Filed 1/14/15 P. v. Baer 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E060203
v. (Super.Ct.No. RIF1305405)
WALTER LEONARD BAER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge.
(Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art.
VI, § 6, of the Cal. Const.) Affirmed.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Parag Agrawal, Deputy Attorneys General, for Plaintiff and
Respondent.
1 I
INTRODUCTION
While incarcerated, defendant and appellant Walter Leonard Baer was involved in
a verbal and physical altercation with correctional deputies. Defendant appeals from the
judgment entered following jury convictions for battery against a custodial officer (Pen.
Code, § 243.1;1 count 1) and resisting an executive officer in the performance of his duty
(§ 69; count 2). The trial court sentenced defendant to 36 months formal probation.
Defendant contends the prosecutor made improper statements during closing
argument and rebuttal, which constituted prosecutorial misconduct. Defendant also
contends the trial court erroneously ordered defendant to pay the costs of probation
supervision and the presentence report. We conclude the prosecutor’s statements during
closing argument and rebuttal did not amount to prejudicial error. In addition,
defendant’s objection to paying the costs of probation supervision and the presentence
report is premature, since the court did not order defendant to pay a specific amount but,
rather, ordered the probation department to make a determination as to the amount based
upon defendant’s ability to pay. The judgment is affirmed.
II
FACTS
On May 23, 2013, showers in cell housing unit 5B clogged, causing flooding in
defendant’s cell. Riverside County Sheriff’s Correctional Deputy Jordan Kelley, who
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 was responsible for maintaining inmate custody and handling inmate housing unit
problems, checked defendant’s cell and observed water flowing into the cell. After
calling for two inmate workers to help fix the flooding problem and clean up, Kelley
arranged for defendant’s cell door to be unlocked so that Kelley and the workers could
clean up the water.
Once the cell door was open, Kelley directed defendant and his cellmate to step
out of the cell while their cell was cleaned. Defendant’s cellmate complied. Defendant
did not. Instead, he began picking up his personal belongings. Defendant said he did not
want to leave without his possessions. Kelley assured defendant he would not touch
defendant’s belongings. Kelley told defendant he needed to leave his belongings and exit
the cell. Kelley explained that defendant did not need to take them because the work
would only take a few minutes. Defendant ignored Kelley and continued gathering his
items. Defendant told Kelley, “You guys are assholes. I’m not going to let you touch my
stuff.”
Defendant began cursing and kicking dirty water at Kelley. The water splashed in
Kelley’s eyes and mouth, and on his uniform. Defendant also threw a sandal and a wet
Bible at Kelley. Concerned the situation might get out of control, Kelley called for
backup and dispersed pepper spray at defendant. Defendant splashed water on his own
face because of the pepper spray and called Kelley a “fucking pussy.”
After being sprayed, defendant appeared to become compliant as defendant
walked toward Kelley and Kelley grabbed defendant to restrain him. Defendant balled
his hands into fists and became rigid as he crossed the cell threshold. This prevented
3 Kelley from putting defendant’s arms behind his back. Correctional Deputy Donevan
Norman arrived to assist. Defendant told Norman and Kelley, “If you guys let me turn
around, I’ll fuck you up.” As Kelley turned his head toward Norman to ask for
handcuffs, defendant head-butted Kelley. Kelley saw “stars,” his vision went “white for
a minute,” and he was “dazed” for a few seconds. Defendant said, “I told you you didn’t
want to fucking fight me.”
Kelley and Norman forced defendant to the ground and ordered him to get on his
stomach. Defendant resisted the deputies’ attempts to restrain him by rolling onto his
back and flailing his arms and kicking. Defendant hit Kelley in the jaw with a closed fist.
Kelley and Norman responded by punching defendant in the head and midsection. Two
other deputies arrived as Kelley and Norman rolled defendant onto his back and cuffed
him. Defendant complained his ribs were broken. Kelley suffered an injury to his left
eye. The deputies did not know defendant prior to the altercation nor had they had any
contact with him before.
