Filed 7/30/14 P. v. Keever CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066553
Plaintiff and Respondent,
(Tuolumne Super. Ct.
v. No. CRF38617)
TERRY PAUL KEEVER,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor
Provost, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Terry Paul Keever was charged and convicted of a felony
violation of Penal Code1 section 148.1, subdivision (d), unlawfully and willfully sending
or causing to be sent a false bomb. He was sentenced to the second strike term of 10
years. The conviction was based on an incident where a fake bomb was found outside
the Tuolumne County Courthouse. Defendant’s DNA was found on the black electrical
tape wrapped around the device.
On appeal, defendant contends his constitutional rights to due process and a fair
trial were violated because the trial judge, prosecutor, bailiff, court reporter, and court
clerk were “victims” of the fake bomb, and the evacuation of the same courthouse where
he was tried. He also contends that every resident of Tuolumne County was a victim of
fear engendered by the fake bomb, which meant the jurors selected in his case were
victims of the charged offense.
As we will explain, defendant failed to move for a change of venue or make any of
the objections he now raises on appeal, and there is no evidence to support any of his
contentions. We affirm.
FACTS
Discovery of the false bomb
On November 28, 2011, Charles Combs worked for a private company that
assisted the sheriff’s department with security for the Tuolumne County Courthouse,
located on West Yaney in Sonora. Combs screened employees and the public as they
entered the courthouse. Combs testified it was particularly busy that morning.
Around 8:40 a.m., someone advised Combs there was a package in front of the
courthouse. It was still very busy, and Combs continued to screen people until there was
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
a break in the rush. He went outside and found a bag in plain sight, about five feet
beyond the entryway.
In violation of security protocol, Combs brought the bag into the courthouse and
ran it through the X-ray machine. The contents looked suspicious, like a starter and a
power supply. Combs left it on the X-ray machine and called a deputy sheriff.
Tuolumne County Sheriff’s Deputy Brandon Green arrived at the X-ray machine.
He looked on the screen and saw a box and wires. He opened the bag and saw three long,
black cylindrical objects which were wrapped in tape, with a wire coming out from the
middle and going into a black box.
Deputy Green thought it was an explosive device and immediately took the bag
outside the courthouse. He placed it by a cement wall along the street, notified his
superiors, and kept the area clear.
Around 9:15 a.m., the courthouse was evacuated because of the device.
At 9:40 a.m., Calaveras County Sheriff’s Detective Josh Crabtree responded to the
courthouse lawn where Green had placed the bag. Crabtree served with the bomb squad.
Crabtree learned that someone had already moved the package and it had not exploded,
which meant it was not a victim-activated device.
Detective Crabtree testified the device was inside a grocery bag. He opened the
bag and found three road flares wrapped together with black electrical tape. There was a
computer cord “like you have hooked up to your laptop,” with the top shaved off to
simulate a time fuse. The cord was attached to a power box.
Based on his experience, it was immediately apparent to Detective Crabtree that
the device in the bag was not an explosive. The courthouse reopened around 10:45 a.m.
Detective Crabtree took the device to the investigations office. He used gloves to
disassemble the components. He unwrapped the black electrical tape and noticed there
were fibers on the tape, similar to material from a sweater or carpet. He put the electrical
tape and fibers in separate Ziploc plastic bags, and preserved the other parts for analysis.
3.
Defendant is remanded into custody
Around 3:45 p.m. on November 28, 2011, the same day as the bomb scare,
defendant appeared in court as scheduled on an apparently unrelated matter, and he was
remanded into custody in the jail.
Defendant contacts the police
On February 29, 2012, defendant called Sergeant Vanderwiel of the Sonora Police
Department and said he had information about the November 2011 bomb scare.
Defendant said he also had information about the arson of patrol cars from the sheriff’s
department, which happened a few days after the bomb scare. Defendant said he was in
custody at the jail, but he was on a day-pass for medical reasons and wanted to meet with
Vanderwiel that day.
Sergeant Vanderwiel met with defendant that day. Defendant said that while he
was serving time in jail, “he overheard two other inmates bragging about doing the arson
to the patrol vehicles. He also told me that one of them had also admitted to leaving the
fictitious bomb at the courthouse.” Defendant said one of the inmates was named
“Travis,” and the inmates discussed someone named “T.N.T. Mike” as someone involved
in the arson.
