Filed 11/24/14 P. v. Jones CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B251324

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA397754)
         v.

DARLA RAY JONES,

         Defendant and Appellant.


In re DARLA RAY JONES                                               B255936

         on Habeas Corpus.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Carol H.
Rehm, Jr., Judge. Affirmed.
         ORIGINAL PROCEEDING; petition for a writ of habeas corpus. Petition
dismissed.
         Maria Leftwich, under appointment by the Court of Appeal, for Defendant,
Appellant, and Petitioner.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Linda C. Johnson, Supervising Deputy Attorney General, Tita Nguyen, Deputy
Attorney General, for Plaintiff and Respondent.
       Defendant Darla Jones appeals from the judgment entered following a jury trial in
which she was convicted of two counts of criminal threats and two counts of assault with
a firearm. Defendant also petitions for a writ of habeas corpus, raising the same issues as
on appeal: the prosecutor committed misconduct by failing to correct false and
misleading testimony by the victims and trial counsel rendered ineffective assistance by
failing to examine the prosecutor’s investigator about the victims’ statements during an
interview. We conclude neither claim has merit, and therefore affirm the judgment and
dismiss the habeas corpus petition for failure to state a prima facie claim.
                                      BACKGROUND
1.     The charged offenses
       Defendant had been the girlfriend of, and caregiver for, Kirk Livingston. Before
Livingston died, he asked his brother, Darryl Israel, to help defendant and look out for
her. Israel honored his brother’s request by supporting defendant financially October
2011 through April 2012 and lending her his car for about two months. When defendant
lost her home, Israel financed her move into a rehabilitation facility and helped her get a
storage facility for her possessions. Israel, who was married and had a girlfriend, also had
a “one night stand” with defendant.
       On Friday, April 27, 2012, defendant phoned Israel and asked him for $80.1 Israel
arranged to meet defendant in a drugstore parking lot and drove there with his coworker,
Terrence Hite. Hite stayed in the truck while Israel spoke to defendant. Israel gave
defendant $40 and showed her he had only $3 left. Defendant became angry. Israel, who
had given defendant $80 the day before, asked her why she needed money all the time and
whether she was using crack. Defendant moved toward Israel in a threatening manner
and, close to his face, replied that it was her own business. Israel said he was not going to
give her any more money, and defendant responded, “‘I will shoot your bitch ass.’”



       1   Undesignated date references pertain to 2012.


                                              2
       Hite got out of the truck and approached Israel and defendant. Defendant pulled a
loaded revolver from the pocket of her sweatshirt, pointed it at Hite and Israel, and
threatened to “kill both of you.” Hite retreated to the truck, while defendant warned
Israel he had better have her money the next time she saw him. She also referred to
“‘blood.’” She then got into a car and drove away.
       Israel testified he was in shock. Defendant had previously told Israel she was a
“Black Peastone Blood gang member.” Defendant’s statements, use of a gun, and gang
membership caused Israel to fear for his life. Nonetheless, Israel did not call the police
immediately because he was in shock and Hite said he wanted to talk to his “brother,”
who was a police officer.
       Hite testified he had heard defendant claim gang membership on a prior occasion,
and this, in addition to defendant’s threat and use of a gun made him fear for his life. He
explained he nevertheless did not call the police right away because he had prior
convictions and because he thought it was really Israel’s business. The next day, Hite
phoned his cousin, who was an LAPD officer, and his cousin told him to go to the 77th
Division police station to report the incident.
       Israel and Hite, who did not work on Saturdays, went to the Southeast Division
police station to report the incident on Saturday, April 28. Officers at that station told
them they would transfer the matter to the 77th Division station. On Monday, April 30,
Israel and Hite went to the 77th Division station. Somehow, the date of the offense was
recorded as April 28, not April 27. At the preliminary hearing, both testified the crime
was on April 28. Sometime after the preliminary hearing and before trial, Israel and Hite
told the prosecutor the crime was on April 27, not April 28.2
       The prosecutor’s investigator, James Fontenette, testified he was present when the
prosecutor interviewed Israel and Hite “in the field” in December 2012. The prosecutor
asked whether they were sure about the date of the incident.

