People v. Bolton

• Decision Date: 02 February 1979
• Docket Number: Cr. 20294
• Citation: 23 Cal.3d 208,152 Cal.Rptr. 141
• Court: California Supreme Court
• Parties: , 589 P.2d 396 The PEOPLE, Plaintiff and Respondent, v. Willie BOLTON, Defendant and Appellant.

Page 141

152 Cal.Rptr. 141

23 Cal.3d 208, 589 P.2d 396

The PEOPLE, Plaintiff and Respondent, v. Willie BOLTON, Defendant and Appellant.

Cr. 20294.

Supreme Court of California, In Bank.

Feb. 2, 1979.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman and Isadore W. Lomhoff, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Derald E. Granberg and Michael D. Whelan, Deputy Attys. Gen., for plaintiff and respondent.

Herbert M. Rosenthal, San Francisco, as amicus curiae, upon the request of the Supreme Court.

Joseph Freitas, Jr., Dist. Atty., Daniel H. Weinstein, Chief Asst. Dist. Atty., John J. O'Brien and Carol M. Hehmeyer, Asst. Dist. Attys., San Francisco, Renzi & Kilbride and Fred Kilbride, Glendale as amici curiae.

BIRD, Chief Justice.

Appellant appeals from his conviction for assault with a deadly weapon. (Pen.Code, § 245, subd. (a).) The case presents two issues: (1) Did the prosecutor engage in prejudicial misconduct when he insinuated to the jury during closing argument that appellant had a record of prior convictions or a history of wrongful acts? (2) Did the trial court err in sentencing appellant to state prison based in part on the fact that appellant had fathered several children who were on welfare and some of whom were borne out of wedlock?

I

On the afternoon of July 3, 1976, appellant was visiting the house of a girl friend when Clifford Hollister came to the house, looking for the sister of appellant's friend. Hollister was told that the sister was not present and he was given her home address. A quarrel then broke out between appellant and Hollister during which Hollister threatened to either "kill" appellant or to "kick his ass." However, the two separated without violence.

Later the same day, Hollister and a friend drove to the sister's home, and honked their car horn. The sister and appellant's girl friend came out from the apartment, talked briefly with Hollister and then returned inside. Hollister testified that the sister told him to wait for her. After Hollister and his friend had been waiting in the car for some 10 to 15 minutes, appellant approached the car, pointed a shotgun at Hollister, and ordered the two men to raise their hands. When Hollister refused and reached to open the car door, appellant shot him.

At trial, appellant asserted self-defense. He testified that he thought Hollister was reaching for a gun and that the afternoon quarrel had left him fearful of Hollister.

In his closing argument to the jury, the deputy district attorney twice hinted that, but for certain rules of evidence that shielded appellant, he could show that appellant was a man with a record of prior convictions or with a propensity for wrongful acts. ¹ Appellant cites this conduct by the prosecutor as amounting to prejudicial error and requests a reversal of his conviction.

II

There is no doubt that the prosecutor's statement constituted improper argument, for he was attempting to smuggle in by inference claims that could not be argued openly and legally. In essence, the prosecutor invited the jury to speculate about and possibly base a verdict upon "evidence" never presented at trial. Appellant, in fact, had no prior criminal record.

Closing argument presents a legitimate opportunity to "argue all reasonable inferences from evidence in the record." (ABA Standards, The Prosecution Function (1971) std. 5.8(a) hereafter cited as Prosecution Function).) However, this court has for a number of years repeatedly warned "that statements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct." (People v. Kirkes (1952) 39 Cal.2d 719, 724, 249 P.2d 1, see also People v. Taylor (1961) 197 Cal.App.2d 372, 381-384, 17 Cal.Rptr. 233.)

Prosecution Function standard 5.9 specifically states: "It is unprofessional conduct for the prosecutor intentionally to refer or to argue on the basis of facts outside the record . . . ." ²

In the present case, the prosecutor implied that there was additional evidence about the appellant's past known to him but unavailable to the jury. These implications tended to make the prosecutor his own witness offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." (Vess, Walking a Tightrope: A Survey of Limitations On The Prosecutor's Closing Argument (1973) 64 J.Crim.L. & Criminology 22, 28; see also Crump, The Function and Limits of Prosecution Jury Argument (1974) 28 Sw.L.J. 505, 517-518.)

