PEOPLE v. SAVAGE

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

The PEOPLE, Plaintiff and Respondent, v. Jerry Dean SAVAGE, Defendant and Appellant.

No. A061333.

Decided: March 23, 1994

A jury convicted defendant Jerry Savage (appellant) of petty theft with a prior (count one) and attempting to dissuade a victim from testifying (count two) and found true the allegations that he had served three prior prison terms.   After denying appellant's motion for new trial, the court designated count two as the principal term, selected the upper term of four years, and imposed a consecutive three-year term for count one, staying all but 8 months thereof.   It also imposed one year for each enhancement.

On appeal appellant maintains his motion for new trial should have been granted on the basis of trial court bias and ineptness of counsel.   He further asserts instructional error and insufficient evidence to support his conviction on the second count.   We agree that the motion for new trial should have been granted and the dissuasion count must be dismissed for inadequate evidence.

I. FACTS

This trial was a credibility contest between Donna Ball and her friends and relations and appellant and his friends.   Ball had been appellant's sometime girlfriend and they had lived together—when, and for how long, being ardently contested at trial.

A. The People's Case

On September 4, 1992.   Ball and her five children were residing on 27th Avenue in Clearlake.   Her doors did not lock.   When she returned home that day appellant was there with Douglas Lopez and Willie Jefferson.   He was not supposed to be there because he had been threatening and harassing Ball.   Ball had had a relationship with appellant “once upon a time,” almost six months ago.   He did not contribute to her household expenses.

She told the men to leave, argued with appellant, and eventually the men left.

The next morning around 7:30 a.m. appellant walked in and said he wanted Ball or her daughter La Pria to drive to town with him.   Ball refused.   Appellant began hitting Ball in the head and said he would kill her.   Ball grabbed a knife and stabbed appellant.   Appellant threw Ball against the wall, got the knife away, acted like he was trying to stick her with it and then pointed it at her children.   They were screaming for appellant to get off Ball.

Ball pushed La Pria away and told her to call the police.   When she returned to the bedroom one of her daughters was screaming at appellant:  “ ‘Put my momma's money down․’ ”  La Pria and Ball saw appellant with some money;  Ball tried to retrieve it but appellant pushed her aside and ran off.

Ball kept her money in a little wallet on her dresser.   When she went to bed the night before, she had $400 in cash and $100 in food stamps.   After appellant left Ball discovered that all the money and food stamps were gone.   She reported the theft to the police.

On the evening of September 7 Ball was barbecuing in her front yard.   Appellant came by with Willie Jefferson.   Appellant indicated he needed to talk with Ball;  she ordered him off her property.   Appellant pulled Ball into the house, knocked her on the couch, put his knees to her chest and threatened to kill her for testifying against him.   Appellant told Ball he was facing 15 years for being a career criminal if he went back to jail.   He also said he would call “C.P.S.,” and they would take her kids.

B. Defense

(1) Attack on Ball's Credibility

The defense established that Ball had been convicted of forgery back in June or July of 1992.   The defense also confronted Ball with prior statements concerning her relationship with appellant.   First, counsel brought out that in her signed statement to the police, Ball indicated “ ‘Jerry Savage and I were living together for the past six months.’ ”   She claimed she worded the statement “wrong”—what she meant is that they had lived together prior to moving to 27th Avenue.

Second, counsel also confronted Ball with her statement to the police that she had let appellant stay with her for the three nights prior to the theft.   She maintained they were spending the night together at the Lakeside Hotel, not her residence.1  She used her name on the register (either Donna Ball or Donna Robinson).   The owner of the Lakeside Inn testified that during the period August 31 through September 7, no one by the name Donna Ball, Donna Robinson or Jerry Savage registered at his establishment.   Recalled later by the defense, Ball stated she registered under either Donna Ball or Donna Robinson.

