People v. Proctor CA1/1 ( 2021 )

Filed 3/24/21 P. v. Proctor 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A160119
v.
JEQUERIE CHEMOND PROCTOR, (Contra Costa County
Super. Ct. No. 05-191902-6)
Defendant and Appellant.
Defendant Jequerie Chemond Proctor was convicted of street terrorism
and multiple other offenses with gang enhancements after he and his fellow
gang members evaded the police during a car chase and discarded loaded
firearms from their car. On appeal, he contends his street terrorism
conviction and gang enhancements should be reversed because the trial court
erred in answering a question from jurors about the predicate offenses
necessary to prove those allegations. He also contends the trial court
erroneously denied his mistrial motion based on the court’s inadvertent
statement identifying defendant during the testimony of a gang expert. We
affirm, and direct the trial court to prepare an amended minute order and
abstract of judgment to correct errors identified by the Attorney General on
appeal.
I. BACKGROUND
On October 9, 2019, the Contra Costa County District Attorney filed an
information charging defendant with conspiracy to possess a loaded and
unregistered firearm (Pen. Code,1 §§ 182, subd. (a)(1), 25850, subds. (a),
(c)(6); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1);
count 2); carrying a loaded, unregistered handgun (§ 25850, subd. (a);
count 3); fleeing a pursuing peace officer’s motor vehicle while driving
recklessly (Veh. Code, § 2800.2; count 4); and street terrorism (§ 186.22,
subd. (a); count 5). With respect to the first four counts, the information
alleged that defendant committed the crimes for the benefit of, at the
direction of, and in association with a criminal street gang. (§ 186.22,
subd. (b)(1)(A).)
A. The 2018 Police Chase
In the early evening of August 14, 2018, Richmond Police Officer
Orlando Guzman was driving in his police vehicle when a black Honda
Accord with tinted windows throughout the car and paper plates caught his
attention. Other vehicles were nearby, including “a blue two-door Camry”
behind the Accord and a Mercedes SUV or sedan. Guzman followed the
Accord and was “able to get directly behind” it “[w]hen it got to B Street and
Barrett Avenue,” about four blocks from 5th Street. Guzman activated his
“solid forward facing red light and emergency lights.” The Accord did not
stop but made a left turn.
Guzman followed the Accord, turning his siren on and off multiple
times to get the driver’s attention, but the Accord still did not stop. At one
point, Guzman “noticed that the left rear door cracked open and then the door
1All further statutory references are to the Penal Code unless
otherwise indicated.
2
closed again.” The Accord ran a red light when turning onto Macdonald
Avenue, and sped up to 40 miles per hour (mph) in a 25 mph zone. Guzman
continued behind the Accord with his siren on.
The Accord came to an intersection, ran the stop sign, and continued
speeding away from Guzman, gaining distance on him. After the Accord
failed to yield at two more stop signs, Guzman decided to stop his pursuit of
the Accord because the Accord was driving recklessly and he did not want
anyone to get hurt. Guzman continued driving in the same direction, but
turned off his lights and sirens and “let the other units in the area know what
direction the [Accord] went in.” Guzman saw the Accord turn from
Macdonald Avenue onto 15th Street.
Around 6:40 p.m., Brian S. was working at an automotive repair shop
when he heard a car speeding around the corner with its tires squealing. He
went to see what was going on, and saw a dark, four-door car with tinted rear
windows speeding down 15th Street. He saw a hand throw a gun out of the
car window, and saw the gun going through the air. The gun then hit a
vehicle and slid underneath it. Brian S. saw the gun under the car and
unspent rounds of ammunition scattered around near it.
Brian S. went over to his neighbor Emmett Z.’s business across the
street to see if his surveillance camera had recorded anything. Emmett Z.
had heard a “fast car going by and some loud noises.” He “thought there was
a car wreck” because he heard metal hitting metal and metal hitting the
ground. Emmett Z. saw a firearm laying in the gutter and called the police.
About 10 minutes after Brian S. saw the gun thrown from the Accord,
Brian S. and Emmett Z. saw a red Honda Del Sol drive “slowly” down the
street, with only the driver in the car. Emmett Z. testified that the Del Sol
slowed down in front of his business while the driver looked at the firearm.
