Filed 4/23/14 P. v. Brown CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B242118
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA089671)
v.
LAMAR BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark C. Kim, Judge. Affirmed as modified.
Linn Davis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant, Lamar Brown, appeals his convictions for corporal
injury to a cohabitant, and assault by means of force likely to produce great bodily
injury, with great bodily injury and prior serious felony conviction findings
(Pen. Code, §§ 273.5, (former) 245, subd. (a)(1), 12022.7, 667, subds. (a)-(i)).1
Brown was sentenced to state prison for a term of 34 years to life.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Denesha C. and defendant Brown had been romantically involved on-and-off
since junior high school. In 2010, Brown began living with Denesha and her three
children in an apartment on Redondo Avenue in Long Beach. In January 2011,2 they
moved into an apartment on Junipero Avenue. Brown moved out in February
following an argument with Denesha. When Brown, accompanied by his friend,
Fred Mims, came by the apartment to pick up some belongings, there was a physical
altercation. Brown pushed Denesha down onto the bed while choking her. He also bit
the inside of her lip. Denesha, who was pregnant with Brown’s child at the time, did
not call the police. They reconciled shortly afterward and Brown moved back in.
On July 31, Brown asked Denesha to come with him to a party at his mother’s
house. Denesha said she was tired, so Brown went by himself. When he returned later
that night, Brown brought some food with him and he woke Denesha up to help him
put it away in the refrigerator. Brown was drunk and angry because he had had a fight
with his mother. He and Denesha argued about fitting the food into the refrigerator.
To calm things down, Denesha went into the living room and sat on the couch.
1
All further references are to the Penal Code unless otherwise specified.
2
All further date references are to the year 2011 unless otherwise specified.
2
Brown came in and continued to argue. Then he headbutted Denesha in the nose and
hit her in the face. Denesha could not remember anything after that and believed she
had been knocked unconscious.
The next thing Denesha recalled was feeling pain in her face and realizing she
was bleeding. Brown told her to call the police. He was crying and apologetic, and he
said “Don’t let me get away with what I did.” The tape of Denesha’s 911 call was
played for the jury. Denesha, who can be heard sobbing, told the operator Brown had
hurt her and that her nose was bleeding. In the background, Brown can be heard
telling Denesha: “[Y]ou’re not gonna say nothing.’ ” Although Brown told Denesha
he was going to wait for the police to arrive, he left as soon as they heard a siren.
Officer Alvino Herrera responded to Denesha’s 911 call. Upon arriving outside
the apartment building, he saw Brown walking away hurriedly and arrested him. After
booking him at the police station, Herrera noticed blood spatter on Brown’s shoes.
Officer Kenneth Green made contact with Denesha when she came to open the
apartment gate for the police. She was crying hysterically, hyperventilating, vomiting
and unable to communicate. Her face was bleeding profusely. Green took her back to
the apartment to wait for the paramedics. As she was being treated, Denesha told
Green that Brown had headbutted her and punched her in the face and head. She could
not remember exactly how many times she had been punched because she “was
extremely dazed and in a lot of pain.” Denesha told Green “that in the past [Brown]
threatened to kill her during times when he was upset at her” and “as a result of what
had happened, she was in fear for her life.” Denesha wanted Brown prosecuted, so
Green gave her “temporary restraining order information.” Green took Denesha to the
emergency room at Community Hospital Long Beach.
At the hospital, Denesha told Detective Rubi Castro that she had been head
butted. Because she was dazed, she could not “recall if she was either punched or
slapped,” but she definitely remembered being hit in the head.
Denesha was treated in the emergency room by Dr. Charles O’Brien. She told
him she had been punched multiple times in the face, but that she had not lost
3
consciousness. A CAT scan showed multiple fractures to her nasal bones, cheek
bone, and “orbital wall or eye socket.” O’Brien explained how much force had been
required to cause these injuries: “To break someone’s orbital or eye socket and
maxillary bone, it takes at least 50 G’s of force3. . . . [I]t’s like dropping . . . a 50-
pound weight on someone’s face” from a distance of a foot or two. Given the severity
of Denesha’s facial fractures and the varied locations of her injuries, O’Brien opined
“it would be more than one head butt, not just one head butt.” He also testified:
“[A] head butt is such a broad area that to get the nose and this area (indicating),
I don’t imagine a head butt causing this. It’s . . . more consistent with a fist in my
opinion.” “Q. And it’s your testimony that one blow to the face could not have
caused . . . the injuries? Is it likely? [¶] A. It’s unlikely.” O’Brien testified Denesha
said “she was struck with a fist multiple times” which, he opined, “was consistent with
her injuries.”
2. Defense evidence.
Frederick Mims testified he had gone to high school with Brown. They were
such close friends they called each other “cousin.” When Mims helped Brown move
some of his belongings out of the Junipero Avenue apartment, he did not see Denesha
crying or any blood on her face. Brown and Denesha were smiling and they kissed
each other when Brown and Mims departed.
Brown testified in his own defense. Denesha had been his girlfriend on and off
since he was 14. Their relationship became more serious in 2009, when he was in his
early 30’s. He acted as a father toward Denesha’s children, even though they were not
his, and they called him “Pops.” Brown testified he had never been violent with
Denesha and that her contrary testimony was a lie.