       2   This error forms the basis for the issues raised on appeal and in the writ petition.


                                               3
2.     Verdict and sentencing
       The jury convicted defendant of two counts of criminal threats and two counts of
assault with a firearm. It found defendant personally used a gun in the commission of
each offense. (Pen. Code, § 12022.5, subd. (a).) The trial court sentenced defendant to
13 years in prison.
       Defendant appealed from the judgment and filed a petition for a writ of habeas
corpus, which we agreed to consider with the appeal.
                                       DISCUSSION
1.     Prosecutorial misconduct
       On appeal and in her petition for a writ of habeas corpus, defendant contends the
prosecutor committed misconduct by failing “to correct the false and misleading
testimony of both Israel and Hite” regarding contact between them and the prosecutor
regarding the change of dates. Defendant argues “Israel testified falsely that he had
contacted the prosecutor about the date being incorrect before [the prosecutor] contacted
him” and “Hite’s testimony was misleading in that he testified that he had been trying to
convince Israel ‘the whole time’ that the date in the police report was wrong and the
prosecutor did not ‘call’ him and tell him the date was incorrect.”
       a.     Proceedings in the trial court
              (1)     Israel’s testimony
       Israel testified on direct examination that when he reported the incident to the
police, he did not “have the accurate date.” He “thought the 28th was a Friday,” whereas
it was actually a Saturday. Israel inconsistently testified both that he told the officer the
incident was on April 28 and that the officer somehow wrote down the wrong date. The
prosecutor asked, “You knew it happened on the 27[th]?” Israel replied, “Yeah.”
       On cross-examination, counsel asked, “Is there any reason why when you made
your report you said the incident occurred on the 28[th]?” Israel responded, “I got the
days wrong and I thought the Saturday the 28th was a Friday and then it came back it was
a Saturday, so I was mixed up. The date—” Counsel interrupted, asking, “You got the


                                               4
date wrong two days later?” Israel replied, “No. The next day we did the report at
Southeast and the detective whoever the officer wrote down the wrong date and then they
said that they were going to transfer it down to another station down to 77th Division and
say, go down there, and then they were going to transfer it over there, so we went down
there the next day.” Counsel asked if the officers at 77th Division also wrote down the
wrong date. Israel testified, “No. They transferred that same report over to the 77th
Division.” When officers at the 77th Division station interviewed Israel, they did not ask
him the date of the offense. He further testified he gave the police the wrong date
because, “I was mixed up. The date—the day I assumed it was Friday. I didn’t look at a
calendar.”
       Israel admitted he had testified at the preliminary hearing3 that the crime was on
the 28th. He first realized the 28th was not the correct date “about a week or so” “after
the testimony.” Defense counsel asked, “So a week after the preliminary testimony you
went to the district attorney or to the police and told them you got the date wrong?” Israel
responded, “Yeah, pretty much.” He added, “I don’t know if it was right then and there,
but I told her.” Asked if he told her a week after the preliminary hearing, Israel testified,
“Not a week. That is when I realized it was.” Asked when he told the prosecutor he had
the date wrong, Israel replied, “It had to be after Mr. Hite convinced me that the date was
wrong.” He agreed with defense counsel’s assertion he “needed Mr. Hite to convince
[him] of the date that this occurred.”
       Defense counsel asked, “Did the district attorney indicate to you that the date was
wrong that it couldn’t be the 28th. This could not have been the 28th. And you still said
it was the 28th and then called back later and said, no, sorry it wasn’t the 28[th]?” Israel
replied, “No. I told them it was a Friday and she said it was a Saturday. That date was
wrong.” Counsel asked, “So that is the first time you told her that, okay, you did have the
wrong date after she told you it was a Saturday?” Israel responded, “No, I hadn’t looked

