Filed 10/22/21 P. v. Williams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E073445
v. (Super.Ct.No. RIF1901449)
ABDUAL DESEAN WILLIAMS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas D. Glaser, Judge.
Affirmed with directions.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen
S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
1 In March 2019, appellant Abdual Williams confronted a lone woman as she
walked past a car wash on the corner of 14th Street and Main Street in Riverside.
Williams threatened to beat the victim with a golf club and then punched her in the face,
breaking her jaw in two places. A jury convicted him of assault by means of force likely
to cause great bodily injury and making a criminal threat.
Williams chose to represent himself at trial and argues on appeal the trial judge
erred by (1) granting his request to represent himself and (2) refusing to allow him to
revoke his election. Williams also argues the prosecutor committed misconduct during
his closing argument by referring to his right of self-representation and commenting
about the victim’s fear of appellant. We conclude Williams knowingly, intelligently, and
voluntarily invoked his right to self-representation and never revoked his decision. We
also conclude the prosecutor did not commit misconduct. We therefore affirm Williams’
convictions.
Williams argues the portion of the minute order prohibiting him from owning,
possessing, and controlling deadly weapons and related paraphernalia should be stricken
because it was not part of the oral pronouncement of judgment. The People conceded the
discrepancy requires us to strike the terms “deadly weapon” and “related paraphernalia”
from the minute order, and we agree.
2 I
FACTS
Around 11:00 p.m. on March 7, 2019, Riverside police officers were patrolling
near a car wash at the corner of 14th Street and Main Street in Riverside. One of the
officers testified at trial and described the area as “a high-crime area, and where local
transients hang out, and drug transactions and sales of that nature [occur].”
The officers drove through the car wash and saw Williams and another person
sitting in an alcove at the back of a building to the left. The officers approached Williams
because the businesses were closed. One of the officers said he had previous contacts
with Williams and knew him by the name of “Brown.” As he explained on cross-
examination by Williams, “I’ve heard your name from other homeless transients referring
to a large black male named Brown, also known as Abdual.”
One officer testified Williams had a golf club sitting next to him when they
approached. The officer said he moved Williams away from the golf club for questioning
because it could be used as a weapon. The second officer questioned the person who was
with Williams, who didn’t mention the golf club. The officer who questioned Williams
described him as a tall individual while the second officer described the other man as
being approximately five feet six inches tall.
Around 9:30 the next evening, S. was walking home from the Riverside
Community Hospital near Main Street and 14th Street in Riverside when she thought she
recognized a man she later identified in a photographic lineup as Williams, coming
3 towards her. As she tried to cut through the parking lot of the car wash, Williams called
out to her. She stopped and looked back and saw Williams about three feet away from her
holding a golf club in his left hand.
Williams asked S. who she was talking to. She responded, “Nobody. Why?”
Williams responded, “don’t lie to me, Bitch.” He then said, “I could beat the hell out of
you with this golf club.” S. thought he was going to hit her with the golf club. As she kept
her eye on his left hand, he hit her in the jaw with his right fist. She fell to the ground and
lost consciousness for a few seconds. After regaining consciousness, S. crossed Main
Street and headed to a food court where she thought she would find other people.
The next morning, S. went to Riverside Community Hospital to try to get medical
attention because her face was, as she put it, “extremely out of place.” She had swelling
and bruises on both sides of her jaw, as well as bruises all the way down her neck. The
hospital staff told her they would try to find a surgeon to take care of her. Sometime after
midnight, she decided to leave after being told the staff could not find a surgeon.
As she was leaving the building, S. saw a tall man standing across the street. She
thought he might be the man who had hit her. At trial, S. said she recalled telling the
police she had thought Brown was waiting for her across the street and might hit her
again, though she said she didn’t tell them she was sure it was him. S. didn’t leave the
hospital exit area, but went back inside, where a social worker arranged for her to take a
taxi to a Loma Linda hospital, where a surgeon was available to help her.
4 On March 10, 2019, at Loma Linda University Medical Center, S. told another
police officer that Brown was holding a golf club when he approached her, he hit her on
the right side of her face, and she lost consciousness and sustained two fractures of her
jaw. S. expressed fear her assailant would retaliate against her. She told police she was
scared that he would come back and beat her up, though at trial she said the comment was
made in jest. S. also told police she did not want him to know that it was her who told
them about the assault.
