Opinion
A117953
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. MALCOLM ANDRE CLARK, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury found Malcolm Andre Clark guilty, as charged, of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)) and misdemeanor possession of burglars tools (id., § 466). The court, in bifurcated proceedings, found true two prison-term priors (id., § 667.5, subd. (b)) and then sentenced Clark to a four-year midterm for the burglary, less three years of credits, striking the priors and deeming jail time on the possession count discharged by time already served. Clark appeals, seeking reversal for claimed evidentiary error, prosecutorial misconduct, and ineffective assistance of trial counsel. We affirm the judgment.
BACKGROUND
Both counts concern a May 21, 2005 burglary of the San Pablo apartment of Trina Scott. Clark was charged jointly with codefendant Dayettia Galloway but was tried alone after their cases were severed. A first trial for him ended in mistrial, for reasons we do not know, but no issues arise from the severance or the mistrial.
Scott lived on Pine Avenue with her children. It was a very small two-bedroom unit on the ground floor of a two-story complex that had three units on each floor. The children had bunk beds in one bedroom, and Scott had the other. Behind the apartment was a fenced community yard of concrete and weeds; it was not accessible directly from her apartment, unless one jumped out a rear window. Scott kept clothes hung in a closet, with shoes on top and Rubbermaid tubs or "shoe boxes" on the bottom, and she had a jewelry box in the room, but kept no drugs, large sums of money or things of great value—just sticks, hair clips, and "junk earrings and bracelets." Her boyfriend, Rodney Oliver (not the father of her children), stayed there three or four nights a week and kept clothes there, but not any drugs. He stayed with family or friends other times and did not pay rent or bills there, or have a key.
At 6:00 p.m. the evening before the burglary, Scott left in her car with Oliver and the children to go San Francisco for a wedding and her sons track meet. She left all windows and doors secured or locked, and the rooms neat. She did not know Clark or Galloway but had seen each of them 10 or 12 times before, once when the two were driving together. She once saw Clark parked alone in a car, 20 feet away from the Richmond home of Sonya, a girlfriend of Scotts, as Scott smoked weed with Sonya and a woman named Tiffany outside the house. Oliver sometimes said "hi" or "bye" to Galloway, but Scott had never spoken with her, and knew her only as "Yeda." Galloway wore her hair short, in French braids, and "boy clothes." Scott never gave Clark or Galloway permission to be in her apartment.
On the day of the break-in, patrol officers of the San Pablo Police Department responded to a 9:36 p.m. dispatch about a burglary. Maria Ferreira, a neighbor across the way with a view of rear windows that faced a concrete area behind the apartment, had called 911 to report seeing a Black man and a White man in dark clothing trying to break into the apartment through a rear window. The first officer on the scene, Brian Bubar, arrived at 9:39 p.m. and took responsibility as the primary officer. He found the front door of the apartment slightly ajar, the wood "split down the side" on the lock side, with gray tool marks showing prying, and the locking mechanism broken off and lying on the ground. Emanating from within were "two distinct voices," and Bubar, by then joined at the door by two other officers, loudly announced, "San Pablo Police; come out with your hands up." The door was immediately slammed shut from within, and Bubar, hearing loud, heavy footsteps running toward the rear of the apartment, radioed that subjects were running toward the rear.
Officer Humberto Alvarez, meanwhile, had arrived as a cover officer and taken a position behind the apartment. Standing behind a five-foot-high fence with a clear view of the backyard area and a rear window 20 feet away lit by streetlights and his flashlight, he heard officers announce, "San Pablo Police," and then saw a White male—identified in court as Clark—come to the window, his hands on the windowsill as if going to jump out, look around, see him and, with a look of surprise, disappear back inside. Some 30 seconds later, Alvarez saw what he believed to be a Black male, in dark clothing, also come to the window, look around, see him and, eyes widened, go back inside. Alvarez radioed what he had seen, jumped the fence, and stood close to the window, which was completely open.