Brown moved his things out of the Junipero apartment a few weeks after
moving in because he and Denesha were fighting about his philandering. He denied
3
O’Brien testified: “[T]hat’s [a] conservative estimate. It’s been documented
that for the maxillary bone, it could be 50 to 100 G’s of force.”
4
pushing her onto the bed, choking her, or biting her lip. After he drove away with
Mims, Denesha called and asked him to move back in, which he did a few days later.
On July 29, Denesha accused him of cheating on her again because he smelled of
perfume. Brown testified Denesha was right; he had been cheating. She warned him
that if he broke her heart he would “lose everything.”
On the morning of July 31, Denesha refused to attend the party at his mother’s
house, so he went alone. When he returned home at 11:00 p.m., Denesha was upset
because he was late. She complained he hadn’t put the food into the refrigerator
correctly, saying: “You always do this dumb shit.” They argued. When Denesha
smelled perfume on Brown’s shirt, she accused him of cheating again. This time it
wasn’t true and Brown denied it. Denesha was sitting on the couch. Brown knelt or
crouched down in front of her, put his hands on her knees, and told her he had not
cheated. They continued to argue. Finally, Brown said he had cheated on her, not
because it was true but only because he was tired of arguing.
At this point, Denesha started to get up from the couch, which caused Brown to
stand up quickly in order to avoid being knocked over. This resulted in a collision
during which Brown accidentally headbutted Denesha, who fell back onto the couch,
unconscious. When she came to, Brown apologized but Denesha “started ranting and
raving,” saying “You fucked up. I told you. You going to lose everything.” Brown
told her to call 911 because she was injured. To stop the bleeding, he put a shirt on her
nose and then a towel. He left before the police arrived because he didn’t want them
to scare the children by coming into the apartment to arrest him.
CONTENTIONS
1. Brown’s convictions must be reversed because there was pervasive
prosecutorial misconduct.
2. The trial court erred by denying Brown’s Romero motion to dismiss a
Three Strikes prior.
3. Brown is entitled to additional presentence custody credits.
5
4. [By the Attorney General] The abstract of judgment contains a
clerical error.
DISCUSSION
1. There was no prosecutorial misconduct.
Brown contends his convictions must be reversed because the prosecutor
engaged in misconduct in order to vilify him and bolster Denesha’s credibility.
Brown argues: “While each instance of misconduct by itself would not be cause for
reversal, the cumulative effect of all the misconduct requires reversal because it
infected the trial with such [un]fairness [as] to render the resulting convictions a denial
of due process.”4 This claim is meritless.
a. Legal principles.
As we have said:
“ ‘Under California law, a prosecutor commits reversible misconduct if he or
she makes use of “deceptive or reprehensible methods” when attempting to persuade
either the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted.
[Citation.] Under the federal Constitution, conduct by a prosecutor that does not result
in the denial of the defendant’s specific constitutional rights – such as a comment upon
the defendant’s invocation of the right to remain silent – but is otherwise worthy of
condemnation, is not a constitutional violation unless the challenged action “ ‘so
infected the trial with unfairness as to make the resulting conviction a denial of due
4
Despite Brown’s assertion the prosecutorial misconduct was “sometimes aided
by erroneous court rulings,” he never actually makes any claims of trial court error in
his opening brief. Brown cannot properly use his reply brief to broaden the
contentions made in his opening brief. “Obvious reasons of fairness militate against
consideration of an issue raised initially in the reply brief. [Citation.]” (People v.
King (1991) 1 Cal.App.4th 288, 297, fn. 12; see People v. Newton (2007)
155 Cal.App.4th 1000, 1005 [“we do not consider an argument first raised in a reply
brief, absent a showing why the argument could not have been made earlier”]; Moore
v. Shaw (2004) 116 Cal.App.4th 182, 200, fn. 10 [“Ordinarily, an appellant’s failure to
raise an issue in its opening brief waives the issue on appeal.].)
6
process.’ ” [Citations.] [¶] . . . [¶] ‘ “ ‘[T]he prosecution has broad discretion to state
its views as to what the evidence shows and what inferences may be drawn
therefrom’ ” [citation.] . . . .’ (People v. Welch (1999) 20 Cal.4th 701 . . . .) ‘When we
review a claim of prosecutorial remarks constituting misconduct, we examine whether
there is a reasonable likelihood that the jury would have understood the remark to
cause the mischief complained of. [Citation.]’ (People v. Osband (1996) 13 Cal.4th
622, 689 . . . .) ‘To prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner. [Citations.]
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.’
[Citation.]” (People v. Spector (2011) 194 Cal.App.4th 1335, 1402-1403.)
b. Denesha’s testimony revealing Brown had been incarcerated.
Brown contends the prosecutor committed misconduct by eliciting Denesha’s
testimony that she did not report the February incident because she did not want him
sent back to jail for a parole violation. Brown argues: “This was the first incident in
the prosecutor’s design to show that appellant was such a bad person, a person so
violent and callous, his version of an accident could not be believed.”