       3   The preliminary hearing was June 29, 2012.


                                              5
at the calendar by then and said well Friday was the 27[th].” Counsel then asked, “So you
voluntarily went to the district attorney’s office and told her that you had the—she had the
date wrong?” Israel replied, “I called her, yeah.” Defense counsel asked, “She didn’t
contact you first?” Israel said, “No.”
       Defense counsel asked why Israel had not let anyone know the date was wrong
sooner. Israel replied, “I didn’t know.” Counsel asked, “Isn’t it a fact the only time—the
first time you ever said, okay, the date was wrong [was] after being told that it couldn’t
have been the 28th?” Israel responded, “No. No one ever told me that.” Counsel asked
when Israel called the prosecutor and told her he had the date wrong. Israel said it was
“earlier this month.” Israel testified on February 28, 2013.
       On redirect examination, Israel explained that when he had reported the crimes he
had said it happened “last Friday,” and the officer must have erroneously written down
the 28th. He reviewed the police report prior to the preliminary hearing, which reflected
the date of the crimes was the 28th, so he relied on that date in his testimony at the
preliminary hearing. No one asked him at the preliminary hearing what day of the week
the crimes occurred.
              (2)      Hite’s testimony
       On direct examination, Hite testified he was aware the crime report said the crimes
occurred April 28, which he now knew was a Saturday, but he knew the crimes actually
occurred on a Friday because he did not work Saturdays. After he realized the date was
wrong, he told Israel and they corrected the date.
       On cross-examination, Hite testified when they first went to the police on
Saturday, April 28, they told the officers the crimes “happened that Friday, the day
before.” He did not know if the officers wrote down the wrong date. When they went to
the 77th Division police station on Monday, April 30, he told the officers the crime
happened on Friday, without stating a date. Hite testified he realized the date was wrong
“[m]aybe a couple of months ago” and called the prosecutor to tell her. He added, “I was
trying to convince Mr. Israel the whole time that it wasn’t that date. We were going by


                                              6
what the date was on the police report.” Defense counsel asked, “Are you sure she didn’t
call you and tell you that the date was wrong?” Hite replied, “No.” Counsel did not
attempt to clarify whether Hite’s response meant the prosecutor did not call him and tell
him the date was wrong or he was not sure if she did so.
              (3)     Discussion between court and counsel about Fontenette’s
proposed testimony
       Outside the presence of the jury, defense counsel told the court he wanted to call
the prosecutor’s investigator, Fontenette, to address “[t]he fact that the district attorney as
well as Mr. Fontenette approached both of the alleged victims first about the date being
wrong after the defense had given [them] evidence that [defendant] couldn’t have
committed this crime on the 28th.” Defense counsel explained the prosecutor had told
him that at some point she spoke to the victims about the date, and they insisted the 28th
was the correct date but “they called back a few hours later and said, no, we did have the
date wrong and apparently it was a few days later.” Counsel explained he found it
suspicious that the date was changed only after he proved to the prosecutor that defendant
had an alibi for the 28th.
       Defense counsel told the court he had assumed the prosecutor had spoken to the
victims on the phone, but apparently it was “in the field.” Counsel noted when he
“questioned [the victims] yesterday about it, they both are testifying and giving the
inference that they were the ones who brought up first the date being wrong and that is
not the case.” He conceded there was no prior inconsistent statement due to the way he
questioned the victims, but explained he was not trying to elicit any prior inconsistent
statements, he merely wanted “to put on the record what actually happened. If I don’t get
to do that, they are giving the inference which the People know is wrong that they were
the ones who contacted about the date first.” Counsel also argued it would be unfair to
prevent him from doing so because the prosecutor had not given him a report reflecting
these follow-up contacts with the victims.




