Friday, February 15, 2019
Page 1
Court of Appeal
Conviction to Stand Despite Prosecutor’s Effort to Arouse Jurors’ Passion
Deputy DA Urged Panel Members to Act Against Bullying, as ‘12 Friends’ of Victim
By a MetNews Staff Writer
A man convicted of first degree residential burglary and second degree robbery yesterday failed in his bid for a reversal based on the prosecutor, during rebuttal argument, telling jurors to act other than as dispassionate evaluators of the evidence.
The defendant, George Alfaro, in burglarizing the home of Carol Cortes for the second time in two months, punched Cortes in the face and stole her cellphone.
At trial, in the courtroom of Los Angeles Superior Court Judge Edmund Willcox Clarke Jr., the prosecutor called upon jurors to convict based on concerns about “bullying” and exhorting them to assume the role of ‘12 friends’ of the victim.
Court of Appeal Acting Presiding Justice Lamar Baker of this district’s Div. Five wrote the unpublished opinion affirming the convictions.
In connection with the prosecutor’s comments on “bullying,” Baker pointed to two federal Circuit Court of Appeals opinions.
Sixth Circuit Opinion
In the 1991 decision in U.S. v. Solivan, the Sixth Circuit examined these remarks by an assistant U.S. attorney to jurors:
“What you’re listening to is a wholesale distributor of narcotics, cocaine discuss her business affairs and complain about her busy schedule, the lack of good product and the trouble she’s having getting this stuff up here now. And I’d submit to you, folks, that she’s been caught now. And I’m asking you to tell her and all of the other drug dealers like her…[t]hat we don’t want that stuff in Northern Kentucky and that anybody who brings that stuff in Northern Kentucky and....”
The appeals court said:
“[W]e believe this case exemplifies a single misstep so destructive to defendant’s right to a fair trial that it constitutes reversible error,” explaining:
“A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence.”
Ninth Circuit Decision
Baker also cited the Ninth Circuit’s 2011 decision in U.S. v. Sanchez. There, a man convicted of importation and possession of cocaine, who claimed he acted under coercion, protested these remarks to jurors by the prosecutor:
“[W]hy don’t we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we’re at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don’t say it at primary and secondary, they’ll get away with it if they just say their family was threatened. Because they don’t trust Mexican police, and they don’t think that the U.S. authorities can help them. Why don’t we do that?”
The Ninth Circuit said, in reversing:
“[T]he prosecutor chose to present the argument in a manner that urged the jury to look beyond the facts of the particular case, and to consider that an acquittal might lead to future lawbreaking not just by Sanchez, but by drug couriers throughout the United States and Mexico.”
Distinctions Drawn
In distinguishing those cases, Baker wrote:
“In these cases, the prosecutors urged the respective juries to consider how their verdicts would be viewed by others engaged in the same criminal conduct as the defendants. Here, by contrast (and as defendant concedes), ‘middle-school bullying is completely unrelated to the facts of this case.’ The prosecution never suggested convicting defendant of robbery would send a message to other potential robbers, let alone teenage bullies. Indeed, the prosecution specifically urged the jury to ‘tell the defendant that this behavior is unacceptable.’ (Emphasis ours.) That is not improper.”
With respect to the prosecutor’s request that jurors act as the victim’s “friends,” Baker said no objected was made at the time and any argument of impropriety was forfeited. He said on a footnote:
“Assuming we have discretion to excuse the forfeiture, we decline to exercise our discretion to do so.”
‘Friends’ of Victim
The jurist then addressed Alfaro’s contention that if the issue has been forfeited, he was denied effective assistance of counsel. Baker responded that the remark “is susceptible of being understood as a statement that improperly seeks to have the jurors become partisans for the victim, and it would have been better avoided for that reason,” but added:
“That is not to say, however, that trial counsel for defendant could not have had valid reasons to refrain from objecting. Trial counsel may have believed the argument was not obviously improper and desired to avoid the risk that an objection to the remarks would be overruled, which might lend further credence to the prosecution’s remarks in the minds of the jurors. Trial counsel might also have determined that the instructions given to the jurors before argument (e.g.. to ‘impartially compare and consider all the evidence’ (emphasis added)) were sufficient to inoculate the jury against treating the prosecutor’s remarks as an invitation to decide the case as partisans for the victim. Because there are conceivable bases on which trial counsel may have properly decided not to object, defendant’s ineffective assistance of counsel claim fails on direct appeal.
“Furthermore, defendant also has not carried his burden to show there is a reasonable probability the jury would have come to a more favorable verdict if trial counsel had objected to the prosecution’s rebuttal remarks.”
The case is People v. Alfaro, B286714.
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