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The car went in reverse, then forward again, and “possibly around the block,
because they came back.” Emmett Z. told the driver something to the effect
of, “Get the hell out. You don’t belong here.”
The red Dol Sol returned to the scene a second time about a minute and
a half later, then returned a third time, three to four minutes later.
Emmett Z.’s surveillance camera showed it driving down 15th Street.
Emmett Z. testified that the third time the Del Sol drove by, “[i]t was the
same driver as before.” He saw the car reverse course because police officers
were on the scene and “started to approach.”
Guzman responded to the call placed by Emmett Z. and arrived at his
business on 15th Street. Guzman spoke with Emmett Z., who showed him
the video surveillance footage, which was also played for the jury at trial.
While he was on the scene, Guzman saw the Del Sol drive by, and recognized
the driver as Rohnell Robinson. The Del Sol was the same vehicle that
appeared in Emmett Z.’s surveillance footage.
Guzman found a semi-automatic, .40-caliber Glock 23 Generation 4
firearm, its magazine, and live ammunition under a car in the street. After
watching Emmett Z.’s video, officers noticed that two firearms had been
discarded from the car at the same time. Officer Joanna Grivetti found the
second firearm—a semi-automatic, .40-caliber Glock 27—discarded about two
houses away. Inside the second firearm was a 15-round-capacity magazine
with 14 rounds of .40-caliber bullets. The magazine contained 14 rounds of
ammunition. Both guns were “real” and designed to fire live ammunition.
About 6:42 the same evening, Officer Ben Wagnon responded to an
address on 18th Street. Wagnon heard a report over the police radio that
occupants of a red Honda sedan may have thrown firearms and then
attempted to retrieve them. As he was approaching the area, he saw a red
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Honda sedan coming toward him. He stopped the vehicle, a red Del Sol.
Defendant sat in the front passenger seat and Rohnell Robinson was in the
driver’s seat. Wagnon noticed that there was “a significant amount of
paperwork” in the front seat where defendant was sitting, and he was sitting
on “a large book.” Wagnon found it odd that someone would choose to sit on
all of that rather than take the time to set it aside.
Wagnon arrested defendant and searched him. Officer Joanna Grivetti
arrived and helped search the Del Sol, which did not contain any firearms or
ammunition. Grivetti later went to the scene on 15th Street, where she
collected the two discarded firearms.
Grivetti next went to a location on 18th Street where officers had
located the unoccupied Accord involved in the police chase. The Accord was
located about three blocks away from where the firearms found on 15th
Street and about two blocks from where officers had stopped the Del Sol.
Inside the Accord, Grivetti found gloves, shoes, a mask, paperwork, a black
knit cap, and two sweatshirts. One sleeve of each sweatshirt was turned
inside out. Grivetti testified that the state of the sleeves suggested someone
was in the process of removing his or her clothing. The Accord was registered
to Jonathan Shaw.
B. Identity Evidence
After investigating the scene at 15th Street, Guzman obtained closed
circuit television (CCTV) footage of his initial contact with the Accord with
paper plates, the Toyota Camry, and the Mercedes on the 400 block of 5th
Street. In the footage, Guzman saw the red Del Sol. The video showed
someone wearing a red-and-black Air Jordan jacket and “light brown and
gray” jeans approach the driver’s side of the Del Sol. The person wearing the
jeans and Air Jordan jacket then approached the Accord, entered the driver’s
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side, and drove off. The video showed Guzman in his police car, attempting
to catch up to the Accord. Police never recovered the Air Jordan jacket.
Before watching the CCTV footage, Guzman had visited defendant in
jail. When he watched the video, Guzman noticed similarities between
defendant and the individual who got in the Accord, including that both
people had “[s]hort hair,” “[a]ppeared to be clean shaven,” and “had a
muscular, athletic build, which is pretty distinct.” When Guzman saw
defendant in jail, he was wearing “light gray and light brown” jeans, black-
and-white shoes, and a gray hoodie, and “appeared to match the physical
characteristics and the clothing from the waist down” of the person he saw
getting into the driver’s seat of the Accord in the CCTV footage.