Brown had sustained prior felony convictions for attempted murder and
attempted robbery. The trial court ruled the prosecution could refer to these priors, but
only in a sanitized way by saying Brown had been in prison without specifying the
nature of his crimes. The trial court also ruled the prosecutor could show Brown was
on parole at the time of the February incident. Based on these rulings, the prosecutor
told the jury during opening statement that “for a longtime, [Brown] was incarcerated
and . . . when he got out” he and Denesha moved in together. When the February
incident occurred, Denesha “didn’t call the police because she didn’t want him to face
the repercussions, having just gotten out of prison.” Defense counsel did not object to
these statements.
7
When Denesha testified, the prosecutor asked why she hadn’t called the police
in February. Denesha replied, “Because I just chose not to.” The prosecutor asked
why she had chosen not to, and Denesha said: “Trying to keep him from being in
trouble.” The prosecutor then asked, “What do you mean?” and Denesha said
“Get him back in jail.”
Brown argues: “Because the prosecutor could not get Denesha to say what he
wanted her to say, that is she did not want appellant to be violated on parole, he
repeatedly attempted to elicit this response from her, underscoring what jurors
probably already knew – appellant was in prison for a long time for something serious,
he just got out and was on parole.”
We cannot see any prosecutorial misconduct here. The trial court had ruled the
prosecutor could mention Brown’s prison incarceration and the fact he was on parole.
The prosecutor’s questions did not go further.
c. Testimony about Denesha’s miscarriage.
(1) Background.
After Denesha described the February incident and explained why she had not
reported Brown to the police, the following colloquy occurred:
“[Prosecutor]: Can I approach sidebar just for one question?
“The Court: No.
“[Prosecutor]: After this first incident . . . what happened to your pregnancy?
“[Defense counsel]: Objection; relevance.
“[Denesha]: I miscarried.
“The Court: Hold on. Hold on. Sustained.
“[Defense counsel]: I’m sorry. Motion to strike her answer, Your Honor.
“The Court: If she gave an answer, that answer is stricken. [¶] Ladies and
gentlemen, if I strike the answer, you are to act as though you had not heard it. [¶]
Next question.
“[Prosecutor]: [Y]ou were pregnant you said during the [February 2011]
incident, correct?
8
“[Defense counsel]: Your Honor, I’m going to object to this line of
questioning, and it also –
“The Court: Can I see both parties at sidebar?”
At sidebar, the prosecutor explained Denesha had miscarried two weeks after
the February incident, but subsequently became pregnant with Brown’s child a second
time. The prosecutor argued this miscarriage information was relevant to clarify there
had been two separate pregnancies and that Denesha was not claiming she had been
pregnant for 11 or 12 months.
The trial court responded by asking if defense counsel would stipulate Denesha
was now (i.e., in January 2012) pregnant with Brown’s child. Defense counsel agreed.
But when the prosecutor argued the stipulation should also state Denesha was now
seven months pregnant and that she had also been pregnant in February 2011, the trial
court accused the prosecutor of trying to show Denesha’s miscarriage had been caused
by the February incident. When the prosecutor said he had no such medical evidence,
the court ruled the miscarriage information would be too inflammatory because the
jury might assume causation. When the prosecutor reiterated his desire to “clarify the
pregnancy timing,” the following colloquy occurred:
“The Court: She’s going to stipulate that the child she is bearing at this point is,
in fact, defendant’s child. What more do you need?
“[The prosecutor]: I need the fact.
“The Court: The only thing that you need is for the elements of [Penal Code
section] 273.5 [corporal injury on cohabitant] that either the defendant and the victim
was cohabitant [sic], they were married, or they have a child.
“[The prosecutor]: I understand, but the only thing I’m saying is it would make
it that she’d be 11 months pregnant or 12 months pregnant if she –
“The Court: I’ve made my ruling.
“[The prosecutor]: It goes to her credibility that she’s said – can I ask her if
she’s seven months pregnant?
“The Court: She’s already said that.”
9
When the prosecutor subsequently asked Denesha for her due date, she said it
was March 18, 2012. The trial court overruled defense counsel’s relevance objection.
(2) Discussion.
Brown contends: “The prosecutor, knowing that he had no evidence to back up
his claim smuggled in evidence that Denesha had a miscarriage due to appellant’s
prior misconduct. The prosecutor committed serious misconduct as part of his pattern
of character assassination of appellant.”
We disagree. The fact Denesha had been pregnant with Brown’s child in
February 2011 helped explain why she did not report his assault to the police. Yet, as
the Attorney General notes, this evidence “left her credibility damaged in one crucial
aspect: how could Denesha be seven months pregnant during trial if she first became
pregnant a year earlier in January 2011? Although the prosecutor tried to explain his
position to the court, it does not appear that he ever succeeded and [he] ultimately
agreed to a stipulation that did not completely solve the credibility issue. The jury was
not allowed to hear testimony that there had been two pregnancies.” Although the
prosecutor may have been overly cautious in wanting to protect Denesha’s credibility,
his attempt to prevent jurors from concluding she was making the impossible assertion
she had been pregnant for 12 months did not constitute prosecutorial misconduct.
d. Using the word “strangled” and referring to a “protective order”
While questioning Officer Castro, the prosecutor used the word “strangled” in
connection with the February incident, and asked if Denesha had indicated an interest
in obtaining a protective order. Brown complains this was part of the prosecutor’s
attempt to vilify him.
