People v. Edgar CA2/2 ( 2023 )

Filed 5/25/23 P. v. Edgar CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B320180
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074945)
v.
NEIL JASON EDGAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa M. Strassner, Judge. Affirmed as modified.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, and Marc A. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.
******
Neil Jason Edgar (defendant) struck his girlfriend in the
head with a claw hammer multiple times. A jury convicted him
of second degree murder (Pen. Code, § 187, subd. (a)),1 and he
was sentenced to 36 years to life in prison. He raises multiple
challenges to his conviction and sentence, but his challenges are
meritless. We accordingly affirm the judgment, but order the
abstract of judgment modified as directed.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On October 16, 2018, defendant repeatedly struck Angela
Gatewood (Gatewood) in the head with a claw hammer, killing
her.
A. Events leading up to the killing
Defendant and Gatewood met years earlier, as defendant
was the prison cellmate of Gatewood’s adult son. Defendant and
Gatewood dated on and off for years. Throughout this entire
time, defendant regularly used methamphetamines.
In May 2018, following his most recent release from prison,
defendant moved in with Gatewood. Over the next several
months, defendant’s drug use “really escalated,” and his earlier
suspicions that Gatewood was cheating on him grew more
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
impassioned and delusional. Specifically, defendant suspected
that Gatewood was hosting orgies in their apartment, filming the
sex acts using their smart TV as a camera, and uploading the
resulting videos onto a “hidden” YouTube website and also a
“Cheating Wife” website. Defendant’s suspicions were based on
the fact that Gatewood kept lint rollers in the house, that he once
saw a handprint on the coffee table “way bigger” than his, that
she did not always answer his calls, that some of the calendar
entries on her cell phone were vague, that he believed she had
other “hidden stuff” on her phone, and that her cell phone locked
him out of further access after he entered the incorrect password
too many times.
Defendant repeatedly accused Gatewood of infidelity, and
she repeatedly denied it and told him that he was being
delusional.
In the weeks immediately preceding October 16, 2018,
defendant’s methamphetamine use increased: He was “eating
meth” and then “throwin’ up,” and he would get “really, really
high” for days at a time. Defendant would often not let Gatewood
leave the apartment, which prompted Gatewood to text
defendant’s father to report that she felt “unsafe” around
defendant. During those weeks, Gatewood also started sleeping
in a separate room, although she and defendant would
communicate through text messages. In those texted
conversations, defendant incessantly repeated his accusations of
infidelity, and Gatewood responded by pointing out that he was
high every time he accused her of “these things,” by calling him a
panoply of unflattering names (including a “fucking lying
bastard,” a “bitch,” a “bottom of the barrel loser,” a “jerk,” a
3
“jackass,” a “dumb meth head” and a “drug addict”), and by
telling him that she was going to break up with him.
On the night of October 15, 2018, Gatewood told defendant
she was going to leave him. Defendant spent the night smoking
meth and looking through Gatewood’s phone, and later admitted
thinking, “I should just go up there and fuckin’ kill her ass right
now.”
The next morning, Gatewood again told defendant he was
being delusional as she was leaving for a convenience store.
Defendant hopped into her car, and as they drove to and from the
store, Gatewood relayed that she was “scared” for her life, that
she had to “get away” from him, and that she would report him to
the police if he continued accusing her of infidelity. Gatewood
then dropped off defendant at their residence, and left to get
something to eat. As soon as she drove away, defendant later
admitted, “[he] decided [he] was gonna kill her.” He proceeded to
gather up the “things” he would need to effectuate the killing—
namely, a claw hammer and rolls of tape from the garage—and
then brought them into the apartment where they would be
handy but hidden.
When Gatewood returned to the residence, she angrily told
defendant she was unable to buy food because defendant had
maxed out her credit card looking for evidence of her supposed
infidelity on pornographic websites, said she was going to report
defendant’s theft to the police, called him a “bitch,” and then
walked into her bedroom and picked up the phone. At that point,
defendant later admitted to thinking “there’s only . . . two things
can happen right now . . . . I’ll go to jail or I’m gonna kill her and
I’ll go to jail.”