Officer Matthew Anderson was familiar with both defendant and
Rohnell Robinson. Anderson had contacted Robinson probably 40 to 50 times
and had arrested him “on a few occasions,” and had seen defendant 40 to 50
times before trial. Anderson reviewed the CCTV footage from the 400 block
of 5th Street and still photos from the footage. He identified defendant as the
individual in the video getting out of a blue Toyota Camry. Anderson
testified defendant approached the red Del Sol, reached inside, appeared to
“discretely obtain[ ]” a firearm from Robinson in the Del Sol, and “appeared to
take it and put it into his waistband area.” Anderson then saw defendant
and Jonathan Shaw walk away from the Del Sol and get in the Accord.
Defendant got in the driver’s side of the Accord.
A latent fingerprint on the Accord’s interior driver’s side door handle
matched defendant’s left middle finger.
C. Gang Evidence
Officer Anderson testified as a gang expert. He was a detective in the
gang unit from 2011 to 2014, and from 2015 to 2017, was assigned to the FBI
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Safe Streets Task Force, on which he investigated violent gang activity
throughout Contra Costa County, with a specific emphasis on Richmond and
West Contra Costa County. Anderson’s was mainly assigned to Central
Richmond, where the principal gang was the “Deep C” criminal street gang
(Deep C). Anderson had “conducted hundreds of investigations” into the
Deep C criminal street gang.
Deep C’s primary activities include the possession of narcotics for sale,
possession of illegal, unregistered and loaded firearms, burglaries, robberies,
and firearm assaults, up to and including murder. Anderson affirmed that
each of those activities is listed in section 186.22, subdivision (e), which “lays
out the laws behind the criminal street gang enhancements and criminal
street gang active participation.”
Anderson also testified, among other things, about the importance of
guns to criminal street gangs. He emphasized that firearms are used by the
gang to protect themselves and their territory, to allow them to commit
assaults, shootings and homicides, and conduct robberies, which allows them
to gain revenue and demonstrate power. The gangs also use firearms “to
instill fear within their communities” and prevent cooperation with law
enforcement. Anderson explained that gangs often have “gang gun[s],” i.e.,
firearms shared among gang members, because they are very expensive on
the streets. Thus, gang members share guns to commit crimes, “defend
themselves,” and “commit any types of retaliatory acts to gain their power
and respect in the gang world.”
D. Conviction and Sentencing
On November 19, 2019, a jury found defendant guilty as charged and
found the gang enhancements true. Defendant was sentenced to a term of six
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years for the offenses in this case, plus one year four months for unrelated
charges in Orange County, for a total of seven years four months in prison.
II. DISCUSSION
A. Predicate Offenses
Defendant first contends the trial court committed reversible error by
failing to properly respond to a question from the jury about the timing of the
predicate offenses on the section 186.22, subdivision (a) charge and gang
enhancement allegations. For reasons we will explain, we disagree.
1. Additional Background
At trial, Officer Anderson testified to several prior convictions of
Deep C gang members.
Deep C gang member Enacio Bolton was convicted of possessing a
loaded, concealed firearm (§ 29800) with a section 186.22, subdivision (b)(1)
gang enhancement. Bolton committed the offense on November 12, 2014, for
the benefit of or in association with Deep C.
Parrish Rauls, another Deep C gang member, was convicted of being an
accessory after the fact (§ 32) with a gang enhancement for an incident in
which he was arrested for the possession of a loaded, concealed firearm
(§ 29800). Rauls committed the offense on April 2, 2014, for the benefit of or
in association with other Deep C members.
Rohnell Robinson, a Deep C gang member, was convicted of street
terrorism (§ 186.22, subd. (a)) as a result of the August 14, 2018 incident at
issue in this case, and the offense was committed for the benefit of Deep C.2
The jury was instructed on active participation in a criminal street
gang with CALCRIM No. 1400, and on the gang enhancement allegations
2The trial court took judicial notice of the dockets pertaining to
Bolton’s, Rauls’s, and Robinson’s offenses.
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using CALCRIM No. 1401. CALCRIM No. 1400 instructs the jury, in
relevant part, on the requirement that a criminal street gang has members
who, “whether acting alone or together, engage in or have engaged in a
pattern of criminal gang activity.”