(1) Background.
While questioning Castro about her interactions with Denesha on the night of
the July incident, the prosecutor asked whether Denesha had mentioned an earlier
incident “where she was strangled.” Castro answered yes and defense counsel
objected on relevance grounds. The trial court sustained the objection “based on the
form of the question.” The prosecutor then asked, “Did she complain to you about
10
another incident that had occurred a few months prior to this one?” Castro said yes.
The prosecutor then asked, “[W]hat was her position on having a protective order
done?” Defense counsel objected on relevance grounds and the trial court ordered the
parties to sidebar. The prosecutor explained he was only trying to show Denesha
wanted a protective order when the July incident occurred, which was relevant to rebut
defense counsel’s inferences Denesha was lying when she said Brown had purposely
injured her. The court sustained the defense objection.
(2) Discussion.
Brown claims the prosecutor’s references to strangulation and a protective order
were designed to vilify him by suggesting he tried to murder Denesha during the
February incident. Brown complains the prosecutor left “the jury with the impression
that the prior incident was not just a choking, [but that] appellant strangled Denesha,
i.e., he tried to choke her to death. . . . [However,] there was no evidence that
appellant tried to kill Denesha by strangulation in the past.”
In our research we have found the terms “choking” and “strangulation” used
pretty much interchangeably. (See, e.g., People v. Morgan (2007) 42 Cal.4th 593, 601
[“Bleeding in her neck muscles and hemorrhages in her eyes revealed that Wong had
been strangled or choked and had experienced asphyxiation for a period of time.”];
People v. Cole (2004) 33 Cal.4th 1158, 1193 [officer testified victim “had a bruise
under her right eye and red welts around her neck, which were consistent with having
been choked or strangled”]; People v. Price (2004) 120 Cal.App.4th 224, 230 [victim
told police defendant “slapped her, straddled her, pinned her down and – placing two
hands around her throat – began strangling her. [She] feared she would lose
consciousness.”].)
Denesha’s own description of the February incident included this exchange:
“A. He choked me on the bed.
“Q. How did you get on the bed?
“A. He started choking me when he was standing up and then I fell back
on the bed.
11
“Q. Did it stop your breathing for a period of time?
“A. Yes, it did.”
As to the prosecutor’s question about whether Denesha exhibited interest in a
protective order when she spoke with Officer Castro at the hospital following the July
incident, it is apparent the prosecutor was trying in good faith to rebut defense
counsel’s suggestion Denesha had been lying about Brown’s purposely injuring her.
Denesha’s interest in a protective order would have gone to show she really had been
frightened of Brown that night.
This did not constitute prosecutorial misconduct.
e. Argumentative and repetitive questions during cross-examination
of Brown.
Brown contends the prosecutor committed misconduct by asking him repetitive
and argumentative questions during cross-examination.
(1) Background.
Defense counsel elicited Denesha’s testimony that, after assaulting her, Brown
told her to call the police. During his cross-examination of Brown, the prosecutor
sought to undermine the implication Brown never entertained any second thoughts
about having told Denesha to call the police. The following colloquy occurred:
“Q. And you helped her to the extent you could with the – from the bathroom
and the towels and stuff?
“A. Yes.
“Q. Oh, I bet you were happy she was calling 9-1-1, right?
“[Defense counsel]: Objection; argumentative.
“The Court: Sustained. Rephrase.
“Q. By [the prosecutor]: Were you happy that she was calling 9-1-1?
“[Defense counsel]: Objection; argumentative.
“The Court: Sustained.
“Q. By [the prosecutor]: Did you ask her to call 9-1-1?
“A. Yes, I did.”
12
Later, the prosecutor asked why Brown left the apartment during the 911 call.
Brown replied:
“A. I left so that the police wouldn’t come up in the house and startle the kids.
The kids were in the bedroom asleep. I walked out of the house so the police couldn’t
come up in there.
“Q. So you have children sleeping and a girlfriend bleeding and you decide to
leave?
“A. I walked out so that the police wouldn’t come up in there and startle the
kids.
“Q. And you felt startling the kids was more important than being there with
your loved one who is bleeding waiting for help?
“[Defense counsel]: Objection; that’s argumentative.
“The Court: Overruled.”
When Brown said he hadn’t thought about it at the time, the prosecutor asked:
“[Q.] Why didn’t the person who is called Daddy by the kids go in and lay with
the kids then to comfort them.”
“[Defense counsel]: Objection; it’s argumentative. It’s confusing, vague.
“The Court: Sustained. [¶] Rephrase the question.
“Q. By [the prosecutor]: Why didn’t you go to the kids?
“A. The kids were asleep.
“Q. Wouldn’t you want to be there if they were woken up? Wouldn’t that be
more important?
“[Defense counsel]: Objection; that’s argumentative.
“The Court: Overruled.
“The Defendant: I wouldn’t want the kids to watch me go to jail.”
The prosecutor asked Brown a series of questions about whether he left the
apartment because he thought Denesha was going to lie to the police about what
happened. For instance:
“Q. . . . What did you think that she was going to say?