(2) Testimony of Appellant and Appellant's Witnesses

Appellant testified 2 that he had lived with Ball from March 19 through September 15.   He paid the first and last months' rent on the 27th Avenue residence and contributed to groceries and bills from his earnings from recycling.   Appellant's friend, Jefferson, confirmed that appellant, Ball and her children lived with him for two months in the spring and continued to live together on 27th Avenue ․ Another friend, Lopez,3 also confirmed that appellant and Ball lived together.   Finally, Adrian Keyes,4 the brother of a friend of Ball's son, testified he had lived with Ball off and on, and started living with Ball and appellant on 27th Avenue around the end of July 1992.5

Appellant denied stealing Ball's money on September 5th or hitting her.   He testified that that morning he asked La Pria if she wanted to go to the store to buy groceries.   There was no food in the house at that time.   Appellant had $60 which Ball had given him;  he asked her for food stamps.   Ball said she had used the stamps for cocaine.   Appellant called her a “bitch”;  she jumped from the bed and stabbed him on the shoulder, cut him across the neck and cut his testicles.6  That morning he did not see Ball with any money and did not see a purse in the bedroom.   He indicated she carried her money in her panties.7

According to appellant, on September 1, Ball cashed her $400 “A.F.D.C.” check and spent the entire amount over the course of the day—approximately $340 on cocaine and close to one hundred dollars on pizza and beer.   By the end of the day, “she was pretty well busted.”

Keyes testified that on the 1st, he drove Ball to the places where “she could go recop, buy her drugs.”   Appellant was with them in the car.   Ball purchased about $400 worth of cocaine and spent about $75 on pizza, sodas and groceries.   By the second or third day she was trading food stamps and clothes for drugs.

Jefferson testified he was also present when Ball spent part of the welfare proceeds on cocaine.

Then on September 3rd Appellant testified Ball received her social security check for “A little over $600.”.   She cashed it and purchased $200 or $300 worth of cocaine.

According to appellant, the next day (Sept. 4) Keyes drove them “around Clearlake to purchase rocks.”   Appellant testified Ball made another two purchases of rock cocaine, but appellant was not sure how much she spent.   That evening Ball, appellant, Lopez and Jefferson went to Santa Rosa to purchase drugs.8  At that time Ball said she had only $60.   Ball gave him the $60.   Jefferson and Lopez confirmed that the group went to Santa Rosa on the 4th.   By Jefferson's guess Donna had “40 or 60 bucks” at that time but kept hounding appellant about money.   Lopez stated appellant asked Ball for some money;  she said, “ ‘no,’ ” she only had “60 bucks․”  Back in Clearlake, Lopez observed Ball smoke quite a bit of cocaine.

Appellant stated that on the evening of September 7 he returned to 27th Avenue with Jefferson because Jefferson had indicated Ball wanted to see him.   The couple went inside the house and “kissed and made up.”   Ball said the police had been by to ask about him.   Appellant explained that he had called the police department and had been advised there was no warrant out on him.   Jefferson also observed the couple enter the house.   He could not hear any conversation.   When he went inside to get “Cool Aid,” they were in the bedroom talking but he did not pay too much attention.   Later, outside, they were “Kissing and hugging as usual.”

Appellant testified he left that night but returned the next day and remained there until September 15.   At that time Ball went to Vacaville to pick up her husband from prison.   Ball had told him “there would be a problem with her husband getting out of prison.”   Appellant was arrested the next day.

Keyes was also present at the barbecue.   Earlier that day he had seen appellant, appellant's ex-wife and a friend at the “Food Cupboard.”   When Keyes left the store he saw Ball down the street “watching the Food Cupboard.”   Keyes gave her a ride home.   Five minutes later she asked him to take her to the pay phone.   He complied;  Ball called the police department and reported that appellant, his ex-wife and friend Wayne had driven by her house and threatened her and laughed at her.   They returned to Ball's house and the police arrived.   She restated her complaint.   Then appellant and Jefferson arrived while Keyes and Ball were barbecuing.   She told appellant she had “called the cops” on him.   He retorted that if she wanted to play that game, he would tell them on her, too.   Later, Keyes took Ball to make another telephone call.   This time she told the police that appellant and Jefferson had come to the house, appellant pulled a knife on her and said he would “kill her if the cops find out, or if he went to prison over this.”   She explained she called the cops because “ ‘․ if I can't have Jerry, no one else can.’ ”

C. Rebuttal

The People recalled La Pria who testified that during a trial recess, she overheard Keyes's telephone conversation to the effect that Jefferson “was going to let him stay at his house as long as he kept the sales going.”

Ball's husband Darrell, convicted of second degree robbery, explained that Ball told him she was seeing appellant and had had a physical relationship with him three times.