Defendant testified that, at the time of the incident, he was incarcerated for a
vandalism charge. He was lying down on his bed when water flooded his cell about four
hours before the altercation. The water on the floor was about half an inch deep. When
Kelley arrived at his cell and screamed at defendant to get out, defendant was trying to
gather his personal belongings to prevent water from destroying them. Defendant was
confused because he had never been in jail before and did not know what to do in this
type of situation. In addition, he had started taking a new medication the night before and
4 felt as if he was in a “drunk stupor.” He was trying to figure out what to do “without
causing any problems.”
Defendant felt it was difficult to communicate with Kelley because Kelley kept
screaming at him. Defendant became frustrated. He had not previously removed his
items from the floor because he was doing other things in his cell. His belongings were
getting wet and he felt rushed to secure them. Defendant began moving faster, which
caused him to splash water. He tripped over his sandal, causing water to splash onto
Kelley. Kelley then sprayed defendant with pepper spray. Defendant could not breathe
or see, was choking, and became disoriented. Defendant immediately put his hands
behind his back and backed out of his cell because he did not want more pepper spray on
him. He balled his hands because they hurt from the pepper spray.
Defendant admitted he cursed at Kelley and did not initially obey Kelley’s
commands to leave the cell. Defendant testified that Kelley was “a punk kid trying to
take advantage of his power.” Defendant also admitted stomping in the water and
splashing it at Kelley.
After backing out of his cell doorway, deputies grabbed him and pushed him up
against the wall, “smashing” his face against the wall. Defendant hit his head on the
same spot he had injured the day before and bumped the back of his head. Defendant
unintentionally hit Kelley with his head. Kelley cursed defendant. Defendant told
Kelley, “Oh, you shouldn’t have fucked with me,” to anger Kelley. The deputies pulled
defendant’s feet out from under him and his face “slid[] down the wall.” Defendant and
the two deputies fell to the ground and “tumbled” around.
5 Defendant testified that at one point, he inadvertently put Kelley in a “headlock”
while Kelley bent over him. Defendant immediately rolled onto his stomach so that he
could be cuffed behind his back. Contrary to the deputies’ testimony, defendant denied
ever rolling onto his back. While on the ground, the deputies punched him many times in
the back and ribs. He believed his ribs were broken. Defendant denied intentionally
hitting, kicking, or head-butting the deputies. Defendant testified that the deputies beat
him up and lied on the stand.
III
PROSECUTORIAL ERROR
Defendant contends the prosecutor committed misconduct by vouching for the
veracity of the correctional deputies and maligning defendants’ character.
A. Forfeiture
Citing People v. Zambrano (2007) 41 Cal.4th 1082, 1166, the People argue
defendant forfeited his objections to the prosecutor’s statements made during closing
argument and rebuttal by not objecting in the trial court. “‘To preserve a claim of
prosecutorial misconduct for appeal, a defendant must make a timely and specific
objection and ask the trial court to admonish the jury to disregard the improper argument.
[Citation.]” [Citation.] A failure to timely object and request an admonition will be
excused if doing either would have been futile, or if an admonition would not have cured
the harm.’ [Citation.]” (People v. Adams (Oct. 30, 2014, S118045) __ Cal.4th __, [2014
Cal. LEXIS 10319, *55-56] (Adams).)
6 Here, defendant did not object at trial to any of the prosecutor’s statements, which
defendant asserts constitute prosecutorial misconduct. Nothing suggests an objection
would have been futile or an admonition inadequate to cure any harm. Thus, defendant’s
claim of misconduct during closing argument and rebuttal is forfeited. (Adams, supra, __
Cal.4th at p. ___, 2014 Cal. LEXIS 10319 at pp. *55-56; People v. Tully (2012) 54
Cal.4th 952, 1011.)
Defendant argues that, even assuming he forfeited the objections, his attorney
committed ineffective assistance of counsel (IAC) by not timely objecting to the
prosecutorial error. We disagree.
B. IAC
To secure the reversal of a conviction based on IAC, a defendant must show
(1) his counsel’s performance was deficient when measured against the standard of a
reasonably competent attorney, and (2) counsel’s deficient performance so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result. The appellate court must presume counsel’s conduct fell
within the wide range of reasonable professional assistance and accord great deference to
counsel’s tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 674.)