13
“A. I don’t know what she was going to say. I stepped out the house so that
the police wouldn’t come up into the house and scare the kids.
“Q. Isn’t it true you left because she was about to talk to the police? Isn’t that
why you left?
“A. No, it’s not.
“Q. But it’s in your mind, you believe she’s going to falsely accuse you of
something?
“A. I didn’t know what she was going to do. I stepped out the house so the
police wouldn’t come up in there and scare the kids.
................
................
“Q. By [the prosecutor]: In your mind, when you’re exiting that door, did you
have any thoughts whatsoever of what she may or may not say to the police regarding
your behavior?
“A. No.
“Q. Okay. Did . . . it cross your mind that she might not tell the police the truth
about what happened to her head?
“A. I never thought about what she was going to say to the police.”
At sidebar, the prosecutor explained he was trying to establish Brown had been
aware Denesha was going to accuse him of injuring her. After noting Brown had
already testified he did not know what Denesha was going to say, the court ordered the
prosecutor to move on.
The prosecutor played the 911 recording and asked Brown what he had been
saying in the background that contained the word “not” repeated three times. Brown
acknowledged he could hear himself saying the word “not” on the tape, but testified he
could not recall the context. He denied telling Denesha not to say anything. The 911
recording was played again and the prosecutor asked:
“[Q.] Did you just hear that tape saying, ‘You’re not gonna say nothing’?
Did you hear that?
14
“A. I can’t understand what it’s saying. All you hear is her in the background.
“Q. You didn’t hear yourself saying that?
“A. I heard a voice. I mean, you said it’s my voice, but I . . . heard the voice, if
that’s supposedly me. I mean . . . you can’t understand what it’s saying.
“Q. Was there anybody else there calling 9-1-1?
“A. That’s why I said it had to be me.
“Q. Okay. And you . . . couldn’t understand anything on that tape?
“A. No, sir.
“Q. Okay. And . . . you did not say, ‘You’re not gonna – you’re not gonna say
nothing. You got nothing on me’? You didn’t say that?
“A. No, sir.”
(2) Discussion.
Brown contends the prosecutor committed misconduct by repeatedly asking
why he left the apartment before the police arrived, whether he thought Denesha was
going to lie to the police, and what he said on the 911 tape. The Attorney General
argues the prosecutor’s questions were legitimate attempts to impeach Brown’s
implausible story that, although Denesha had been injured accidentally, he left her
bleeding in the apartment in order to evade the police solely to protect the children
from being startled. We agree with the Attorney General.
“Once a defendant takes the stand and testifies to the circumstances of the
charged offenses, the prosecutor on cross-examination is permitted ‘to explore the
identical subject matter in much greater detail.’ ” (People v. Mayfield (1997)
14 Cal.4th 668, 754.) “[T]he permissible scope of cross-examination [of a testifying
defendant] is ‘very wide.’ ” (People v. Cooper (1991) 53 Cal.3d 771, 822.) “[B]y
choosing to testify, defendant put his own veracity in issue.” (People v. Tafoya (2007)
42 Cal.4th 147, 179.) “The prosecutor is entitled to attempt to impeach the credibility
of a defendant’s testimony [citation] and . . . [w]hen a defendant chooses to testify
concerning the charged crimes, the prosecutor can probe the testimony in detail and
15
the scope of cross-examination is very broad.” (People v. Dykes (2009) 46 Cal.4th
731, 764.)
Because sarcasm and other rhetorical devices may highlight for the jury the
improbability of a defendant’s testimony, their use in cross-examination is not
necessarily improper. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1128,
disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151
[prosecutor asked defendant “Are you just making this up as you go along?”].)
Here, the prosecutor’s questioning was zealous, but we cannot say it amounted
to misconduct.
f. Improper closing argument.
(1) Reference to Denesha’s preliminary hearing testimony.
The prosecutor argued to the jury that, although Denesha had made statements
to two different police officers, testified at the preliminary hearing, and then testified
at trial, the defense had been unable to find any significant contradictions in her
statements or testimony. Defense counsel objected to the preliminary hearing
reference on the ground this testimony had not been admitted at trial. The court
admonished the jury they could only consider evidence that had been introduced at
trial. The court then admonished the prosecutor, saying: “So stick to the evidence,
please.” The prosecutor immediately reminded the jury, without any objection from
defense counsel, that Denesha testified she had given evidence at the preliminary
hearing.
This did not constitute prosecutorial misconduct. “[A] prosecutor may
comment on the state of the evidence, including the failure of the defense to introduce
material evidence or to call witnesses.” (People v. Mincey (1992) 2 Cal.4th 408, 446.)
“A prosecutor may fairly comment on and argue any reasonable inferences from the
evidence. [Citation.] Comments on the state of the evidence or on the defense’s
failure to call logical witnesses, introduce material evidence, or rebut the People’s case
are generally permissible. [Citation.] However, a prosecutor may not suggest that ‘a
16
defendant has a duty or burden to produce evidence, or a duty or burden to prove his or
her innocence.’ [Citations.]” (People v. Woods (2006) 146 Cal.App.4th 106, 112.)