4
Defendant then “ran” at Gatewood, hammer in hand, and
started hitting her in the head with the hammer. He later
lamented that “she wouldn’t die” and that it “took a while” to kill
her. He screamed at her, “Die! Die! Die!” While continuing to
bludgeon her head, he also bit at one of her nipples “really hard.”
After defendant felt she was dead, he set up two makeshift
shrines: He placed an angel figurine and a photograph of him
and Gatewood on her chest, and also placed a skull figurine on
the floor with two rings leaning against it to symbolize “[n]ow it’s
done.”
B. Post-killing events
Defendant then got into his car and drove around for a few
hours, ending up at the hospital from which he believed
Gatewood was recruiting her sex partners for the orgies. He
armed himself with a knife. He told the hospital staff he killed
his girlfriend, and they called the police. Defendant then told the
responding police officer that he killed Gatewood while high on
meth because he suspected she was cheating on him. At one
point, defendant grabbed at the officer’s gun to try to induce the
officer to shoot him; the officer subdued defendant without
harming him.
C. Defendant’s further confessions
In addition to defendant’s statements to the hospital staff
and responding police officer that he killed Gatewood, defendant
made two further confessions.
1. Recorded oral confession
After waiving his Miranda rights at the police station,
defendant again confessed to killing Gatewood while being
recorded.
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2. Written confession
A few weeks after his arrest, and as defendant was being
moved between jail facilities, his jail custodians found a letter on
him. In pertinent part, the letter read:
“I cannot reverse the damage I have inflicted on the
Gatewoods or disgrace to the Edgars, all I may do is
accept justice. I am guilty of the murder of Angela
Gatewood which I committed on Oct. 16th 2018 apprx.
2 pm. Though under the influence of drugs I was
sane, knowing right from wrong. I regret my crime.”
II. Procedural Background
The People charged defendant with a single count
of murder (§ 187, subd. (a)). The People also alleged that he had
personally used a deadly and dangerous weapon (namely, a
hammer) (§ 12022, subd. (b)(1)), and that his 1999 conviction for
robbery (§ 211) constituted a prior “serious” felony (§ 667, subd.
(a)) as well as a strike within the meaning of our “Three Strikes”
law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)).2
The matter proceeded to a jury trial in February 2022.
The jury found defendant guilty of second degree murder
and found the weapon enhancement to be true. Defendant
admitted his prior convictions.
The trial court sentenced defendant to prison for 36 years
to life, comprised of a base sentence of 30 years (15 years to life,
2 The People also alleged that defendant had served four
prior prison terms (§ 667.5, subd. (b)(1)), but the trial court
struck those findings at sentencing. Thus, they do not figure into
his sentence.
6
doubled due to the prior strike), plus one year for the weapon
enhancement, plus five years for the prior serious felony.
Defendant filed this timely appeal.
DISCUSSION
I. Evidentiary Error
Defendant argues that the trial court erred in admitting his
written confession because his admission to being “guilty of the
murder of [Gatewood]” and that he “was sane” and “kn[ew] right
from wrong” at the time of the killing were “tantamount to
inadmissible opinions that he was guilty of the charged crime of
murder . . . rather than the lesser offense of voluntary
manslaughter,” and hence invaded the province of the jury to
decide the ultimate question of the degree of homicide. More
specifically, defendant argues that the probative value of his
confession was substantially outweighed by the danger of unfair
prejudice and confusing the issues. We review the admission of
evidence for an abuse of discretion. (People v. Flores (2020) 9
Cal.5th 371, 409.)
Witnesses can offer three different types of testimony: (1)
factual testimony; (2) so-called “lay opinion” testimony, which is
an opinion that is based on personal knowledge rather than any
specialized expertise or knowledge, and which is helpful in
conveying the sum total of what the witness observed (Osborn v.
Mission Ready Mix (1990) 224 Cal.App.3d 104, 112-113; Evid.
Code, § 702); and (3) expert opinion testimony, which is an
opinion based on the witness’s special expertise or knowledge,
and which may or may not be based on personal knowledge (Evid.
Code, §§ 801, 720, subd. (a)).