Criminal Investigator Gary Hill testified he had interviewed Jefferson about the barbecue incident.   Jefferson said that when appellant and Ball went into the house, “he could hear them arguing about money.”   On rebuttal Jefferson denied telling Hill they talked about money.   He also admitted he “passed a few words” about this case with appellant while they were in jail.

II. DISCUSSION

A. The Motion for New Trial Should Have Been Granted(1) Background

Appellant first urges that his motion for new trial should have been granted.   We agree.

After a verdict has been rendered, a defendant may move for a new trial.   (Pen.Code,9 § 1181.)   The court may grant the motion only if defendant demonstrates reversible error.  (People v. Clair (1992) 2 Cal.4th 629, 667.)   On appeal we review the trial court's ruling under an abuse of discretion standard.

Section 1181 enumerates nine grounds for a new trial.   The issue of counsel's effectiveness, although not listed in the statute, may be grounds for a new trial under appropriate circumstances in order to expedite justice by avoiding appellate review or habeas proceedings.  (People v. Fosselman (1983) 33 Cal.3d 572, 582.)

Trial counsel's performance was the key focus of the new trial motion which spanned the course of three days.   Appellant makes several incompetency arguments and also accuses the trial court of bias.   As we explain, the motion should have been granted because counsel failed to object to highly inflammatory “evidence” which the prosecutor seized on in closing argument to discredit a main thrust of appellant's defense.

During the prosecutor's redirect examination of Ball, she asked how long it had been since Ball had slept with appellant.   Ball replied:  “I'm not good at the dates, but it had been a while, ever since I heard he had the AIDS virus.”   The prosecutor then drummed in the AIDS connection:  Q:  “You were not actually sleeping with him?  [¶] A:  “No.”  [¶] “Because you heard he had AIDS?”  [¶] A:  “Yes.”

At the motion for new trial, defense counsel Anderson testified he was aware appellant's brother had died of AIDS but had no knowledge that appellant had AIDS.   Appellant told Anderson he did not have AIDS and testified at the new trial hearing that he was not infected with the AIDS virus, to his knowledge no one had ever told Ball that he was and, after numerous blood tests and physicals, there was no documentation that he had AIDS.   Although surprised by Ball's comment, Anderson could not recall what he considered doing at the time.   In hindsight he commented:  “I didn't think it was all that relative as to whether or not this AIDS issue was here.”   The prosecutor argued that although Ball's comment was prejudicial and unresponsive, it did go to her state of mind as to why she stopped having an intimate relationship with appellant.

Ball's comment was not the end of the matter.   During closing argument the prosecutor used the information this way:  “And she's told you she wasn't having a sexual relationship with him because she was told he had AIDS and she didn't want to get AIDS so she was not having a sexual relationship with him anymore.  [¶] And I think there's no person alive that after being told one has AIDS who's an intravenous drug user isn't going to say, ‘I'm not sleeping with you.’  [¶] But he wants you to believe that she's so in love with him she's going to sleep with him despite the fact he has AIDS.   And that she's desperate to get him back after this morning.”

Again, no objection and no rationale were provided at the motion for retrial as to why counsel did not object either to the elevation of hearsay about AIDS to a proven fact as well as the assertion that appellant was an intravenous drug user when that had not been established.10

There was in fact a string of unresponsive and derogatory comments which Ball offered during the course of her direct examination to which Anderson did not object, attempt to rein in or strike.   Examples:  Question, “Did he come by your house?”   Answer:  “Yes.   He harassed me a lot.”   Question:  “Did he contribute to the expenses of your household by paying in money for buying groceries?”   Answer:  “With what?   He didn't have any income.”   Question:  “Did he act as a father to your children?”   Answer:  “My kids hate Jerry.”

The pattern continued during cross-examination.   When Anderson asked if she spent the night “[j]ust once” with appellant at Dave's house, Ball replied:  “Yes.   Because he was incarcerated.”   And, again, asked how often he visited her:  “He was always harassing me.”   Further, “Q.   Prior to receiving this money did you or Mr. Savage have any money together?  [¶] A.   No.   Where [was] he going to get some money from?”   Another example:  “Q.   You never even saw Jerry Savage [after September 7th]:  A.   No, I didn't.  [¶] Everybody said he was is [sic ] hiding.”