Here, there was no misconduct. The prosecutor was merely pointing out that if
Denesha had made contradictory statements, whether to the police or when she
testified at the preliminary hearing, Brown would have pounced on those
inconsistencies during trial. It was permissible to comment on Brown’s failure to
produce logical evidence that would have discredited Denesha’s testimony.
(2) References to implausible defense theories.
Brown contends the following comments by the prosecutor attacking various
aspects of the defense amounted to prosecutorial misconduct. This claim is meritless.
(a) “You have to create an accident.”
The prosecutor argued the defense, faced with overwhelming evidence that
Denesha’s injuries had been intentional, “need[ed] to discredit the victim. You’ve got
to make her into a liar, and you’ve got to have a motive to lie. That’s one way to try to
defend the case. Additionally, you have to explain away the injuries. And lastly, you
have to create an accident, which is a defense to the case.”
(b) “Scenario created is an accidental touching”
The prosecutor argued that, although the defense claimed Denesha and Brown
had been fighting about his philandering, defense counsel never challenged Denesha’s
testimony there had been only a silly argument about storing food in the refrigerator.
The prosecutor suggested the defense strategy had instead been to steer the jury toward
Brown’s accident testimony: “The argument wasn’t about cheating. That’s what she
said. They discussed that before, that argument that night wasn’t about cheating.
That’s what she says and never confronted otherwise. [¶] Explain away the injuries.
Well, to explain away the injuries. It has to be accident. That’s the only way to
defend a case with such significant injuries. . . . The scenario created is an accidental
touching of the heads.”
17
(c) “Under the concocted scenario”
The prosecutor argued Brown’s version of the incident was unbelievable.
Brown testified that two days earlier, when Denesha accused him of being unfaithful,
he acknowledged he had been. Brown also testified he came home two nights later
again smelling of perfume but this time he had not been unfaithful, although he falsely
admitted to cheating because he was tired of arguing. The prosecutor told the jury:
“He wants you to think that he’s going to lose everything if he’s caught cheating again,
yet . . . he’s willing to go out late, come back and has perfume on his jacket three days
later. Then he’s in front of her with his hand on her leg and she’s saying, ‘Have you
cheated? Have you cheated?’ Knowing I’m going to lose everything and saying,
okay, I’m going to admit. I’m going to lose everything. Yes, I cheated again. No way
in heck I suggest to you would someone under the concocted scenario to give her
motive5 would ever be in that situation.” The trial court overruled defense counsel’s
objection to prosecutorial misconduct.
(d) Accusing defense counsel of asking Mims leading questions.
The prosecutor attacked Mims’s account of the February incident by
questioning his credibility, arguing there were inconsistencies in his testimony,
pointing out he was such a close friend of Brown they called each other “cousin,” and
suggesting he had been guided by defense counsel’s leading questions when he
testified Denesha and Brown had been amorous with each other that day.
As to the latter issue, Mims testified as follows:
“Q. Did you see Mr. Brown showing any type of affection to Denesha while he
was there?
“A. Yes, I did.
“Q. What did you see?
“A. Smiling, idle chatter. There wasn’t no – I’m sorry. Go ahead.
5
This was an apparent reference to defense counsel’s argument Denesha was
lying about what happened because she wanted revenge for Brown’s philandering.
18
“Q. Did they embrace each other or kiss each other?
“[The prosecutor]: Objection; leading.
“The Court: Sustained. Rephrase the question.
“[Defense counsel]: Thank you, Your Honor.
“Q. Did you see . . . them sharing any affection towards each other?
“A. Well, when we finished putting the things in the car, she told me, ‘Okay,
Fred. Nice knowing you.’ And he said, ‘It’s not like that. Don’t be like that,’ and he
went to hug her. He hugged her and kind of like kissed her on the cheek, and she was
like, ‘Oh, Lamar.’ And it wasn’t like it was a don’t do it or you shouldn’t have did it
or anything like that.”
Again outside the jury’s presence, defense counsel complained the prosecutor
was in essence accusing her of having fabricated the defense by signaling her desired
answers while examining Mims, and by colluding with Brown to come up with the
accident story. Defense counsel objected on the ground of improper argument and
asked for a curative instruction. The trial court said its interpretation of the
prosecutor’s remarks was different: the prosecutor was simply arguing that Brown’s
“testimony about the injuries being caused by one minor head butt was not credible,”
and that Mims’s testimony was not credible because it was inconsistent and he was so
personally close to Brown.
During closing argument, the prosecutor commented on this testimony:
“[Mims’s] exact quote on what was the romantic contact . . . I don’t have the question,
but he goes, ‘Oh, they just smiled and had idle chat.’ That’s what he said. Now,
[defense counsel] says, ‘Were they . . . kissing?’ ‘Oh, yeah. They were kissing.’
Well, was it a kiss? Well, kind of. . . . I suggest to you the way that whole thing came
down and trying to fit in the defense and the questions . . . that led to the answers
would cause some suspicion.”
19
(e) Discussion.
“Although counsel have broad discretion in discussing the legal and factual
merits of a case [citation], it is improper to misstate the law [citation] or to resort to
personal attacks on the integrity of opposing counsel [citation].” (People v. Bell
(1989) 49 Cal.3d 502, 538.) “If there is a reasonable likelihood that the jury would
understand the prosecutor’s statements as an assertion that defense counsel sought to
deceive the jury, misconduct would be established.” (See People v. Cummings (1993)
4 Cal.4th 1233, 1302.) On the other hand, “[a]n argument which does no more than
point out that the defense is attempting to confuse the issues and urges the jury to
focus on what the prosecution believes is the relevant evidence is not improper.”
