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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Maurice GAINES, Defendant and Appellant.

No. A072629.

Decided: February 13, 1997

Jonathan D. Soglin, Oakland, for Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, George F. Hindall, III, Deputy Attorney General, Allan Yannow, Deputy Attorney General, for Respondent.

In this case we hold that the prosecutor committed misconduct when he purported to tell the jury why a defense witness did not testify and what the testimony of that witness would have been.   Because we nevertheless conclude that the misconduct was harmless, we affirm the order of probation entered after a jury found defendant Maurice Gaines guilty of second degree robbery (Pen.Code, § 211).


The details of the offense are fairly straightforward:  John Rutledge was riding his bicycle on the streets of Vallejo one evening, when two men came up to him, hit him a number of times, and took his bike.   He found a policeman and reported the theft.   Within a short time Rutledge was taken to separate locations in the vicinity, at each of which police had stopped a suspect.   He identified the two suspects, one of whom was defendant, as his attackers.   Defendant was in possession of Rutledge's bike when he was apprehended.   Upon being stopped, and again while being booked, defendant identified himself to police with a false name.

Defendant's version of events was that he was on his way home from his girlfriend's house, riding her brother's bicycle, when he was stopped by police.   He admitted giving a false name;  he did so because there was a warrant for his arrest on a drunk driving charge.



 Defendant points to the following as misconduct by the prosecutor.

Defendant testified that one Ray Hicks had been with him up until the point at which defendant started home.   The following occurred during the prosecutor's cross-examination:

“Q. [Ray] Hicks is the gentleman that has been sitting ․ in the back of the courtroom here from time to time throughout this trial over the last couple of days;  isn't that right?

“A. Yes.

“Q. Mr. Hicks here to testify for you?

“A. Yes.

“Q. He is?

“A. Yes.

“Q. He's going to testify for you?

“MR. GLADSTONE [defense counsel]:  Objection.

“THE COURT:  Sustained.

“[THE PROSECUTOR]:  Do you know if he's been subpoenaed to testify for you?

“MR. GLADSTONE:  Objection.

“THE COURT:  Sustained.”

After defense counsel in his closing argument told the jury “So if you want to know ․ what Ray Hicks would have said, ․ the responsibility lies with the District Attorney,” the prosecutor responded:

“Mr. Gladstone actually stated that if there's a witness missing that you would like to hear from, it's my duty to bring that witness here, whether that witness is somebody who would prove my case or tend to prove his.  [¶] Why did Mr. Gladstone make those remarks?   They don't seem to follow common sense and, indeed, they don't.   Mr. Gladstone was sensitive to something.   He was worried about the inferences we are going to draw from the absence of one of his alibi witnesses, Mr. Hicks․  [¶] If Mr. Hicks were here, he could corroborate that [defendant's] story․   This friend of the defendant, this person that presumably would like to help him out, could help the defendant.   Where is Mr. Hicks?   We know about Mr. Hicks.   Mr. Hicks was sitting in this courtroom.   Mr. Hicks didn't testify.   That decision was made after the defendant testified, because the defendant slipped and he told some untruths.   And Mr. Hicks was going to testify to the contrary.   Mr. Hicks would have impeached the defendant, and it was the defense that got Mr. Hicks out of here before he could damage them.   It was the People that were trying to find Mr. Hicks at that point.

“MR. GLADSTONE:  I'm going to object to that, your Honor, as going beyond the evidence in this case.

“THE COURT:  All right.   Sustained.

“[THE PROSECUTOR]:  Ladies and gentlemen, we are allowed to draw fair inferences from things.   We are allowed to say well, where is that witness that the defendant says would corroborate his alibi if we were here.   And that's not just permissible, but I think in this case it's a matter of logic, common sense and necessity.   Where was Mr. Hicks?”

 This was misconduct.   Although “a prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story” (People v. Varona (1983) 143 Cal.App.3d 566, 570, 192 Cal.Rptr. 44), the comments here were not so limited.   The objection made and sustained by the trial court during the prosecutor's argument can be reasonably read as applying to any or all of the prosecutor's statements that (1) Hicks' testimony would have impeached defendant's version, (2) the defense had somehow “got Mr. Hicks out of here,” and (3) the People had tried to get Mr. Hicks on the stand once it had become clear Hicks would not be called by the defense.   All three of these subjects were matters concerning which there was no “evidence in this case” as defense counsel asserted.   But to say only that the prosecutor got ahead of his evidence is far too benign.   The prosecutor was in plain effect presenting a condensed version of what he was telling the jury would have been Mr. Hicks's testimony.   When this tactic is achieved in the guise of closing argument, the defendant is denied Sixth Amendment rights to confrontation and cross-examination.  (See People v. Harris (1989) 47 Cal.3d 1047, 1083, 255 Cal.Rptr. 352, 767 P.2d 619;  People v. Bolton (1979) 23 Cal.3d 208, 214-215, fn. 4, 152 Cal.Rptr. 141, 589 P.2d 396 [“The prosecutor, serving as his own unsworn witness, is beyond the reach of cross-examination.”].) The taxpayers of this state, however, are saved from the consequences of this prosecutor's conduct by the fact that the case against defendant was close to being conclusive.   His arrest was made only a matter of minutes after the crime;  the victim identified him virtually at the scene;  and defendant's uncorroborated alibi was annihilated by a single unexplained circumstance-when police stopped defendant he was riding Mr. Rutledge's bicycle, and not that of his girlfriend's brother.   The case against defendant was so strong that the prosecutor's misconduct qualifies as harmless according to any standard of prejudice.  (See People v. Bolton, supra, at pp. 214-215, fn. 5, 152 Cal.Rptr. 141, 589 P.2d 396;  Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)


The order of probation is modified by reducing the fine imposed pursuant to Penal Code section 1202.5 to $10, and by striking the requirement for payment to the State Restitution Fund. As so modified, the order of probation is affirmed.


FOOTNOTE.   See footnote *, ante.

POCHÉ, Acting Presiding Justice.

REARDON and HANLON, JJ., concur.

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