A “pattern of criminal gang activity” was defined for the jury to mean:
“1. The (commission of,/ or attempted commission of,/ or conspiracy to
commit,/ or solicitation to commit,/ or conviction of: [¶] 1A. any combination
of two or more of the following crimes/, or two or more occurrences of one or
more of the following crimes: Assaults with Firearms, Robbery, Drug Sales,
Murder, Carrying Loaded Firearms, Burglary, Driving Stolen Vehicle, Felon
in Possession of a Firearm;
“2. At least one of those crimes was committed after September 26,
1988;
“3. The most recent crime occurred within three years of one of the
earlier crimes;
“AND
“4. The crimes were committed on separate occasions or were
personally committed by two or more persons.”
The jury was also instructed:
“If you find the defendant guilty of a crime in this case, you may
consider that crime in deciding whether one of the group’s primary activities
was commission of that crime and whether a pattern of criminal gang activity
has been proved. [¶] You may not find that there was a pattern of criminal
gang activity unless all of you agree that two or more crimes that satisfy
these requirements were committed, but you do not have to all agree on
which crimes were committed.”
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In closing argument, the prosecutor explained to the jury that several
possible predicate offenses could be used to establish a pattern of gang-
related crimes as required by section 186.22, subdivision (e). He told them:
“The predicates are those prior offenses that were brought into
evidence. It was when I asked the judge to take judicial notice of certain
convictions, if you recall. And one was from Mr. Robinson. And then two
were from two other gentlemen, Mr. Bolton, Mr. Rauls. Right?
“So for Mr. Robinson’s conviction the question is whether he only aided
and abetted the defendant by bringing the firearms? Or if he also directly
acted and directly committed the crime of possessing the firearm. Right?
And when he brought the firearm he was fully in possession of a loaded, not
registered to him, firearm. He committed the offense. And then the
defendant committed the offense as soon as he got it. Right?
“And so when that happens you can consider each of them as separate
offenses. And the defendant’s conviction in this case, if you find that it was a
gang-related incident, you can find that as one of the predicates. And you can
find Mr. Robinson’s conviction, if it was a separate offense, as a second
separate conviction.
“In the alternative, if you find that Mr. Robinson—you don’t find that
Mr. Robinson’s conduct in this case represented a predicate, that you don’t
think that it was gang-related or that I hadn’t proven it correctly, then you
can look to the 2014 incidents. And those, the commission of those, incidents
where two separate offenders, each possessed firearms illegally, felon in
possession of a firearm, and those are each within three years of one
another.”
The prosecution continued, acknowledging he had “just said a lot of
slightly confusing things,” but explained, “There are kind of two routes here.”
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First, he said, “is that the defendant’s current offense is a gang-related
incident. . . . [¶] . . . [¶] So as I was saying, if the defendant’s own conduct
here is gang-related then it can count as one of the predicates. . . . [¶] Then
further for Mr. Robinson’s conviction, as long as you find the commission of
his offense was not merely aiding and abetting. Meaning, he wasn’t just the
driver in a bank robbery. Or he wasn’t just holding back some—a crowd so
that his friend could attack somebody. Right? And so he’s aiding and
abetting, but he’s not actually participating in the conduct. Right?
“In this case that’s not what we have. Right? Mr. Robinson is actually
possessing the firearm, shown by the DNA that he has on the firearm. The
fact that you can see his vehicle where he hands the firearm to [defendant],
indicating he possessed it, and then [defendant] possessed it.
“Even if you don’t find that that’s a separate incident, that Mr.
Robinson’s case is not its own predicate, the requirement is that it’s two
within three years of one another.
“So the two 2014 cases involving a felon in possession of firearms, these
are both gang-related. That is what Officer Anderson explained to you.
These will resolve this issue as well, if you find that—that it’s not already
resolved by the current case and Mr. Robinson’s conviction.” The prosecutor
then explained that the jury could rely on Bolton’s and Rauls’s 2014
convictions, explaining, “Either way you go is fine. You just have to—you
have to agree that two of these predicates are within three years of one
another.”
During deliberations, the jury sent a note to the court that said:
“Clarification of timing requirements of [CALCRIM No.] 1400. [¶] (1) What
does ‘most recent crime’ mean in establishing pattern of criminal activity? [¶]
(2) Is Robinson 2018 conviction the ‘most recent crime’?” The court
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responded: “This is a factual question for the jury to determine based on the
testimony of the witnesses and the instructions previously given.” The jury
also sent a note requesting the “testimony of Officer Anderson regarding
convictions of Bolton, Rauls (2014) and Robinson (2018).”