In his written confession, defendant offered factual
testimony. In stating that he was “guilty of [Gatewood’s]
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murder,” he conveyed that he was the person who committed the
killing. In stating that he was “sane” and “kn[ew] right from
wrong,” despite being “under the influence of drugs,” he conveyed
that he subjectively appreciated the wrongfulness of what he was
doing at the time. These are factual assertions of which
defendant had personal knowledge, and assertions which
defendant—as the only still-living person who knew what he did
as well as the only person who knew what he was thinking at the
time—was uniquely able to make. Defendant was not offering
expert opinion testimony because defendant has no relevant
special expertise. And, contrary to what he urges on appeal,
defendant was not offering lay opinion testimony. He was not
trying to contrast murder to manslaughter, or to say anything
about whether he was sufficiently provoked. Tellingly, defense
counsel admitted as much in his closing argument while
discussing the written confession: “[Defendant’s] not a lawyer.
He doesn’t know the distinctions to be made between voluntary
manslaughter, heat of passion, any of those things. He’s just
speaking in everyday terms the way anyone else would.” (Accord,
People v. Gray (2005) 37 Cal.4th 168, 212-213 [“[B]oth defense
counsel and the prosecutor referred to some of the break-ins as
‘burglaries.’ . . . We find the use, by both sides, of the word
‘burglary’ as a shorthand reference meaning a break-in or
unauthorized entry was innocuous in this context; the jury would
not have understood the attorneys to be offering unsolicited
testimony on whether the legal elements of a burglary had been
proved”].)
Evidence Code section 352 grants trial courts the
“discretion” to otherwise “exclude evidence if its probative value
is substantially outweighed by the probability that its admission
8
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352.) As factual
testimony, defendant’s written confession is highly probative of
(1) defendant’s actual conduct, and (2) his mental state at the
time he killed Gatewood. Indeed, as noted above, defendant is
the only person still on earth capable of attesting to the first
point and the only person capable of attesting to the second. And
this confession is neither confusing nor misleading, as even
defense counsel acknowledged that the confession was factual
testimony and did not purport to speak to the legal issues of
provocation or voluntary manslaughter.
Defendant offers what boil down to two arguments in
response.
First, he argues that witnesses who offer opinions on a
defendant’s guilt invade the province of the jury to determine
culpability, and that defendant was offering an opinion on his
own guilt and mental state. Defendant is correct that witnesses
impermissibly invade the province of the jury by opining on a
defendant’s guilt. (E.g., People v. Prince (2007) 40 Cal.4th 1179,
1227; People v. Clay (1964) 227 Cal.App.2d 87, 98-99; People v.
Coffman & Marlow (2004) 34 Cal.4th 1, 77; People v. Torres
(1995) 33 Cal.App.4th 37, 47-48; People v. Page (1991) 2
Cal.App.4th 161, 188-189.) However, as defense counsel
acknowledged to the jury and as we have concluded here,
defendant was not offering an opinion on the provocation issue or
the issue of his guilt of “murder” rather than manslaughter; he
was offering factual testimony about what he did and what he
was thinking. If this were inadmissible, no defendant’s
9
confession would ever be admissible and that is most certainly
not the law.
Second, defendant argues that the trial court’s admission of
his written confession also offended his constitutional right to
due process. It did not. Where, as here, the admission of
evidence complies with the rules of evidence, it also complies with
due process. (E.g., People v. Robinson (2005) 37 Cal.4th 592, 626-
627 [“‘[A]s a general matter, the ordinary rules of evidence do not
impermissibly infringe on the accused’s [state or federal
constitutional] right to present a defense’”])
II. Prosecutorial Misconduct
A. Pertinent facts
1. The court instructs the jury
After the close of evidence at trial, the trial court instructed
the jury on the crimes of first degree murder, second degree
murder, and on the lesser included crime of voluntary
manslaughter due to provocation. In describing the provocation
that can negate the intent to kill and hence warrant a conviction
of voluntary manslaughter rather than murder, the court
instructed:
“The question to be answered is whether or not,
at the time of the killing, the reason of the accused
was obscured or disturbed by passion to such an
extent as would cause the ordinarily reasonable
person of average disposition to act rashly and
without deliberation and reflection, and from passion
rather than from judgment.”
