People v. Wilson CA1/1 ( 2021 )

Filed 4/21/21 P. v. Wilson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A157211
v.
EDWARD GENE WILSON, (San Mateo County
Super. Ct. No. 17-
Defendant and Appellant.
SF-011064-A)
Defendant Edward Gene Wilson appeals from his conviction by a jury
of assault with a firearm (Pen. Code, § 245, subd (a)(2)1). The jury also found
true allegations of personal use of a firearm (§ 12022.5, subd. (a)) and
infliction of great bodily injury (§ 12022.7, subd. (a)). The jury found
defendant not guilty of attempted murder.
Defendant asserts the prosecutor committed misconduct while cross-
examining a defense expert and compounded that misconduct in closing
argument by assertedly leading the jury to believe defendant had a duty to
retreat from his perceived assailant. We affirm.
All further statutory references are to the Penal Code unless
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otherwise indicated.
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BACKGROUND2
At the end of the summer of 2017, defendant shot a neighbor
(Neighbor) twice.
Neighbor testified he observed, from his window, defendant standing in
the middle of the street, “bent at the waist, [with] hands on the knees.”
Concerned for defendant’s safety, Neighbor approached with a walking stick.
Neighbor asked, “ ‘Are you okay? Do you need help?’ ” Defendant responded
“ ‘[g]et the fuck away’ ” and shot him twice from a gun concealed under his
armpit. Defendant then fled from the scene.
Police officers found and arrested defendant in a house two and a half
blocks away. Gunshot residue was found on his hands, and the gun
defendant had used was found in the home where defendant was arrested.
Defendant maintained he shot in self-defense, and retained Eric Acha,
a former police officer, who was then a private investigator and owner of a
martial arts school, as an investigator and expert witness. Acha testified
about use-of-force, force science, defense handgun training, and self-defense.
As part of his investigation, Acha learned defendant, four years prior to the
shooting, had attended a defensive handgun training course in Nevada at the
Front Sight Firearms Training Institute (Front Sight). Acha then attended
the same training course.
Acha testified Front Sight teaches individuals lethal force is justified
when an opponent has the ability, opportunity, and intent to cause great
bodily injury or death. Front Sight also teaches a 21-foot zone of personal
safety should be maintained and that anyone coming within that zone is
subject to being shot. An armed individual should, however, present his or
2 We summarize only those facts material to the issues raised on
appeal.
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her weapon “at the ready” and say, “ ‘Stop or I will shoot’ .” If an attack is in
progress, no warning needs to be given. Following a shooting, the individual
should move to a safe location and call 911.
Acha opined a walking stick can be considered a weapon. He further
opined defendant “acted as he was trained.”
On cross-examination, the prosecutor elicited testimony from Acha that
Front Sight also teaches a gunfight should be avoided, for the use of deadly
force to be warranted, the threat must be unavoidable , and that its training
manual states, “ ‘Retreat is a good idea and should be done if it is a viable
alternative,” and an individual can “ ‘avoid the lethal confrontation by
breaking contact with your assailant and retreating to cover.’ ” The manual
further states use of deadly force is justified only if one cannot “ ‘break
contact or avoid the immediate danger of death or serious bodily injury.’ ”
Acha additionally testified Front Sight teaches an individual who has used
deadly force should check the area for any other threats, move to a position of
safety, call the police to report the shooting, and then peacefully surrender.
During closing arguments, the prosecutor argued that contrary to
Acha’s opinion, defendant had not acted in accordance with his training. She
noted, for example, defendant made no effort to retreat from confrontation,
and did not show his firearm or warn the Neighbor he would be shot if he did
not stop moving towards the defendant.
Following the jury verdict, the defense moved for a new trial based on
asserted prosecutorial misconduct. Defense counsel clarified, “I am calling it
error. I don’t think there was anything Ms. Diedrich did that was willful or
malicious. In fact, it was so subtle that I didn’t object.” Defense counsel
claimed the statements the prosecutor elicited from Acha during cross-
examination, and her closing argument referencing Acha’s testimony led the
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jury to believe, incorrectly, defendant had a duty to retreat. According to
defense counsel, jurors “misused” the prosecutor’s arguments and “imposed a
duty on [defendant] to retreat.” Defense counsel acknowledged he had made
no objection to the prosecutor’s cross-examination or her closing argument,
stating, “I think I was ineffective.”
The trial court denied the motion for new trial and sentenced defendant
to a total prison term of 11 years.
DISCUSSION
Forfeiture
As defense counsel acknowledged, no objection was made in the trial
court to either the assertedly improper cross-examination or the prosecutor’s
closing argument.