Defendant said he wanted an early release from jail in exchange for cooperating
with the police. Defendant offered to work with Sergeant Vanderwiel and try to tape-
record a statement from the inmates.
On March 15, 2012, Sergeant Vanderwiel met with defendant in the jail.
Defendant said the culpable inmate’s name was “Travis Veysey.” According to
defendant, Veysey said he was responsible for the fake bomb, and it was in a bag which
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said, “Have a nice day.”2 Defendant also said that “Jeremy Snead” was involved in the
arson of the patrol cars.
As a result of Sergeant Vanderwiel’s meeting with defendant, Sergeant Ford of the
Tuolumne County Sheriff’s Department also met with defendant in jail. Ford was
investigating the arson of the patrol cars and was advised that defendant said he had
information about the crime. Defendant told Ford that he did not have any information
about the arson, but “if he were to get out of jail, that he could probably get information
regarding that for us.” Ford believed defendant just wanted to be released from custody.
Ford did not have further conversations with him.
Discovery of defendant’s DNA
After Sergeant Vanderwiel met with defendant, he sent the package with the fake
bomb components to the Department of Justice for analysis.3 A criminalist examined the
black electrical tape that had been wrapped around the road flares. A unique DNA
profile was generated from a swab taken from the tape.
The criminalist entered the DNA profile in the Combined DNA Index System
(CODIS), and a “cold hit” matched the profile to defendant, whose DNA profile was
already in the database.
On June 15, 2012, Sergeant Vanderwiel was advised about the “cold hit” of
defendant’s DNA profile on the electrical tape.
On June 16, 2012, Sergeant Vanderwiel visited defendant in jail. Vanderwiel told
defendant “that I did have a suspect in the case based on D.N.A. evidence, and I advised
2At the preliminary hearing, Sergeant Vanderwiel testified the canvas bag which
contained the fake bomb had printed on it: “ ‘Have a pleasant day.’ ”
3At the preliminary hearing, Sergeant Vanderwiel testified that he determined
“T.N.T. Mike” was “Michael Davis.” He sent the fake bomb components to the
Department of Justice for analysis because he hoped to find Davis’s DNA on the pieces
to determine whether he could build a case against him.
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him that it was him.” Defendant immediately had a “deer in the headlight look.” He
became “a little bit visibly nervous and he denied involvement. He told me that he was in
custody at the time so it couldn’t have been him.” Defendant repeated that “ ‘[i]t
couldn’t have been me; I was in custody.’ ”
Sergeant Vanderwiel checked the jail records and determined defendant appeared
in court and was remanded into custody at 3:45 p.m. on November 28, 2011 – several
hours after the fake bomb had been found at the courthouse at 8:40 a.m.
Sergeant Vanderwiel again met with defendant in jail and advised him that he was
not in custody when the fake bomb was found. He asked defendant to explain how his
D.N.A. was on the device. Defendant said it couldn’t have been his DNA because he was
in custody. Defendant also said he must have been set up.
A sample of defendant’s DNA was obtained. The criminalist who examined the
black tape compared defendant’s known DNA sample with the profile generated from the
tape and again determined they matched.
As for the separate incident of the arson of the patrol cars, Sergeant Vanderwiel
testified Samuel Shockley subsequently pleaded guilty to that crime. Defendant never
gave Shockley’s name, and no one named “T.N.T. Mike” or Jeremy Snead was
implicated in the arson. The arson was apparently unrelated to the fake bomb.
DEFENSE
Eugene Salvetti testified he lived in Sonora. He had known defendant for three or
four years. Salvetti used to live across the street from a garage that defendant rented and
used for storage. Salvetti testified defendant’s garage was full of tools, car parts, fishing
gear and junk. It had been burglarized several times, and sometimes defendant forgot to
close and lock the door. Salvetti did not know when these incidents occurred, if anything
was taken from the garage, or if defendant reported the thefts to the police.
6.
Salvetti testified that on November 28, 2011, he was living elsewhere in Sonora.
He was listening to his police scanner early that morning and heard about the bomb scare
at the courthouse.