10
2. The prosecutor makes the opening portion of her
closing argument
During the opening portion of her closing argument, the
prosecutor at first paraphrased the provocation jury instruction,
explaining that provocation means “you’re so overcome with your
emotions that you react with emotion rather than . . . from
thought . . . when you acted.” The prosecutor then made three
statements that either explicitly or implicitly framed provocation
as turning—not on whether the provocation would cause a
reasonable person’s reasoning to be clouded by emotion—but
rather on whether the provocation would cause a reasonable
person to kill (that is, to act in a certain way).
First, the prosecutor argued:
“The most important thing is, again, a
reasonable person would have acted the same in
similar circumstances, and that’s the big sticking
point here. Okay? A reasonable person would have
acted the same way in similar circumstances.”
Second, the prosecutor argued:
“We’ve all been in situations where we’ve been angry
and maybe we’ve said something that we wish we
could take back. Maybe we’ve said hurtful things.
We’ve been mean. Right? But does that make a
reasonable person respond by picking up a hammer,
running up on that person, striking them 14 times,
bashing their head in and killing them? Is that a
reasonable response to that? [¶] And I submit to you
that it’s not. This is not a reasonable response to
those text messages, to the name calling. Right? To
11
the fact that their relationship was getting to a point
where she was ready to leave.”
Third, the prosecutor argued:
“But what do reasonable people do in those
situations? They break up. Right? They move away
from each other. They move on. They don’t grab a
hammer and bash in a person’s skull.”
Defendant objected to the first and third arguments, but
not the second. The trial court overruled those objections.
3. The defense attorney tells the jury that the
prosecutor’s argument is inconsistent with the jury instructions
In his closing argument, the defense attorney explained
that “some of the things [the prosecutor] said about the law and
the legal standards [regarding provocation] were just plain
wrong” and that the prosecutor’s description of the provocation
issue was “absolutely 100 percent completely the wrong way of
articulating what the issue[] before you [is].” The defense
attorney quoted verbatim the above-described jury instruction on
provocation. Then the defense attorney expounded on why what
the prosecutor argued was inconsistent with the jury instruction:
“The standard in voluntary manslaughter is
not whether an ordinarily reasonable person would
kill in that situation. That’s not the standard. That’s
not how it’s determined. It is not saying would you or
would an ordinarily reasonable person have behaved
in the same way that [defendant] behaved that day.
That’s not the standard at all. . . . [¶] What the
standard is is would an ordinarily reasonable person
faced with the same set of circumstances have acted
12
rashly and without proper judgment. That’s the
standard.”
4. The prosecutor in rebuttal urges the jury to
follow the instructions over her argument, and argues the jury
should focus on whether the provocation would interfere with
judgment rather than prompt a killing
In her rebuttal argument, the prosecutor responded to the
defense attorney’s criticism that she improperly described the law
regarding provocation:
“So the first thing I want to talk about is
something that defense counsel had said about my
talking about what’s required for adequate
provocation in voluntary manslaughter . . . —the jury
instructions are what are controlling. Right? You
look at the jury instructions. That’s where you’re
going to get the law. [¶] Right? [¶] What we say is
not evidence. . . . You go by the jury instruction; and
if there’s any confusion about what voluntary
manslaughter is, it’s that the heat of passion, the
provocation, has to invoke a response where a person
responds from a place of passion, a place of impulse
rather than judgment—okay?—regardless of what the
act is.” (Italics added.)
B. Analysis
Defendant argues that the prosecutor committed
prosecutorial misconduct by misstating the standard for
provocation. To prevail on a claim that a prosecutor committed
misconduct by misstating the law during closing argument, a
defendant must establish that (1) the prosecutor misstated the
law, and (2) “‘“[i]n the context of the whole argument and the
13
instructions” [citation], there was “a reasonable likelihood the
jury understood or applied [the misstatement] in an improper or
erroneous manner.”’” (People v. Cortez (2016) 63 Cal.4th 101, 130
(Cortez), quoting People v. Centeno (2014) 60 Cal.4th 659, 667;
People v. Rivera (2019) 7 Cal.5th 306, 334; People v. Silveria &
Travis (2020) 10 Cal.5th 195, 306.) The People concede that the
prosecutor misstated the law, and we agree with this concession.