2. Analysis
Defendant contends the trial court’s response to the jury’s question
about “ ‘the most recent crime’ ” was wrong, misled the jury, and prejudiced
defendant. Specifically, defendant argues the prosecution could not rely on
Robinson’s 2018 conviction for street terrorism under section 186.22,
subdivision (a) as a predicate offense, because it is not one of the offenses that
can comprise a pattern of criminal gang activity listed in section 186.22,
subdivision (e). When the trial court responded to the jury’s question by
stating it was a factual question but failed to explain that the jury could not
rely on Robinson’s conviction, defendant contends the jury was confused.
Section 1138 provides, in relevant part, “After the jury have retired for
deliberation, . . . if they desire to be informed on any point of law arising in
the case, they must require the officer to conduct them into court. Upon
being brought into court, the information required must be given . . . .” “The
court has a primary duty to help the jury understand the legal principles it is
asked to apply. [Citation.] This does not mean the court must always
elaborate on the standard instructions. Where the original instructions are
themselves full and complete, the court has discretion under section 1138 to
determine what additional explanations are sufficient to satisfy the jury’s
request for information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The
court “must at least consider how it can best aid the jury. It should decide as
to each jury question whether further explanation is desirable, or whether it
should merely reiterate the instructions already given.” (Ibid.; People v.
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Brooks (2017) 3 Cal.5th 1, 97.) We review a trial court’s alleged failure to
properly answer a jury question for abuse of discretion. (Brooks, at p. 97;
People v. Hodges (2013) 213 Cal.App.4th 531, 539.)
We are not persuaded that the trial court abused its discretion in its
response to the jury’s question here. First, the jury specifically asked for
“Clarification regarding the timing requirements for [CALCRIM No.] 1400”
(italics added), and in that context asked if “Robinson’s 2018 conviction” was
“ ‘the most recent crime.’ ” As the jury was instructed, CALCRIM No. 1400
requires that at least one of the crimes was committed after September 26,
1988, and that the most recent crime occurred within three years of another
one of the earlier crimes. During closing argument, defense counsel focused
the jury’s attention on the timing of the predicate offenses, and defendant
does not disagree that the timing is a question of fact for the jury to decide.3
In light of the jury’s focus on the timing aspect of the predicate offenses
inquiry under CALCRIM No, 1400, we conclude the trial court did not abuse
its discretion in responding that it was a factual question for the jury and
referring the jury back to “the testimony of the witnesses and instructions
previously given.”
Defendant asserts the trial court should have clarified that Robinson’s
2018 street terrorism conviction under section 186.22, subdivision (a) could
not constitute a predicate offense, but the instructions given to the jury did
not contain any reference to street terrorism or section 186.22 in the list of
3Indeed, we note defense counsel also referred to Robinson’s
“conviction,” arguing that there was “an approximate three year, nine month
gap between Mr. Bolton’s conviction and Mr. Robinson’s conviction,”
representing “a break in the pattern of criminal gang activity” and expressly
referred to the “three convictions,” including Rauls’s, Bolton’s and Robinson’s,
as potential predicate acts without objecting or explaining that Robinson’s
2018 street terrorism conviction could not serve as a predicate act.
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predicate crimes the jury could consider. The CALCRIM No. 1400 instruction
as given stated that predicate offenses could be: “1. The (commission of,/ or
attempted commission of,/ or conspiracy to commit,/ or solicitation to commit,/
or conviction of: [¶] 1A. any combination of two or more of the following
crimes/, or two or more occurrences of one or more of the following crimes:
Assaults with Firearms, Robbery, Drug Sales, Murder, Carrying Loaded
Firearms, Burglary, Driving Stolen Vehicle, Felon in Possession of a
Firearm.” We presume that the jury understood and followed those
instructions, and would not have relied on a street terrorism conviction as
one of the predicate offenses. (See, e.g., People v. Richardson (2008)
43 Cal.4th 959, 1028 [court assumes jurors are “ ‘intelligent persons and
capable of understanding and correlating all jury instructions which are
given’ ”].)
