THE PEOPLE, Plaintiff and Respondent, v. DONTAE ALLEN, Defendant and Appellant.
A159128 (San Francisco County Super. Ct. No. SCN227459)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 3/3/21
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified byrule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes ofrule 8.1115 .
Defendant and appellant Dontae Allen (Appellant) appeals following his conviction for first degree murder. He claims the trial court erred in admitting certain evidence, there was insufficient evidence to support a felony murder theory, and the prosecutor committed misconduct during oral argument. We affirm.
PROCEDURAL BACKGROUND
In May 2017, the San Francisco County District Attorney filed an information charging Appellant with the murder of Preston Bradford (
In August 2017, the trial court dismissed the robbery charge.
FACTUAL BACKGROUND
The victim, Preston Bradford (victim), left his house at about 12:30 a.m. early in the morning of February 15, 2017. He told his wife he was going to the store. Instead, the victim spent time with his girlfriend and then dropped her off at 2:06 a.m. Surveillance video then showed Appellant getting into the victim‘s car at 2:08 a.m. on Fillmore Street in San Francisco. Appellant was wearing a black hoodie, white pants, and white shoes. The victim drove off; surveillance video showed two people in the car.
The victim‘s car crashed at 2:13 a.m. Surveillance video showed a person run from the car. An eyewitness testified he saw a person wearing both light and dark clothing running from the car; the car‘s passenger-side door was open. The victim was slumped over the center console with fatal gunshot wounds to his head and chest. Casings from a .40 caliber Glock handgun were found in the vehicle. The police department‘s crime scene investigator opined the shooter was sitting in the front passenger seat.1
The victim‘s wife testified he normally wore a black watch with diamonds and took his wallet when he went out. The victim‘s wife never saw the watch or wallet again.
The police found Appellant‘s phone on the ground outside the victim‘s car. A text message sent on the phone at 3:20 a.m., a bit more than an hour
When interviewed by the police, Appellant admitted he was the person shown getting into the victim‘s car on Fillmore Street prior to the shooting, but he claimed the victim had given him a ride to his own car and dropped him off. The claim that the victim dropped Appellant off at his car was inconsistent with the surveillance video footage.
DISCUSSION
I. No Error in Admission of Evidence Regarding the Victim‘s Watch
Over Appellant‘s pre-trial objection, the victim‘s wife testified at trial regarding a “black watch with diamonds around the face of it” owned by the victim. She testified the watch was a wedding gift he wore “if he was going out somewhere,” but not every day. He generally left the watch on a dresser in their bedroom when he was not wearing it. She agreed with the prosecutor‘s characterization that the watch “would either be on [the victim‘s] wrist or regularly on his dresser.” “Immediately after” the murder of the victim she looked for the watch “[a]round the whole house,” but she never found it. She had last seen the watch on February 13, 2017, essentially the day before the murder in the early morning hours on February 15.2
The trial court did not abuse its discretion in admitting the challenged testimony. (Hughes, supra, 27 Cal.4th at p. 337.)
II. No Prejudicial Error in Admission of Text Messages Referencing Appellant‘s Finances
Appellant contends the trial court erred in admitting into evidence two text messages from his phone that made reference to his finances. We agree the evidence was inadmissible, but the error was harmless.
At trial, the court admitted into evidence a binder with print outs of over 1800 text messages recovered from Appellant‘s phone between November 24, 2016 and February 15, 2017 (the day of the murder). As relevant to Appellant‘s claim on appeal, on January 31, 2017, Appellant texted a friend, asking “Where you at[?]” The friend responded that he was in a work meeting and asked Appellant, “what‘s good?” Appellant responded,
“Evidence of a defendant‘s poverty or indebtedness, without more, is inadmissible to establish motive for robbery or theft because it is unfair to make poverty alone a ground of suspicion and the probative value of the evidence is deemed to be outweighed by the risk of prejudice.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1024 (Edelbacher); accord People v. Clark (2011) 52 Cal.4th 856, 929 (Clark); People v. Cornwell (2005) 37 Cal.4th 50, 96 (Cornwell), disapproved on another ground in Doolin, supra, 45 Cal.4th 390.)
