Court of Appeal, Third District, California
People v. McCree
2002 WL 276134 (Cal. 2002)
Defendant was convicted, after a jury trial, of eight counts of possession and training of a fighting dog and two counts of causing a dogfight for gain. Defendant appealed. The Court of Appeal, held that: (1) prosecutor's cross-examination of defense witness was proper; (2) prosecutor's closing arguments were proper; and (3) evidence supported the convictions.
delivered the opinion of the court.
Opinion of the Court:
A jury found defendant Samuel Anderson McCree guilty of eight counts of possession and training of a fighting dog and of two counts of causing a dogfight for gain. The trial court suspended imposition of sentence and placed defendant on probation for five years, with one year in county jail. Defendant appeals. We conclude (1) he has failed to provide authoritative support for any contention of error and (2) his contentions lack merit. We therefore affirm.
On April 1, 1999, authorities went to defendant's home in Galt to execute a search warrant. Authorities discovered evidence defendant was involved in dogfighting. One item discovered during the investigation was a stained roll of carpet. Carpets are used to provide traction for fighting dogs. Although the prosecution believed the stain was blood, a chemical analysis of the carpet came back presumptively negative. During his testimony, Officer Christopher Sanford agreed with the prosecutor "presumptively negative" meant "[t]he results didn't say that they knew for certain that it was negative, just presumed it was negative...."
Also found on defendant's property were 15 pit bull terriers. Inspection of the dogs revealed physical traits consistent with those of fighting dogs. Specifically, "dog 5" had deep scarring around the eyes, nose, muzzle, ears, forearms, and hind legs, and it had several broken teeth. Similarly, "dog 13," a two- to three-year-old pit bull, had scarring on his front legs and muzzle and had a limp in his left rear leg.
An expert testified dogs begin fighting when they are two to three years old. Experts, however, were unable to determine the age of many of defendant's dogs. In addition, experts were unable to determine the date of the dogs' scarring.
Many of the dogs were shipped to defendant from Georgia. One expert testified dogfighters commonly ship dogs to other parts of the country to engage in contract fights. Georgia, in particular, is considered a hotbed for dogfighting.
Defendant presented evidence he was not a dogfighter. He sought to prove he was only involved in legitimate dog activities. Defendant called witnesses, whom he knew from various legitimate dog activities, to prove he was not a dogfighter. Judith Brecka, who is an attorney, testified she and defendant were in the same dog association during the 1980's. She testified defendant participated in dog shows. Brecka explained she had never been involved in any organization advocating dogfighting and she had never associated with anyone as friends who was involved in dogfighting. On cross-examination, the prosecutor learned Brecka had represented a client in a civil case who had previously been convicted of dogfighting. Brecka also testified on cross-examination she knew Richard Stratton, an author and advocate of dogfighting, and she had read his books.
Waiver of Issues
Defendant makes three arguments on appeal: (1) the prosecutor engaged in misconduct by making an argument to the jury not based on evidence presented at trial; (2) the prosecutor engaged in misconduct while impeaching a witness; and (3) the court erred by allowing the prosecutor to argue an inference not supported by the evidence. In making these arguments, however, defendant cites no authoritative support--no statute, no case law, nothing.
"Where a point is merely asserted by appellant's counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court ." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647, 199 Cal.Rptr. 72; People v. Dougherty (1982) 138 Cal.App.3d 278, 282, 188 Cal.Rptr. 123.)
Furthermore, defendant does not state the standard for determining whether the type of error he asserts was prejudicial and makes no effort to establish that the asserted errors were prejudicial under the appropriate standard. We are constitutionally precluded from reversing without a determination that there was error and that the error was prejudicial. (See Cal. Const., art. VI, § 13; People v. Molina (2000) 82 Cal.App.4th 1329, 1335-1336, 98 Cal.Rptr.2d 869 .)
Defendant appends to his opening brief a copy of a points and authorities in support of a new trial motion, which he may have filed in the trial court, although the copy does not so reflect. He attempts to incorporate the points and authorities by reference into his opening brief and requests this court to "review the same." "[A]n appellant must fully present all arguments in briefs rather than incorporate them by reference from papers filed below." (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1422, 267 Cal.Rptr. 819; see also Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334, 4 Cal.Rptr.2d 897.) Thus, we will not review the points and authorities. We further note, however, that there is no discernible appellate issue contained in that document.
The authorities cited in the points and authorities in support of the new trial motion do not relate to defendant's contentions on appeal. He cited Penal Code section 1181 as authority for the trial court to grant a new trial. Additionally, he cited several cases for the generic propositions that the trial court must reweigh the evidence in deciding whether to grant a new trial and that a new trial may be granted when newly discovered evidence is presented.