S. stayed at the Loma Linda hospital for three days so the swelling could subside.
On the fourth day, a surgeon repaired her jaw, installing two titanium plates to hold it in
place.
Around March 27, 2019, S. told a police detective she wanted to press charges
against her assailant and said she would be able to identify him. The next day, S.
positively identified Williams in a photographic lineup as the man who hit her. The
identification process was recorded on video. The detective contacted the officer who
approached Williams on the street on March 7 because he was familiar with the transients
who lived in the area where the assault occurred. That officer told the detective a man
named Abdual Williams was the person who went by the name Brown.
At trial, S. recanted her identification. She said she didn’t know Williams and also
claimed she didn’t recognize the photographic lineup the prosecution showed at trial. She
said the detective must have subsequently switched the photographs in the lineup because
the lineup was not the same one she remembered. S. testified Williams was not the man
5 who attacked her, but she admitted she told the police and others the man who punched
her was called Brown. She said she had described her assailant to the police as a very tall
African-American man who had a short black afro and a bigger than average build, and
she agreed Williams fit that description. She also recalled identifying Williams at the
preliminary hearing as the man who smashed her face.
The prosecution also put on evidence Williams had been involved in a very similar
assault less than a year earlier. On September 5, 2018, another Riverside police officer
responded to a call for service concerning a woman who had been assaulted at White
Park, located across the street from City Hall. When she arrived, the officer found a
woman crying on the floor and bleeding from her right eyebrow area and complaining
about how much her head hurt. The next day, the officer walked around the area in White
Park where the woman said she had been assaulted. She found dry blood that was
consistent with the victim’s account. During a police interview on September 12, 2018,
Williams admitted he struck a woman two to three times in the face and that the woman
had to go to the hospital as a result. Williams also admitted he was known on the streets
as Brown.
On July 11, 2019, after a trial at which Williams represented himself, a Riverside
County jury found him guilty of assault by means of force likely to cause great bodily
injury (Pen. Code, § 245, subd. (a)(4), unlabeled statutory citations refer to this code) and
making a criminal threat (§ 422). The jury also found Williams had personally inflicted
great bodily injury on his victim (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (a)) and had
6 personally used a deadly and dangerous weapon—the golf club—in making the threat
(§§ 1192.7, subd. (c)(23) & 12022, subd. (b)(1)). Later, the trial judge found Williams
had a prior strike conviction.
On August 13, 2019, the trial judge sentenced Williams to state prison for a total
term of 11 years.
Williams filed a timely notice of appeal.
II
ANALYSIS
A. Self-Representation
Williams argues the trial judge erred by allowing him to represent himself and
failing to accept his revocation of that choice.
1. Additional background
On June 28, 2019, defense counsel informed superior court Judge John D. Molloy
that Williams might want to represent himself because he was unwilling to waive his
right to have trial commence the following Monday.
The trial judge explained to Williams what would happen if the prosecutor was
ready to move forward with the trial, defense counsel was not ready, and Williams was
not willing to extend the statutory 60-day window within which his trial had to start.
“This is what happens on Monday. If [the prosecutor] shows up and says he’s ready to go
and [defense counsel] or somebody else who has been assigned to represent you shows
up and says they are not ready and you say, ‘I’m not waiving time,’ then the questions I’ll
7 ask go like this: ‘Well, are you prepared to represent yourself?’ And if you say, ‘yes,’ I’ll
say, ‘Are you going to need a continuance if you represent yourself?’ And if you say,
‘No. I’m ready to go right now,’ I’ll say, ‘Okay.’”
The trial judge pointed out the significance of the decision whether to be
represented by counsel or to elect to represent yourself. “I’ll give you a—it’s called a
Faretta admonishment. And if you say, ‘I really want to represent myself,’ I have to let
you. Under those circumstances, you’re ready to go and you want to represent yourself,
the Constitution requires me—that is a constitutional right that I have to let you represent
yourself. [¶] And I’ll repeat this on Monday if you say you’re going to do something like
that. That’s a bad idea. Every time I’ve seen somebody do that, they have crashed and
burned in horrible ways. In fact, they have admitted things that the People—there’s no
way they could prove, until they took the stand or did something to admit.”
After defense counsel said he would likely need a month and a half continuance to
defend Williams, the trial judge advised Williams it would be his decision whether to
waive time for starting his trial. He explained if Williams was unwilling to waive time,
they would return to court on Monday and he’d have a new attorney representing him.