Whether provocation is sufficient to negate malice (and hence to
warrant a conviction of voluntary manslaughter due to heat of
passion rather than a conviction of murder) turns on whether the
provocation “would cause an emotion so intense that an ordinary
person would simply react, without reflection.” (People v. Beltran
(2013) 56 Cal.4th 935, 949.) What matters is “whether the
average person would react in a certain way: with his reason and
judgment obscured”—not “whether the average person would act
in a certain way: to kill.” (Ibid.) Because the prosecutor’s initial
arguments focused on whether a reasonable person would “pick[]
up a hammer” and “strike [a person] 14 times” in the head, those
arguments misstated the law. Thus, the question before us is
whether the trial court abused its discretion in ruling that there
was no reasonable likelihood the jury misapplied the prosecutor’s
misstatements in an “improper or erroneous manner.” (Cortez,
supra, at p. 130; People v. Peoples (2016) 62 Cal.4th 718, 792-793
[applying abuse of discretion review].)
There was no abuse of discretion. To begin, the
prosecutor’s misstatement of law was subsequently corrected.
Specifically, the defense attorney repeatedly told the jury that
the prosecutor’s initial arguments were “wrong,” and proceeded
to quote the pertinent jury instructions and to explain why the
prosecutor’s argument was inconsistent with the plain language
14
of those instructions. Although, as defendant notes on appeal,
the prosecutor in her rebuttal argument did not make an express
“mea culpa” by admitting that her prior argument regarding the
focus of the provocation inquiry was wrong, the prosecutor did
explicitly tell the jury to “go by the jury instruction” rather than
follow what she had argued about provocation and also voiced her
agreement with defense counsel’s correct view of the law that
provocation focuses on whether the defendant “responds from a
place of passion, a place of impulse rather than judgment . . .
regardless of what the act is.” (Italics added.) Furthermore, the
jury instructions also corrected the prosecutor’s initial
misstatements of law. The pertinent instruction, as defendant
concedes, properly instructed on the focus of the provocation
inquiry and another instruction explicitly told the jury to “follow
[the] instructions” “[i]f anything . . . said by the attorneys in their
arguments . . . conflicts with [those] instructions.” We presume
jurors follow such instructions (People v. Osband (1996) 13
Cal.4th 622, 717), especially where, as here, the lawyer alleged to
have argued in conflict with the instructions expressly tells the
jury to follow the instructions over her arguments.
Defendant resists this conclusion with two further
arguments.
First, he argues that the trial court’s act in overruling his
two objections constituted an endorsement of the prosecutor’s
initial misstatement of law. Although a court’s conduct in
overruling an objection can at times “convey[] to the jury that the
prosecutor was correct” (e.g., People v. Doane (2021) 66
Cal.App.5th 965, 978), there was no danger of that here.
Defendant’s first objection was based on “[m]isstates the law” and
“[p]rosecutorial misconduct”; the second, on “[p]rosecutorial
15
misconduct.” The court responded to the first by saying that
“[t]he court does not feel there’s any prosecutorial misconduct”
and by telling the jury, “the arguments of the attorneys are not
evidence”; the court responded to the second by saying, “[t]here’s
no prosecutorial misconduct.” It is not reasonably likely that a
jury listening to this exchange would conclude that the trial court
believed the prosecutor to have properly stated the law.
Second, defendant argues that the prosecutor’s
misstatement of the provocation standard is more likely to have
affected the jury because it was really three separate
misstatements and the error was hence magnified with each
reiteration. Whether viewed as one misstatement or three, all
misstatements were aimed at the same basic point; the defense
attorney explained why the prosecutor was wrong on that point
and how the jury instruction showed she was wrong; and the
prosecutor urged the jury to follow the pertinent instruction and
to focus on how the provocation would cloud a reasonable person’s
judgment rather than prompt them to take certain actions.
In light of our finding that there was no prosecutorial
misconduct, we have no occasion to decide whether any error was
prejudicial.
III. Limitation on Length of Defense Counsel’s Closing
Argument
A. Pertinent facts
After the trial court instructed the jury on the law, the
prosecutor made her initial closing argument prior to lunch; that
argument occupies 19 pages of reporter’s transcript. Defense
counsel then started his closing argument. He took 15 minutes
before lunch and the entirety of the afternoon. Defense counsel’s
closing argument, from its beginning to the end of the afternoon,
16
occupies 75 pages of reporter’s transcript. It is unclear precisely
how long it took defense counsel to make his argument on that
first date: The trial court said it was 3.25 hours; defense counsel,
citing the handful of breaks, said it was 2.5 hours. At the end of
the first day, the trial court asked defense counsel how much
longer he needed; defense counsel responded that it was “difficult
to estimate,” but he would “guess” he had another “45 minutes to
an hour” remaining.