As the language used by the Supreme Court in Edelbacher (and other cases) reflects, the rule generally excluding evidence of poverty is rooted in
Thus, we understand the California Supreme Court‘s cases to establish a strong presumption that evidence of a defendant‘s poverty should be
We need not determine whether in the proper case evidence of a defendant‘s acute financial need immediately before a crime could properly be admitted, because the text messages at issue in the present case did not demonstrate any such acute financial need. Contrary to respondent‘s assertion on appeal, Appellant did not send a text message stating he was “broke” on February 13, 2017. Instead, that text message was sent two weeks before, on January 31. There are over 1800 text messages in People‘s Exhibit 36, both sent and received. Appellant made no statement expressing financial desperation in the preceding 1200 text messages dating back to November 24, 2016, and he made no more such references in the 600 text messages that followed.5 Given the absence of other similar text messages, the January 31 “I‘m broke” text message was not properly admitted as
The trial court also abused its discretion in failing to exclude the February 13, 2017 text message. Although the day before the night of the murder Appellant sent a text message stating, “Alright because I need that money to pay child support,” he immediately received a response, “Got u bro.” Thus, the full context demonstrates that Appellant sought to collect a debt from a friend or acquaintance, and the debtor assured Appellant of payment.
Although the trial court erred in admitting Appellant‘s text messages regarding his finances, the error was harmless. Appellant asserts the error was of “federal constitutional dimension,” requiring review for prejudice under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. However, Appellant cites no authority supporting that assertion. Because, as explained previously, the presumption against admission of evidence of a defendant‘s poverty is an application of
Appellant‘s prejudice argument is premised on his assumption that both the evidence of the watch and the text messages should have been excluded. However, because the trial court properly admitted the testimony about the watch, it is likely the jury believed the murderer took the victim‘s watch and wallet—Appellant has identified no other reasonable explanation for the disappearance of those items. From there, it is a logical inference that the murderer intended to take those items at the time of the murder (see Part III, post). It is not reasonably probable the jury would have failed to make that inference if the trial court had excluded the two text messages challenged on appeal.6
Appellant contends the trial court erred in instructing the jury on the felony murder theory because the evidence was insufficient to support the instruction. We disagree.7
“A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.] We review the trial court‘s decision de novo. In so doing, we must determine whether there was indeed sufficient evidence to support the giving of [the challenged] instruction. Stated differently, we must determine whether a reasonable trier of fact could have found beyond a reasonable doubt that defendant committed murder based on a” felony-murder theory. (People v. Cole (2004) 33 Cal.4th 1158, 1206 (Cole).)
“Murder is the unlawful killing of a human being . . . with malice aforethought.” (
“Robbery is the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his will, accomplished by means of force or fear.” (
It is well-established that, ” ’ ” ’ [w]hen one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery.’ ” ’ ” (People v. Potts (2019) 6 Cal. 5th 1012, 1030; see also People v. Johnson (2015) 60 Cal.4th 966, 988 [“The jury could readily conclude defendant intended to steal when he entered the victim‘s house with a weapon and beat her to death. It did not have to conclude he killed the victim for no apparent reason and only then decided to steal.“]; People v. Marshall (1997) 15 Cal.4th 1, 35 [“If a person commits a murder, and after doing so takes the victim‘s wallet, the jury may reasonably infer that the murder was committed for the purpose of obtaining the wallet, because murders are commonly committed to obtain money.“].)
Appellant does not deny the jury could properly make an inference of intent to steal if there was a basis to find the victim had his watch and wallet with him when he was murdered. Instead, Appellant repeats his argument that an inference the victim had those items would have been “speculation,” essentially because the victim‘s wife did not testify with absolute certainty that the victim had his watch and wallet. The argument fails. As explained
Because a reasonable trier of fact could have found beyond a reasonable doubt that Appellant murdered the victim while committing a robbery, the trial court properly instructed the jury on the felony-murder theory. (Cole, supra, 33 Cal.4th at p. 1206.)8
IV. Appellant Has Not Shown Prejudicial Prosecutorial Misconduct
Appellant presents various claims of error based on the prosecutor‘s closing arguments. Appellant largely has failed to show misconduct, and he has not shown any improper argument was prejudicial, individually or cumulatively.