Williams indicated he understood. The judge explained if the new attorney wasn’t ready
to represent Williams on Monday, they would be having the same discussion of whether
he’d be willing to waive time again.
8 On Monday, July 1, 2019, the prosecutor announced he was ready for trial. A new
defense attorney who had been assigned to represent Williams told the judge he was not
ready to proceed with the trial since he received the case file at 3:00 p.m. on Friday.
Counsel said he would need at least three weeks to be ready for trial. He reported that
Williams wished to proceed in propria persona.
The judge asked Williams if he would agree to the continuance. He explained he
would direct counsel to proceed to trial now if he thought the reason for asking for the
continuance weren’t significant. Since the attorney had a very good reason for asking for
time to prepare, the judge indicated he would be inclined to grant the continuance over
Williams’ objection. However, he acknowledged Williams had the right to invoke his
right to represent himself and begin trial immediately. Williams responded that he would
not agree to a continuance and said he wanted to represent himself. The judge asked
Williams if he was ready to start selecting a jury that day, and he said yes.
The judge then tried in the strongest of terms to discourage Williams from
representing himself. “Every time I see someone represent themselves, it’s like – it’s like
they’re driving full speed ahead into a brick wall.” He explained that if he insisted on
representing himself, he would need to complete a form they would review together.
Williams repeatedly said he understood and then completed the waiver form.
The judge then went over the waiver form with Williams, emphasizing the
importance of the choice. “So the bottom line, what we’re telling you, is, if you can’t
afford an attorney, we’ll appoint one to represent you.” He then likened a lay person
9 representing himself at trial to a team sending out 11 players who didn’t know the rules
of American football to compete in the Super Bowl.
The judge then described the parts of a trial—jury selection, opening statements,
examination of witnesses, jury instructions, and final arguments—and how Williams
would need to make strategic decisions at each stage. He explained Williams would be
responsible for those choices just as if he were an attorney and that he wouldn’t be able to
argue any errors were due to ineffective assistance of counsel.
The judge warned Williams not to choose self-representation. “All right. You’re a
grown man. You can make your own decisions, sir, and I’ll respect those. Now, what
you’re asking for is of constitutional significance here. If you really want to represent
yourself and you’re ready, you have a constitutional right to do so, but I’m going to tell
you, just from the hip, I don’t think you should do this. . . . [B]ut having said those things,
do you wish to represent your[self] at this time, sir?” Williams responded, “I have no
choice; yes, sir.” The judge found a knowing and intelligent waiver of his right to
counsel, and granted the petition.
Later that morning, superior court Judge Samuel Diaz, Jr. called Williams’ case
for trial. Noticing Williams was wearing his jail attire, the judge asked him: “So I don’t
understand what’s going on. This is set for trial. Today’s the last day. I have jurors
waiting downstairs. Do you have an investigator or someone I could call to make sure
you have clothes?” Williams answered, “They just—this is it right here.” The judge
asked Williams if he was representing himself. Williams said he was. Judge Diaz asked if
10 he understood he had a right to have a lawyer represent him. Williams said he did. The
trial judge told Williams they would try to get him civilian clothes as soon as they could
but said he might have to begin the proceedings before he was able to change.
The judge asked Williams if he had announced he was ready to go forward with
trial, and Williams confirmed he had. He asked Williams if he understood what it means
to say, “‘I’m moving forward to go to trial’?” Williams said it meant “We’re proceeding
to pick a jury.” The judge asked, “Once we pick a jury, what else?” Williams said he
didn’t know. He said, “This is like – they just – they just forced me. They basically
forced my hand. I don’t know. I don’t know.” The judge objected that no one forced him
to decide whether he wanted a lawyer. Williams responded, “I want a lawyer, but it’s like
they’re forcing me to go outside my 60-day trial rights. You know what I mean? So it’s
like I’m forced to just do—I’m forced to do this.” The judge responded, “No one’s
forcing you. Once again, you announced ready.” He emphasized the decision whether to
accept counsel and delay trial was a personal decision, and Williams said he understood.
The judge then told Williams he needed to decide whether he wanted to be dressed
in civilian clothes. The judge noted the clothing might not be available before jury
selection if the trial was to proceed that day. The judge asked Williams what he would
like to do, and Williams said he would like to proceed.
