People v. Lambert

• Citation: 52 Cal.App.3d 905,125 Cal.Rptr. 404
• Decision Date: 12 November 1975
• Docket Number: Cr. 12125
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Morris Lee LAMBERT, Defendant and Appellant.

Page 404

125 Cal.Rptr. 404

52 Cal.App.3d 905

PEOPLE of the State of California, Plaintiff and Respondent, v. Morris Lee LAMBERT, Defendant and Appellant.

Cr. 12125.

Court of Appeal, First District, Division 1, California.

Nov. 12, 1975.

Benjamin R. Winslow, Winslow & Schmidt, San Francisco, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein and Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

THE COURT: ^*

This is an appeal from a judgment entered after appellant was convicted by a jury of being an ex-felon in possession of a firearm in violation of section 12021 of the Penal Code and of simple assault in violation of section 240 of the Penal Code, as a lesser included offense of assault with a deadly weapon.

Appellant contends that the prosecutor committed numerous instances of misconduct and that he was prejudiced thereby. We are of the opinion that misconduct did occur in various instances, but for reasons expressed below, we feel there was no prejudice to appellant.

"(M)isconduct' implies a dishonest act or attempt to persuade the court or jury, by use of deceptive or reprehensible methods'. (People v. Asta (1967) 251 Cal.App.2d 64, 86, 59 Cal.Rptr. 206, 221; see also People v. Beivelman (1968) 70 Cal.2d 60, 75, 73 Cal.Rptr. 521, 447 P.2d 913, cert. den. 406 U.S. 971, 92 S.Ct. 2415, 32 L.Ed.2d 671.) Absent an objection to the alleged misconduct, however, and a request for an admonition, no claim of misconduct can generally be considered on appeal. (People v. Perry (1972) 7 Cal.3d 756, 790, 103 Cal.Rptr. 161, 499 P.2d 129; People v. Berryman (1936)6 Cal.2d 331, 337, 57 P.2d 136.) The claims may be considered absent an objection and request for admonition if: (1) "the case is closely balanced and there is grave doubt of defendant's guilt, and the acts of misconduct are such as to contribute materially to the verdict," or (2) "where the act done or remark made is of such a character that a harmful result cannot be obviated or cured by any retraction of counsel or instruction of the court. " (See People v. Perry, supra, 7 Cal.3d 756, 790, 103 Cal.Rptr. 161, 499 P.2d 129, quoting from People v. Berryman, supra, 6 Cal.2d 331, 337, 57 P.2d 136.)

Many of appellant's contentions must be rejected on the basis of the above principles. Because there was no objection made when the prosecutor pointed out that appellant was sleeping, or when he referred in his closing argument to appellant's sleeping, no claim of misconduct can be predicated on these comments.

There was also no objection to the attempted impeachment of appellant by a prior felony conviction. Absent any stipulation, such impeachment would obviously have been proper once appellant took the stand on his own behalf. (See People v. Beagle (1972) 6 Cal.3d 441, 453--454, 99 Cal.Rptr. 313, 492 P.2d 1; Evid.Code, § 788.) Here there was a stipulation to the effect that the nature of the prior be kept from the jury during the reading of the information. It is not clear, however, whether the stipulation was intended to extend any further than the reading of the information. Defense counsel implied he wanted a broader extension, but the stipulation as ultimately formulated seemingly applied only to the reading of the information. This characterization probably explains why no objection was made when the nature of the prior was brought out on cross-examination. In light of the nature of the stipulation and the lack of an objection to the attempted impeachment, there is no cognizable misconduct which can now be challenged.

Since the impeachment was proper, there was no misconduct in referring to the nature of the prior in the prosecutor's closing argument.

Other contentions must be rejected because the conduct involved was clearly neither improper, nor prejudicial, if improper. Since the prosecutor possessed several psychiatric reports which showed that appellant used heroin, it was not improper for him to inquire into a juror's potential bias due to appellant's drug usage. The prosecutor attempted on cross-examination to elicit appellant's heroin usage; thus, it is not true, as appellant claims, that there was no basis for the prosecutor's actions during the Voir dire.

Although the prosecutor made a remark to defense counsel that was best left unsaid, it was made in chambers and therefore could not have prejudiced appellant in any way.

The remainder of appellant's contentions are not so lightly dismissed. Many have merit, and in addition, our review of his contentions uncovered other examples of prosecutorial misconduct. In general, the record shows a prosecutor who was often obstreperous with the trial court and whose conduct surpassed even the bounds of the non-Chesterfieldian politeness allowed prosecutors in an adversary system. (See People v. Hayes (1971) 19 Cal.App.3d 459, 470, 96 Cal.Rptr. 879.)

There were numerous instances in which objections to the prosecutor's conduct were sustained by the trial court. Although these instances do not by themselves show misconduct, they are part of the context in which other improper comments were made. For example, during the cross-examination of Jerry Tyson, the prosecutor unfairly raised the issue of Tyson's drug usage, saying he would make an offer of proof on the subject when Tyson claimed his Fifth Amendment privilege, and then proceeded to drop the matter after Tyson denied such usage. Defense counsel apparently started to object to the prosecutor's actions, but was cut off by the prosecutor, who continued with a different question.

Although no formal objection was made to the above conduct, we deem the claim of misconduct arising therefrom to be cognizable under the exceptions to the general rule.

More serious misconduct occurred in the prosecutor's closing argument when the prosecutor noted that Tyson had been brought in through a holding cell door and then argued that he was therefore less believable than the prosecution witnesses who had come in through a different door, presumably a public entrance. Upon an objection to this comment, the prosecutor argued that his statement was merely a logical inference from the 'evidence' since Tyson was wearing prison garb and this was visible to the jury.

The statement was not one addressed to the evidence as the prison garb was not offered to prove the existence or nonexistence of a fact (See Evid.Code, § 140.) Absent impeachment by a prior felony, the prosecutor acted improperly in making the comment he did and arguing the credibility of witnesses on the basis thereof. (See Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 129, 116 Cal.Rptr. 713.)

We are persuaded that comments made by the prosecutor to the effect the defense was fabricated were based on the evidence in that appellant changed his testimony in...