strategies and tactics in arguing a case like this." Defense counsel objected and the trial court overruled the objection. The prosecutor then told the jury, "And primarily that strategy is to put other people on trial. See, the idea is to make this about anyone, anything other than the defendant. And we saw that tactic exercised throughout this trial."
Defendant argues that no evidence was presented regarding "common defense strategies" and, therefore, this argument was improper. In addition, defendant contends that this argument impugned the integrity and honesty of defense counsel and the defense. (People v. Jones (1997) 15 Cal.4th 119, 168, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1).
We disagree. First, the reference to "common defense strategies" does not strike us as a "fact" for which evidence must be presented, but a rhetorical device intended to convey the point that there is nothing unusual in defending against a crime by asserting that someone else had committed it. In any event, this statement was a minor part of the prosecutor's argument that the defense strategy in this case was to suggest that someone besides Washington had murdered Jessica Birden. Moreover, as the People point out, the jury must be presumed to follow the instruction that statements made by lawyers are not evidence. (Richardson v. Marsh (1987) 481 U.S. 200, 211.)
As for defendant's argument that this statement impugned the integrity of the defense, we disagree with this reading of the prosecutor's argument. In stating that it is common to argue that someone else committed the crime of which a defendant is accused, the prosecutor was in no way suggesting that defense counsel was unethical to do so. To suggest that a tactic is common is not the same as suggesting that it is dishonest.
5. Appeal to Racial Prejudice
Defendant also maintains that a statement regarding how the defense's focus on the fact that Officer Cruz of the Oakland Police Department chose not to pursue information from Bobby Wells, a pimp who had previously been violent with Jessica Birden, improperly appealed to racial prejudice. The prosecutor's statement is as follows: "Lou Cruz didn't follow up on Bobby Wells. And we were told that one of the consequences of his not following up on Bobby Wells is that it may preclude us from learning who the real killer is. [¶] Have you heard that before? It's kind of too bad under the circumstances that OJ's locked up because maybe they could look for this real killer while he's out there looking for the real killers in his own case. [¶] This issue about Bobby Wells is the biggest red herring in this case. A red herring is something that is thrown at you by the defense that is designed to make you divert your attention away from the real issues— Defense counsel objected, and the objection was overruled. The prosecutor then told the jury "and the real facts and lead you on a tangent. [¶] [i]f this case was called People v. Wells as opposed to People v. Washington, if Judge Cartwright said, 'Mr. Delucchi, call your first witness,' and you know what all of you would hear? The sound of crickets chirping because there is absolutely nothing to that."
Defendant argues that this statement was an offensively racist appeal to the jurors to the effect that "OJ got away with it. Don't let this black man get away with it." It stretches credulity to interpret counsel's example of a well-known effort to divert attention from a defendant's guilt by suggesting that the real killer was still "out there," but was not being pursued by the police. Far from appealing to racial prejudice, the argument constituted the prosecutor's attempt to analogize the defense strategy in this case with a well-known similar situation in which a "red herring defense" occurred.
IV. DISPOSITION
The judgment is affirmed.
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Haerle, J.
We concur:
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Kline, P.J.
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Lambden, J.