The next morning, the trial court told defense counsel that
“some of [his] closing argument has been redundant” and
“repetitive”; noted that, in light of defense counsel’s concession
that defendant killed Gatewood, “this is a one-count case where
both sides agree there is one issue” (namely, provocation); and
informed counsel that the court would be exercising its discretion
to limit his remaining argument to 45 minutes, which was within
the range counsel estimated he needed to finish. Defense counsel
objected, disputing that he had been “redundant” and
“repetitive,” asserting that it was “improper to provide any type
of time limit on [his] arguments,” and insisting that 45 minutes
would—upon further reflection—not be enough to finish his
argument. The court overruled the objections, and defense
counsel completed his argument within the 45-minute limit. This
further argument occupied another 22 pages of reporter’s
transcript, bringing the total defense argument to 97 pages of
transcript.
The prosecutor completed her rebuttal argument in what
occupies seven pages of transcript, for a total of 26 pages.
Defendant subsequently moved for a mistrial and a new
trial on the basis that the trial court’s time limits were
unconstitutional. The trial court denied both motions.
17
B. Analysis
Defendant argues that the trial court erred in not allowing
defense counsel to argue for as long as he wanted in closing, even
though his closing argument ended up being more than three
times longer than the total of the prosecutor’s opening and
rebuttal arguments (in terms of transcript length). Both the
United States and California Supreme Courts have held time and
again that trial courts have “great latitude” and “broad
discretion” in controlling the “duration” of the parties’ closing
arguments in criminal cases, and may “limit counsel to a
reasonable time” and otherwise “terminate argument when
continuation would be repetitive or redundant.” (Herring v. New
York (1975) 422 U.S. 853, 862; People v. Edwards (2013) 57
Cal.4th 658, 743; People v. Simon (2016) 1 Cal.5th 98, 147
(Simon); People v. Rodrigues (1994) 8 Cal.4th 1060, 1184.) We
review the trial court’s exercise of its latitude and discretion only
for an abuse of that discretion. (Simon, at p. 147.)
The trial court did not abuse its discretion in limiting
defense counsel to an additional 45 minutes to complete his
closing argument. By that time, counsel’s closing so far had
already been nearly four times longer than the prosecution’s
initial closing argument. Moreover, the case involved a single
count and, in light of defendant’s confession to being the killer,
involved a single issue—namely, whether the killing was the
result of legally sufficient provocation. And the court drew the
45-minute cap from the bottom of the range of time that defense
counsel had himself estimated as needing to finish up. (Accord,
Wilson v. Kopp (1974) 114 Cal.App.2d 198, 208 [time limit is
reasonable when based in part on counsel’s estimation of time
needed].) On these facts, the court did not abuse its discretion in
18
limiting the remainder of defense counsel’s argument to 45
minutes.
Defendant resists this argument with what boil down to
three arguments.
First, defendant asserts that it was unfair—and also
violated his Fifth, Sixth, and Fourteenth Amendment rights—for
the trial court to place a time limit on his counsel’s argument
because (1) one hour of that argument was used reading to the
jury the various text messages between defendant and Gatewood,
which the trial court had admitted as exhibits without reading
during the trial, and (2) the time limit denied counsel the ability
to (a) discuss in greater detail defendant’s recorded oral
confession to the police, (b) discuss in greater detail the text
messages counsel had spent an hour reading, and (c) discuss the
beyond-a-reasonable-doubt standard and the importance of each
juror relying on their own individual conscience. But defense
counsel did not need to use an hour reading verbatim the bulk of
the text messages to the jury during closing argument. Those
messages were already in evidence, and counsel could have
focused on the most pertinent passages. His decision to spend his
time going through them in such detail was a tactical choice. The
same is true with respect to defendant’s complaint that his
counsel needed to discuss defendant’s recorded confession, the
text messages, and the beyond-a-reasonable-doubt standard in
greater detail; counsel had already discussed those topics during
his argument; his desire to discuss them in more detail was a
tactical choice. A trial court’s decisions regarding the length or
format of closing argument, however, is not invalid merely
because it obligates a defense attorney to make tactical choices
about how to present his or her argument. (See People v.