Finally, on redirect the prosecutor probed into when the harassment began.   Response:  “It started after the drive-by shooting.” 11

(2) Analysis

To establish a case of ineffective assistance of counsel the defendant must show that (1) trial counsel failed to act in a manner expected of a reasonably competent attorney acting as a diligent advocate and (2) it is reasonably probable that a more favorable result would have occurred in the absence of counsel's failings.  (People v. Wrest (1992) 3 Cal.4th 1088, 1114;  see also Strickland v. Washington (1984) 466 U.S. 668, 687–696.)

Our review of counsel's performance is deferential.  “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge in strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”  (Strickland v. Washington, supra, 466 U.S. at pp. 689–690.)

A claim of deficient representation will fail if the record does not illuminate why counsel acted or failed to act in the challenged manner, unless counsel was asked for an explanation and failed to give one, or unless there simply is no satisfactory explanation.  (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.)

There simply is no plausible justification for not putting the brakes on witness Ball, who from the beginning blurted out unresponsive answers with highly derogatory implications about appellant.   Seeing this pattern, Anderson made no effort to object, to seek the court's control over the witness, to strike the unresponsive answers, or the like.   Had some control been exerted towards the beginning of her testimony, the AIDS remark might not have been uttered.   Or, having come in, counsel could have, and should have, considered seeking to have the remark stricken, with cautionary instructions, moving for mistrial, or rebutting the implication.   Had the comment been stricken, the prosecutor could not have alluded to AIDS in closing argument.

Nor is there a plausible explanation for not objecting to the prosecutor's closing argument when she elevated to fact the unsubstantiated hearsay that appellant might have AIDS and classified appellant and his friends as intravenous heroin shooters, without evidentiary support.

Striking these prejudicial comments, coupled with a forceful admonition, would not have completely cured the harm but would have mitigated their impact and diminished the power and persuasiveness of the People's remarks.

Ball's gratuitous, derogatory responses and the People's reliance on AIDS and intravenous drug use in closing argument were prejudicial.   From the beginning this case was a credibility contest.   Ball's testimony, particularly on the issue of whether appellant lived with her during September, was substantially impeached.   The success of appellant's defense depended on proving Ball wrong on this point, exposing her drug use and establishing that she spent all her welfare and benefit money on drugs.

The AIDS/intravenous drug use issue was a non-issue in terms of the charges in this case, but they became a very convenient, albeit unproven, vehicle for rehabilitating Ball.   If appellant had AIDS, or even if Ball heard he had AIDS, this becomes a very convincing reason for terminating the relationship, including their cohabitation.   Moreover, the uncalled for association of appellant with the AIDS virus and intravenous drug use in and of itself was highly inflammatory and prejudicial, given the nature of AIDS and society's sometimes fear and loathing of the disease and its spread through dirty needles.

Given a less than compelling case to begin with, we conclude Anderson's substandard performance was prejudicial.  (People v. Wrest, supra, 3 Cal.4th at p. 1116.)   This prejudice was amply demonstrated at the new trial hearing, and thus the trial court abused its discretion in declining to grant appellant's motion.

B. There Was Sufficient Evidence to Support the Count Two Conviction

We disagree with appellant that there was insufficient evidence to support his conviction for dissuading Ball from testifying within the meaning of section 136.1, subdivision (c).12  That count specifically related to the barbecue incident of September 7 when, according to Ball, appellant threatened her “about testifying against him․  [¶] ․ He told me that I knew if he would get—if he went back to jail he would get 15 years for being a career criminal․  [¶] ․ Then he was just sitting on top of me telling me he would kill me and threatening me and telling me he would call C.P.S. and they would take my kids.”

The prosecution's theory was that the threats were to dissuade Ball from reporting or prosecuting the theft of her welfare money and food stamps.   Appellant, however, argues the threat was directed at another prosecution (the drive-by shooting);  he cites the testimony of Ball herself, who clarified on cross-examination that during this conversation on September 7, “He was threatening me about testifying against him about another case that is going on.”13  (Emphasis added.)   That the victim misunderstood what prosecution she was being dissuaded from pursuing is relevant only insofar as it reveals the actual intent of the perpetrator.   From the evidence of the theft on September 5, 1992, the immediate report by the victim to the police and the threat two days later, a jury could reasonably conclude (under proper instructions) that the threat was intended to dissuade the victim from prosecuting the theft.