Since defendant has presented no authoritative reason for reversal, his contentions fail.
Issues On Appeal Are Without Merit
It is understandable no authorities are cited because the law does not support defendant's contentions.
Defendant first argues the prosecutor engaged in misconduct by (1) questioning defense witness Judith Brecka concerning her knowledge of Richard Stratton, an author on dogfighting, and (2) arguing the photograph of Brecka's dog leaping over an agility jump was falsified. Prosecutorial error results in reversal only when it is "reasonably probable that a result more favorable to the defendant would have occurred" in the absence of the improper conduct. (People v. Beivelman (1968) 70 Cal.2d 60, 75, 73 Cal.Rptr. 521, 447 P.2d 913; People v. Haskett (1982) 30 Cal.3d 841, 866, 180 Cal.Rptr. 640, 640 P.2d 776.) On cross-examination, a witness may properly be questioned about matters within the scope of his direct examination. (Evid.Code, § 773, subd. (a); People v. Swayze (1963) 220 Cal.App.2d 476, 497, 34 Cal.Rptr. 5.) Prosecutors have wide latitude to draw inferences from evidence presented at trial and to present facts vigorously. (People v. Dennis (1998) 17 Cal.4th 468, 522, 71 Cal.Rptr.2d 680, 950 P.2d 1035; see also People v. Samayoa (1997) 15 Cal.4th 795, 841, 64 Cal.Rptr.2d 400, 938 P.2d 2.) With regard to fabricated evidence, a prosecutor may argue testimony or evidence is fabricated when the argument is supported by the evidence and inferences. (People v. Cummings (1993) 4 Cal.4th 1233, 1303, fn. 49, 18 Cal.Rptr.2d 796, 850 P.2d 1, People v. Adcox (1988) 47 Cal.3d 207, 237, 253 Cal.Rptr. 55, 763 P.2d 906.)
The prosecutor here did not commit misconduct. The prosecutor was allowed to cross-examine Brecka about her association with dogfighters, including Stratton and a prior client she had represented, because during direct examination she claimed she did not advocate or associate with people involved in dogfighting. The prosecutor's questions regarding Brecka's photograph were also valid because her jumping dog created no shadow on a sunny day. This evidence supports the prosecutor's inference that the photograph was falsified.
Second, defendant contends the prosecutor engaged in misconduct by arguing forensic testing did not positively rule out the presence of blood on the carpet. " '[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the conclusions are illogical because these are matters for the jury to determine.' " (People v. Thomas (1992) 2 Cal.4th 489, 526, 7 Cal.Rptr.2d 199, 828 P.2d 101, quoting People v. Lewis (1990) 50 Cal.3d 262, 283, 266 Cal.Rptr. 834, 786 P.2d 892.)
The prosecutor did not engage in misconduct by concluding the lab results on the stained carpet were inconclusive. The prosecutor's inference was logical because Officer Sanford testified the lab results came back "presumptively negative," meaning the results were not certainly negative. Based on this testimony the prosecutor was entitled to conclude the lab results were inconclusive.
Third and finally, defendant argues the evidence was insufficient to support his convictions of dogfighting associated with dog 5 and dog 13. (Pen.Code, § 597.5, subd. (a)(1) & (2).) [FN1] Defendant contends that, because the dogs' ages, the age of the various scars, and the date the dogs were shipped from Georgia are all unknown, there is no evidence the dogs were fought while living with him. In considering a claim for insufficient evidence on appeal, the court must view the evidence in the light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618.) "Where as here the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding does not render the evidence insubstantial." (People v. Earp (1999) 20 Cal.4th 826, 887-888, 85 Cal.Rptr.2d 857, 978 P.2d 15, citations and internal quotation marks omitted .)
FN1. Penal Code section 597.5, subdivision (a)(1) & (2) holds criminally liable anyone who "[o]wns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog" or "[f]or amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other."
The circumstantial evidence presented at trial supported the jury's convictions regarding dogs 5 and 13. Both dogs were heavily scarred and possessed other physical ailments common to fighting dogs. Dog 13 was of prime dogfighting age. Defendant argues the evidence suggests the dogs were injured in Georgia, prior to his ownership of them. However, the jury was not limited to this inference. The jury could have concluded the shipment of dogs to or from Georgia proved nothing or, worse for defendant, was circumstantial evidence of defendant's intent to engage in dogfighting. The evidence demonstrated dogfighters often transport their dogs to different parts of the country to engage in contract fights. Dogfighting is especially popular in Georgia. The circumstantial evidence therefore was sufficient to sustain these convictions.
The judgment is affirmed.