19
Navarro (2021) 12 Cal.5th 285, 320.) Were the rule any different,
counsel would necessarily have a right to argue ad infinitum and
potentially ad nauseum. Indeed, that is specifically what defense
counsel incorrectly told the trial court he had a right to do. But
that is not the law.
Second, defendant cites three cases that he claims support
his counsel’s purported right to argue as long as he wants.
Defendant misreads those cases. He cites People v. Gurule (2002)
28 Cal.4th 557 for the proposition that defense counsel must
always be “able to make a full closing argument” (id. at p. 649),
but quotes that language out of context. Gurule held that a
defendant did not have a right to make a supplemental closing
argument after the jury requested a read-back of some testimony
and after defendant “was able to make a full closing argument” at
the conclusion of the trial. Gurule did not purport to revisit—let
alone deviate from—the solid wall of precedent allowing courts to
put reasonable limits on closing argument, even if that might
prevent counsel from delivering what, in their subjective opinion,
is a “full closing argument.” Defendant cites People v. Bolton
(1979) 23 Cal.3d 208 for the proposition that a defendant must
always be able to “‘argue all reasonable inferences from evidence
in the record’” (id. at p. 212), but again quotes that language—
which comes from the American Bar Association Standards for
Criminal Justice—out of context. Bolton held that a prosecutor
exceeded the bounds of proper argument by arguing facts not in
evidence, and Bolton noted that the boundary of arguing
reasonable inferences from facts in evidence is transgressed by
arguing facts not in evidence. Defendant relatedly cites People v.
Farmer (1989) 47 Cal.3d 888 (Farmer), overruled on other
grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6, also
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for the proposition that counsel in closing may argue reasonable
inferences from the evidence (Farmer, at pp. 922-923), but once
again quotes the language out of context. Farmer held that a
prosecutor committed misconduct by relaying to the jury what
was argued in a different trial because doing so exceeded even
the inferences that may be argued from the evidence. Neither
Bolton nor Farmer purported to erect an entitlement to argue
every possible reasonable inference from the evidence irrespective
of tactical choices.
Third, defendant argues that the trial court’s reasoning
imposing a 45-minute limit for the remainder of his counsel’s
argument was flawed because (1) the court overestimated the
time defense counsel had already spent by 45 minutes (3.25 hours
versus the 2.5 hours counsel stated on the record), and (2) the
court erred in characterizing counsel’s argument as being
“redundant” and “repetitive.” We elected to look at pages of
reporter’s transcript as a gauge of the length of argument
(because the record does not contain time stamps), and that
length reflects that defense counsel’s argument was orders of
magnitude longer than the prosecutor’s—regardless of the actual
time on the clock. The court’s decision to limit further argument
was reasonable. And we have reviewed the transcript of defense
counsel’s closing argument and agree with the trial court that
counsel looped back to some arguments again and again, and that
his argument was at times “redundant” and “repetitive.”
IV. Refusal to Dismiss Defendant’s 1999 “Strike”
Conviction
A. Pertinent facts
Defendant has a long criminal history aside from the 1999
conviction for robbery that constituted a “strike” within the
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meaning of our Three Strikes law. Prior to that conviction,
defendant sustained (1) a 1992 juvenile adjudication for robbery,
(2) a 1994 juvenile adjudication for receiving stolen property, (3)
a 1996 conviction for grand theft auto, and (4) a 1997 conviction
for grand theft auto. Following his release from prison on the
“strike” conviction in 2013, defendant sustained a 2014 conviction
for possession of child pornography. When probation and parole
violations resulting in reincarceration are considered, defendant
spent approximately 22 out of the 24 years of his adult life in
custody prior to the 2018 killing of Gatewood.
Prior to sentencing, defendant asked the trial court to
dismiss the 1999 conviction as a “strike.” The trial court denied
the motion.