About 10 to 15 minutes after Salvetti heard about the bomb scare, defendant called
Salvetti and asked if he could come by his house on his way to court. Salvetti believed
defendant was at home when he made this call because he heard him talking to his
girlfriend while he was on the phone.
Salvetti testified he told defendant there was a bomb scare at the courthouse, they
were looking at a backpack, and the bomb squad had been called. Salvetti testified that
during the call, he thought defendant “talked to his girlfriend and, you know, they kind of
had a little laugh about it .…” “[T]hey thought it was kind of humorous that, you know,
things might change” because they had their schedule planned, and “the bomb squad is
surrounding the courthouse .…” Salvetti testified that defendant was supposed to be in
court that day, but “it might be put off for hours. [I]t was just humorous that there was a
bomb at the courthouse the day he is supposed to go to court and, you know, I think I
joked about, ‘Yeah, it’s just your luck,’ you know?” Salvetti testified defendant and his
girlfriend, Donna Ratliff, arrived at his house about an hour after the phone conversation.
Donna Ratliff testified that she had lived with defendant for over 16 years. Ratliff
testified defendant’s storage garage had been burglarized a few times over the years. In
February 2011, Ratliff told defendant they couldn’t afford to pay rent on the garage
anymore, and told him to get rid of the contents. Defendant had some garage sales, gave
away some things, and threw away a lot of belongings.
Ratliff testified defendant was scheduled to report to jail at 1:00 p.m. on
November 28, 2011. Ratliff woke up that morning between 7:00 a.m. and 8:00 a.m., and
defendant was at home. Defendant worked outside while she had coffee. They went to
Salvatti’s house on the way to jail. They used Ratliff’s truck because defendant’s vehicle
was not working. Ratliff did not believe defendant used her truck earlier that morning,
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and she did not usually allow him to drive it. Ratliff did not recall talking about the
bomb incident or laughing about it with defendant.4 Ratliff admitted she had been
convicted of possession of stolen property in 2002.
Rebuttal
Sergeant Vanderwiel testified there were no reports of burglaries or thefts from
defendant’s rented garage.
THE TRIAL
Defendant was charged with a felony violation of section 148.1, subdivision (d),
unlawfully and willfully sending or causing to be sent a false bomb, with one prior strike
conviction and four prior prison term enhancements. His maximum exposure was 10
years. Prior to trial, the prosecution offered a negotiated disposition of four years.
Defendant refused. The court strongly encouraged defendant to reconsider his refusal,
and reminded defendant about his maximum exposure and that there was DNA evidence
in this case. The court granted a recess so he could speak to his attorney. Defendant
again refused the offer and the case continued to trial.
Also prior to trial, defendant admitted the prior conviction allegations: First
degree burglary with a firearm enhancement in 1980 (§§ 459, 12022.5); two counts of
receiving stolen property in 1994 (§ 496, subd. (a)); petty theft with a prior and failure to
appear in 1998 (§§ 484/666, 1320.5); receiving stolen property and burglary in 2002
(§§ 496, 459); and petty theft with a prior in 2007.
4 The prosecutor moved to introduce possible impeachment evidence about Donna
Ratliff’s credibility. The prosecutor stated defendant had been convicted of domestic
violence after he severely beat Ratliff, but she resumed living with him after the incident.
The prosecutor argued the domestic violence evidence and their reconciliation was
relevant to impeach Ratliff’s credibility about defendant’s alibi, and show that Ratliff
would say anything to help defendant. The court denied the prosecution’s motion and
excluded the evidence.
8.
After a jury trial, defendant was convicted as charged, and he was sentenced to the
second strike term of 10 years.
DISCUSSION
I. Change of Venue
We begin with defendant’s assertion that it was impossible for him to receive a
fair trial in Tuolumne County because of the nature and circumstances of the charged
offense, that he was tried and convicted in the same courthouse where the fake bomb was
planted and found, and everyone involved in the prosecution of his case – the judge, the
prosecutor, the bailiff, the clerk, and the court reporter – were victims of the crime and
the subsequent evacuation of the building.