Bubar, hearing Alvarezs report of suspects at the rear, entered with his fellow officers, weapons drawn. Once in the living room, Bubar saw Clark, clad in black shirt and baggy jeans, running toward him out of the childrens bedroom, breathing heavily, sweating and panicked. Right behind him ran Galloway, who was African-American, thin, and with short braided hair and dark baggy clothing. She looked at first to be male. Once she and Clark were handcuffed and led to a curb outside, Bubar, backed by a second officer, checked all rooms of the apartment for anyone else who might be there or hiding under a bed or in a closet. He checked all rooms (kitchen, bathroom, both bedrooms, and living room) and found no one else.
The room from which the suspects had run had its window open, a screen flat on the ground outside the window, and window blinds down but bent or creased. Aside from some clothes on the floor, the room was not much disturbed. Scotts bedroom was in such disarray that it was difficult to walk through. Alvarez, advised by the officers inside that they had two people in custody, went around to the front and left after a few minutes. He only glanced into one or both bedrooms from an interior doorway.
Bubar found no prying tools at the front door or inside the apartment, but then spoke with Joel Horta, a neighbor across the way, at Pine Avenue, who directed him to a Lexus he had been alerted to earlier. Parked about 35 feet from the apartments front door, the car had been left unattended with its doors unlocked and its key in the ignition. On the floor in the back were a black crowbar and a red bolt-cutter. Bubar found that the crowbar was bent on the end, matched indentations on the forced apartment door, and had "white paint transfer" on it. Examining the tool for latent fingerprints revealed smudges but no usable prints. Bubar did not try to have prints lifted inside the apartment or from its front door.
The 911 caller, Maria Ferreira, had called from the same address.
While still investigating the car, Bubar heard a noise in the rear community yard, like the wooden fence being jiggled. He went back to look, and saw a male, "obviously African-American or Black," jumping out over the fence. Bubar ran around the complex to try and see where the person had gone, but saw no one. This was some 30 minutes after seeing Clark and Galloway, and the one he saw going over the fence wore light clothes, including a light brown or tan shirt or coat, which did not match the dispatch description of dark clothing worn by those reportedly trying to break into the apartment, or the dark clothing Clark and Galloway wore. Bubar later went to see a man who had been detained some distance away, but he proved not to be the one Bubar saw going over the fence.
Trina Scott received news of the burglary by phone, from police and a friend, while still in San Francisco and immediately drove home with Oliver and her children. She found the front door forced open and split, its locks hanging, and the window in her childrens bedroom unlatched and open, the blinds pulled up from where she left them. She found no disturbance of things like TVs, a VCR, a DVD and a PlayStation, even in her own, otherwise ransacked, room. Plastic tubs in her childrens room were untouched. In Scotts room, a jewelry box seemed untouched, but everything in her closet had been moved and all containers opened. Plastic tubs, clothes and shoes were left on her bed or strewn on the floor, and a chair that she kept in her kitchen/dining area was in her room, with saucers and dishes from the top shelf in her closet resting on it. In the kitchen, a red plastic bucket she kept in a cabinet above the refrigerator had been taken down, the cabinet left open. Yet, she ultimately found nothing missing. She testified that she kept no large sums of money or any types of drugs in her apartment; nor did Oliver keep any drugs there. She had no idea why the break-in occurred and could not attribute it to anything involving Oliver. Both of them had been upset and mystified by it.
In post-arrest statements, Clark said he was walking down 21st Street, saw the apartment door open, and went inside by himself. He claimed he knew nothing about the Lexus, did not know Galloway and did not know why she was in the apartment. On the other hand, he was very relaxed and laughing while in the back of a patrol car with her, and she was friendly, relaxed and calm with him. As the patrol car neared the detention facility, Galloway said to Clark, "I need you to call my girlfriend for me when we get there."
Clark did not testify, but the defense called Sherree Hicks, who testified that she was his fiancée and lived with him at the time, west of Hilltop in Richmond. She said that Clark left her place at 8:00 p.m. that evening, saying he was going to the home of his cousin Andre. She did not know if he ever arrived there but got a call from him, after his arrest and before midnight, and some hours later went to a spot on the curb on 21st Street, near Pine Avenue, "a little bit down from Andres house," and picked up Clarks car, a gray 1988 Ford Escort. It was parked in front of a house, not an apartment building. Hicks testified on cross-examination that she had once met Dayettia Galloway (then known to her as Yea Yea). It was in early 2005, before the arrest. As she approached Clark and Yea Yea in front of a store in North Richmond, Clark introduced them.
