PEOPLE v. DEASEE (1993)

Randall Deasee appeals from a judgment sentencing him to prison for seven years plus the remainder of his life.   He was convicted by jury trial of eight counts of attempted murder (Pen.Code,1 §§ 664, 187), each count involving a separate victim, and of intentional shooting at an occupied building (§ 246).   Additionally, the jury found that the attempts were willful, premeditated and deliberate (§ 664) and that in each attempt he used a firearm (§§ 12022.5, 1203.06).   With respect to the count of attempted murder of Alexander Mackuse, it was found that great bodily injury was inflicted.  (§§ 12022.7, 1203.075.)   Appellant raises two issues, first, alleged prejudicial misconduct by the prosecutor, and second, alleged error relating to enhancements in sentencing.   On the first issue we reverse.   The second issue is unlikely to arise upon retrial and therefore need not be considered.

Factual Background

On July 12, 1991, about 10 p.m. appellant arrived at a card room in Nipomo.   During the night he consumed from five to seven alcoholic drinks, but did not appear to be drunk.   He purchased chips from time to time, at a cost of $2,000, and lost all of them except for chips worth approximately $100, which he ultimately gave to the dealer.

At about 2 a.m., appellant told Howard McGinnis, also a patron at the card room, that appellant's wife had scared him by putting a gun to his head.   McGinnis replied that appellant should not have been scared because, “ ‘․ they are either going to pull the trigger or won't.’ ”  “ ‘No, I am not going to get scared․’ ”  To this appellant responded, “ ‘Yes, you are scared.   You are scared shitless.’ ”   McGinnis ultimately told appellant to quit “sniffling” about it.

Later that night appellant left the card room and was followed by the proprietor, who asked where he was going.   Appellant replied that he was going home to get a gun to prove his point.   However, he returned to the card room with the proprietor.

He resumed playing poker and lost a hand to McGinnis, who goaded him by shoving his cards in appellant's face.   After that appellant was quiet.   About 5 a.m. he pushed his remaining chips to the dealer, left the card room, and drove away.

The proprietor was concerned.   He locked the glass front door.   About 20 to 30 minutes later appellant returned and tried to enter.   He exhibited a gun and demanded that the front door be opened, stating, “ ‘․ I brought my gun.’ ”   Shortly thereafter he shot eight rounds through the glass door and in the direction of the card table.   Mackuse was hit three times and was seriously wounded, suffering paralysis.   Appellant reloaded and fired eight more rounds into the door frame and a wooden door that had been placed against the broken glass door.   There were eight persons in the card room when appellant shot at or into the room.   Only Mackuse was hit.

Two deputy sheriffs arrived.   One ordered appellant to drop his gun.   Appellant's reaction was to point his gun at the deputy and state, “ ‘Fuck you.   You are going to have to kill me.’ ”   The deputy fired four shots.   Appellant advanced and the deputy fired again.   Appellant fell to the ground, but raised his gun.   The deputy fired once more, hitting appellant in the stomach area.   Appellant was then taken to a hospital.

The treating physician found appellant to be agitated.   Chemical testing showed he had consumed coffee, alcohol and librium.   His blood alcohol count at 7 a.m. was .17 percent, estimated to be about .20 percent at the time of the shooting.   An osteopathic physician testified that at the hospital appellant did not appear to be intoxicated, although the physician admitted that appellant exhibited several symptoms of intoxication.²

In defense, appellant testified that he had been abused, physically and mentally, by his deaf-mute parents, that he had attempted suicide at age seven, and that he had been a heavy drinker for thirty years.   He had sought re-entry into a detoxification hospital on the day he went to the card room, but had been denied admission because of a shortage of beds.   He took some librium and drank a six-pack of sixteen-ounce malt liquor before going to the card room.   He recalled being in the card room but little else until he stood outside with a gun in his hand and then being shot.

Appellant did not deny the shooting.   His defense was that there was no proof beyond a reasonable doubt that he had attempted to murder anyone, but if he had, it was not wilful, deliberate and premeditated.   This defense was based on the claim that alcohol had so diminished his mental capacity that he lacked the ability to commit murder and to act wilfully, deliberately and with premeditation.

