Filed 8/14/15 P. v. Wilson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066729
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD255447, SCD237719) JOHN TRESS WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted John Tress Wilson of possession of a firearm by an ex-felon.
Wilson contends the trial court erroneously overruled his objection to the prosecutor's remarks in her closing argument relating to his prior felony conviction. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2014, Officer Tom and Officer Lotz of the San Diego Police Department
conducted a traffic stop of Wilson's vehicle. During the stop, Tom searched Wilson's
trunk and found a small semi-automatic pistol inside a beanie cap. The gun was operable
and had bullets in the magazine and one in the chamber. DNA samples taken from the
gun matched Wilson's DNA.1
After the prosecutor's case-in-chief, the parties stipulated that Wilson had a
qualifying prior felony conviction, and Wilson chose not to present any affirmative
evidence. During closing argument, the prosecutor discussed the knowledge element of a
possession charge and argued Wilson's prior felony conviction established that he had a
motive to hide the pistol in the car's trunk. The prosecutor said "Why would somebody
hide a gun in their car, in their trunk? Why? Why would a convicted felon hide a gun
inside of his trunk[,] inside of a beanie[,] inside of a CD case? ¶ Why would he do that?
¶ Because he's a felon. He obviously knows it, and he knows that he's not supposed to
have it."
1 The probability that an individual randomly selected would match the predominate DNA profile found on the gun are one in ninety-three quintillion for the Caucasian population, one in seventeen quintillion for the African-American population, and one in three hundred ninety quintillion for the Hispanic population. A quintillion has 18 zeros. 2 Despite having previously stipulated to a felony conviction, Wilson objected to the
prosecutor's argument, contending she was misusing his felony conviction as negative
character evidence of propensity to commit a crime. The prosecutor disagreed and
explained: "[The felony conviction is] an element of the offense. We stipulated . . . [he
is] a felon, so I can call him a felon." The court overruled the objection, concluding that
the prosecutor was entitled to proffer a reason why Wilson would have concealed the
weapon in the trunk of the car.
The prosecutor then continued her argument to the jury: "But why would
somebody hide a gun inside of a car? Why would the defendant, a felon who's not
supposed to be possessing a gun, hide it in the back of his vehicle? ¶ Because he's not
supposed to have it. That is why you hide things, because you don't want anybody else to
find it, because you know you're not supposed to have those things. ¶ People do it all the
time. Children do that all the time, thinking they're smarter than their parents. Thinking
they're smarter than the cops. People aren't going to look there if you hide it; they're not
going to find it." Wilson argued in his closing remarks that the prosecution provided no
evidence that he knew about the existence of the gun at all.
Before jury deliberations, the court instructed the jury on the prior felony
stipulation: "The defendant and the People have stipulated[,] or agreed[,] the defendant
was previously convicted of a felony. This stipulation means that you must accept this
fact as proved. ¶ Do not consider this fact for any other purpose. Do not speculate about
or discuss the nature of the conviction."
3 DISCUSSION
I
Legal Principles
A prosecutor's misconduct violates the federal Constitution only when it is so
egregious and infects the trial with such unfairness that the resulting conviction is a
denial of due process. Such pervasive misconduct requires reversal unless it is harmless
beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 844.) Conduct that
does not render a trial fundamentally unfair constitutes prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.)
State law misconduct necessitates reversal where it is reasonably probable the
prosecutor's intemperate behavior affected the verdict. (People v. Espinoza (1992)
3 Cal.4th 806, 820.)
With regard to a claim of misconduct based on remarks to the jury, defendant must
show a reasonable likelihood the jury understood or applied the complained upon
comments in an improper or erroneous manner. In conducting this inquiry, a reviewing
court will not " 'lightly infer' that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th
894, 970, citing People v. Howard (1992) 1 Cal.4th 1132, 1192.)
Further, a prosecutor is given wide latitude during closing argument. (People v.
Collins (2010) 49 Cal.4th 175, 213.) Argument may be vigorous as long as it amounts to
4 fair comment on the evidence, which can include reasonable inferences or deductions to
be drawn from that evidence. (Ibid.) During closing argument, counsel may state
matters that are not in evidence but that are common knowledge or illustrations drawn
from common experience, history or literature. (People v. Ward (2005) 36 Cal.4th 186,
215.)