Scott testified that she did not know anyone named "Sherie Hicks" (sic).
The defense theory was that the break-in, with ransacking but nothing taken, was not theft-motivated but better explained as some sort of retaliation against Oliver, whom the defense painted as a drug dealer. The person seen jumping the fence 30 minutes after Clark and Galloway were arrested, it was argued, had broken in, slammed the door shut on arriving officers, eluded police detection inside while attention focused on Clark and Galloway, and then escaped when an opportunity arose.
DISCUSSION
I. 911 Call from Ferreira
A. Testimony
During the prosecutors examination of Officer Bubar, the court allowed testimony, over defense objections of "hearsay" and "relevance," that the officer went to the apartment in response to a radio dispatch that "a black and white male, wearing dark clothing, were attempting to break into the first floor . . . ." The information was already in evidence without objection or limitation, Officer Alvarez having earlier testified that he responded to "a call of two people," described as "[a] black male and a white male," "attempting to break into" the apartment. Nevertheless, the court this time ruled, for the jury: "That information is hearsay, but Im going to allow it to come in not for the truth of the matter stated but for the purpose of showing the information that the officer received, in the course of his ordinary activity, as an officer on duty and to show what, if anything, he did or he went to perform, talk to, so on and so forth. For that purpose, it comes in."
The court readmonished, within the next few transcript pages: "[t]he same ruling and the same purpose, not for the truth of the matter stated but to show what information, if any, the officer had received by the dispatcher and what he did pursuant thereto"; "[s]ee, certain evidence is not admissible under hearsay, but information that is conveyed to somebody is accepted not for the truth of the matter stated but to show what information the officer in this case received and what, if anything, he did pursuant thereto."
Further mention of the call refers to it as "the first" call, the focus of contention having shifted to a "second" 911 call. The court, outside the jurys presence, ruled the second call inadmissible and confirmed to counsel, once more, that the "first" had been admitted not for the truth of the matter, but to explain the officers conduct. The court ruled that the prosecutor could play for the jury a tape recording of the "first" call and that the court would advise jurors "that its not for the truth of the matter stated, et cetera, et cetera."
The "second" call is not directly at issue on appeal. It involved a problem that defense counsel had asked Bubar at the close of his testimony the day before, whether the Lexus (where the crowbar and bolt cutters were found) had "come to [his] attention" before he spoke with the neighbor, Horta. The officer, clearly forewarned that the second call was not to be discussed, commendably answered without elaboration, "Yeah, it—well, actually, it did." That question, defense counsel later said, had been asked in error. The prosecutor, concerned that the jury would wonder how prior attention to the Lexus arose, proposed admitting the "second" call to fill that gap. The record is a bit murky, but the second call, evidently from Horta and/or Ferreira, identified the Lexus as stolen and as the burglars vehicle. This second call, apparently rendered less important after the dismissal of a count for receiving stolen property (the Lexus), was ruled inadmissible.
On re-cross-examination, defense counsel told Bubar she had meant to ask him whether he noticed the Lexus upon first arriving. Bubar said, "No, there was nothing significant that caught my attention about the vehicle." The prosecutor then had Bubar clarify that his attention was drawn to the Lexus "[a] couple minutes" before he spoke to Horta and that he interviewed Horta first, rather than going to the car, since he understood Horta to be a witness to the event.
The minutes similarly reflect: "The court and counsel discuss the two telephone calls placed to 911. The People move to have both 911 calls admitted into evidence. The issue is argued and submitted. The court orders the first call placed to 911 may be admitted into evidence. The Peoples request to move the second 911 call into evidence is denied. The court further orders there shall be no mention of the second 911 call in front of the jury. However, the People may ask Officer Bubar if he had been provided any additional information regarding the vehicle."
The prosecutor later questioned Bubar about the clothing worn by the person behind the apartment who had fled, and Bubar said the person wore a light brown or tan coat or shirt. When asked if this "fit the description" Bubar "received from dispatch about the two subjects attempting to break into the apartment," defense counsel interjected: "Objection. Hearsay. Its going to the truth of the matter." The court responded, "Oh, if he knows, he may answer," and this ensued:
"Q. Did it match the description, this person that you saw, this third subject, the clothing match the description of what you heard from the dispatch?