Further, because it is inappropriate for a reviewing court to speculate about the
tactical reasons for counsel’s actions, when the reasons are not readily apparent in the
record, the court will not reverse unless the record discloses no conceivable tactical
purpose. (People v. Lewis, supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light
on the reasons for counsel’s actions, a claim of ineffective assistance is more
7 appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267.)
Here, the reasons defense counsel did not object are not readily apparent. Because
of the wide latitude given during closing argument, it is conceivable defense counsel
believed the trial court would consider the prosecutor’s arguments a fair comment on the
evidence, as explained below. Therefore, even if defense counsel had objected, it was
unlikely the trial court would have sustained the objections. Furthermore, even assuming
the prosecutor’s comments were improper, defendant cannot show prejudice. It is
unlikely that, had defense counsel objected or had the prosecutor not made the statements
defendant contends were improper, the outcome would have been any different.
Therefore defendant has not established IAC.
C. Prosecutorial Error
“The principles of law applicable to a defendant’s claims of prosecutorial
misconduct are well settled. ‘“‘A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial with such unfairness as to
make the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to persuade
either the trial court or the jury.’ [Citation.] When a claim of misconduct is based on the
prosecutor’s comments before the jury, as all of defendant’s claims are, ‘“the question is
whether there is a reasonable likelihood that the jury construed or applied any of the
8 complained-of remarks in an objectionable fashion.”’ [Citation .]”’” (Adams, supra, __
Cal.4th at p. ___, 2014 Cal. LEXIS 10319 at p. *55.)
(a) Vouching for the Veracity of the Correctional Deputies
Defendant contends the prosecutor improperly bolstered the deputies’ credibility
by stating during closing argument that “[i]t’s unreasonable to believe that three deputies
that never had any contact with the defendant are going to go lie about some version of
events, put their careers on the line, especially a deputy that’s been there for six months,
nine months, and one that’s been there for six years and just trying to make a career for
some guy they’ve never met over a squeegeeing of a cell for three minutes.” The
prosecutor added that the jury must consider whose story is reasonable; the deputies’
story or defendant’s. Defendant also objected to the prosecutor’s similar argument
during rebuttal, stating that, “As I explained before, these deputies have never met the
defendant before. They’re not putting their careers on the line for some guy they’ve
never met before by just throwing him into a concrete wall.”
Defendant argues that the prosecutor argued facts not in the record. While there
was no testimony that the deputies would be putting their careers on the line if they lied, a
reasonable inference could be made from the facts that it was unlikely they would do so.
Kelley testified he had been with the Riverside County Sheriff’s Department as a
correctional deputy for six years, and Norman had been a correctional deputy over eight
months. Badajoz testified she had been a correctional deputy with the Riverside County
Sheriff’s Department for over a year and a half. The three deputies testified that they had
not had any contact with defendant prior to the incident. There was also testimony that
9 the altercation occurred when Kelley brought two inmate workers with him to clean
defendant’s cell with a squeegee, mop, and bucket.
“Prosecutorial assurances, based on the record, regarding the apparent honesty or
reliability of prosecution witnesses, cannot be characterized as improper ‘vouching,’
which usually involves an attempt to bolster a witness by reference to facts outside the
record.” (People v. Medina (1995) 11 Cal.4th 694, 757, citing People v. Anderson (1990)
52 Cal.3d 453, 479 (Anderson).) Here, the prosecutor properly relied on facts in the
record and inferences reasonably drawn from the facts, rather than solely from any
purported personal knowledge or belief. (Medina, at p. 757.)
The prosecutor’s statements challenged in the instant case are similar to those in
Anderson, supra, 52 Cal.3d 453, in which the defendant objected to the prosecutor
vouching for law enforcement officers’ credibility and attacking the defendant’s
credibility during closing argument. The Anderson court stated that the prosecutor’s
remarks, “in essence supported the credibility of the officers testifying in this case by
noting that ‘a number of them . . . are old, experienced officers. They’ve got 15, 20, 22
years of experience on the force.’ The prosecutor expressed her doubt that any of them
would ‘jeopardize’ his reputation by lying on the witness stand ‘just to convict one
defendant.’” (Id. at p. 478.) The prosecutor added that, on the other hand, the defendant
did not have anything to lose by lying. (Ibid.)
