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Court of Appeal:
Criticizing U.S. High Court in Closing Argument Is Error
Opinion Says It Was Misconduct for Lawyer to Suggest Co-Conspirator, a Minor, Got Off ‘Scot-Free’ With Low Sentence ‘Because of’ Supreme Court
By a MetNews Staff Writer
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KIMBERLY MELISSA
DEGONIA |
A prosecutor’s criticism, during closing argument in a murder trial, of the sentence imposed on a juvenile co-conspirator accused of firing the gun in a drive-by shooting—saying he got off “scot-free” with a five-year sentence “because of the Supreme Court”—amounted to prosecutorial misconduct, Div. Three of the Fourth District Court of Appeal has held.
The court found additional errors by then-Riverside County Deputy District Attorney Kimberly Melissa Degonia (now in private practice with the Newport Beach firm of Andrews & Thorton) but concluded that the misconduct was not prejudicial due to the strong nature of the evidence against the defendant.
Challenging his conviction due to the prosecutor’s statements was Kamryon Barnett, who was convicted following a jury trial of two counts of first-degree murder and a single charge of premeditated attempted murder. Riverside Superior Court Judge Bernard Schwartz sentenced him to two consecutive terms of life without the possibility of parole, plus 57 years to life.
Barnett and co-defendant Desmond Ochoa, each members of the Sex Cash/Lavish Goons gang, were identified as being in a Dodge Caliber when 15-year-old J.C. fired a gun from the vehicle, killing brothers Jeremiah and Elijah Ascencio, ages 17 and 20, in a drive-by shooting.
The evidence presented at trial to link Barnett to the murders included DNA analysis indicating that he had touched the interior rear passenger door handle of the Dodge, social media posts showing the defendant holding a firearm, and text messages with rap lyrics referencing the murders and saying that he was likely to “do some time.”
Justice Martha K. Gooding authored the unpublished opinion, filed Wednesday, finding prosecutorial misconduct but affirming the judgment of conviction. Acting Presiding Justice Thomas M. Goethals and Justice Thomas A. Delaney joined in the opinion.
Closing Argument
During closing argument, Degonia commented on J.C.’s sentence, which had been admitted into evidence during the minor’s testimony at the trial, saying:
“He’s getting out in five years. He’s going to go right back to that lifestyle. He told us. And he is the hero of the day because not only did he [kill Jeremiah and Elijah] at the age of 15, and not only did he get off scot-free because of the Supreme Court, he came in here and lied for his big homies. He’s gonna get out and be a Sex Cash hero, if you let him.
“But if you bring justice and you find these men guilty of everything charged, that tells [J.C.], we know you’re lying. We know the truth, and we’re not going to engage in street justice. We’re going to engage in truth. As hard as it was, as graphic as it was, that’s what we’re standing for.”
Noting that “[t]hese comments by Ms. Degonia were prosecutorial error in multiple respects,” Gooding wrote:
“[T]he prosecutor’s none-too-subtle criticism of our highest court—by suggesting that the reason the juvenile shooter had gotten off ‘scot-free’ with a five-year sentence is ‘because of the Supreme Court’—is…prosecutorial error. We hold prosecutors to a high standard of ethics and honesty. At a minimum, we can and must expect prosecutors to uphold and respect the law and to encourage jurors to do the same; that necessarily includes not denigrating the Supreme Court or suggesting to jurors that they should disrespect the Supreme Court because it is soft on juvenile murderers by letting them go ‘scot-free’ with a five-year slap on the wrist.”
The jurist added:
“It is clearly improper to suggest that the jury should convict Barnett and Ochoa in order to send a message to the juvenile shooter, J.C., and to somehow prevent him from being a ‘Sex Cash hero.’ It is doubly improper to suggest the jury should convict Barnett and Ochoa because the 15-year-old shooter was tried as a juvenile and therefore did not, in the prosecutor’s opinion, receive a severe enough punishment.”
Other Misconduct
In addition to factual misstatements during opening and closing, Gooding said that Degonia improperly appealed to the juror’s fears and emotions by saying that “[t]his is a legitimate gang the community should fear with the legitimate crimes that they commit…; attempt[ed] murders; robbing people’s houses, breaking into your home, stealing your cars, using guns to assault members of our community.”
The justice noted that “[c]omments that ask a jury to be the conscience of the community are not improper” but opined:
“The prosecutor’s comments here went well beyond suggesting to the jurors that they act as the conscience of the community. They were scare tactics designed to encourage the jury to decide the case based on emotion and fear—including fear that defendants’ gang members would break into their homes, ‘violently’ steal their cars, or kill them—rather than on an objective assessment of the evidence. We conclude they crossed the line into prosecutorial error.”
Barnett argues that his conviction must be overturned due to the cumulative effect of the misconduct. Unpersuaded, Gooding wrote:
“As troubling and improper as all this conduct by Ms. Degonia is, we cannot say it is reasonably probable the jury would have found Barnett not guilty in the absence of the comments, so the prosecutorial error is not reversible….We can say, however, that conduct such as this must not be repeated.”
The case is People v. Barnett, G062761.
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