"A. No.
"Q. And what was the difference [from] the description?
"A. I received information that the subjects, from dispatch, were wearing dark clothing. The subject that I saw in the rear community yard had light clothing."
The tape of the first call was heard by the jury at the close of evidence, the jurors being aided by a transcript that was not itself admitted into evidence but is a part of our record through augmentation. The court admonished immediately afterward: "Now, here again, members of the jury, this tape that you just listened to is not evidence in this trial. Its evidence for the purpose of showing what information the officer had when he responded to the 911 call and what he did thereafter. So its very important. Its a useful tool to you. But what the officer saw and did pursuant to that is what is evidence, not the tape itself."
The transcript contains just the first call, from Ferreira. She tells dispatch that she saw two people "trying to break in" but then did not see them after going to get her phone. "I think they probably went in," she says. Asked what they looked like, she says, "Theyre two males, one black and one white." She cannot relate ages but thinks that, while it was dark and hard to see, they wore "dark clothing, probably black."
B. Jury Arguments
In initial closing argument, the prosecutor utilized the 911 call to show Bubars state of mind: "May 21st, 2005, 9:36 p.m., burglary in progress. You heard the 911. It was two suspects at first apartment on the bottom, black male, white male. Thats what Brian Bubar was searching for, a black male and white male. [¶] And sure enough, you find a person who is of light complexion, which he believed at first glance was a white male, and the black male being Ms. Galloway who appeared to be, to him, a black male. [¶] Dark clothing, very important. He was searching [for] that, too, heard that, dark clothing. Theres a third subject that jumps over a fence, has tan clothing. Its not dark. [¶] Trying to break into an apartment, the breach of that particular property, important why? Because at that time, the breach is occurring at 9:36. Maria Ferre[i]ra is calling 911 from [Pine Avenue] which is across the street, has a view of that apartment, [from] which you see windows . . . ."
No defense objection was raised until this argument: "We know that the time starts at around 9:36. No one else is coming to break into that apartment before then. And they argue—the defense may argue, we dont know when the door was breached or busted into. It could have been the night before or right before it. We do know at 9:36 persons were attempting to break into the apartment." The defense objection was not hearsay or improper use but, rather, "Misstates the evidence." The court reminded the jury that statements by counsel were not evidence.
The prosecutor continued, without further objection: "Youve heard the 911 tape. This first call comes in at approximately 21:36 hours, which is 9:36 [p.m.]. Female caller, `Can I help you? [¶] `Yes, I think someone is trying to break into an apartment. Its an apartment at 21st and Pine in San Pablo. [¶] Sometime down the conversation, `You saw them or you seen them? [¶] She says, `Yes. Theyre two males, one black, one white. [¶] That is your time period of three minutes. We can do, with just two people here, a lot of things in three minutes in this particular room. Three minutes in that small apartment is a lifetime and enough to get whatever you can find."
Defense counsel then used the call, too, stressing its limited use but chiding the prosecution for not calling Ferreira to testify. "Okay. Two suspects at the first apartment on bottom, a black male, a white male, both wearing dark clothing, both trying to break into the apartment, and Maria Ferre[i]ra, ignore that. [¶] You heard the judge, almost every time I objected, you cannot consider it for the truth . . . . This is simply to explain his course of action. Thats it, not for the truth . . . not to say there was a black man and a white man, none of this. . . . [¶] Thats not for the truth of the matter. You cant consider that. Oh, well, Maria Ferre[i]ra, her observations were supported by what the police officer found. He must be guilty. No, you cant consider that at all. Its improper. It goes against the law. And any suggestion that you consider this for anything other than to explain why the officer was at the front door is illegal use of this evidence. [¶] Officer—Im not going to submit to you that there wasnt a 911 call. There probably was a 911 call. What Im going to submit to you are that Maria Ferre[i]ras name and number are in that dispatch log. [¶] Where is she? Where is Maria Ferre[i]ra? Why isnt she here to testify? Why didnt the prosecution bring her to court and have you look at her demeanor, examine her motives for being—for testifying the way shes going to testify? Why isnt Maria Ferre[i]ra here? [¶] So not only is it illegal to consider this for the truth of the matter—even if, for the moment, you do, you have to disregard it. If she really had important information to say, she would have sat there."