Moreover, in the context of the entire trial, including the instructions,
the evidence, and the arguments of counsel, there is no “reasonable likelihood
that the jury misapplied or misconstrued” the court’s response to mean jurors
could use Robinson’s street terrorism conviction as a predicate offense.
(People v. Crew (2003) 31 Cal.4th 822, 848; People v. Young (2005) 34 Cal.4th
1149, 1202 [in assessing probable impact of instruction on jury, courts must
consider all of the instructions and arguments of counsel].) As noted above,
the jury was instructed, consistent with section 186.22, subdivision (e), that it
could rely on the commission of various crimes, including carrying loaded
firearms. In his closing argument, the prosecutor never mentioned street
terrorism, but told the jury, “So for Mr. Robinson’s conviction the question is
whether he only aided and abetted the defendant by bringing the firearms?
Or if he also directly acted and directly committed the crime of possessing the
firearm. Right? And when he brought the firearm he was fully in possession
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of a loaded, not registered to him, firearm. He committed the offense. And
then the defendant committed the offense as soon as he got it. Right?” He
further stated, “In the alternative, if you . . . don’t find that Mr. Robinson’s
conduct in this case represented a predicate, that you don’t think it was gang-
related or that I hadn’t proven it correctly, then you can look to the 2014
incidents.” (Italics added.) Under section 186.22, subdivision (e), the
prosecution did not have to rely on a conviction, but could argue evidence of
Robinson’s conduct in this case (i.e., carrying a loaded a firearm) constituted
the commission of a predicate offense. (See, e.g., People v. Garcia (2014)
224 Cal.App.4th 519, 524 [“Because section 186.22, subdivision (e) contains
both the options of ‘commission’ or ‘conviction,’ the statute expressly does not
require that the offense necessarily result in a conviction.”]; People v. Lara
(2017) 9 Cal.App.5th 296, 331 [jury could consider evidence gang member
possessed firearm as “ ‘commission’ ” of predicate offense even though he was
not convicted of that offense pursuant to his plea agreement]; People v. Loeun
(1997) 17 Cal.4th 1, 5 [“ ‘pattern of criminal gang activity’ ” can be
established by evidence of offense with which defendant is charged and proof
of another offense on same occasion by a fellow gang member].)
The evidence that the prosecution relied on in its argument to the jury
about Robinson was the evidence presented at trial regarding his possession
of the firearm, including his DNA on one of the guns, and Anderson’s
identification of Robinson and testimony that Robinson handed defendant a
firearm in video footage prior to the police chase. Given that the
prosecution’s argument relied on Robinson’s conduct, not the street terrorism
conviction itself, and the jury instructions did not include street terrorism as
a predicate offense, it is not reasonably probable the jury used Robinson’s
street terrorism conviction as a predicate.
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Defendant also contends no evidence was presented about the factual
basis for Robinson’s plea, and that the jury could not adopt a theory of guilt
different from that upon which his conviction was based, citing People v.
Gallardo (2017) 4 Cal.5th 120, 136, and In re Sakarias (2005) 35 Cal.4th 140,
156. Those cases, however, are inapposite. In Gallardo, our Supreme Court
held that a sentencing court could not rely on a preliminary hearing
transcript to determine the basis of a defendant’s prior conviction in deciding
whether to impose an increased sentence under the “Three Strikes” law
because that inquiry “invades the jury’s province by permitting the court to
make disputed findings about ‘what a trial showed, or a plea proceeding
revealed, about the defendant’s underlying conduct.’ ” (Gallardo, at p. 136.)
Here, the prosecutor argued to the jury that it could rely on Robinson’s
conduct in the same case based on evidence presented at trial. Sakarias is
likewise unhelpful. There, the high court held the prosecution could not
“without a good faith justification, . . . attribute to two defendants, in
separate trials, a criminal act only one defendant could have committed.”
(Sakarias, at pp. 155–156.) In this case, there is no evidence the prosecutor
sought to convict Robinson and defendant of a crime only one of them could
have committed. Indeed, the prosecution’s theory of the case was that
Robinson and defendant committed their crimes as part of a conspiracy.