Misconduct Issues

1. References to Notorious Mass Shootings.

 In his argument to the jury, the prosecutor addressed the fact that appellant had not previously been in trouble.   In this connection and in connection with the defense that alcohol had diminished appellant's capacity, the prosecutor mentioned recent mass shootings cases that had attracted widespread news coverage.   He stated that a disgruntled postal employee had entered a post office to blow away a few old friends.   Then he mentioned the shooting of students and a professor at Iowa State University by a student whose ire was aroused by failure to receive an award.   Finally, he referred to “McDonalds in San Diego.”   An objection to these references was overruled.   Appellant complains that there is no showing that the perpetrators in these notorious cases were or were not intoxicated, that the prosecuting attorney was arguing facts that were not in evidence, and that such references were an appeal to passion and prejudice.

The general rules are stated in People v. Love (1961) 56 Cal.2d 720, 730:  “Counsel's summation to the jury ‘must be based solely upon those matters of fact of which evidence has already been introduced or of which no evidence need ever be introduced because of their notoriety as judicially noticed facts.’  (6 Wigmore, Evidence (3d ed. 1940) § 1806, p. 269;  accord People v. Evans, 39 Cal.2d 242, 251, 246 P.2d 636.)   He may state matters not in evidence that are common knowledge, or are illustrations drawn from common experience, history, or literature.  [Citations.]  He may not, however, under the guise of argument, assert as facts matters not in evidence or excluded because inadmissible.  [Citations.]”

 The prosecutor's references to recent notorious mass shootings was improper.   Closing argument to the jury must be based upon facts shown by the evidence.  (People v. Mendoza (1974) 37 Cal.App.3d 717, 725, 112 Cal.Rptr. 565.)  “Counsel may refer the jury to non-evidentiary matters of common knowledge, or to illustrations drawn from common experience, history, or literature [citation], but he may not dwell on the particular facts of unrelated, unsubstantiated cases.”  (Ibid.)  He cannot rely upon “unrelated specific crimes․”  (Ibid.)

In Mendoza, the court found improper and described as “unjustifiable inferences” and “suppositions not reflected in evidence before the jury,” the following comments by the prosecutor:  “It is the very little, small, mild people, some of whom, rather than even being prosecuted, go to psychiatric care, who maybe ultimately molest, sexually attack, and even kill their granddaughters, friends who come to the house to see them, or the child is found in Griffith Park.   These are things that happen all the time․  There are more, many more articles in newspapers;  you have all read them, that say, ‘Hey, you know, we didn't think this guy was too dangerous.   He looked kind of meek.’   And we don't know how fragile Mr. Mendoza is.   There is no evidence as to how fragile he is, but he looked sort of meek.   We didn't really know;  we didn't really realize, and this is after death and worse that leaves injury on these kids.”  (People v. Mendoza, supra, 37 Cal.App.3d at p. 726, 112 Cal.Rptr. 565.)

Likewise, in People v. Adams (1939) 14 Cal.2d 154, 93 P.2d 146, overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 352, 11 Cal.Rptr. 65, 359 P.2d 433, the Supreme Court found similar references to notorious cases “inflammatory and most objectionable.”  (Adams, supra, 14 Cal.2d at p. 162, 93 P.2d 146.)

2. Sympathy.

 In summation the prosecuting attorney spoke of sympathy for the alcoholic defendant and his family, and read to the jury an instruction, later given by the judge:  “You must not be influenced by pity for the defendant, or by prejudice against him․  [¶] You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.”   He also stated, “save your tears for Mr. Mackuse.   He's the innocent, tragic victim of Mr. Deasee.”   Later, referring to the victims, he asked, “What do you say to them?”

 It is not misconduct for a prosecutor to sympathetically portray a crime victim.  (People v. Turner (1983) 145 Cal.App.3d 658, 673, 193 Cal.Rptr. 614;  see also People v. Rich (1988) 45 Cal.3d 1036, 1090, 248 Cal.Rptr. 510, 755 P.2d 960.)   Conversely, it is improper to ask the jury to look at the case from the standpoint of the victim.  (People v. Fields (1983) 35 Cal.3d 329, 362, 197 Cal.Rptr. 803, 673 P.2d 680, cert. den. 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 204.)   The prosecutor's request that the jury save its tears for Mackuse was improper.

3. Moral Judgment.

 In summation the prosecutor stated:  “So don't look at the alcohol and say, ‘Well, that must be the reason and therefore he is not guilty.’   You know, it's really up to you to decide how to handle this type of conduct, to condone it or not condone it.   The buck stops with you.   You have to decide:  do you want to agree that people like Mr. Deasee who, for whatever reason, drink and go out and do these things, do you want to say to them, ‘It's okay’?   Do you want to put the stamp of approval on it just because they are under the influence of alcohol?   What about the guy who drinks and drives and runs over someone?   Is it an excuse because he is drinking?  [¶] It's a difficult question because it's sympathy here for Mr. Deasee and his family.   It's a tragedy.   But it's up to you to decide how you want our society to react to this type of conduct.”