(Id. at p. 1302, fn. 47.)
We do not agree the jury would have believed the prosecutor was claiming
defense counsel had colluded in the creation of false testimony. Rather, the jury would
have realized the prosecutor’s comments were mere hyperbole meant to cast doubt on
Brown’s version of events.
Two cases relied on by Brown to demonstrate prejudicial misconduct are
simply inapposite. In People v. Bain (1971) 5 Cal.3d 839, the prosecutor implied
defense counsel had coached the defendant to lie. During closing argument, the
prosecutor said: “ ‘You might say to yourself, “The defendant’s got a good story.”
Did you think he was going to come in here without a good story? He’s had how long
to prepare . . . . I don’t want to imply that my colleague here, that he told him what to
say, but he has the assistance of a lawyer.’ ” (Id. at p. 845.) Bain held this constituted
misconduct: “The unsupported implication by the prosecutor that defense counsel
fabricated a defense constitutes misconduct.” (Id. at p. 847.)
In People v. Herring (1993) 20 Cal.App.4th 1066, the prosecutor implied
defense counsel had suborned perjury by instructing the defendant to invent a consent
defense to a rape charge. “The prosecutor’s comments, i.e, ‘[m]y people are victims.
His people are rapists, murderers, robbers, child molesters. He has to tell them what to
say. He has to help them plan a defense. He does not want you to hear the truth,’
20
were clearly improper and misconduct. His argument inferred that all those accused of
crimes whom defense counsel represented are necessarily guilty of heinous crimes.
Additionally, he impliedly denigrated the presumption of innocence and the
requirement that guilt be proved beyond a reasonable doubt. More egregious, he
inferred that defense counsel suborned perjury. It is improper for the prosecutor to
imply that defense counsel has fabricated evidence or to otherwise malign defense
counsel’s character. [Citations.]” (Id. at p. 1075.) “The prosecutor’s comments
accused defense counsel of fabricating a defense [and] implied that appellant lied on
instructions from his counsel . . . .” (Id. at p. 1077.)
As People v. Gionis (1995) 9 Cal.4th 1196, explained: “[B]oth of those cases
reflected extreme instances of prosecutorial misconduct. In [Herring] . . . the
[prosecutor’s] argument [in effect] accused defense counsel of suborning perjury and
implied that defense counsel did not believe his own client. It also implied that all
those accused of crimes whom defense counsel represented were necessarily guilty of
heinous crimes. [Citation.] Similarly, in [Bain] the prosecutor not only asserted that
defendant and his counsel had fabricated a defense, but he also attacked the integrity
of counsel and the office of the public defender. Additionally, the prosecutor referred
repeatedly to racial matters, stating at one point that he, as a Black man, would not be
prosecuting a Black defendant unless he personally believed the man to be guilty.
[Citation.]” (Id. at pp. 1220-1221.)
The prosecution’s closing argument here was nothing like what happened in
Bain and Herring. The prosecutor’s statements were not likely to have been heard by
the jury as a claim defense counsel had instructed Brown or any other witness to lie.
Rather, those statement were likely interpreted as “an admonition not to be misled by
the defense interpretation of the evidence, rather than as a personal attack on defense
counsel.” (People v. Cunningham (2001) 25 Cal.4th 926, 1002, 1003 [referring to
prosecutor’s permissible argument that defense counsel’s “ ‘job is to create straw men.
Their job is to put up smoke, red herrings. And they have done a heck of a good job.
And my job is to straighten that out and show you where the truth lies. . . .’ ”]; see also
21
People v. Turner (2004) 34 Cal.4th 406, 430 [“ ‘The prosecutor is permitted to urge, in
colorful terms, that defense witnesses are not entitled to credence [and] to argue on the
basis of inference from the evidence that a defense is fabricated . . . .’ [Citation.]”].)
We have not specifically addressed herein every single instance of alleged
prosecutorial misconduct, although we have reviewed them all. These include claims
the prosecutor took unfair advantage of favorable court rulings, mischaracterized
evidence, and tried to steer the jury away from requesting readbacks of testimony.
We have reviewed each allegation and conclude that, whether considered individually
or collectively, they did not constitute prosecutorial misconduct. They did not involve
the use of deceptive or reprehensible methods and, given the overwhelming evidence
showing Denesha’s injuries had not been caused accidentally, it is not reasonably
probable Brown would have achieved a more favorable outcome in their absence.
(People v. Spector, supra, 194 Cal.App.4th at pp. 1402-1403.) Nor did they so infect
the trial with unfairness that due process was violated. (Ibid.)
2. Romero motion was properly denied.
Brown contends the trial court abused its discretion by refusing to dismiss,
under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, one
of the prior convictions used to impose a Three Strikes sentence. This claim is
meritless.
a. Legal principles.