Defendant was charged and convicted of a felony violation of section 148.1,
subdivision (d), which states:
“Any person who maliciously gives, mails, sends, or causes to be sent any
false or facsimile bomb to another person, or places, causes to be placed, or
maliciously possesses any false or facsimile bomb, with the intent to cause
another to fear for his or her personal safety or the safety of others, is guilty
of a crime punishable by imprisonment in a county jail not to exceed one
year, or pursuant to subdivision (h) of Section 1170.”
Defendant declares the nature of the charged offense “inherently provoke[d]
sustained fear in its direct victims – and in the general public – because everyone is
highly familiar and uniquely afraid of a bomb’s explosive properties.” “The combination
of the nature of this offense and the location where the false bomb was found meant that
everyone working in the courthouse was a direct victim of the crime.” Defendant further
asserts:
“Neither the judge (nor the prosecutor, clerk, reporter or bailiff) in
the instant case was likely to be neutral after being victims of a false
bombing attributed to [defendant] .… The judge, along with the others,
necessarily felt the sustained fear, alarm, and disorder that is inherent in any
bomb threat. Not only was there a threat of a bomb in this case, but, more
tangibly, it was known that a package had been found containing what
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appeared to be an explosive device. That fear was made more palpable by
the forced evacuation of the entire courthouse. No one present could fail to
be frightened, annoyed, and angered by the planting of a putative explosive
device at their workplace.”
Defendant argues that every resident of Tuolumne County was a “victim” of the
offense, and the county residents who were selected as jurors in this case were also
“victims” of the fake bomb since they “could not escape” the “inherent and public
atmosphere of fear” which resulted from the discovery of the fake bomb. “The instant
jurors were indirect victims as members of the general public who are considered highly
familiar with and uniquely afraid of bombs and who could have been, or at least could
imagine themselves to have been, walking or driving past the courthouse or sitting in the
jury box when a bomb was discovered.” “It was their courthouse and their public streets
that were threatened and actually disrupted. The jurors were sitting in a jury box located
in the threatened courthouse.”
All of defendant’s allegations should have been raised by a change of venue
motion. A trial court should grant a motion for a change of venue when publicity has
created a “reasonable likelihood” the defendant will not receive a fair trial in the county.
(§ 1033, subd. (a).) “The phrase ‘reasonable likelihood’ in this context ‘means something
less than “more probable than not,” ’ and ‘something more than merely “possible.” ’
[Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 523.) The defendant has the burden
of proving more than a mere possibility of unfairness. (People v. Jenkins (2000) 22
Cal.4th 900, 943.) In assessing the motion, the trial court considers the gravity and
nature of the crime, the extent and nature of the publicity, the size of the community, and
the status of the victim and the accused. (Ibid.) Such a motion should be supported by
appropriate exhibits regarding the relevant factors, particularly press reports and other
evidence about pretrial publicity. (See, e.g., People v. Farley (2009) 46 Cal.4th 1053,
1081, 1083–1084.)
10.
Defendant’s due process claims are meritless on the record before this court and
are based on nothing but speculation. His failure to move for a change of venue, which
presumably would have been accompanied by the appropriate supporting exhibits, is fatal
to his due process claims and forfeits appellate review of the issue. (See, e.g., People v.
Simon (2001) 25 Cal.4th 1082, 1103–1104, 1107.) There is nothing in the appellate
record to indicate the nature or circumstances of any news reports about the fake bomb,
the effect of the discovery of the bomb on the general public and/or the courthouse staff,
or even if the trial judge, the prosecutor, and any members of the public who were
ultimately selected to sit on his jury were in the courthouse at the time the fake bomb was
discovered, or suffered any type of impact or reaction from the event.
As we will address in section III, post, the only reference to pretrial publicity was
defense counsel’s statement prior to jury selection that there had been one news article
about the fake bomb; defendant interjected that there were two news stories.
Nevertheless, there is no evidence in the appellate record about the specific nature and
content of these news reports or public reaction, if any, and, as we will discuss below, the
court asked the potential jurors about their possible exposure to any news reports during
voir dire.