C. Disposition.

We reverse the judgments of conviction on both counts and the order denying appellant's motion for new trial.

ORDER MODIFYING OPINION AND DENYING REHEARING

It is ordered that the opinion filed herein on March 23, 1994, be modified in the following particulars:

1. On page 2, line 3 the words “friends and” are deleted so the sentence reads:

This trial was a credibility contest between Donna Ball and her relations and appellant and his friends.

2. On page 5, the last sentence in footnote 4 is deleted and the following sentence is inserted in its place.

He denied discussing anything substantive about this case with appellant.

There is no change in the judgment.

Respondent's petition for rehearing is denied.

FOOTNOTES

1.   On redirect Ball testified they did not have sexual relations at the hotel.   She rented the room because she was afraid and wanted to get away from her house—there were no locks on the doors and no telephone.   Nevertheless, when appellant found her at the motel she let him stay because “the police [were] after him.”

2.   At the outset of appellant's testimony, he acknowledged three prior convictions.

3.   Lopez testified he had never been convicted of a felony.

4.   Keyes admitted on cross-examination he was recently incarcerated and shared a cell with appellant and another inmate.   He denied discussing this case.

5.   Clearlake Police Officer McCarthy also testified that the department's reports regarding appellant listed the 27th Avenue address as an address (but not the principal address) for appellant because he “knew Mr. Savage and Ms. Ball were having a relationship.”   The records also listed Willie Jefferson's address as the address for Ball and appellant in May 1992.

6.   Jefferson testified he did not witness the altercation but later observed the scars on appellant's neck and testicles.   Jefferson also stated that on the morning of the 5th or 6th, appellant had maybe about $300 or $350, but Jefferson did not know the source.

7.   Keyes testified that on the afternoon of the 5th, Ball told him appellant took her money.   Keyes told her:  “ ‘Donna, I know you didn't have no money.’ ”   She told Keyes “just to keep [his] mouth shut, to mind [his] own business.

8.   Keyes testified that appellant had asked him to take them to Santa Rosa, but Ball had privately dissuaded Keyes because she only had $60 in foods stamps.

FN9. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN9. Unless otherwise indicated, all further statutory references are to the Penal Code.

10.   Early on the trial court sustained the defense objection to testimony that when Ball returned home on September 4th, appellant and his friends were there shooting heroin.   Although the prosecutor did not elicit such testimony from Ball, she did ask appellant and his friends about shooting and buying heroin within the relevant time frame.   Appellant responded in the negative but did admit to involvement in the purchase and use of rock cocaine.The prosecutor also questioned Lopez about heroin use;  he invoked the Fifth Amendment, explaining “․ I don't want to be implicated by the way she's trying to drag me into some smut she's trying to drag me into.”   Jefferson admitted to using heroin and a host of other drugs but there was no testimony that he shot heroin or used it with appellant or Lopez.Nevertheless, the prosecutor in closing argument referred to appellant's witnesses collectively, on at least two occasions, as “his heroin shooting buddies” and argued that appellant and his friends drove to Santa Rosa to buy heroin “that he was shooting up in her house․”

11.   Anderson did finally object when the prosecutor attempted to delve further into the drive-by incident.

12.   Section 136.1 makes it a crime to knowingly and maliciously prevent or dissuade, or attempt to prevent or dissuade, a victim or witness from “attending or giving testimony at any trial, proceeding, or inquiry authorized by law.”  (§ 136.1, subd. (a).)  It is also a crime to attempt to prevent or dissuade a victim or witness from reporting the victimization to a law enforcement or correctional officer or any judge;  causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted and assisting therewith;  and arresting or seeking the arrest of any person in connection with the victimization.  (§ 136.1, subd. (b).)  To do any of the above acts knowingly and maliciously and with force or threat of force is a felony.  (§ 136.1, subd. (c).)

13.   As noted earlier, Keyes related that he heard Ball tell the police that day that appellant pulled a knife on her and threatened to kill her if the police “found out,” or if he went to prison over “this.”

ANDERSON, Presiding Justice.

POCHÉ and REARDON, JJ., concur.