“ ‘A claim of prosecutorial misconduct is ordinarily preserved for appeal
only if the defendant made “a timely and specific objection at trial” and
requested an admonition.’ ” (People v. Potts (2019) 6 Cal.5th 1012, 1035.)
Although a defendant may be excused from objecting and requesting an
admonition where an objection would have been be futile or an admonition
would have been ineffectual (ibid.), this exception applies only in “unusual” or
“extreme” circumstances. (People v. Riel (2000) 22 Cal.4th 1153, 1212-1213
(Riel); People v. Hill (1998) 17 Cal.4th 800, 821 (Hill), overruled on another
ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.)
Defendant claims objecting here would have been futile, pointing to the
denial of his new trial motion. Defendant cites no authority for the
proposition that the denial of a new trial motion following an adverse verdict
excuses a defendant’s failure to object during trial to allegedly improper
conduct by the prosecutor. And we are aware of none. (See People v. Cowan
(2010) 50 Cal.4th 401, 486 [defendant’s filing of a motion for new trial will
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not revive claims that have not been preserved by a timely and specific
objection]; People v. Williams (1997) 16 Cal.4th 153, 254 [rejecting contention
that “subsequent arguments in a motion for new trial may substitute for a
timely objection”].)
Moreover, defense counsel asserted he did not object because the
asserted misconduct “was so subtle” he did not detect it until after the jury
returned its verdict. These are not the kind of circumstances that excuse a
failure to object and request for an admonishment. For example, in Riel, our
Supreme Court rejected a futility argument, explaining that Hill, which
found futility, “was an extreme case. There, defense counsel made a number
of objections, although he did not continually object to pervasive misconduct.
We found the prosecutor’s ‘continual misconduct, coupled with the trial
court’s failure to rein in her excesses, created a trial atmosphere so poisonous’
that continual objections ‘would have been futile and counterproductive to his
client.’ ([Hill, supra, 17 Cal.4th] at p. 821. . . .) ‘Under these unusual
circumstances,’ we concluded defense counsel ‘must be excused from the legal
obligation to continually object, state the grounds of his objection, and ask the
jury be admonished.’ (Id. at p. 821. . . .) This case presents no such unusual
circumstances. The trial atmosphere was not poisonous, defense counsel did
not object at all, and the record fails to suggest any objections would have
been futile. The normal rule requiring an objection applies here, not the
unusual one applied to the extreme circumstances of People v. Hill. . . .”
(Riel, supra, 22 Cal.4th at pp. 1212-1213, italics omitted.) Defendant failed to
demonstrate there were “unusual” or “extreme” circumstances justifying his
failure to object to the claimed misconduct. Accordingly, he forfeited any
asserted errors in this regard. The same is true here.
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There Was No Prosecutorial Misconduct
In any case, the prosecutor did not commit misconduct either in her
cross-examination or argument.3
Prosecutorial misconduct occurs when the prosecutor “ ‘engage[s] in
deceptive or reprehensible tactics in order to persuade the trier of fact to
convict.’ ” (Daveggio, supra, 54 Cal.5th at p. 854.) “ ‘A prosecutor is allowed
to make vigorous arguments . . . as long as these arguments are not
inflammatory and principally aimed at arousing the passion or prejudice of
the jury.’ ” (People v. Johnsen (2021) 10 Cal.5th 1116, 1179.)
“ ‘ “When a prosecutor’s intemperate behavior is sufficiently egregious
that it infects the trial with such a degree of unfairness as to render the
subsequent conviction a denial of due process, the federal Constitution is
violated.” ’ ” (People v. Shazier (2014) 60 Cal.4th 109, 127.) “ ‘ “Prosecutorial
misconduct that falls short of rendering the trial fundamentally unfair may
still constitute misconduct under state law if it involves the use of deceptive
or reprehensible methods to persuade the trial court or the jury.” ’ ” (Ibid.)
Defendant first complains about the prosecutor’s cross-examination of
Acha as to certain aspects of First Sight training with which defendant did
not comply.
Evidence Code section 721 provides in part: “a witness testifying as an
expert may be cross-examined to the same extent as any other witness and,
in addition, may be fully cross-examined as to (1) his or her qualifications, (2)
the subject to which his or her expert testimony relates, and (3) the matter
3 “ ‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer
to the extent that it suggests a prosecutor must act with a culpable state of
mind. A more apt description of the transgression is prosecutorial error.’ ”
(People v. Daveggio and Michaud (2018) 54 Cal.5th 790, 853–854 (Daveggio),
quoting Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
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upon which his or her opinion is based and the reasons for his or her opinion.”
(Evid. Code, § 721, subd. (a).)