When the court reconvened in the afternoon, the judge told Williams they
wouldn’t be able to get him dressed in civilian clothes in time to begin trial and asked
whether Williams would accept a one-day continuance so that he could wear civilian
11 clothing for the opening of his trial. The trial judge confirmed Williams was ready to
proceed in propria persona. Williams then represented himself through the conclusion of
his jury trial.
2. Petition for self-representation
Williams argues the trial judge erred by accepting his Faretta waiver allowing him
to represent himself. He claims he didn’t voluntarily and unequivocally waive his right to
counsel, and his words made it clear he had no desire to represent himself.
A criminal defendant has a federal constitutional right to represent himself if he
voluntarily and intelligently so chooses. (Faretta v. California (1975) 422 U.S. 806, 819,
835-836 (Faretta).) A trial judge must grant a defendant’s request for self-representation
if the request is timely and unequivocal and made voluntarily, knowingly, and
intelligently. (People v. Johnson (2019) 8 Cal.5th 475, 499.) However, “‘a [Faretta]
motion made out of a temporary whim, or out of annoyance or frustration, is not
unequivocal—even if the defendant has said he or she seeks self-representation.”’
(People v. Stanley (2006) 39 Cal.4th 913, 932.)
When ruling on a Faretta motion, ‘“[t]he relevant inquiry is narrow. The trial
court is not concerned with the wisdom of defendant’s decision [regarding self-
representation], or with how well [they] can do so. The sole relevant question is whether
the defendant has the mental capacity to knowingly waive counsel while realizing the
probable risks and consequences of self-representation. [Citations.] The court has
discretion to determine the defendant’s competence to waive counsel; its ruling will not
12 be disturbed on appeal absent an abuse of that discretion.”’ (People v. Ware (2020) 52
Cal.App.5th 919, 959.)
Here, Williams made a knowing, voluntary, and unequivocal request for self-
representation. On Friday, June 28, 2019, Williams had indicated to the trial court that he
was unwilling to waive time for an attorney to prepare for trial, even though his trial had
to begin the following Monday. When that day came, Williams’ appointed counsel
appeared and said he wasn’t ready to proceed with trial because he had received the case
file at 3:00 p.m. on the Friday before. Counsel said he would need a continuance of three
to four weeks to prepare.
Williams understood his attorney was not ready to proceed with the trial but was
unwilling to agree to a continuance. Williams told the trial judge he wished to represent
himself, was ready to proceed with the trial, and was prepared to start selecting a jury that
day. The judge told Williams he discouraged him from representing himself, and
Williams said he understood. When the judge reviewed the Faretta form with Williams,
he reminded Williams he had the right to a court-appointed attorney and recommended
he accept court-appointed counsel or at least meet his attorney before giving up his right
to legal representation. The judge then explained the pitfalls of self-representation and
explained Williams would be held to the same standards as an attorney. When the judge
asked Williams if he still wished to represent himself, he responded, “I have no choice;
yes sir.”
13 Williams’ request to represent himself was considered and he was adamant about
asserting it as the way to ensure he received a speedy trial. He didn’t make the motion to
represent himself on a temporary whim, or out of annoyance or frustration. He knew he
had the right to appointed counsel and was fully and repeatedly apprised of the dangers of
self-representation. Against this advice, he decided his right to a speedy trial was more
important than his right to representation by counsel. He asserted his right to self-
representation repeatedly, stated he was ready to move forward with the trial, and said he
understood he would be held to the same level as an attorney and expected to know the
rules of evidence. Indeed, Williams reasserted the importance of proceeding quickly to
trial when he rejected a continuance of only one day so he could wear civilian clothes,
instead of jail attire, in front of the jury.
On this record, we can’t conclude the trial court erred in determining Williams
made a knowing, voluntary, and intelligent request to represent himself.
3. Revocation of the waiver of the right to counsel
Though criminal defendants have a constitutional right to represent themselves
under Faretta, the “right, ‘once asserted,’ may be waived or abandoned.” (People v.
Trujeque (2015) 61 Cal.4th 227, 262.) “A defendant’s waiver or abandonment of this
constitutional right should be voluntary, knowing and intelligent [citation]; such waiver
or abandonment may be inferred from a defendant’s conduct.” (Id. at pp. 262-263.)