Defense counsel twice more stressed the limited use of the call, accusing the prosecutor of transgressing the limitation and, again, not producing the caller: "That he could be mistaken for a white person, again, this is asking you to rely on evidence that you cant. Its asking you to do something illegal. This is asking you to rely on that 911 dispatch for the truth of that matter. And you arent allowed to do that. [¶] That she was a male, again, asking you to do what you cant." "Hispanic male. Again, this is illegal evidence. I think Im—five times that [the prosecution] has tried to use that illegal evidence in the way that hes trying to use it. [¶] The door, the Lexus: Where is Maria Ferre[i]ra, or whatever her name is, to say that the Lexus—that Mr. Clark was in the Lexus, near the Lexus, talking to people who had been in the Lexus, approaching the—looking at the Lexus, the Lexus people were looking at him? Nothing. Its all speculation."
In rebuttal, the prosecutor responded in part, without objection, alluding to instruction that neither side had to produce all witnesses: "Why bring in Maria [Ferreira] when we do know—said probably there was a 911. Well, of course, we know theres a 911. Its on tape, certified document done by the dispatcher. A 911 call did come in. [¶] And its not the fact that its illegal evidence. Its in. It tells us that theres a call for 911 at 9:36 and that you only can look at this evidence as to show why the officer did what. And thats very important, because it tells us that the officer didnt completely imagine something, and just took it out of the air and says, Oh, I better go to [Pine Avenue]; I think theres a burglary. [¶] No, there was a 911 call that tells us, at 9:36, a person—theres two people over there, and I have to go there. Hes doing his job."
C. Analysis
Clark argues that the tape was not admissible for purposes of explaining Bubars actions or his state of mind, neither matter being relevant and there being no foundation that Bubar ever heard the tape, and that the prosecutor then misused the evidence, in any event, by urging jurors to use the facts that Black and White males in dark clothes were seen trying to break into the apartment at 9:36 p.m. Clark further argues that his trial counsel rendered ineffective assistance by failing to object.
Taking first the claim of court error, no evidence is admissible unless relevant (Evid. Code, § 350), and evidence, including evidence bearing on a witnesss credibility, is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (id., § 210). A court enjoys " `wide discretion in determining relevance " (People v. McAlpin (1991) 53 Cal.3d 1289, 1303), and we review for abuse of discretion (People v. Rowland (1992) 4 Cal.4th 238, 264).
The court ruled and instructed repeatedly that the call was admitted only for the nonhearsay purpose of explaining the officers actions and state of mind, not for the truth of what the tape might show, and we find no abuse of discretion in that determination. Clark protests that there was no dispute why the officer "approached" the apartment door or went inside, but this ignores his trial counsels attacks on the officers actions beyond that point.
We recognize that earlier testimony by Officer Alvarez, about responding to a dispatch call of "[a] black male and white male," came into evidence without objection, leaving room to urge forfeiture of the complaint that the same information came in through Officer Bubar. However, given the courts consistent and repeated limiting instructions and uniform acceptance and reiteration of those limitations by counsel on both sides, we cannot imagine that the jurors thought they could use the information for its truth as related by Alvarez, but not for its truth as related by Bubar or as placed in evidence through playing the tape itself. No instructions or arguments suggested such a thing.
Casting suspicion on the unapprehended Black male seen fleeing the area behind the apartment 30 minutes after police arrival, defense counsel established by examining Scott that Scott thought hers was the only African-American family in that neighborhood, all others being Hispanic. Counsel also examined Bubar to show that no latent prints of Clark were found in the Lexus and that he did not bother to have the apartment tested for prints (the inference being that he assumed he had the burglars). Counsel also questioned Bubar about his search efforts once Clark and Galloway were apprehended, about the Black male seen fleeing, about having let an officer leave without having him look for the Black male, and about not having spoken to other residents in the apartment complex. She examined Alvarez about his leaving the back of the apartment as soon as suspects were apprehended inside and not going into the bedrooms himself. Defense counsels theory in jury argument was that the unapprehended Black male broke into the apartment, remained inside undiscovered by police, who were content with having found Clark and Galloway, and later fled into the area behind the apartment and escaped, the officers attaching little significance to him as a suspect.