A. Comments Placing Jurors in Appellant‘s Shoes
Appellant argues the prosecutor made statements improperly “asking the jurors to put themselves in the shoes of” Appellant. For example, the prosecutor asked, “When is the last time you got caught on surveillance camera leaving a murder?” Appellant cites no authority such argument was improper. Instead, he cites inapposite authority prohibiting “an appeal for sympathy for the victim,” which “is out of place during an objective determination of guilt.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) The argument at issue is also distinguishable from that in People v. Rodgers (1979) 90 Cal.App.3d 368, in which the prosecutor suggested the defendant was guilty because he had been accused and asked the jurors to consider
B. Disparagement of Defense Counsel
Appellant argues, “[t]he prosecutor made a number of jury arguments that were attacks on defense counsel‘s integrity, suggesting counsel knew his client was guilty.” For example, the prosecutor argued, “When you have presented no evidence to show this man is anything but completely guilty, you start throwing a whole bunch of garbage that is misleading and distracting against the wall and hoping something sticks. Answer none of the real questions.” We agree the language used by the prosecutor to describe opposing counsel‘s defense strategy was harsh and disrespectful, but Appellant identifies no comments that constitute prohibited disparagement. (See People v. Young (2005) 34 Cal.4th 1149, 1193 [“prosecutor‘s characterization of [defense counsel‘s] argument as ‘idiocy’ [was] fair comment on counsel‘s argument“]; People v. Wash (1993) 6 Cal.4th 215, 266 [prosecutor is ” ‘entitled’ ” to make ” ‘vigorous argument’ “].)9 For example, none of the statements highlighted by Appellant “implied that defense counsel had fabricated evidence” (Wash, at p. 265) or “accused counsel of lying to the jury” (Young, at p. 1193). (See also People v. Zambrano (2007) 41 Cal.4th 1082, 1154–1155, disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
C. Griffin Error
Appellant contends the prosecutor improperly commented upon his failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin). “It is a bedrock principle in our jurisprudence that one accused of a crime cannot be compelled to testify against oneself. [Citations.] In order that an accused not be penalized for his invocation of this fundamental right, the prosecutor may neither comment on a defendant‘s failure to testify nor urge the jury to infer guilt from such silence.” (People v. Hardy (1992) 2 Cal.4th 86, 153–154.) “Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.] We [have] also suggested . . . that it is error for the prosecution to refer to the absence of evidence that only the defendant‘s testimony could provide. [Citation.] But although ’ ”Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand,” ’ the prohibition ’ “does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.” ’ ” (Hughes, supra, 27 Cal.4th 287, 371–372; accord People v. Gomez (2018) 6 Cal.5th 243, 299.)
Only one of the prosecutor‘s comments cited by Appellant arguably commented on his failure to testify.11 The prosecutor argued, “Your client has all these shady text messages. He‘s broke. Needs money. And, poof, all of a sudden this valuable property goes missing. What is he going to say, one of the Three Stooges was sitting in the back seat, . . . shot the victim, then just flew into the air? [¶] What has he actually presented? Nothing. What
Because the jury could have understood the prosecutor‘s comments as referring to Appellant‘s failure to testify, the argument was improper under Griffin. People v. Vargas (1973) 9 Cal.3d 470 (Vargas) is on point. In that case, a robbery prosecution, the prosecutor argued there had been no ” ‘denial’ ” a robbery had taken place. (Id. at p. 476.) The Supreme Court concluded that violated Griffin, because “the word ‘denial’ connotes a personal response by the accused himself” and “the jury could have interpreted the prosecutor‘s remarks as commenting upon defendant‘s failure to take the stand and deny his guilt.” (Vargas, at p. 476 [italics added].) Similarly, in the present case, the prosecutor argued, “What has he actually presented? What has he refuted? Nothing.” Like the word “denial,” the word “refuted” “connotes a personal response by the accused himself.” (Ibid.)