It has also been suggested that prosecutorial argument "which goes beyond the evidence admitted may be violative of the Sixth Amendment which provides that every accused has the right to be confronted by the witnesses against him." (National Prosecution Standards, Supra, commentary to std. 17.17.) For all these reasons, the remarks by the deputy district attorney were improper.

Numerous decisions by our courts suggest that "bad faith must be shown to establish the existence of misconduct . . . ." (People v. Romo (1975)47 Cal.App.3d 976, 987, 121 Cal.Rptr. 684, 691; see also People v. Rhinehart (1973) 9 Cal.3d 139, 154, 107 Cal.Rptr. 34, 507 P.2d 642; People v. Asta (1967) 251 Cal.App.2d 64, 86-87, 59 Cal.Rptr. 206.) For the purpose of deciding whether to reverse a decision or grant a mistrial, this emphasis on intentionality is misplaced. "(I)njury to appellant is nonetheless an injury because it was committed inadvertently rather than intentionally." (Note, The Nature and Consequences of Forensic Misconduct in the Prosecution of a Criminal Case (1954) 54 Colum.L.Rev. 946, 975; see also United States v. Nettl (3d Cir. 1941) 121 F.2d 927, 930.) Therefore, to the extent that cases in this jurisdiction imply that misconduct must be intentional before it constitutes reversible error, they are disapproved. ³

Despite the deputy district attorney's misconduct in this case, the error involved is not sufficient to merit reversal of appellant's conviction. Reversal of judgment is designed not so much to punish prosecutors as to protect the fair trial rights of defendants. Hence, in the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal. (See, e. g., People v. Lambert (1975) 52 Cal.App.3d 905, 911, 125 Cal.Rptr. 404.)

Under traditional application of this state's harmless error rule, the test of prejudice is whether it is "reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant. (Citations.)" (People v. Beivelman (1968) 70 Cal.2d 60, 75, 73 Cal.Rptr. 521, 529, 447 P.2d 913, 921.) However, if federal constitutional error is involved, then the burden shifts to the state "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710.)

Whatever test of prejudice this court applies to the present case, it is certain that any reasonable jury would have reached the same verdict even in the absence of the prosecutor's remarks. ⁴ Appellant himself admitted at trial that he did the shooting. The only question for the jury was whether it was done in self-defense. Even if appellant's reconstruction of the day's events were believed entirely, the assault still could not be justified as self-defense. Appellant was clearly the aggressor in the evening's quarrel. He pointed his gun at Hollister at a time when Hollister made no immediate threat against him. When Hollister reached as for a gun, appellant as the aggressor was bound to retreat and not to stand his ground. (People v. Evans (1969) 2 Cal.App.3d 877, 882, 82 Cal.Rptr 877; People v. Garcia (1969) 275 Cal.App.2d 517, 523, 79 Cal.Rptr. 833.) However, instead of retreating, appellant fired his gun.

Since appellant's theory of self-defense was insufficient as a matter of law, the prosecutor's misconduct must be held harmless beyond a reasonable doubt. Appellant's own admissions torpedoed his defense.

This court wishes to emphasize that our refusal to reverse appellant's conviction should in no way be taken as condonation for the deputy district attorney's misconduct. A closer case, marred by the same misconduct, might well require reversal. Therefore, this court again "warn(s) prosecutors that they cannot continue with impunity to engage in (improper) conduct thinking that appellate courts will save them by applying the harmless error rule. Convictions have been reversed before, and will continue to be, whenever prejudicial misconduct occurs." (People v. Lambert, supra, 52 Cal.App.3d 905, 912, 125 Cal.Rptr. 404, 408, see also People v. Linden (1959) 52 Cal.2d 1, 27, 338 P.2d 397.) ⁵

III

Appellant separately challenges the trial court's decision to deny probation and sentence him to state prison. ⁶ The granting or denial of probation is a matter for the discretion of the trial court. (People v. Edwards (1976) 18 Cal.3d 796, 807, 135 Cal.Rptr. 411, 557 P.2d 995.) However, "(t)he courts have never ascribed to judicial discretion a potential without restraint." (People v. Russel (1968) 69 Cal.2d 187, 194, 70 Cal.Rptr. 210, 215, 443 P.2d 794, 799.) Discretion is compatible only with decisions "controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . ." (People v. Surplice (1962) 203 Cal.App.2d 784, 791, 21 Cal.Rptr. 826, 831.)

At the sentence hearing the trial judge abused his discretion when he expounded at length on the...