14 A trial judge has wide discretion in deciding whether to appoint counsel for a
criminal defendant who previously invoked their Faretta right. (People v. Lawrence
(2009) 46 Cal.4th 186, 191-192 (Lawrence).) However, before we are faced with
deciding whether a trial judge abused their discretion by denying such a motion, there
must first be “an unequivocal request to revoke his in propria persona status.” (Id. at
p. 193, citing People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002 [“Faretta motions
must be both timely and unequivocal. Otherwise, defendants could plant reversible error
in the record”].)
The problem with Williams’ argument is that he never actually asked to revoke the
decision to represent himself. Despite the trial judge’s repeated efforts to dissuade him
from representing himself at trial, Williams elected self-representation because he
insisted he would not waive time for his appointed counsel to prepare for trial. Thereafter,
every time the judge reminded him of his right to counsel or reminded him of the risks
and consequences of self-representation, Williams assured the court he wished to
continue representing himself. Williams confirmed he understood the decision to
represent himself was his personal decision and said he was ready to move forward with
the trial, acting as his own lawyer.
Williams directs us to a point in the transcript where he appeared to waver about
the choice he was making. Before voir dire, the trial judge asked Williams if he
understood what it meant to say, “I’m moving forward to go to trial.” He responded,
“Yes.” But when asked if he knew what happened after picking a jury, he responded, “I
15 don’t know, sir. This is like—they just—they just forced me. They basically forced my
hand. I don’t know.” The trial judge corrected Williams, saying “Sir, no one forced you
to make a decision whether or not you want a lawyer or not. That’s your decision.”
Williams then replied, “I want a lawyer, but it’s like they’re forcing me to go outside my
60-day trial rights.” Again, the trial judge corrected Williams, pointing out that the
decision was his and no one would stop him from deciding whether to waive his speedy
trial right and be represented by a lawyer or to waive his right to a lawyer and have a
speedy trial. Williams confirmed he understood the choice and chose to proceed with a
speedy trial.
Williams’ expression of regret that he had to choose between which of two
conflicting rights to exercise did not constitute a revocation of his Faretta waiver. On the
contrary, this colloquy shows Williams in fact confirmed the choice he had already made.
He argues it is reasonable to infer he told the court he wanted counsel because he realized
he needed counsel. However, as in Lawrence, the record “provides an insufficient basis
for us to conclude that defendant made a request to revoke his in propria persona status,
that the trial court denied it, or that the circumstances rendered any denial an abuse of
discretion.” (Lawrence, supra, 46 Cal.4th at p. 194.)
B. Prosecutorial Misconduct
Williams argues the prosecutor infringed upon his rights to due process and a fair
trial by engaging in a pattern of misconduct during his closing argument—arguing facts
16 not in evidence, appealing to the jury’s passions and fears, and injecting his own personal
opinions.
“‘“As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant
[requested] an assignment of misconduct and [also] requested that the jury be
admonished to disregard the impropriety.”’” (People v. Ayala (2000) 23 Cal.4th 225,
284.) The California Supreme Court has held when a defendant does not object to
remarks in closing argument claimed to be prosecutorial misconduct, the defendant is
deemed to have forfeited the objection. (People v. Centeno (2014) 60 Cal.4th 659, 674.)
A claim of prosecutorial misconduct will not be deemed forfeited only if an objection
would have been futile or an admonition ineffective. (People v. Thomas (2012) 54
Cal.4th 908, 937.)
A prosecutor’s conduct rises to the level of misconduct under the federal
Constitution only “when it comprises a pattern of conduct so egregious that it infects the
trial with such unfairness as to make the conviction a denial of due process.” (People v.
Gionis (1995) 9 Cal.4th 1196, 1214 [cleaned up].) Under state law, misconduct occurs
only where it involves “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” (Id. at p. 1215 [cleaned up].)
“When a claim of misconduct is based on the prosecutor’s comments before the
jury, ‘“the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.”’” (People v.
17 Thompson (2010) 49 Cal.4th 79, 121.) We consider the remarks in the context of the
whole argument and the instructions. (People v. Centeno, supra, 60 Cal.4th at p. 667.)
We don’t “lightly infer that the prosecutor intended [her] remarks to have their most
damaging meaning or that the jury drew that meaning rather than the less damaging one.”
(People v. Howard (1992) 1 Cal.4th 1132, 1192.)