B. Analysis
Defendant argues that the trial court erred in denying his
motion to dismiss his 1999 robbery conviction as a strike. We
review such denials for an abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 373 (Carmony).)
A trial court has discretion to dismiss a “strike” allegation
under California’s Three Strikes law. (§ 1385, subd. (a); People v.
Williams (1998) 17 Cal.4th 148, 162.) The Three Strikes law was
“devised” to impose longer sentences on “revolving-door career
criminal[s].” (People v. Gaston (1999) 74 Cal.App.4th 310, 320
(Gaston).) In deciding whether to exercise this discretion, the
court is instructed to “‘consider whether, in light of the nature
and circumstances of [the defendant’s] present felon[y] and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be
deemed outside the [Three Strikes] scheme’s spirit, in whole or in
part, and hence should be treated as though he had not
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previously been convicted of one or more serious and/or violent
felonies.’” (Carmony, supra, 33 Cal.4th at p. 377.) There is a
“strong presumption” against granting a motion to dismiss a
strike. (Id. at p. 378.)
The trial court did not abuse its discretion in denying
defendant’s motion to strike his 1999 “strike” conviction because
defendant’s criminal history shows him to be precisely the type of
“revolving-door career criminal” for whom the Three Strikes law
was devised. Since his teen years, defendant has committed one
crime after another, starting with robbery and theft, moving on to
possession of child pornography, and culminating in murder.
Each time he has been released from custody, he has ended up
back in custody within weeks or months of that release. He has
been using methamphetamines for much of this time, and
relapses into meth use—and crime—once released. We thus
reject defendant’s attempt to characterize himself as not “the type
of hardened recidivist criminal for whom the Three Strikes law
was designed.”
Defendant resists this conclusion, and offers up five
arguments.
First, he argues that he has been a meth addict with
mental health issues throughout his life. Although drug abuse is
relevant to a motion to dismiss, it is not dispositive of the issue
(People v. Garcia (1999) 20 Cal.4th 490, 494, 503 (Garcia)), and
any mental illness defendant might have suffered at other times
is not pertinent here, where defendant, by his own admission,
was lucid when he killed Gatewood.
Second, defendant argues that his 1999 strike conviction is
“old.” However, defendant was in custody most of the time
between that conviction and the instant murder (and hence not in
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a position to demonstrate that he was conforming his conduct to
the law while out of custody) and had also committed other
crimes during that interim period, so the age of the strike
conviction is less relevant. (Gaston, supra, 74 Cal.App.4th at pp.
321-322 [age of prior strikes is relevant when defendant “led a
crime-free life” in the interim, but not when he has “committed
an unending series of felonies, as well as other crimes . . .”];
People v. Daniels (2009) 176 Cal.App.4th 304, 317 [age of
conviction less relevant when “defendant had been incarcerated
for the vast majority of that period”].)
Third, defendant urges that his sentence would still be long
(21 years) even without the strike enhancement. While this
factor is relevant (Garcia, supra, 20 Cal.4th at p. 503), it is not
dispositive and must be assessed in light of defendant’s prospects
of committing future crimes (Gaston, supra, 74 Cal.App.4th at p.
315), which, in light of defendant’s history, seem very likely (and
hence counsel against dismissing the strike).
Fourth, defendant urges that his crimes have not been
“escalating” because he went from robbery to theft to child
pornography. Yet he ignores that he then committed murder,
which is more serious than those prior crimes.
Lastly, defendant argues that nothing in the record shows
that he “forever [is] immune to rehabilitation.” Yet that is
irrelevant because it is not the test for assessing whether a prior
strike allegation should be dismissed. At bottom, defendant is
asking us to reweigh the various factors and come to a different
conclusion than the trial court. This is beyond our purview.
(People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
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V. Error In Abstract of Judgment
The abstract of judgment dated May 19, 2022, states that
defendant was convicted of willful, deliberate, and premeditated
murder. This is incorrect, as defendant was convicted of second
degree murder. We can and do order that the abstract be
corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The abstract of judgment dated May 19, 2022, is ordered
amended to reflect that defendant was convicted of second degree
murder, not willful, deliberate, and premeditated murder. The
trial court is ordered to prepare and forward to the California
Department of Corrections and Rehabilitation a modified
abstract of judgment.
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P.J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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