The case respondent relies upon, People v. Gomez, supra, 6 Cal.5th 243, is distinguishable. In Gomez, the prosecutor argued the defendant‘s knowledge about the details of a murder implicated him in the crime. (Id. at p. 299.) The Supreme Court concluded there was no Griffin error where the prosecutor commented on the lack of evidence the defendant read news articles about the murder, which would have explained his knowledge. (Gomez, at p. 299.) The court observed, “[a]lthough [the defendant] argues
Nevertheless, the Griffin error was harmless beyond a reasonable doubt. (Vargas, supra, 9 Cal.3d at p. 478.) Vargas emphasized that, “in determining whether prejudicial Griffin error has occurred, ‘we must focus upon the extent to which the comment itself might have increased the jury‘s inclination to treat the defendant‘s silence as an indication of his guilt.’ ” (Vargas, at p. 478.) The absence of ” ‘a statement that silence implied guilt . . . tends to mitigate the independently damaging effect of a comment uttered in violation of the Griffin rule.’ ” (Vargas, at pp. 478–479.) Here, the prosecutor‘s point was that the evidence against Appellant was so overwhelming that any attempt to refute it—by, for example, claiming another person in the car shot the victim—would have been futile. Thus, even though the argument can be construed as a reference to Appellant‘s failure to testify, in effect it was a comment on the state of the evidence rather than a suggestion that Appellant‘s silence showed his guilt. (See also People v. Bradford (1997) 15 Cal.4th 1229, 1340 [” ‘indirect, brief and mild references to a defendant‘s failure to testify, without any suggestion that an
D. Appeals to Sympathy
Appellant contends the prosecutor committed misconduct by asking the jury to reflect on the fact that the victim had three children, stating “What‘s uncomfortable is that this man, the evidence showed, had three children. Burying your father . . . .” Respondent argues the prosecutor was merely commenting on the evidence admitted at trial, although respondent does not identify how the prosecutor‘s statement was relevant to the determination of Appellant‘s guilt. The prosecutor‘s comment was improper: “a prosecutor‘s argument to the jury that ’ “appeal [s] to sympathy for the victim is out of place during an objective determination of guilt.” ’ ” (People v. Salcido (2008) 44 Cal.4th 93, 151.) However, there is no “reasonable probability” that the passing reference to the victim‘s children, of whom Appellant admits the jury was already aware from the evidence at trial, affected the outcome of the trial. (People v. Amezcua & Flores (2019) 6 Cal.5th 886, 920.)
Appellant also complains of the prosecutor‘s reference to the children of a police officer who was a prosecution witness. The prosecutor stated that the officer, upon being called to the scene of the murder, had to get “her kids settled in the house, knowing she was going to be gone for the next 48 hours.”
E. Alleged Vouching for Police Officer Expert
Finally, Appellant contends the prosecutor improperly “vouched” for his police department expert in arguing that she was “the only real expert. The only expert here that said she wouldn‘t charge money if I wanted to have a 15-minute conversation with her.” Appellant points out that the prosecutor‘s comments were likely directed at the defense expert, who testified he charged $150 an hour for his work and would have charged to speak with the prosecutor.
“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citation.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness‘s truthfulness at trial. [Citation.] However, so long as a prosecutor‘s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ [the] comments cannot be characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground in Doolin, supra, 45 Cal.4th at pp. 420–421.)
Appellant forfeited his objection by failing to object below, but, even assuming the claim was preserved, Appellant has not shown misconduct. “[A]lthough counsel may not denigrate the integrity of opposing counsel, an attorney is free to argue that the opinions of paid expert witnesses may be
F. Cumulative Error
We have concluded the prosecutor committed Griffin error and made improper references to the victim‘s children and the children of a police officer witness. We have also previously concluded the trial court erred in admitting two text messages that referred to Appellant‘s financial situation. (Part II, ante.) Nevertheless, considering those errors jointly, it is clear beyond a reasonable doubt the outcome of the trial would not have been more favorable to Appellant had those errors not occurred. This is not a case in which “[t]he sheer number of the instances of prosecutorial misconduct, together with the other trial errors . . . . created a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that
DISPOSITION
The trial court‘s judgment is affirmed.
SIMONS, Acting P.J.
We concur.
NEEDHAM, J.
SELIGMAN, J.*
(A159128)
* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to