1. The prosecutor’s reference to Williams’ self-representation
Williams argues the prosecutor committed misconduct by arguing the jury should
not feel sympathy for him because he was not represented by an attorney.
The prosecutor mentioned Williams’ decision to represent himself in his closing
argument. “I’m going to share a little bit, just as an aside, so three weeks ago, I was
sitting exactly where you guys were in San Bernardino, all right. I served as a juror up
there, in a trial that lasted three weeks. [¶] Very interesting, very rewarding. Knowing
what happens in the room back there, I’m going to ask you, I’m going to double down on
this, just a couple things I’m going to ask you to do, I’m going to beg you to do, and the
judge is going to order you to do because it is in fact the law. [¶] Okay. Number one
thing, and after talking about this, and we started jury selection, is sympathy. Okay? I
don’t know whether you feel any sympathy for Mr. Williams. Okay. Certainly, you may
have felt during the course of the trial, that it would have been different if he had
representation. If there was an attorney on his side. All right? [¶] That’s normal. All right.
You might get an underdog feeling, but remember, he has got a constitutional right to
18 make this choice. And the government can’t take that from him. That is his choice. He’s a
grown man, he made –”
Williams acknowledges the truth of what the prosecutor told the jury but argues
the “[u]se of facts not in evidence suggested to the jury that the prosecutor had personal
knowledge of matters not known to the jurors.” We conclude the prosecutor did not
commit misconduct when he referred to Williams’ choice to exercise his constitutional
right to self-representation.
As we’ve discussed, Williams represented himself throughout the trial and—as is
frequently true in such cases—it became clear he did not have the background or
experience to match up with the prosecution. For example, the trial judge ended up
overruling the majority of his objections, and Williams did very little with the
opportunity to cross-examine the prosecution’s witnesses. The mismatch between
prosecution and defense would have been evident to the jury, and sympathy would be a
normal human reaction. In referring to Williams’ choice to represent himself and its
constitutional basis, the prosecution was asking the jury to focus on the facts and
remember the trial judge’s instruction not to “let bias, sympathy, prejudice or public
opinion influence your decision.” Nothing about the reference to Williams’ right to
represent himself implied the prosecutor had any personal knowledge regarding the facts
of the case or to matters not known to the jurors. We therefore conclude the argument
was not misconduct.
19 2. Argument about the victim’s recantation
Williams argues the prosecutor also committed misconduct by arguing his theory
that S. “recanted her prior identification of appellant as her assailant because she feared
that appellant would beat her in retaliation for reporting him to the police.”
The comments Williams objects to were the prosecutor’s attempt to convince the
jury S. had lied on the witness stand when she recanted her accusations against Williams.
He did so by pointing out the implausibility of portions of her testimony. “When you
saw, [S.] take that stand, and desperately, desperately try to lie this man’s way to freedom
so that he can escape responsibility. I hope it was very clear to you, during the course of
her testimony, that yes, she wants to convince you that we got the wrong guy, there was
no pain during the surgery, she wasn’t scared, when a giant man with a club said he was
going to beat her with it. [¶] Okay. You were here in the courtroom, but there was an
audience of one. Because her entire purpose is to convince the man [who] assaulted her
that it’s not her fault. That she is trying to get him out of this. She didn’t want the police
to be involved. She didn’t call the police. She simply got the wrong guy.” The prosecutor
also pointed out her story relied on an implausible police conspiracy. “[S]he’ll go further
than that, she’s going to blame a longstanding police detective, okay, of committing a
crime just to set up this man who he has no motive to do so. He’s going to risk his job
just to set up Mr. Williams.”
20 The prosecutor argued her motive to lie was fear of her assailant. “She’s desperate
to avoid the retaliation she knows is going to happen out there on the streets. She doesn’t
have a home. She does not have walls to hide behind. She will roam areas, and he will
find her. We can understand why somebody would feel that fear. We can understand why
someone would be so afraid of someone who had so violently attacked them, that he
distorted the way she looks for the rest of her life. [¶] That’s something to think about.