Finally, any error in the trial court’s response to the jury was harmless
beyond a reasonable doubt. (See People v. Beardslee, supra, 53 Cal.3d at
p. 97 [a violation of § 1138 does not warrant reversal unless prejudice is
shown].) Defendant does not argue the jury could not rely on Bolton’s and
Rauls’s 2014 offenses, and no evidence undermining those offenses was
presented at trial. (See, e.g., People v. Concha (2010) 182 Cal.App.4th 1072,
1089 [court may review entire record to determine whether it is clear beyond
16
a reasonable doubt that a rational jury would have made necessary findings
absent instructional error]; People v. Fiu (2008) 165 Cal.App.4th 360, 388
[trial court error in instructing jury it could rely on non-enumerated
predicate offense was harmless where trial court had taken judicial notice of,
and instructed the jury regarding, two other valid predicate offenses].)
Accordingly, we conclude defendant has failed to demonstrate prejudicial
error.
B. Mistrial Motion
1. Additional Background
When questioning Officer Anderson on direct examination about the
video of the 400 block of 5th Street, the prosecutor asked, “Now do you have
an opinion as to where [defendant] is headed after getting out of the Camry?”
Defense counsel objected that the question called for speculation. The court
responded: “Sustained. He can testify as to what is in that direction, but not
where [defendant] is going.” The prosecutor said, “Okay. I can rephrase.”
Defense counsel then objected to the court “characterizing the person in the
red jacket as [defendant].” The court replied, “You are correct. The person in
the red jacket, my apologies.”
Later, outside the presence of the jury, defense counsel moved for a
mistrial, “based on the Court referring to the person being accused in this
case of evading and possession of a firearm, was identified by the Court as
[defendant].” Defense counsel argued, “[T]hat is the contested fact in this
case. And it’s one thing for the prosecution or the witnesses to say that’s
[defendant]. It’s another for the neutral arbiter to do so. And I think it is so
highly prejudicial that that bell can’t be unrung.” Defense counsel moved for
a mistrial based on the violation to defendant’s rights under the Fifth, Sixth,
and Fourteenth Amendments to the federal Constitution.
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The prosecutor objected, arguing that the remark “was just a slip of the
tongue, really,” and required only “an admonishment to the jury just stating
that what you say is not . . . a statement of fact. . . . that they can consider.
And not to consider it.” He asserted a mistrial was unnecessary because
defense counsel could still “make the same arguments or cross my witness
who made the claim that that is [defendant] in the video.”
The trial court responded: “Okay, so I’ll note for the record that the
context of this was the video that was shot from surveillance video of an
individual walking to and from a car. And the witness had identified that
individual as [defendant].
“And you are absolutely correct, I should have identified the person as
the individual in the particular colored jacket when the issue came up, as
opposed to [defendant]. I was just sort of following along with the witness’s
identification. It’s not the chase. It’s an in and out of the car prior to the
chase occurring. But you are absolutely correct, I should have spoken
differently in the way I identified the individual, for the record.
“I . . . don’t think it rises to the level of a mistrial. And had this been a
video of the chase, I would have absolutely agreed with you. This is prior to,
and it’s individuals coming and going from a vehicle or vehicles.
“So I’m happy to admonish the jury. Again, as you noted, as you made
the objection I corrected it. But I’m happy to admonish them again that that
was my misspeaking, if that’s a word, and admonish them that any of what I
have say or do [sic] is inconsequential, and that they are the finders of fact in
this matter.”
Defense counsel asked the court to “go a little further in the
admonishment” because it was “pretty clear in the video that the person
wearing that red Jordan jacket gets in the driver’s seat right before the chase
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begins,” and the defense intended to argue that defendant was in the video
but was not the person who drove the car and that an “unknown individual
who is wearing that red jacket . . . likely drove that car and was involved in
this.” Defense counsel asked the court to “tell the jury . . . this video is
panned out, I can’t make out facial features. I cannot identify [defendant].”
The prosecutor then objected that such an admonishment would be
the equivalent of “giving [the court’s] opinion” and “would be prejudicial the
other way.” He suggested the court state it “didn’t mean to indicate that to
the jury,” but objected to the court “giving [its] personal opinion as to . . . the
state of the evidence.”