Even though the defendant did not object in the trial court to the remarks, the
Anderson court considered and rejected the defendant’s prosecutorial misconduct
objection on the merits, explaining: “The prosecutor is generally precluded from
10 vouching for the credibility of her witnesses, or referring to evidence outside the record
to bolster their credibility or attack that of the defendant. [Citations.] In the present case,
the prosecutor limited her remarks to facts of record, namely, the years of experience of
the officers involved, and her ‘vouching’ was clearly based on inferences reasonably
drawn therefrom, rather than on her personal belief or knowledge. (See People v. Adcox
(1988) 47 Cal.3d 207, 258-259 . . . [prosecutor’s arguments were based on inferences
warranted by the evidence, rather than personal belief].) We find no improper
prosecutorial vouching here.” (Anderson, supra, 52 Cal.3d at p. 479.)
Relying on People v. Padilla (1995) 11 Cal.4th 891 (Padilla), defendant argues
the prosecutor improperly vouched for the deputies’ veracity or bolstered their credibility
by stating that it was unreasonable to believe the deputies would put their careers in
jeopardy by lying. In Padilla, the defendant argued the prosecutor improperly vouched
for the credibility of its ballistics expert. The Padilla court noted, “a prosecutor is free to
give his opinion on the state of the evidence, and in arguing his case to the jury, has wide
latitude to comment on both its quality and the credibility of witnesses. [Citations.] It is
misconduct, however, to suggest to the jury in arguing the veracity of a witness that the
prosecutor has information undisclosed to the trier of fact bearing on the issue of
credibility, veracity, or guilt. The danger in such remarks is that the jury will believe that
inculpatory evidence, known only to the prosecution, has been withheld from them.” (Id.
at pp. 945-946.)
The Padilla court concluded, “Rather than vouching for the credibility of
witnesses on grounds not revealed to the jury, the prosecutor here simply drew inferences
11 as to credibility on the basis of evidence presented to the jury; this he was entitled to do,
and no basis for a defense objection appears.” (Padilla, supra, 11 Cal.4th at p. 946.)
Likewise, in the instant case, the prosecutor did not vouch for the deputies’ credibility
based on facts not revealed to the jury.
The Padilla court, however, suggested that the prosecutor had improperly vouched
for the ballistics expert’s credibility. Nevertheless, the court concluded the error was not
prejudicial. Responding to the defense counsel’s suggestion the prosecution’s expert
lied, the prosecutor insisted that, had he lied, the expert “would have ‘risked his whole
career of 17 years.’” (Padilla, supra, 11 Cal.4th at p. 946.) The defendant in Padilla
argued that the remark was improper, relying on U.S. v. Martinez (6th Cir. 1992) 981
F.2d 867 (Martinez). The Padilla court agreed the court in Martinez “held a closely
similar argument by a prosecutor (asking the jury why a state police officer would ‘risk
his career, 18 years in the state police, to come in here and lie . . . .’) to be improper.
Although we doubt that the argument was proper, we find no reasonable probability that
defendant was prejudiced by the prosecutor’s argument in this case.” (Padilla, at p. 946.)
In Martinez, supra, 981 F.2d at page 871, codefendant Virginia Escamilla argued
that the prosecutor improperly vouched for the credibility of Detective Winters in closing
argument. In response to defense counsel arguing Winters was an unreliable witness, the
prosecutor responded: “So why would Detective Winters lie about Virginia Escamilla?
Is there something that’s particularly significant or important about her that he would lie
about, that he would risk his career, 18 years in the state police, to come in here and lie
about that?” (Ibid.) Defense counsel’s objection to the argument was overruled.
12 In response to Escamilla’s contention of improper vouching because there was no
evidence that Winters risked his 18-year career if he lied, the Martinez court stated: “It
has been held that ‘vouching’ occurs when counsel, in argument, refers to evidence not in
the record, [citation], and the government . . . concedes that this is the law. However,
before this court can reverse Escamilla’s conviction for a prosecutorial impropriety, we
must conclude that the impropriety was so ‘gross as probably to prejudice the defendant.’