As we have recited, Acha opined on direct examination that defendant
acted in accordance with his Front Sight training.
There was nothing improper about the prosecutor eliciting testimony
from Acha that undermined that opinion and established that defendant, in
fact, had not acted in accordance with all aspects of the Front Sight training.
(Evid. Code, § 721.) Thus, it was entirely proper to elicit testimony from
Acha that Front Sight taught that “the best gunfight [is] . . . one you avoid,”
and retreat is a “ ‘good idea and should be done if it is a viable alternative.’ ”
In short, the prosecutor’s cross-examination was directly related to Acha’s
testimony on direct and was appropriate impeachment.
Defendant secondly complains the prosecutor’s closing argument “led
the jury to impermissibl[y] impose a duty on appellant to retreat.”
Where a misconduct claim is “based on the prosecutor’s arguments to
the jury, we consider how the statement would, or could, have been
understood by a reasonable juror in the context of the entire argument.”
(People v. Woods (2006) 146 Cal.App.4th 106, 111.) “No misconduct exists if a
juror would have taken the statement to state or imply nothing harmful.”
(Ibid.)
Anticipating that the defendant would rely on Acha’s opinion that he
had acted in accordance with his Front Sight training, the prosecutor, in her
initial closing argument, referred to Acha’s testimony on cross-examination
and enumerated all the ways in which defendant had not followed all Front
Sight recommendations, including attempting to avoid the use of deadly force
when possible, of presenting the fire arm and warning the assailant, and of
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retreating if that is a viable alternative. This was entirely permissible
argument.
Moreover, prior to this enumeration, the prosecutor made a point of
emphasizing the legal requirements set forth in the self-defense instruction
previously given to the jury, stating: “I want to make one thing very clear.
The self-defense jury instruction specifically tells you there is no legal duty to
retreat. As the defense attorney established in jury selection, California is a
stand-your-ground state. But that’s different than what the training told
defendant to do.”
Accordingly, the prosecutor did not misstate the law or otherwise
commit misconduct. On the contrary, she made a point of reinforcing the law
on self-defense, and then preemptively took issue with Acha’s expert opinion
that defendant had acted in accordance with his defensive handgun training.
No Prejudice
Finally, even if defendant had preserved the misconduct issues (which
he did not), and even if the prosecutor had committed misconduct (which she
did not), defendant cannot demonstrate that any prosecutorial misconduct
was prejudicial as it is not reasonably probable that a result more favorable
to defendant would have occurred absent the claimed misconduct. (See
People v. Castillo (2008) 168 Cal.App.4th 364, 386.) Indeed, even if the
asserted misconduct was so egregious it violated defendant’s federal
constitutional right to due process (which it was not), any error was harmless
beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.)
As we have recited, the jury was correctly instructed that “A defendant
is not required to retreat. He is entitled to stand his ground and defend
himself even if safety could have been achieved by retreating.” The
prosecutor not only did not take issue with this instruction, she pointed out
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that the law differed from the defensive firearm training defendant took.
Defense counsel, in turn, had full opportunity to emphasize the controlling
law and argue the evidence.
The jury was also instructed, “Nothing that the attorneys say is
evidence”; “[i]f you believe that the attorneys’ comments on the law conflict
with [the court’s] instructions, [the jury] must follow [the court’s]
instructions”; and neither an attorney’s questions nor statements during
closing arguments are evidence. (See CALCRIM Nos. 104, 200, 222.) Absent
compelling evidence to the contrary (of which there is none here), we must
presume the jury followed the instructions given. (People v. Cain (1995)
10 Cal.4th 1, 34, overruled on another ground in People v. Moon (2005)
37 Cal.4th 1, 17.)
Finally, overwhelming evidence supports the verdict. While defendant
points to evidence that Neighbor was a large man who was intoxicated and
carrying a walking stick—which defendant asserts was “more powerful in
terms of force than [his] gun”—and came within “four to seven feet” of
defendant in an “aggressive stance,” the evidence was undisputed that
defendant was facing away from Neighbor at the time Neighbor approached
him. It is also undisputed that Neighbor asked, “ ‘Hey, are you all right,’ ”
which was not aggressive behavior. Yet, defendant, without displaying his
firearm or warning Neighbor to stop or back off, “turned around and shot him
twice.” In short, there was no evidence defendant observed Neighbor at all
prior to turning and shooting him. In sum, the evidence overwhelming
supports the jury’s rejection of defendant’s claim that he reasonably believed
he was in imminent danger of being killed or suffering great bodily injury.
DISPOSITION
The judgment is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Sanchez, J.
A157211, People v. Wilson
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