                                               7
       Defense counsel represented the prosecutor had told him Fontenette was present
when she spoke to the victims, and he wanted to ask Fontenette whether Fontenette or the
prosecutor asked the victims “about the dates possibly being wrong” and whether “that’s
the first time there was any discussion about the dates being wrong. That is it.”
       The prosecutor explained, “[W]e were not prompting the victims to change the
date. Our questions started with, are you sure this happened? That is the point of these
interviews. We spoke to them after we spoke to the alibi witness that was presented by
the defense for April 28.” She told the court she had listened carefully to cross-
examination of the victims and “every single answer that the witness provided was
accurate in terms of what occurred because the questions were not well phrased.” She
noted that throughout cross-examination defense counsel had not permitted the victims to
expand upon their yes or no answers. She argued there were no inconsistent statements
and defense counsel was seeking to introduce hearsay. She further argued it would be
unfair and inaccurate to make it appear the victims were not testifying truthfully, and
represented she would not argue the victims “came up with this date all by themselves.”
       The court agreed to allow the defense to call Fontenette. Upon inquiry by the
prosecutor, defense counsel represented he would not ask Fontenette what the victims
said, but instead whether Fontenette and the prosecutor approached the victims about the
date and whether that was “the first time the date was ever brought up.” The prosecutor
noted the case had been investigated by LAPD officers before her office took over the
investigation, so Fontenette would not be able to testify to when a victim first said
something. She also cautioned that Fontenette would not be able to testify to the victims’
contacting her and telling her the date was wrong. Defense counsel replied, “I am not
going to question them about that.”
       Thereafter, Fontenette testified as previously described.
       b.     Principles regarding prosecutorial misconduct
       “A prosecutor’s conduct violates a defendant’s federal constitutional rights when it
comprises a pattern of conduct so egregious that it infects ‘“the trial with unfairness as to


                                              8
make the resulting conviction a denial of due process.” [Citation.]’ [Citation.] . . .
Conduct that does not render a trial fundamentally unfair is error under state law only
when it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.’” [Citations.]’” (People v. Bennett (2009) 45 Cal.4th 577,
594–595.) A prosecutor may not knowingly present false evidence and must correct any
testimony by a prosecution witness that he or she knows, or should know, is false or
misleading. (People v. Harrison (2005) 35 Cal.4th 208, 242; People v. Dickey (2005) 35
Cal.4th 884, 909.)
       c.     The prosecutor did not commit misconduct
       At trial, defendant assumed the prosecutor had told the victims the defendant could
not have committed the crimes on April 28. Defendant’s claims on appeal and in her
petition for a writ of habeas corpus also depend upon this assumption. However, nothing
in the record supports this assumption. The prosecutor told the trial court she was “not
prompting the victims to change the date.” Israel denied anyone told him the crimes
could not have been committed on April 28. Hite denied the prosecutor told him the date
was wrong. Even the declaration of trial counsel attached to the petition for a writ of
habeas corpus does not support the assumption. Trial counsel instead stated, “I was told
by the DA that she and the DA investigator interviewed Hite and Israel after confirming
that [defendant] could not have committed the crime on the 28th. According to the DA,
both Hite and Israel maintained that the 28th was the correct date. The DA then told me
that Hite and Israel called her several days later and then told her the 28th was the wrong
date.” The declaration does not state the prosecutor told the victims defendant had an
alibi for April 28 or that April 28 could not be the correct date.
       A review of defense counsel’s cross-examination of Israel undermines defendant’s
claim Israel provided false or misleading testimony. Defense counsel asked, “Did the
district attorney indicate to you that the date was wrong that it couldn’t be the 28th. This
could not have been the 28th. And you still said it was the 28th and then called back later
and said, no, sorry it wasn’t the 28[th]?” Israel replied, “No. I told them it was a Friday


                                              9
and she said it was a Saturday. That date was wrong.” The question was compound and
incorporated the unsupported assumption that the prosecutor told the victims the crimes
could not have been committed on April 28. Israel’s response was neither false nor
misleading.
       Similarly, defense counsel asked, “Isn’t it a fact the only time—the first time you
ever said, okay, the date was wrong [was] after being told that it couldn’t have been the
28th?” Israel responded, “No. No one ever told me that.” (RT 667)~ This question also
incorporated the unsupported assumption, and Israel’s response was neither false nor
misleading.
       The only arguably misleading testimony by Israel occurred when defense counsel
asked, “So you voluntarily went to the district attorney’s office and told her that you had
the—she had the date wrong?” Israel replied, “I called her, yeah.” Defense counsel next
asked, “She didn’t contact you first?” Israel said she had not. The field interview of
Israel by the prosecutor constituted a form of “contact,” but defense counsel’s questioning
regarding the change of dates had repeatedly referred to phone calls between Israel and
the prosecutor and Israel’s immediately preceding response had referred to his phone call
to the prosecutor. It appears Israel may have construed “contact” in this context to refer
to telephone contact, not the prior interview. However, subsequent testimony effectively
eliminated any potential for misleading the jury. Israel testified he called the prosecutor
“earlier this month,” that is, February of 2013, to tell her April 28 was the wrong date,
and Fontenette testified the prosecutor conducted a field interview with the victims in
December 2012, during which the prosecutor asked them whether they were sure about
the date of the incident. Thus, the jury learned the prosecutor indeed had “contacted”
Israel before he phoned her to say April 28th was the wrong date. At worst, the purported
discrepancy in Israel’s testimony reflected negatively upon his credibility.
       Defense counsel asked Hite, “Are you sure [the prosecutor] didn’t call you and tell
you that the date was wrong?” Hite replied, “No.” This question not only incorporated
the unfounded assumption, but also specifically referred to a phone call to Hite by the