The factors to be considered in ruling on a Romero motion were set forth in
People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate
a prior serious and/or violent felony conviction allegation or finding under the Three
Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in
reviewing such a ruling, the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
22
should be treated as though he had not previously been convicted of one or more
serious and/or violent felonies.”
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction
allegation under section 1385 is subject to review for abuse of discretion.” (People v.
Carmony (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are
guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted
to achieve legitimate sentencing objectives, and its discretionary determination to
impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a
‘ “decision will not be reversed merely because reasonable people might disagree.
‘An appellate tribunal is neither authorized nor warranted in substituting its judgment
for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts
establish that a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-
377.)
b. Discussion.
Brown argues there was an abuse of discretion because the trial court’s decision
was predicated on its faulty recollection that Dr. O’Brien had testified Denesha’s
injury was among the worst he had ever seen in the emergency room. The Attorney
General acknowledges O’Brien never said this. Unfortunately, the trial court’s
misstatement went uncorrected. However, we agree with the Attorney General’s
argument this single factor was not critical to the court’s denial of Romero relief.
Brown concedes the trial court also expressed the following concerns: there
were no mitigating factors; Brown had only recently been released from prison and he
was still on parole for serious felonies when he assaulted Denesha; at the time of the
assault Denesha was pregnant with his child; Brown never accepted responsibility for
his crimes. Moreover, there was no doubt Denesha suffered extremely serious
injuries. There was overwhelming evidence Brown had punched her very hard in the
23
face multiple times, fracturing her nasal bones, cheek bone and eye socket. Following
her hospitalization, Denesha had to undergo a course of treatment by a plastic surgeon.
The trial court saw photographs documenting Denesha’s injuries. The jury found
Brown had inflicted great bodily injury on Denesha.
Brown tries to obscure the fact he never accepted responsibility, asserting:
“Taking responsibility means being accountable or answerable for one’s conduct.
Appellant in addressing the court stated: ‘I’m sorry for the hurt and pain I have
caused. . . . The jury has found me guilty so I have to be punished.’ ” (Ellipsis in
original.) But the ellipsis in this quotation omits Brown’s assertion that “It was truly
an accident.” We can only say that, truly, Brown did not take responsibility for his
actions.
In addition, Brown had sustained the following adult convictions: carrying a
loaded firearm in a public place (1996); carrying a concealed weapon (1997);
attempted murder and attempted robbery (1997); disorderly conduct (2009).
Given Brown’s recidivism, the severity of the injuries he inflicted on his
pregnant domestic partner, the fact he was on parole when the crimes were committed,
and his refusal to accept responsibility, the trial court plainly did not abuse its
discretion by denying his Romero motion. (See People v. Carmony, supra, 33 Cal.4th
at p. 378 [“ ‘[w]here the record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the law, we
shall affirm the trial court’s ruling, even if we might have ruled differently in the first
instance’ ”].)
3. Improper calculation of presentence custody credits must be corrected.
Brown contends, and the Attorney General properly concedes, the trial court
miscalculated the presentence custody credits. Brown is entitled to an additional
48 days presentence credit.
The trial court awarded no conduct credits for Brown’s 320 days of actual
presentence custody. However, on a Three Strikes case involving a violent felony, a
defendant is entitled to 15 percent of the conduct credit otherwise available to non-
24
Three Strikes defendants. (See People v. Caceres (1997) 52 Cal.App.4th 106, 113
[“We . . . hold that pursuant to section 2933.1, a prisoner convicted of a violent felony
listed in section 667.5[6] and sentenced under the Three Strikes law or initiative ‘shall
accrue no more than 15 percent of worktime credit, as defined in Section 2933.’ ”].)
The judgment will be modified to reflect a total of 368 days presentence credit.
4. Clerical error in abstract of judgment must be corrected.
The Attorney General points out the abstract of judgment contains a clerical
error. While the trial court properly imposed a $40 court security fee and a $30 court
facilities assessment for each of Brown’s two convictions, the abstract of judgment
reflects only a single set of fees.
The court facilities assessment (Gov. Code, § 70373) and the court security fee
(§ 1465.8) “are mandatory.” (People v. Woods (2010) 191 Cal.App.4th 269, 272.)
Section 1465.8 provides for a fee to “be imposed on every conviction for a criminal
offense.” Government Code section 70373 provides for an assessment to “be imposed
. . . for each misdemeanor or felony . . . .” Hence, these fees are to be imposed for
each conviction. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3
[regarding § 70373]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [regarding
§ 1465.8].)
Here, the trial court properly imposed one court facilities assessment and one
court security fee for each conviction, but the abstract of judgment reflects only a
single assessment and fee for both convictions. We will order the abstract of judgment
corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment is
not judgment of conviction and does not control if different from trial court’s oral
judgment; it is proper and important to correct such errors in abstracts of judgment].)
6
Section 667.5, subdivision (c)(8), includes “[a]ny felony in which the defendant
inflicts great bodily injury on any person other than an accomplice.” Brown was
found to have inflicted great bodily injury on Denesha.
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DISPOSITION
The judgment is affirmed as modified. The abstract of judgment must be
corrected to properly reflect a total of 368 days presentence custody credit, and the
imposition of a court security fee and a court facilities assessment for each conviction.
The trial court is directed to forward an amended abstract of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
26