[Citation.]” (Martinez, supra, 981 F.2d at p. 871.) Unlike in Martinez, in the instant case
there was evidence in the record as to the length of time the deputies had careers as
correctional officers. But even assuming the prosecutor’s remarks nevertheless
constituted improper vouching, it was harmless error.
In Martinez, the federal court of appeals concluded the vouching did not amount to
prejudicial error, explaining: “In this case, we believe that the prosecutor’s comment was
simply an isolated misstatement. It is unlikely that it prejudiced Escamilla. [Citation.]
Any possible prejudice that Escamilla might have suffered was ameliorated by the trial
court’s instruction to the jury that ‘the lawyers’ statements . . . and their arguments are
not evidence.” [Citation.] This instruction was sufficient to neutralize the prosecutor’s
slight impropriety. [Citation.] Therefore, we conclude that the district court’s ruling was
not reversible error.” (Martinez, supra, 981 F.2d at p. 871.)
Likewise in the instant case, the prosecutor’s remarks were brief and relatively
innocuous. Any possible prejudice would have been ameliorated by the trial court’s jury
instruction that lawyers’ statements and their arguments are not evidence. (CALCRIM
13 Nos. 104, 222.) It is presumed the jury properly followed the court’s instructions.
(People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Furthermore, there was strong evidence supporting defendant’s convictions, such
that it was not reasonably likely the result would have been more favorable to defendant,
had the prosecutor’s objectionable remarks not been made. Three deputies all
corroborated each other’s versions of the altercation, and defendant’s testimony regarding
the altercation was nonsensical in many instances, such as defendant’s excuse for not
having collected his items to prevent them from getting wet until Kelley arrived, claiming
he was not familiar with jailhouse procedures, and defendant claiming he was disoriented
from medication and pepper spray, but then stating that he reacted like a “stunt man”
when on the floor with the deputies.
In addition, defendant admitted he refused to leave his cell when Kelley ordered
him to do so. Defendant’s cellmate complied. Defendant also admitted splashing water
toward Kelley, admitting placing Kelley in a headlock, striking Kelley with his head, and
telling Kelley afterwards, “I told you you didn’t want to fucking fight me,” indicating
defendant intentionally struck him. Based on the totality of the evidence, we conclude
the prosecutor’s statements regarding the deputies’ credibility, if improper, constitute
harmless error. It was not reasonably likely the jury would have reached a more
favorable verdict in the absence of the statements, and the prosecutor’s conduct did not
render defendant’s trial fundamentally unfair.
14 (b) Maligning Defendants’ Character
Defendant argues the prosecutor also committed misconduct by maligning
defendant’s character and the character of all jail inmates by improperly referring to facts
not supported by the record. Defendant cites People v. Heishman (1988) 45 Cal.3d 147,
197, for the proposition a prosecutor may not refer to a defendant’s nontestimonial
demeanor.
In Heishman, the defendant objected to the prosecutor mentioning during
argument references to the expressions on the defendant’s face. The Heishman court
noted that, in criminal trials, “prosecutorial references to a nontestifying defendant’s
demeanor or behavior in the courtroom have been held improper on three grounds:
(1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a
witness. (2) The prosecutorial comment infringes on the defendant’s right not to testify.
(3) Consideration of the defendant’s behavior or demeanor while off the stand violates
the rule that criminal conduct cannot be inferred from bad character. [Citations.]”
(People v. Heishman, supra, 45 Cal.3d at p. 197.) The Heishman court concluded the
prosecutor’s references to the defendant’s facial demeanor were not improper because
they were made during the penalty phase, “in which defendant had placed his own
character in issue as a mitigating factor. Under those circumstances it was proper for the
jury to draw inferences on that issue from their observations of defendant in the
courtroom and therefore proper for the prosecutor to base a closing argument on such
observations.” (Ibid.)