This statement was highly improper.   In effect it tells the jury to disregard the law and to decide the case based upon its own value judgment as to how society should react to alcoholism.   It invites the jury to make a moral judgment in lieu of a finding based upon the law.

4. Reasonable Doubt.

 In his argument, the prosecutor told the jury what he claimed was a true story.   It was that his criminal law professor had advised that when the law is against you, argue the facts;  when the facts are against you, argue the law.   If both are against you, argue reasonable doubt, “because that is a concept the jury will never really quite understand because lawyers can't even figure it out.   And it's true, we can't.”

The story and statement cast aspersions on the presumption of innocence and the requirement that guilt be proved beyond a reasonable doubt.   They were improper.

5. Punishment.

 During his first argument to the jury, the prosecutor stated, “But Mr. Deasee did a terrible thing and to let him out because he has got alcohol problems in the past is just wrong.”   In rebuttal argument, he said, “If you want mercy for the defendant, don't take it out on the People's case by saying ‘not guilty.’   You will have to look to the judge for compassion and mercy regarding sentencing, but please don't take it out on me because you are worried.   You are not supposed to consider the punishment.”

It is improper to comment on the issue of punishment.  (People v. Mendoza, supra, 37 Cal.App.3d at p. 727, 112 Cal.Rptr. 565.)   In Mendoza, the prosecutor's request to “take Mr. Mendoza off the streets” was deemed improper.  (Ibid.)

In People v. Sorenson (1964) 231 Cal.App.2d 88, 92, 41 Cal.Rptr. 657, the court reversed for the prosecutor's suggestion that the defendant's insanity plea was prompted by the hope that he might go to a hospital instead of jail.   Recognizing that the sentencing decision was not for the jury to make, the Sorenson court saw the prosecutor's argument as “an appeal to prejudice, an attempt to arouse aversion toward a verdict which might ‘turn him loose’ to victimize innocent people with more bad checks.”  (Ibid.)

The prosecutor's argument in this case that it would be “wrong” to “let him out” tended to divert the jury's attention from its role of deciding guilt or innocence.   Its effect was to force the jury to imagine appellant's freedom from custody as the result of a verdict that took into account appellant's intoxication.

This argument was all the more improper because it misstated the law.   Appellant would not have been “let out” had the jury decided, for example, that intoxication prevented him from premeditating and deliberating an attempt to kill eight persons, and instead had convicted him of the lesser crime of attempted murder without such premeditation and deliberation.   A prison term would still have been mandatory.³  Indeed, it is unlikely that a verdict of guilt for any lesser crime would have resulted in appellant's being “let out,” and it was grossly improper for the prosecutor to suggest otherwise.

6. Personal Belief.

 Appellant's final claim of misconduct is that the prosecutor injected his personal beliefs into his argument.   He cites the following instances:

(a) “I know Blake Nelson [one of the deputy sheriffs] believed he was being shot at.”

(b) “He [referring to appellant] has a motive for that, obviously, and I don't believe him.”

(c) (Referring to the People's case)—“But to be honest, I haven't seen a better one.”

(d) “This is what I think defense counsel's defense is.   If you have got a bottle in one hand and you have got a gun in the other, you can do almost anything—as well as you have a history of drinking.”

 The rule that a prosecutor may not express personal opinion arose in connection with an expression of opinion as to defendant's guilt.  (People v. Edgar (1917) 34 Cal.App. 459, 468, 167 P. 891;  People v. Kirkes (1952) 39 Cal.2d 719, 723, 249 P.2d 1;  People v. Bain (1971) 5 Cal.3d 839, 848, 97 Cal.Rptr. 684, 489 P.2d 564;  People v. Adcox (1988) 47 Cal.3d 207, 236, 253 Cal.Rptr. 55, 763 P.2d 906.)   It was condemned because it implied that the prosecutor had personal information, other than that introduced at the trial, that proved such guilt.   It has been expanded to apply to expressions of personal opinion concerning the reliability of a witness.  (People v. Perez (1962) 58 Cal.2d 229, 245, 23 Cal.Rptr. 569, 373 P.2d 617.)

The first two remarks to which objection is taken did express personal belief as to the testimony of witnesses, and were improper.   The latter two remarks did not.