Turnage and other bomb-related cases
While defendant lacks any evidence in the record to support his due process
claims about venue, he has instead cited to People v. Turnage (2012) 55 Cal.4th 62
(Turnage) for the proposition that defendant was tried for an offense that exploited “the
public’s fear of bombs, and that predictably provoke havoc and alarm.” (Id. at p. 72,
italics in original.) In that case, the defendant was convicted for violating section 148.1,
subdivision (d), after he planted a fake bomb near a government building. On appeal,
defendant claimed his felony conviction for violating section 148.1 violated his equal
protection rights compared to an entirely different statute, section 11418.1. “The latter
provision provides, in pertinent part, that anyone who places ‘any false or facsimile of a
11.
weapon of mass destruction’ (WMD) with the intent to cause fear in others is guilty of a
misdemeanor. A violation of section 11418.1 (or the false WMD statute) may be
punished as a felony only ‘[i]f the [perpetrator’s] conduct causes another person to be
placed in sustained fear’ – an element not necessary under the false bomb statute for
either misdemeanor or felony punishment.” (Id. at p. 67.) The appellate court agreed
with the defendant’s equal protection claim. (Ibid.)
In Turnage, the California Supreme Court disagreed with the appellate court and
held no equal protection violation occurred. (Turnage, supra, 55 Cal.4th at p. 67.)
“The challenged distinction – allowing false bomb crimes to be punished as
felonies without proof of sustained fear, while requiring such a showing for
felony violations of the false WMD statute – is not irrational. The
Legislature could reasonably assume that the public is highly familiar with,
and uniquely afraid of, the explosive properties of bombs. Hence, mere
observation or awareness of an object that looks like a bomb, and that was
meant to instill fear like a bomb, is almost certain to cause the alarm and
disorder associated with sustained fear under the statutory scheme.
“Upon close examination, the same reasoning does not apply to false
WMD’s. A WMD is statutorily defined to include a vast array of chemical
and biological substances, and radioactive and mechanical devices,
weaponized for use in both conventional and unconventional forms against
all kinds of targets, not just people. It is conceivable from a legislative
perspective that, given the breadth and relative novelty of WMD’s, a
facsimile of a WMD would not necessarily be recognized or cause fear,
even where it is detected and was intended to do so. Requiring sustained
fear for felony offenses under the false WMD statute, but not the false
bomb statute, promotes a valid state interest in deterring and punishing the
societal harm such crimes clearly cause.” (Id. at pp. 67–68, italics in
original.)
In the course of Turnage’s equal protection analysis, the California Supreme Court
reviewed the history of section 148.1, subdivision (d), and noted there was no statutory
definition of the term “bomb.” (Turnage, supra, 55 Cal.4th at p. 71.)
“Courts have explained that the Legislature is presumably aware of the
manner in which bombs are used, and the frequency with which bombings
occur. [Citation.] Everyone is assumed to ‘know what a bomb is.’
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[Citation.] In fact, bombs are commonly understood to be so ‘inherently
dangerous’ [citation] that possession can be unlawful ‘even when [the
device is] not set to explode.’ [Citation.] Detonation can occur
unexpectedly, while the object is concealed or if the bomber loses control
over it, threatening intended and unintended victims alike. [Citation.] [¶]
Because of these known dangers, section 148.1 has long prohibited various
acts that exploit the public’s fear of bombs, and that predictably provoke
havoc and alarm.…” (Ibid., italics in original.)
In addition to Turnage, defendant also cites to two matters outside the record in
support of his claim that it was impossible to receive a fair trial in Tuolumne County for
the charged offense: An Internet citation to an article in the “Union Democrat”
newspaper about the fake bomb; and an Internet citation to an article by Alan Dershowitz
in “The Guardian” about the Boston Marathon bombing, with the quote that “virtually
every Bostonian regards himself or herself as a victim of this horrendous crime.”
Based on Turnage and the two extraneous sources, defendant asserts it was
impossible for him to receive a fair trial in Tuolumne County because of the nature of the
crime, and the certainty the general public would have reacted in the same way as the
citizens of Boston after the bombing occurred in that city. Defendant asserts a change of
venue should have been ordered even though he never made such a motion.
As we have already explained, these are issues which could have been explored in
a motion for change of venue with appropriate supporting exhibits. Defendant’s reliance
on Turnage’s description of the offense could well have applied to the members of the
general public sworn as a jury in any county to hear a case about a fake bomb in a public
place. As we will explain in section III, post, the superior court took appropriate steps to
ensure defendant received a fair trial by questioning the prospective jurors about this
issue during voir dire.