II
Prosecutorial Misconduct and Harmless Error
Wilson alleges the prosecutor committed prejudicial misconduct during closing
argument by using his felony conviction as negative character evidence to show his
propensity to commit crimes. He contends the court erred in overruling his objection and
allowing the jury to consider his prior conviction beyond its admissible scope. Wilson
claims the error was prejudicial because there was a reasonable probability that the
outcome would have been different but for the error. We find no prejudicial misconduct.
At trial, the parties stipulated to Wilson's prior felony conviction, which allowed
the prosecutor to argue to the jury reasonable inferences to be drawn therefrom.
(People v. Harris (2005) 37 Cal.4th 310, 345.) The prosecutor reasonably argued from
Wilson's felony conviction and the evidence of the well-hidden gun that Wilson did not
want to suffer the consequences of another felony conviction, which motivated him to
hide the gun. (See People v. Collins, supra, 49 Cal.4th at pp. 213-214) Common
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Filed 8/14/15 P. v. Wilson CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066729
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD255447, SCD237719) JOHN TRESS WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted John Tress Wilson of possession of a firearm by an ex-felon.
Wilson contends the trial court erroneously overruled his objection to the prosecutor's remarks in her closing argument relating to his prior felony conviction. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2014, Officer Tom and Officer Lotz of the San Diego Police Department
conducted a traffic stop of Wilson's vehicle. During the stop, Tom searched Wilson's
trunk and found a small semi-automatic pistol inside a beanie cap. The gun was operable
and had bullets in the magazine and one in the chamber. DNA samples taken from the
gun matched Wilson's DNA.1
After the prosecutor's case-in-chief, the parties stipulated that Wilson had a
qualifying prior felony conviction, and Wilson chose not to present any affirmative
evidence. During closing argument, the prosecutor discussed the knowledge element of a
possession charge and argued Wilson's prior felony conviction established that he had a
motive to hide the pistol in the car's trunk. The prosecutor said "Why would somebody
hide a gun in their car, in their trunk? Why? Why would a convicted felon hide a gun
inside of his trunk[,] inside of a beanie[,] inside of a CD case? ¶ Why would he do that?
¶ Because he's a felon. He obviously knows it, and he knows that he's not supposed to
have it."
1 The probability that an individual randomly selected would match the predominate DNA profile found on the gun are one in ninety-three quintillion for the Caucasian population, one in seventeen quintillion for the African-American population, and one in three hundred ninety quintillion for the Hispanic population. A quintillion has 18 zeros. 2 Despite having previously stipulated to a felony conviction, Wilson objected to the
prosecutor's argument, contending she was misusing his felony conviction as negative
character evidence of propensity to commit a crime. The prosecutor disagreed and
explained: "[The felony conviction is] an element of the offense. We stipulated . . . [he
is] a felon, so I can call him a felon." The court overruled the objection, concluding that
the prosecutor was entitled to proffer a reason why Wilson would have concealed the
weapon in the trunk of the car.
The prosecutor then continued her argument to the jury: "But why would
somebody hide a gun inside of a car? Why would the defendant, a felon who's not
supposed to be possessing a gun, hide it in the back of his vehicle? ¶ Because he's not
supposed to have it. That is why you hide things, because you don't want anybody else to
find it, because you know you're not supposed to have those things. ¶ People do it all the
time. Children do that all the time, thinking they're smarter than their parents. Thinking
they're smarter than the cops. People aren't going to look there if you hide it; they're not
going to find it." Wilson argued in his closing remarks that the prosecution provided no
evidence that he knew about the existence of the gun at all.
Before jury deliberations, the court instructed the jury on the prior felony
stipulation: "The defendant and the People have stipulated[,] or agreed[,] the defendant
was previously convicted of a felony. This stipulation means that you must accept this
fact as proved. ¶ Do not consider this fact for any other purpose. Do not speculate about
or discuss the nature of the conviction."
3 DISCUSSION
I
Legal Principles
A prosecutor's misconduct violates the federal Constitution only when it is so
egregious and infects the trial with such unfairness that the resulting conviction is a
denial of due process. Such pervasive misconduct requires reversal unless it is harmless
beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 844.) Conduct that
does not render a trial fundamentally unfair constitutes prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.)
State law misconduct necessitates reversal where it is reasonably probable the
prosecutor's intemperate behavior affected the verdict. (People v. Espinoza (1992)
3 Cal.4th 806, 820.)
With regard to a claim of misconduct based on remarks to the jury, defendant must
show a reasonable likelihood the jury understood or applied the complained upon
comments in an improper or erroneous manner. In conducting this inquiry, a reviewing
court will not " 'lightly infer' that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th
894, 970, citing People v. Howard (1992) 1 Cal.4th 1132, 1192.)