Prejudice

 In reviewing misconduct by the prosecutor, we must determine whether appellant was prejudiced.   Prejudice depends on whether in the absence of the misconduct is it reasonably probable that a result more favorable to appellant would have occurred.  (People v. Watson (1956) 46 Cal.2d 818, 834–836, 299 P.2d 243;  People v. Haskett (1982) 30 Cal.3d 841, 866, 180 Cal.Rptr. 640, 640 P.2d 776.)   We conclude that under this standard of review the cumulative effect of the improper comments did in fact prejudice appellant.

 In order to determine whether there was prejudice, we first consider whether prompt objection and instruction could have corrected improper statements.   Defense counsel interposed an objection to the prosecutor's comments on the highly publicized mass shooting cases, but the objection was overruled.   Other improper arguments are reviewable even though defense counsel voiced no objection to them because no admonition would have cured the harm resulting from them.  (People v. Johnson (1981) 121 Cal.App.3d 94, 103, 175 Cal.Rptr. 8.)

If the prosecutor had made only a few improper appeals to the jury, and if those appeals pertained to narrow, easily addressed issues, such as punishment, appellant would be hard-pressed to insist that a quickly executed curative instruction combined with the court's standard closing instruction on the issue would not have succeeded in refocusing the jurors on the appropriate areas of concern in the case and persuaded them to put the improper comment out of their minds.

But the improper comments the prosecutor made in this case were not few in number.   At least half of them occurred during that “especially critical period” (People v. Perez, supra, 58 Cal.2d at p. 245, 23 Cal.Rptr. 569, 373 P.2d 617)—the final appeal to the jury—after which defense counsel had no opportunity to respond.   In addition, most of the comments were not so narrowly defined that the court could have addressed them with a simple instruction.   They touched on emotionally-charged issues, involved inflammatory rhetoric and invoked images and emotions not easily dispelled.

When the prosecutor appealed to the jury's sympathies with the question, “․ what about the victims in this type of conduct?   What do you say to them?” he evoked emotions no admonition could eliminate.   Likewise, there was no instruction to rebut the unjustified claim that “lawyers can't even figure out” the concept of reasonable doubt or the assertion that a law school professor considered reasonable doubt to be nothing more than a gimmick for defense attorneys with weak cases.

Even the prosecutor's comments on punishment, which ordinarily could have been cured by a simple instruction not to consider them, defied correction here because the comments were untrue.   They required explanations:  an explanation that a verdict for a crime less than attempted premeditated murder would not have resulted in appellant being “let out” and an explanation that the judge in this case did not have the power to show mercy and compassion by imposing a lesser sentence.

As the improper arguments were so numerous and egregious that admonitions would not have cured the harm they caused, appellant is entitled to have them considered on appeal.

Having determined that the misconduct is reviewable, we turn to the question as to whether it was prejudicial.

The principal issue in this case was the degree of the crime.   That issue turned solely on appellant's mental state, and the evidence on that issue was ambiguous at best.   There was a substantial question whether he engaged in the kind of careful thought and weighing of considerations for and against the proposed course of action necessary to result in a finding of premeditation and deliberation.

There was no evidence that appellant had planned in advance to murder anyone.   When appellant went to the card room early Friday night, he took no gun, he picked no fight, and he made no statement that even hinted of a plan to deliberately kill anybody.   Instead, the evidence showed that he went to the card room to play cards, drink and socialize.   During the night, card room patrons perceived appellant as happy, jovial, friendly, and a gentleman.

Despite the testimony of witnesses that appellant did not appear to be intoxicated, the evidence established that he had a blood alcohol level at the time of the shooting of approximately .20 percent and that he exhibited several symptoms of intoxication.

In counseling the jury to “save [its] tears” for the tragic victim Mackuse, in asking the jurors for an explanation to the victims in the case, in hinting that the jury could abdicate its concern for appellant by relying on the court to show “mercy” on him, by invoking the jurors' memories of hideous mass shootings, by ridiculing the reasonable doubt standard, and by his other improper appeals, it is reasonably probable that the prosecutor tipped the scales of justice against appellant on the only significant issue the jury had to decide in this case.

The judgment is reversed.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Penal Code unless otherwise specified..  FN1. All further statutory references are to the Penal Code unless otherwise specified.

2.   Agitation and cursing, mood swings and irrationality.

3.   Section 1203.06, subdivision (a)(1)(i) prevents a court from granting probation to a defendant convicted of attempted murder while using a firearm.

WILLARD, Associate Justice, Assigned.* FN* Retired Judge of the Superior Court sitting under assignment by the Chairperson of the Judicial Council.

STEVEN J. STONE, P.J., and GILBERT, J., concur.