We further note that courts have exercised discretion to deny venue-transfer
motions in well known and notorious cases involving substantial pretrial publicity and
community impact, most notably the trial of the conspirators in the 1993 bombing of the
World Trade Center in New York City. (See United States v. Yousef (2nd Cir. 2003) 327
13.
F.3d 56, 78, 155–156.) The mere fact that defendant was charged with planting a fake
bomb did not mean that it was impossible for him to receive a fair trial in the community
where the incident occurred. Based on the record before this court, there is no evidence
that defendant's due process rights were violated.
Ineffective assistance
In the alternative, defendant argues his defense attorney was prejudicially
ineffective for failing to make whatever motions were required to effectuate these results.
To prevail on an ineffective assistance claim, “defendant must first show that ‘ “counsel’s
representation fell below an objective standard of reasonableness … under prevailing
professional norms.” ’ [Citation.] Second, defendant must show that the inadequacy was
prejudicial, that is, ‘ “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” ’ [Citation.] [¶] If ‘counsel’s omissions resulted from an informed tactical
choice within the range of reasonable competence, the conviction must be affirmed.’
[Citation.] When, however, the record sheds no light on why counsel acted or failed to
act in the manner challenged, the reviewing court should not speculate as to counsel’s
reasons. To engage in such speculations would involve the reviewing court ‘ “in the
perilous process of second-guessing.” ’ [Citation.] Because the appellate record
ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim
of ineffective assistance of counsel should generally be made in a petition for writ of
habeas corpus, rather than on appeal. [Citations.]” (People v. Diaz (1992) 3 Cal.4th 495,
557–558.)
As we have already explained, there is no evidence in the appellate record to
support defendant’s due process contentions, or to show that a motion for change of
venue should have been filed or would have been successful. Based on the record before
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this court, defense counsel was not ineffective for declining to bring a meritless motion.
(People v. Diaz, supra, 3 Cal.4th at p. 562.)
II. Forfeiture/waiver
Defendant concedes he did not object to venue, the trial judge, or any aspect of the
criminal proceedings. However, defendant asserts he has not forfeited or waived
appellate review of his due process contentions because “the facts are undisputed and
raise important issues of public concern, namely whether California will allow its
criminal jurisprudence to sink to the level of promoting expediency at the expense of a
defendant’s right to due process and a fair trial.”
Defendant contends the “objective evidence” demonstrates he was tried by an
“unfair tribunal presided over by a victim of the crime,” and there was a reasonable
probability the jurors were exposed to “prejudicial events outside the trial evidence”
because the fake bomb “created an inherent and public atmosphere of fear that the jurors
could not escape.”
Despite his failure to preserve these issues, we will explain how the trial court
ensured his constitutional rights to due process and a fair trial were preserved.
III. Jury selection
The federal and state Constitutions guarantee criminal defendants a fair trial by a
panel of unbiased, impartial jurors. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I,
§ 16; People v. Roldan (2005) 35 Cal.4th 646, 689, disapproved on another ground in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “A prospective juror’s ability to be
fair and impartial is explored during the process of voir dire,” which may result in
challenges for cause or peremptory challenges based on the prospective juror’s responses.
(People v. Duran (1996) 50 Cal.App.4th 103, 111; e.g., People v. Valdez (2012) 55
Cal.4th 82, 165; People v. Carasi (2008) 44 Cal.4th 1263, 1325.)
15.
Defendant repeatedly complains that his due process rights were violated because
the jury was biased against him, without any evidence to support these claims. In making
these arguments, however, he fails to account for what actually happened on the record.
Just before the beginning of jury selection, the prosecutor advised the court that
the newspaper had covered the fake bomb threat, and the issue should be addressed
during voir dire to determine if the potential jurors heard about it. The court asked the
parties whether it should also ask the potential jurors about the arson of the patrol cars,
even though it was not related to the fake bomb and defendant was not charged with that
offense. Defense counsel agreed the court should ask about the arson and the fake bomb
since both incidents were going to be addressed during trial.5
The court stated it would ask the potential jurors about both incidents, and noted
the arson of the patrol cars “got a lot of coverage, probably more than” the fake bomb.
