California Court of Appeal Apr 2, 2015 No. E059514Unpublished
Filed 4/2/15 P. v. Myers CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059514
v. (Super.Ct.No. INF1201508)
LAVON ALBERT MYERS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Randall Donald White,
Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and Arlene A. Sevidal and Alastair J. Agcaoili, Deputy Attorneys General, for
Plaintiff and Respondent.
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Defendant LaVon Albert Myers was in an apartment with three other people. A
woman (accompanied by a man) arrived and tried to confront one of the occupants.
When defendant pulled out a gun, she tried to leave, but defendant started pistol-
whipping her. The man accompanying her protested. Defendant shot him four times,
Defendant argues, “A jury could have found that even if appellant . . . acted
reasonably when he actually pulled the trigger and shot Locke, it was not reasonable for
him to have brandished a firearm in the first place.” Defendant, however, was not
charged with brandishing. (Pen. Code, § 417.) We cannot imagine by what mental
contortions the jury could conclude that it was reasonable to fire the gun but not
reasonable to pull out, hold, or display the gun. In any event, the jury was fully
instructed that, as long as defendant was acting reasonably when he pulled the trigger, he
should be acquitted.
Accordingly, the trial court did not err by failing to give CALCRIM No. 3475.
III
PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor committed misconduct by continuing to ask
questions calling for hearsay after the trial court had already sustained hearsay objections.
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A. Additional Factual and Procedural Background.
1. Questions calling for out-of-court statements to Tesone.
During the prosecutor’s direct examination of Investigator Terry Tesone, she
asked him about his efforts to locate Gabaldon and Gilbert. In the course of doing so, she
asked him at least 17 questions about out-of-court statements by various people. Each
time, defense counsel objected on hearsay grounds, and each time, the trial court either
sustained the objection or limited Tesone to answering “yes” or “no.”
Eventually, the trial court admonished the prosecutor, “Counsel, stay away from
hearsay.” Nevertheless, she soon asked:
“Q. BY [THE PROSECUTOR]: On June 21st of 2013, did you learn that David
Gilbert got an attorney by the name of Michael DeFrank?
“A. Yes.
“Q. And at that point, were you advised to stop —
“[DEFENSE COUNSEL]: Objection, your Honor. Hearsay.
“Q. BY [THE PROSECUTOR]: — investigating?
“THE COURT: Sustained.”
At a sidebar conference, defense counsel complained: “ . . . I don’t know how
many times I objected and the Court sustained my objections relative to hearsay. And I
think counsel continued, in spite of the court’s rulings regarding hearsay. These are
pretty basic. She continued to ask for hearsay from the witness on the stand. And it
forces the [d]efense into a position of objecting, objecting, objecting, objecting before the
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jury. And it makes us look like we’re trying to hide something here.” However, the only
relief he requested was a ruling preventing the prosecutor from asking what Gilbert’s
attorney had told Tesone.
The prosecutor argued that what Gilbert’s attorney told Tesone (i.e., that Gilbert
would not give a statement) was relevant for the nonhearsay purpose of explaining why
Tesone did not keep trying to find Gilbert. The trial court nevertheless precluded the
prosecutor from asking about what Gilbert’s attorney said, because it appeared to be an
invocation of the Fifth Amendment privilege.
2. Instruction to disregard Tesone’s testimony.
The next day, defense counsel proposed to call a defense investigator to testify
about his efforts to locate Gabaldon and Gilbert. The trial court opined not only that the
proffered evidence was irrelevant, but also that Tesone’s testimony had been irrelevant.
Defense counsel asked the court to instruct the jury to disregard Tesone’s testimony. The
trial court agreed to do so.
Accordingly, it told the jury: “[T]he Court will now admonish the jury to
disregard the testimony of the witness, Terry Tesone, who testified yesterday. Disregard
that testimony completely as if you had never heard of it.”
3. Motion for new trial.
When defendant filed a motion for new trial, he argued (among other things) that
the prosecutor had committed misconduct by continuing to ask questions that called for
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hearsay even after the trial court had sustained hearsay objections. The trial court denied
the motion.
B. Analysis.
“‘“When a prosecutor’s intemperate behavior is sufficiently egregious that it
infects the trial with such a degree of unfairness as to render the subsequent conviction a
denial of due process, the federal Constitution is violated.”’ [Citations.] ‘“Prosecutorial
misconduct that falls short of rendering the trial fundamentally unfair may still constitute
misconduct under state law if it involves the use of deceptive or reprehensible methods to
persuade the trial court or the jury.” [Citation.]’ [Citation.] Misconduct that does not
constitute a federal constitutional violation warrants reversal only if it is reasonably
probable the trial outcome was affected. [Citations.]” (People v. Shazier (2014) 60
Cal.4th 109, 127.)
“‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to the extent
that it suggests a prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.’ [Citation.]” (People v. Centeno
(2014) 60 Cal.4th 659, 666-667.)
“It is misconduct for a prosecutor to violate a court ruling by eliciting or
attempting to elicit inadmissible evidence in violation of a court order. [Citation.] . . . A
defendant’s conviction will not be reversed for prosecutorial misconduct, however,
unless it is reasonably probable that a result more favorable to the defendant would have
been reached without the misconduct. [Citation.] Also, a claim of prosecutorial
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misconduct is not preserved for appeal if defendant fails to object and seek an admonition
if an objection and jury admonition would have cured the injury. [Citation.]” (People v.
Crew (2003) 31 Cal.4th 822, 839.)
Here, defense counsel objected exclusively on hearsay grounds; he did not object
based on prosecutorial misconduct. Moreover, when the asserted misconduct occurred,
he did not request an admonition. Belatedly, he did ask the court to admonish the jury to
disregard Tesone’s testimony; however, the trial court did so. Thus, it granted all the
relief he requested. Defense counsel forfeited any claim that that admonition was
inadequate to cure any prejudice.
If a claim of prosecutorial misconduct was not raised when the misconduct
occurred, it cannot be raised in a motion for new trial. (People v. Musselwhite (1998) 17
Cal.4th 1216, 1252-1253.) “It is well established that if at any time during trial a party or
his counsel becomes aware of facts constituting misconduct or irregularity in the
proceedings of the jury he must promptly bring such matters to the attention of the court,
if he desires to make an objection or he will be deemed to have waived the point as a
ground for a new trial. [Citation.]” (People v. Adame (1973) 36 Cal.App.3d 402, 409-
410.)
Separately and alternatively, it does not appear that the asserted misconduct2 was
prejudicial. Defense counsel expressed concern that, from the fact that he had to object
2 The People argue, as the prosecutor did below, that the proffered evidence was relevant for a nonhearsay purpose and therefore the trial court erred by sustaining [footnote continued on next page]
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so often, the jury might think he was hiding something. However, it was more likely
that, from the fact that all of his objections were sustained, the jury would think the
prosecutor was asking improper questions. In any event, the trial court ordered the jury
to “[d]isregard [Tesone’s] testimony completely as if you had never heard of it.” We see
no reason why it could not follow that admonition. Hence, we presume that the jury did
so. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 292.)
Defendant argues that the jury would have inferred that the testimony of missing
witnesses Gabaldon and Gilbert would have favored the prosecution. This has it exactly
backwards. By calling Tesone, the prosecutor was trying to show that she had exercised
due diligence to secure their appearance, and perhaps also that their testimony would
have helped the prosecution. To some extent, that testimony (if relevant at all) was not
even arguably hearsay. For example, Tesone was able to testify that he contacted certain
people, and that he failed to obtain any leads from them. However, when (1) the
prosecutor asked questions about out-of-court statements to Tesone, (2) defense counsel
[footnote continued from previous page] defense counsel’s objections. Even if so, however, the prosecutor was not free to disregard the trial court’s rulings. While we have found no authority dealing specifically with prosecutorial misconduct, it is well-established that there is a duty to comply with even an erroneous order; thus, the violation of an erroneous order can be punished as contempt. (Signal Oil etc. Co. v. Ashland Oil Co. (1958) 49 Cal.2d 764, 776.)
If the prosecutor had a good-faith belief that her questions did not call for hearsay, at a minimum, she should have requested a sidebar so she could make that argument to the trial court. She did not. Instead, she just plowed ahead.
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objected, and (3) the trial court sustained the objection, it did not help the prosecution at
all. Nor did the fact that the prosecutor persisted in asking such questions.
We therefore conclude that the asserted prosecutorial misconduct did not rise to
the level of reversible error.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in refusing to instruct the jury on the right to eject a trespasser because the defendant used deadly force, and that any prosecutorial misconduct regarding hearsay questions was cured by the trial court's admonition to the jury to disregard the witness's testimony.
Issues
Did the trial court err by failing to instruct the jury on the right to use reasonable force to eject a trespasser?
Did the prosecutor commit misconduct by repeatedly asking questions calling for hearsay after objections were sustained?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the intentional use of deadly force merely to protect property is never reasonable. Accordingly, a homicide involving the intentional use of deadly force can never be justified by defense of habitation alone.”
“the trial court ordered the jury to “[d]isregard [Tesone’s] testimony completely as if you had never heard of it.” We see no reason why it could not follow that admonition. Hence, we presume that the jury did so.”