15 Defendant also cites People v. Garcia (1984) 160 Cal.App.3d 82 in support of his
contention the prosecutor improperly asked the jurors to speculate about defendant’s
behavior during the charged offense, based on his behavior in court. In Garcia, the
defendant complained that the prosecutor improperly remarked during closing argument
that, when the victims testified about their horrendous experiences, the defendant, who
did not testify, snickered and jeered and laughed. (Id. at pp. 87, 93.) The Garcia court
held the prosecutor’s statement improperly invited the jury to speculate that the
defendant’s conduct demonstrated he would, and had, committed a crime. (Id. at p. 93.)
Neither Heishman or Garcia is applicable because they concern conduct by a
defendant who did not testify. Here, defendant testified, and the conduct the prosecutor
mentioned concerned primarily defendant’s conduct while testifying. Therefore
defendant placed his own character in issue and it was proper for the prosecutor to refer
to defendant’s hostile behavior on the witness stand, and for the jurors to draw inferences
from their observations of defendant’s demeanor, particularly when considering his
credibility as a witness. The trial court appropriately instructed the jury that, when
evaluating the accuracy of witnesses’ testimony and witness credibility, the jury could
consider: “What was the witness’s behavior while testifying?”
Defendant argues that although he was a witness, the prosecutor’s numerous
referrals to defendant’s demeanor off the witness stand was “particularly troubling,”
because it constituted facts not in evidence. The only comment made by the prosecutor,
that defendant specifically complains was improper, is the remark that, “if [defendant]
can’t behave in a courtroom, imagine what he’s like in a cell faced with deputies.” The
16 prosecutor added, “Imagine what [defendant] was like on that incident.” Defendant
argues the prosecutor improperly implied defendant’s nonevidentiary conduct
demonstrated that he was not credible. But the prosecutor did not mention any
nonevidentiary conduct, other than defendant’s conduct while testifying.
Defendant argues the prosecutor committed misconduct by maligning defendant
and other inmates by improperly arguing facts not in evidence regarding the jailhouse
setting and portraying the deputies as victims. Defendant asserts the prosecutor
improperly argued during closing argument that the jail is full of people who are removed
from society, and asked the jury to consider “the jail environment, what those deputies
have to do every day in dealing with those individuals.” This comment was made within
the context of the prosecutor explaining that Kelley told defendant to leave the cell and
defendant did not comply because he wanted to gather his belongings. The prosecutor
noted that in the jail environment, inmates do not have control.
Defendant also objects to the following statement made by the prosecutor when
discussing whether the deputies used reasonable force: “The question is was reasonable
force used? Based on the circumstances, the jail environment, what those deputies have
to do every day in dealing with those individuals and the rules they have and the
importance of these individuals complying, it was reasonable.”
Defendant further objects to the prosecutor’s statement made during rebuttal,
which defendant contends improperly portrays the deputies as victims: “The defendant’s
story is just unreasonable. And he made an attempt to try to make himself a victim, but
don’t lose . . . sight of the fact that the real victims are the correctional deputies that have
17 to put up with everybody in the jail, and on top of that they have to put up with the
defendant attacking . . . them. The defendant is saying he was not the aggressor. It was
just those young punks. Those young punks.” There was evidence that the deputies were
victims during the altercation, particularly Kelley, when defendant splashed dirty water in
his face and punched Kelley in the jaw.
Defendant argues the statements regarding the jail environment and inmates were
improper because the inmates, other than defendant, were not on trial and there was no
evidence presented that the inmates were as monstrous, deplorable, and untrustworthy as
the prosecutor made them seem. Defendant maintains that the prosecutor attempted to
convey an image of the inmates as being so incredibly untrustworthy that the jury should
sympathize with and believe the deputies. Defendant asserts the prosecutor’s statements
maligning defendant and other inmates constituted clear misconduct because the
statements were deceptive and reprehensible.
We conclude otherwise. The prosecutor’s statements were not deceptive or
reprehensible, and did not render the trial fundamentally unfair in violation of
defendant’s due process rights. (Adams, supra, __ Cal.4th at p. __, 2014 Cal. LEXIS
10319 at pp. *55-56.) Prosecutors have wide latitude to draw inferences from the
evidence presented at trial. (People v. Hill (1998) 17 Cal.4th 800, 819.) The prosecutor
did not mischaracterize the evidence or rely on facts outside the record. The prosecutor’s
remarks were sufficiently founded on trial evidence and reasonable inferences derived
from the evidence.