Defense counsel replied the arson received “[m]uch more” coverage, and she thought
there was only one article about the fake bomb. Defendant interrupted and said there
were two articles about his case. Defense counsel did not introduce any newspaper
reports or evidence about any media reports about the fake bomb into evidence, and they
were not referred to again.
Defendant did not request the transcription of the voir dire proceedings for
purposes of appeal. Based on our review of the minute order for voir dire, however, there
is no evidence that these two topics prevented the court and the parties from agreeing on
the selection of a jury. Defendant did not object to the voir dire process or to the jurors
who were ultimately selected and sworn. If defendant had been concerned about the
5 As explained in the factual statement above, Deputy Vanderwiel testified
defendant contacted him and claimed he had information about who was responsible for
both the fake bomb and the apparently unrelated arson of several patrol cars. Vanderwiel
also testified that someone else was convicted for the arson of the patrol cars, and
defendant was not involved in that case.
16.
outcome of voir dire, he could have moved for a change of venue after the conclusion of
jury selection and argued that voir dire showed that it was impossible to receive a fair
trial in Tuolumne County. (See, e.g., People v. Farley (2009) 46 Cal.4th 1053, 1085.)
Defendant’s failure to make a motion for change of venue, either before or after voir dire,
constitutes his forfeiture of that issue. (People v. Bolin (1998) 18 Cal.4th 297, 312–313.)
Defendant asserts that defense counsel was prejudicially ineffective for failing to
make the necessary motions to preserve his appellate contentions. Based on the record
before this court, however, defense counsel was not ineffective for declining to bring an
apparently meritless motion. (People v. Diaz, supra, 3 Cal.4th at p. 562; People v. Bolin,
supra, 18 Cal.4th at p. 314.)
IV. Neutral and detached magistrate
As noted above, defendant insists his failure to object to the trial judge or move for
a change of venue has not resulted in forfeiture or waiver of his due process contentions
because he was tried by an “unfair tribunal presided over by a victim of the crime” and,
as a result, this state’s criminal jurisprudence has sunk “to the level of promoting
expediency at the expense of a defendant’s right to due process and a fair trial.”
“[A] defendant has a due process right to an impartial judge, and … violation of
this right is a fatal defect in the trial mechanism.” (People v. Brown (1993) 6 Cal.4th
322, 333.) Thus, a defendant has a right to a trial “before a judge with no actual bias
against the defendant or interest in the outcome of his particular case….” (People v.
Harris (2005) 37 Cal.4th 310, 346; see also Bracy v. Gramley (1997) 520 U.S. 899, 904–
905.)
When judicial bias is raised as an issue on appeal, the “role of a reviewing court
‘is not to determine whether the trial judge’s conduct left something to be desired, or
even whether some comments would have been better left unsaid. Rather, we must
determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a
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fair, as opposed to a perfect, trial. [Citation.]’ [Citation.]” (People v. Harris, supra, 37
Cal.4th at p. 347.)
There is no evidence in the appellate record to show the trial judge had any actual
or implied bias against defendant, or that defendant was not tried before a neutral and
detached magistrate. There is no evidence the trial judge in this case was in the
courthouse when it was briefly evacuated because of the fake bomb, the judge was a
witness to the incident, or that the discovery of the fake bomb and evacuation had a
particular impact which would have raised questions about the trial judge’s impartiality.
The court did not make any comments indicating a personal interest, particular
knowledge, or sensitivities about the case. The court did not make any rulings or engage
in any conduct to manifest bias in the presentation of evidence, usurp the duties of the
prosecutor, or create the impression it was allied with the prosecution. (People v. Harris,
supra, 37 Cal.4th at p. 346.)
Defense counsel was well aware of the circumstances of the charges against
defendant. Defense counsel was also aware of the appropriate procedures to disqualify a
judge. At the beginning of the criminal proceedings, defense counsel moved to
disqualify Judge Boscoe, who was originally assigned to the case, pursuant to Code of
Civil Procedure section 170.6. When Judge Provost was assigned, defense counsel did
not raise any objections, attempt to disqualify her from presiding over defendant’s case,
or challenge her for cause or bias.