                                             10
prosecutor. Hite’s response was subject to differing interpretations, given the manner in
which the question was framed, but it cannot be viewed as false or misleading.
       Moreover, the jury learned from the testimony of the victims and Fontenette that
the crimes were somehow reported as occurring on April 28, the victims testified at the
preliminary hearing the crime occurred on April 28, the prosecutor interviewed the
victims about two months before trial and asked them whether they were sure about the
date of the crimes, then sometime later, perhaps just a few weeks before trial, the victims
realized that April 28 was the wrong date and informed the prosecutor the crimes actually
occurred on April 27. There was thus nothing for the prosecutor to “correct,” and there is
no possibility defendant was prejudiced by the prosecutor’s failure to elicit testimony
from either victim or her investigator to the effect that the victims did not tell her the
crimes occurred April 27 until sometime after she interviewed them and asked if they
were certain about the date of the crime. Accordingly, any arguable “misconduct” was
harmless beyond a reasonable doubt.
       For all of these reasons, defendant’s prosecutorial misconduct claim has no merit
and fails to state a prima facie case for relief (People v. Duvall (1995) 9 Cal.4th 464, 475
[petition for writ of habeas corpus stating no prima facie case for relief will be summarily
denied]).
2.     Ineffective assistance of counsel
       Defendant contends trial counsel rendered ineffective assistance by failing to
adequately examine Fontenette about the prosecutor’s interviews with Israel and Hite.
She argues, “If trial counsel had asked Fontenette about Israel’s and Hite’s response to
the prosecutor’s questions about the date, the jury would have heard that both witnesses
maintained that the date of the incident was April 28th. It would have then been clear that
Israel and Hite only changed the date after being contacted by the prosecutor.”
       a.     Elements of an ineffective assistance of counsel claim
       A claim that counsel was ineffective requires a showing, by a preponderance of the
evidence, of objectively unreasonable performance by counsel and a reasonable


                                              11
probability that, but for counsel’s errors, the defendant would have obtained a more
favorable result. (In re Jones (1996) 13 Cal.4th 552, 561 (Jones).)
       b.     Defense counsel did not provide ineffective assistance
       The combined testimony of the victims and Fontenette fully informed the jury that
the prosecutor interviewed the victims about two months before trial and asked them
whether they were sure the crimes occurred on April 28, then sometime later, perhaps just
a few weeks before trial, the victims realized that April 28 was the wrong date and
informed the prosecutor the crimes actually occurred on April 27. That the victims
adhered to the April 28 date during their interviews by the prosecutor was implicit in light
of this testimony. Accordingly, it is not reasonably probable defendant would have
obtained a more favorable result if defense counsel had “asked Fontenette about Israel’s
and Hite’s response to the prosecutor’s questions about the date” during the December
2012 interview.
       Given the absence of any prejudice, defendant’s ineffective assistance of counsel
claim has no merit and fails to state a prima facie case for relief. We need not address
whether defense counsel misconstrued the court’s rulings on the scope of Fontenette’s
testimony or whether the statements of the victims during the interview would have been
admissible, as argued in the context of defendant’s habeas corpus petition.




                                             12
                                    DISPOSITION
      The judgment is affirmed. The petition for a writ of habeas corpus is dismissed.
      NOT TO BE PUBLISHED.


                                                MILLER, J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



                                           13
