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People v. Delgado6/30/2004
to disregard the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820.) However, an appellate court has the discretion to address an issue that has not been preserved for review by the party. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) We will address Delgado's claim of prosecutorial misconduct.
At the beginning of the trial, the trial court issued the following order: "`Now, the attorneys, the witnesses, the defendant, they are under orders not to have any conversation with the jury during the course of the trial. [ ] `The inverse of that is also true. You are ordered not to have any conversation with any of them. [ ] `We haven't had a problem with that. But you can see how even an innocent conversation could create the wrong impression. So you can say good morning, you can say good afternoon. But I am ordering, nothing beyond a salutation.'"
The Prosecutor's conversations with the jurors certainly violated the trial court's specific order. However, we conclude this misconduct was not prejudicial. (People v. Fields (1983) 35 Cal.3d 329, 363 [only prejudicial misconduct requires reversal].) The Prosecutor's statements were not so egregious to make Delgado's trial unfair, and they could not be characterized as deceptive or reprehensible methods in an attempt to persuade the jury. (People v. Hill, supra, 17 Cal.4th at p. 819.)
Most of the Prosecutor's statements were greetings, and the conversation he had regarding why some jurors were late and when proceedings would conclude, although inappropriate, were not prejudicial. None of the Prosecutor's statements concerned the substance or merits of the case. (See People v. Farnam (2002) 28 Cal.4th 107, 171-172 [prosecutor no misconduct when ex parte communication with jurors during trial over purse snatching incident].) When considering the issue in Delgado's motion for new trial, the trial court similarly concluded there was no prejudice.
Our holding today does not condone the Prosecutor's conduct. The Prosecutor's actions were disrespectful to the trial court and violated its order. They contravened Rules of Professional Conduct, rule 5-320(B), which prohibits attorneys from communicating with jurors. Any conversation, however brief, may be viewed as an attempt by counsel to ingratiate him or herself with the jury. Although the Prosecutor's actions do not require reversal in this case, we caution all attorneys to carefully heed the court's instructions and to refrain from conversing with sitting jurors. Missteps in this regard under other circumstances may require reversal.
3. Cumulative Error
Finally, Delgado claims " he cumulative effect of the erroneous admission of character evidence and the [Prosecutor's] misconduct deprived of a fair trial . . . ." We have found no errors, and consequently, this claim has no merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
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