Obviously, the defense strategy placed the integrity of the work of Bubar, the lead officer on the scene, in dispute, and made his sources of information relevant to resolving his credibility and the adequacy of his work. The fact that he had acted on information that the burglars were White and Black males in dark clothes, while the third suspect was a Black male in light clothes, made that information relevant and hence admissible—not for its truth (a hearsay use, Evid. Code, § 1200, subd. (b)), but to show what the officer knew.
Clark correctly observes that the court and parties assumed, but that the record does not clearly indicate, that Officer Bubar heard the 911 call itself or was informed by dispatch of the calls mention of Black and White males seen trying to break in. He cites authority that proper admission requires a foundation that the witness knew of the information (People v. Tafoya (2007) 42 Cal.4th 147, 164-165 [excluding a victims reputation for dangerousness, for a self-defense claim, was no abuse of discretion where no foundational evidence showed the defendant knew of the reputation]). The problem for Clark, however, is that his objections below were of relevance and hearsay, not lack of knowledge or foundation. His failure to raise that ground below forfeits it on appeal. (People v. Utter (1972) 24 Cal.App.3d 535, 552-553.)
The backup claim, of course, is ineffective assistance of counsel, but this fails as well. "In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsels performance or lack thereof." (People v. Williams (1997) 16 Cal.4th 153, 214-215.)
Our record does not show deficient performance. " `Whether to object to inadmissible evidence is a tactical decision; because trial counsels tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsels incompetence. [Citation.] `In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 215.) Counsel was not asked, and the record does not otherwise show, why she did not raise a foundational objection of no personal knowledge of the 911 call or its contents as dispatched (see generally People v. Hart (1999) 20 Cal.4th 546, 623-624), and there are rational possibilities. Most simply, it might have been a futile objection because defense counsel knew that the officer did have that knowledge. (Cf. id. at p. 630.) The apparently shared assumption below that Bubar did may have emanated from proceedings in the first trial, where many of these same evidentiary issues no doubt arose. Also, it is hard to imagine that an eyewitness description of the ethic appearance of the two suspects would not have been included in the radio dispatch, which would have meant that objecting to the tape itself, as opposed to the radio dispatch that Bubar did hear, could have seemed pointless. Clarks retort that the record does not show the officers knowledge is an improper effort to shift away from himself the burden of showing incompetence.
The prosecutorial misconduct component of Clarks claim is misguided. He complains that the prosecutor exploited the call beyond its limited use by arguing to the jury (1) that Ferreira in fact saw two people trying to break into the apartment at 9:36 p.m. and (2) that the tape "was a sufficient substitute" for her testimony. It certainly is misconduct to assert, in argument, matters previously ruled inadmissible (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Davenport (1985) 41 Cal.3d 247, 288), but that is not what happened. In context, the prosecutor was not asking the jurors to use the calls contents as true but, rather, to support what Bubar had heard and then responded to, minutes later, at the scene. The most that can be said is that the remarks passed briefly into ambiguity toward the end. However, in assessing the impact of claimed misconduct, we cannot give isolated passages, in otherwise proper argument and instructions, the worst possible meaning and assume that this is how jurors construed it. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 644-645.) Also, counsel never raised a misconduct objection below. This works a forfeiture of any claim here (People v. Crew, supra, at p. 839) but, just as importantly, shows that counsel, who was right there in the courtroom to hear the remarks delivered did not give them the import Clark tries to give them now.
"May 21st, 2005, 9:36 p.m., burglary in progress. You heard the 911. It was two suspects at first apartment on the bottom, black male, white male. Thats what Brian Bubar was searching for, a black male and white male. [¶] And sure enough, you find a person who is of light complexion, which he believed at first glance was a white male, and the black male being Ms. Galloway who appeared to be, to him, a black male. [¶] Dark clothing, very important. He was searching [for] that, too, heard that, dark clothing. Theres a third subject that jumps over a fence, has tan clothing. Its not dark. [¶] Trying to break into an apartment, the breach of that particular property, important why? Because at that time, the breach is occurring at 9:36. Maria Ferre[i]ra is calling 911 from [Pine Avenue] which is across the street, has a view of that apartment, [from] which you see windows. . . ."