Further, a prosecutor is given wide latitude during closing argument. (People v.
Collins (2010) 49 Cal.4th 175, 213.) Argument may be vigorous as long as it amounts to
4 fair comment on the evidence, which can include reasonable inferences or deductions to
be drawn from that evidence. (Ibid.) During closing argument, counsel may state
matters that are not in evidence but that are common knowledge or illustrations drawn
from common experience, history or literature. (People v. Ward (2005) 36 Cal.4th 186,
215.)
II
Prosecutorial Misconduct and Harmless Error
Wilson alleges the prosecutor committed prejudicial misconduct during closing
argument by using his felony conviction as negative character evidence to show his
propensity to commit crimes. He contends the court erred in overruling his objection and
allowing the jury to consider his prior conviction beyond its admissible scope. Wilson
claims the error was prejudicial because there was a reasonable probability that the
outcome would have been different but for the error. We find no prejudicial misconduct.
At trial, the parties stipulated to Wilson's prior felony conviction, which allowed
the prosecutor to argue to the jury reasonable inferences to be drawn therefrom.
(People v. Harris (2005) 37 Cal.4th 310, 345.) The prosecutor reasonably argued from
Wilson's felony conviction and the evidence of the well-hidden gun that Wilson did not
want to suffer the consequences of another felony conviction, which motivated him to
hide the gun. (See People v. Collins, supra, 49 Cal.4th at pp. 213-214) Common
experience permits an inference that Wilson, a person convicted of a felony, would
5 understand the consequences of possessing a firearm and take measures to avoid the
effects of another felony conviction.
Despite Wilson's contentions, the prosecutor neither referenced Wilson's prior
felony conviction to establish his propensity to commit crimes nor did she argue that
Wilson's prior felony conviction proved that he had a predisposition to commit crimes.
The prosecutor's argument that the prior felony conviction gave Wilson a reason to hide
the gun did not render Wilson's trial fundamentally unfair nor did it involve the use of
deceptive or reprehensible methods to attempt to persuade the jury. 2
In addition, the trial court properly instructed the jury they were not allowed to
consider the prior felony conviction for any purpose other than to show that Wilson was
previously convicted of a felony. Juries are presumed to follow the court's instructions,
and there is nothing in the record to suggest the jury did not do so in this case. (People v.
Ryan (1981) 116 Cal.App.3d 168, 179.) The prosecutor did not ask the jury to consider
the prior conviction for any other purpose, i.e., she did not argue the prior conviction for
an improper purpose such as proof of criminal character or a propensity to commit crime.
She simply argued that the jury could reasonably infer from the fact of the prior
2 People v. Bolton (1979) 23 Cal.3d 208, 212, a case relied upon by Wilson, is easily distinguishable from this case. In Bolton the prosecutor implied in his argument that he knew of damaging evidence unknown to the jury which proved the defendant's guilt, when in fact the defendant had no criminal record. Here the prosecutor never discussed evidence not in the record but simply drew a reasonable inference on defendant's state of mind and motive from the admissible evidence of Wilson's stipulated prior felony conviction. 6 conviction that Wilson knew he was not supposed to possess a gun and would have a
motive to take special efforts to conceal it. Especially considering the legal correctness
of the prosecutor's argument, there is no reason to conclude that the jury did not follow
the court's instruction on use of a prior felony conviction.
Moreover, even if the prosecutor's argument had been improper, it was harmless
because the evidence compelled the conclusion that Wilson possessed the gun. Police
stopped and searched the car that Wilson drove and solely occupied. The search revealed
a gun well-hidden inside a beanie and a CD case in the trunk. Wilson's DNA was found
on the gun. Under any conceivable standard, even absent the prosecutor's remarks in
closing argument about Wilson's state of mind, based on the evidence, it was not
reasonably probable that the jury would have reached a verdict favorable to Wilson.
(See People v. Espinoza, supra, 3 Cal.4th at pp. 820-821; People v. Watson (1956)
46 Cal.2d 818, 836.)
We conclude the statements made by the prosecutor, when reviewed in full
context, were innocuous and did not rise to the level of reprehensible deceitfulness
required to constitute reversible prosecutorial error (see People v. Ayala (2000)
23 Cal.4th 225, 283-284) and that even if the prosecutor had erred, her error was
harmless.
7 DISPOSITION
The judgment is affirmed.
Prager, J.*
WE CONCUR:
MCINTYRE, Acting P. J.
IRION, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 8