When you try to understand why did she come here and give a different story. Why was
it, when she was laid up in that bed at Loma Linda, it was Brown. He did this. Why was it
still at prelim it was Brown, he did this. Identifying him ‘Oh, God, yes.’” In this regard,
he pointed out S.’s conduct at trial. “That fear, getting threatened, and horribly beaten
with one punch, it didn’t just stop after the surgery. It extends. Did you notice how many
times she looked at him? Very few. Because that’s painful, and if she looks at him, she’s
scared of what she’s going to see. [¶] She’s scared of what she has coming. But she’s
going to dig in and try to make sure she derails that train so it never gets there. That’s
what she tried to do. So that is a huge personal interest in how this case is decided.”
The prosecutor also pointed out S.’s own statements to police indicated her fear.
“Look at what she said. Sitting there laid up in the hospital, her face swollen, Officer
Allen asked her what are you scared about? That he’ll come back and beat me up. She
wasn’t beaten enough. She still has fear that he has more to take from her. [¶] . . .[¶] She
told the cops very clearly that she did not want him to go to jail. Why? She’s tired. I don’t
want him to go to jail. I’m just tired. She’s obviously fearful. She thinks he’ll kill
21 somebody. She said that. That somebody is her. Perhaps the most sad thing that I heard
on that body cam, you may have noticed this, too, is after he had smashed her to the
ground and rendered her unconscious – [¶] . . . [¶] – she came to, and, she asked him for
forgiveness.”
There’s nothing wrong with the prosecutor’s use of the evidence to try to convince
the jury to discount the victim’s testimony recanting her identification of Williams as her
assailant. The evidence showed S. was hit so hard that her jaw was fractured in two
places. Her mouth was “uplifted” and “off track,” and her jaw needed three days for the
swelling to subside before surgery. That evidence supports the prosecutor’s implication
that S. was lying when she said she didn’t feel any pain from the injury. The evidence
also showed S. had positively identified appellant as her assailant in a photographic
lineup but had a sustained fear of him. Williams complains that the prosecutor supported
his theory by telling the jury S. was homeless when that fact wasn’t established by direct
evidence. We think the evidence about these events warrant the inference, which the
prosecutor was permitted to encourage the jury to make. With that background, the
prosecutor acted reasonably by suggesting the jury should conclude S. was not being
truthful on the witness stand only because she was afraid of retaliation. Prosecutors have
wide latitude when arguing to a jury and may urge whatever conclusions they deem
proper based upon the evidence. (People v. Lewis (1990) 50 Cal.3d 263, 283 [“the
prosecutor has a wide-ranging right to discuss the case in closing argument. He has the
22 right to fully state his views as to what the evidence shows and to urge whatever
conclusions he deems proper”].)
We conclude the prosecutor did not engage in misconduct when he tried to present
a reasonable explanation for why S. insisted on the witness stand that her badly fractured
jaw did not result in any pain and Williams was not her assailant when she had previously
identified him as such.
C. The Order Prohibiting Possession of Deadly Weapons and Paraphernalia
Williams argues the sentencing minute order improperly prohibits him from
owning, possessing, and controlling deadly weapons and related paraphernalia when that
term was not part of the trial judge’s oral pronouncement of the sentence. The People
concede the order should be stricken, and we agree.
“In a criminal case, it is the oral pronouncement of sentence that constitutes the
judgment.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) In the event of a
discrepancy between the oral pronouncement of judgment and a minute order or an
abstract of judgment, the oral pronouncement controls. (People v. Morales (2014) 224
Cal.App.4th 1587, 1594; People v. Zachery (2007) 147 Cal.App.4th 380, 385.)
At Williams’ sentencing hearing, the trial judge ordered him “not to own, possess,
or have under his control any firearm and/or ammunition for life.” The minute order
codifies the order as saying, “Do not knowingly own, possess or have under your control
any firearm, deadly weapon, ammunition, or related paraphernalia, for life.”
23 It follows that we must correct the discrepancy by ordering the trial court to
modify the minute order. (E.g. People v. Mitchell (2001) 26 Cal.4th 181, 185 [“Courts
may correct clerical errors at any time, and appellate courts . . . that have properly
assumed jurisdiction of cases have ordered correction of abstracts of judgment that did
not accurately reflect the oral judgments of sentencing courts”].) We will therefore order
the trial court to strike the terms “deadly weapon” and “related paraphernalia” from the
clerk’s minute order for August 13, 2019.
III
DISPOSITION
We order the trial court to strike the terms “deadly weapon” and “related
paraphernalia” from the clerk’s minute order for August 13, 2019. We affirm the
judgment in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.