The entirety of the record refutes defendant’s general assertions and claims of
certainty the trial judge was biased against him. The court denied the prosecution’s
motion to impeach defendant’s girlfriend with defendant’s prior act of domestic violence
against her, agreed with defendant that the evidence was prejudicial, and granted the
defense motion to exclude this evidence. The court also granted defendant’s motion not
to impose any sanctions against the defense for possible violations of the discovery order.
More importantly as to the issues raised by defendant, the court recognized the
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importance of questioning the prospective jurors about their possible exposure to news
stories about either the fake bomb or the arson of the patrol cars.
There is no evidence that defendant was not tried before a neutral and detached
magistrate. As with defendant’s other issues, defense counsel was not ineffective for
failing to challenge the trial judge given the absence of any evidence to support that
challenge. (People v. Diaz, supra, 3 Cal.4th at p. 562.)
V. Prosecutorial misconduct
Finally, defendant contends the prosecutor committed prejudicial misconduct
during trial by referring to facts not in evidence about the fake bomb. As we will explain,
defense counsel did not object to these instances and the context of the prosecutor’s
remarks refutes any claim of misconduct.
A. Background
The prosecutor’s first witness was Charles Combs, the private security guard who
found the fake bomb. The prosecutor asked Combs several questions to verify that he
worked in “this courthouse,” and he contacted Deputy Green in the bailiff’s area of
Department 2 and told him about the suspicious package.
In closing argument, the prosecutor stated:
“We know that this bag with this device is located outside of the
courthouse at 8:40 in the morning on November 28th. And we know that at
9:15, the decision is made to evacuate the courthouse. We were all
evacuated out. The bomb squad arrives at 9:20 and determines it is a fake
bomb. So at 10:45, we’re allowed to come back into court and resume our
business. The defendant is set for sentencing, actually, at 1:30 that day.”
(Italics added.)
Defense counsel did not object to any of these incidents.
B. Analysis
We begin with the well settled law on prosecutorial misconduct. “A prosecutor’s
misconduct violates the Fourteenth Amendment to the United States Constitution when it
‘infects the trial with such unfairness as to make the conviction a denial of due process.’
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[Citations.] In other words, the misconduct must be ‘of sufficient significance to result in
the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct
that does not render a trial fundamentally unfair nevertheless violates California law if it
involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the
court or the jury.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202.)
Defendant cites the italicized portion of the prosecutor’s closing argument and
argues the prosecutor committed misconduct. “To preserve for appeal a claim of
prosecutorial misconduct, the defense must make a timely objection at trial and request
an admonition; otherwise, the point is reviewable only if an admonition would not have
cured the harm caused by the misconduct. [Citation.]” (People v. Price (1991) 1 Cal.4th
324, 447; People v. Silva (2001) 25 Cal.4th 345, 373.)
Defense counsel did not make prosecutorial misconduct objections or request
admonitions to any of the instances which defendant now raises on appeal, which
precludes his appellate claims of misconduct. (People v. Cunningham (2001) 25 Cal.4th
926, 1000; People v. Cain (1995) 10 Cal.4th 1, 48.)
In the alternative, defendant claims counsel was prejudicially ineffective for
failing to preserve the objections because the prosecutor’s comments made the jury
understand “it was not some other courthouse that was threatened but their courthouse,
the very one in which they were sitting in judgment of the false bomber. It would take a
superhuman effort to resist thinking of one’s own reaction under the threat allegedly
imposed by [defendant].”
The prosecutor’s closing argument cited to admissible evidence about the fake
bomb incident, and was not based on any facts outside the record. As we have already
explained, defendant failed to move for a change of venue supported by appropriate
exhibits to support his claims about the alleged impossibility of obtaining a fair trial in
Tuolumne County, or that the trial judge was not neutral and detached. Defendant has
also failed to account for the trial judge’s decision to question the prospective jurors
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about their possible exposure to any pretrial publicity about the fake bomb, and the
absence of any objections to the jurors who were ultimately selected and sworn in this
case.
We similarly conclude that defense counsel was not prejudicially ineffective for
failing to object to the prosecutor’s isolated comments about the nature and
circumstances of the charged offense.
DISPOSITION
The judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Levy, Acting P.J.
______________________
Peña, J.
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People v. Keever CA5
Combined Opinion