The court then offered to “say, neutrally say, that I’m not identifying
any individual, whether it’s [defendant] or anyone else.” The court noted,
“For a variety of reasons” it could not identify defendant, that it would be
inappropriate to give an opinion at all, and said: “So I’m happy to say that I
am not making an identification of that individual, that’s their job. And I
misspoke.” Defense counsel asked the court to add: “I misspoke, because the
witness had just said it.” The court agreed.
In the presence of the jury, the court first apologized, then stated: “I
have asked the prosecutor to put up a particular photo that was a still from
the video that you were shown when the officer was testifying. The officer
identified the individual who’s right now in the picture wearing red getting
out of a car, as a particular individual. And there was an objection, and then
I attached a name to that. I’m not making any identifications here. That’s
not my role. It is up to you to decide who is in these photos, who is not in
these photos. And it’s up to you to evaluate the evidence of that. I am not
and cannot make any identifications of people who are in that.
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“So that was my misspeaking, so I apologize for that. And again, it is
your decision, as the trier of fact, as the fact finders, to determine who is and
who is not in these photographs.”
2. Analysis
Defendant argues the trial court erred in denying his mistrial motion
because the court’s identification of defendant as the person who entered the
driver’s seat of the Accord violated his state and federal due process rights.
A trial court “may make any comment on the evidence and the
testimony and credibility of any witness as in its opinion is necessary for the
proper determination of the cause.” (Cal. Const., art. VI, § 10, 3d par.) Such
a comment must “ ‘ “be accurate, temperate, nonargumentative, and
scrupulously fair. The trial court may not, in the guise of privileged
comment, withdraw material evidence from the jury’s consideration, distort
the record, expressly or impliedly direct a verdict, or otherwise usurp the
jury’s ultimate factfinding power.” ’ ” (People v. Monterroso (2004) 34 Cal.4th
743, 780.) Under this standard, the court “has ‘broad latitude in fair
commentary, so long as it does not effectively control the verdict.’ [Citation.]
‘We determine the propriety of judicial comment on a case-by-case basis.’ ”
(Ibid.)
As our Supreme Court has explained, “ ‘[a] trial court should grant a
mistrial only when a party’s chances of receiving a fair trial have been
irreparably damaged . . . .’ ” (People v. Schultz (2020) 10 Cal.5th 623, 673.)
“ ‘ “Whether a particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable discretion
in ruling on mistrial motions.” ’ ” (Ibid.) We review a trial court’s denial of a
mistrial motion for abuse of discretion. (Ibid.)
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Here, as the parties and trial court acknowledged, the court should not
have identified defendant as the individual in the red Air Jordan jacket.
However, it is clear from our review of the record that the court simply
misspoke when it directed the prosecutor to rephrase his question and
repeated the witness’s identification of defendant in the process. The court
immediately sustained defense counsel’s objection to the misstatement and
shortly thereafter gave a lengthy admonition to the jury, clarifying that the
court was not in any way making an identification. “We presume that a jury
follows the court’s admonishments.” (People v. Schultz, supra, 10 Cal.5th at
p. 673.) Although defendant emphasizes the power of a court’s words to
influence the jury, we presume the jury would have accorded such weight to
the court’s clear, robust explanation that its statement was inadvertent and
in no way to be interpreted as an identification of defendant.
We conclude the trial court did not abuse its discretion in denying the
motion for mistrial.
C. Abstract of Judgment
The Attorney General correctly identifies several errors in the
sentencing minute order and abstract of judgment.
As to the minute order, the Attorney General notes the trial court
sentenced defendant to a total term of seven years four months, but the
sentencing minute order reflects only an aggregate sentence of six years. The
minute order also does not reflect the two-year terms the trial court imposed
and stayed under section 654 for counts 2, 3, 4, and 5.4
The abstract of judgment incorrectly states that defendant was
convicted of fleeing a pursuing peace officer while driving recklessly under
4The minute order does indicate additional orders are attached, but
they were not included in the record on appeal.
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Penal Code (“PC”) section 2800.2. The correct statute is Vehicle Code
section 2800.2.
III. DISPOSITION
The judgment is affirmed. The trial court is directed to correct the
sentencing minute order, and to prepare an amended abstract of judgment
and forward a certified copy to the Department of Corrections and
Rehabilitation.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A160119
People v. Proctor
23