18 Even if the prosecutor’s statements were improper, such error was harmless. As
discussed above, there was strong evidence supporting defendant’s convictions, such that
it is not reasonably likely the result would have been more favorable to defendant, had
the prosecutor’s objectionable remarks not been made.
IV
REIMBURSEMENT OF COSTS
Defendant contends the trial court erred in ordering him to pay the costs of
probation supervision and the presentence report. Defendant complains that his attorney
never discussed the possibility of the court ordering him to pay such costs and did not tell
him he had a right to contest paying them. Defendant also was not asked if he waived his
right to a hearing on payment of the costs. Defendant asserts that, given the opportunity,
he would have requested a hearing and opposed imposition of the presentence report and
probation supervision costs. In addition, defendant argues the presentence report
supports a finding he did not have the ability to pay the costs. Defendant’s objection is
premature.
Section 1203.1b provides in relevant part: “(a) In any case in which a defendant is
convicted of an offense and is the subject of any preplea or presentence investigation and
report, . . . and in any case in which a defendant is granted probation or given a
conditional sentence, the probation officer, or his or her authorized representative . . .
shall make a determination of the ability of the defendant to pay all or a portion of the
reasonable cost of any probation supervision . . . , of conducting any presentence
investigation and preparing any presentence report . . . . The court shall order the
19 defendant to appear before the probation officer, or his or her authorized representative,
to make an inquiry into the ability of the defendant to pay all or a portion of these costs.
The probation officer, or his or her authorized representative, shall determine the amount
of payment and the manner in which the payments shall be made to the county, based
upon the defendant’s ability to pay. The probation officer shall inform the defendant that
the defendant is entitled to a hearing, that includes the right to counsel, in which the court
shall make a determination of the defendant’s ability to pay and the payment amount.
The defendant must waive the right to a determination by the court of his or her ability to
pay and the payment amount by a knowing and intelligent waiver.”
During the sentencing and probation hearing, the trial court agreed to allow
defense counsel to review the probation terms with defendant but, before defense counsel
had a chance to do so, the court proceeded with the hearing. During the hearing, defense
counsel requested defendant be placed on probation instead of incarcerated. Defense
counsel and defendant explained that defendant had experienced tough times, including
going through a divorce, losing his job, losing his house to foreclosure, suffering injuries
in a motorcycle accident, becoming disabled, and no longer being able to work.
The probation department recommended in its probation report that, pursuant to
section 1203.1b, defendant “[p]ay costs of pre-sentence probation report in an amount
and manner to be determined by the Probation Department, not to exceed $1,095.00,” and
“[p]ay the costs of probation supervision in an amount to be determined by the Probation
Department. Based on the level of supervision, the cost will range from $591.12 to
$3,744.00.”
20 In accordance with the probation department’s recommendation, the trial court
ordered defendant placed on probation. The court requested defense counsel to read to
defendant the terms and conditions of probation. Defense counsel did so off the record.
Thereafter defendant stated that he accepted the terms and conditions of probation. The
court ordered defendant to report to the probation department and Enhanced Collections
Division. In addition, the court ordered defendant to submit a record of income and
expenditures to his probation officer and pay the cost of the presentence probation report
and probation supervision, with the amount to be determined by the probation
department.
The record shows that defendant’s objection to paying the costs of probation
supervision and the presentence report is premature because the trial court did not order
that defendant pay a specific amount. Instead, the court appropriately ordered that the
probation department determine the amount of these costs defendant would be required to
pay in accordance with section 1203.1b. Under section 1203.1b, defendant was entitled
to a hearing on the amount of costs to be paid, if anything, and the amount would be
based upon the defendant’s ability to pay. Since the court and probation department had
not yet determined or ordered the specific amount of the costs in question, defendant’s
objection to paying the costs for probation supervision and the presentence report is
21 V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.