We note Clarks concern that the 9:36 p.m. time of the call was also used for its "truth," but we do not share that concern. First, he cites no authority that the time was inadmissible if, as we have held, the call was properly admitted to explain the officers actions and knowledge. When Bubar received the information was obviously relevant to the timing and nature of his actions, and the prosecutor properly stressed this, saying: "Its in. It tells us that theres a call for 911 at 9:36 and that you only can look at this evidence as to show why the officer did what. And thats very important, because it tells us that the officer didnt completely imagine something, and just took it out of the air and says, Oh, I better go to [Pine Avenue]; I think theres a burglary. [¶] No, there was a 911 call that tells us, at 9:36, a person—theres two people over there, and I have to go there. Hes doing his job." Second, Officer Alvarez testified, independent of the tape, that he got the dispatch call at "approximately 9:30[,] somewhere around there," and Officer Bubar testified that it was "around 9:36 p.m." It is unclear how the internal time reference of the 911 call was objectionable or harmful in light of the testimony of the officers having come in without any objection.
Finally, Clarks complaint that the prosecutor told jurors that the tape was "a sufficient substitute for Ferre[i]ras own testimony" is gross hyperbole. Those words were not spoken. The context, fully set out above, was that defense counsel had been chastising the prosecutor for not producing Ferreira to testify. In rebuttal, the prosecutor recited the jury instruction that neither side was required to call all witnesses and implored: "Why bring in Maria [Ferreira] when we do know—[defense counsel] said probably there was a 911[?] Well, of course, we know theres a 911. Its on tape, certified document done by the dispatcher. A 911 call did come in." By no stretch was this, as Clark insists, " `sworn testimony for which the prosecutor improperly urged the jury to substitute Ferreiras 911 call."
Neither abuse of discretion, misconduct, nor ineffective assistance is shown.
II. Jury Argument About a Drug Motive
Twice in summation, prosecutor Fernandez suggested drugs or money as possible objects of the burglary. Noting that, with things of value in plain sight, small areas had been searched, he first suggested: "Say a person had weed in the apartment. There was some discussion throughout this trial about weed, smoking weed, a person having drugs in the apartment[?] No, but people have seen others smoking weed with another person. People steal because they want to further their addiction. [¶] Money. Remember the red pail in the cabinet? She kept certain things in there, loose change, papers, [a] place small enough to carry a bag of weed, money, rolls of money. These two persons that are found in the apartment didnt have much money. Ms. Galloway only had 25 cents. And Mr. Malcolm Clark, maybe, had 20-something dollars. [¶] They were there to steal money and drugs. And how do we know that? Because you look at what has been shown in the photographs, shoe boxes full of shoes gone through. These are not just one pair of shoes. These are several boxes of shoes. [¶] Theres a drawer in the corner, if you look at . . . Exhibit 9 or 11[,] I believe it is, you look at—theres a drawer under the TV set. She kept underwear there. She even stated, Ms. Scott, she kept some money there once in awhile, places where you find small things."
The second suggestion, just before defense argument, built on the three minutes having elapsed between the 911 call and police arrival: "We can do, with just two people here, a lot of things in three minutes in this particular room. Three minutes in that small apartment is a lifetime and enough to get whatever you can find. [¶] Obviously, they didnt find drugs or money, because Ms. Trina Scott didnt keep drugs or money, from what she stated. But that doesnt mean that they didnt burglarize the place. [¶] If they really want the TV, walk into the living room and walk out. They werent going for that. They were going for drugs, money, or anything small that they saw was a value to them."
Clark complains that the prosecutor "repeatedly called upon the jury to infer that [he] was a drug addict who entered the apartment to steal drugs." Noting that the victim testified that she once smoked weed outside a girlfriends house when Clark sat in a car yards away, Clark says the prosecutor drew a purely speculative inference "without any evidentiary basis whatsoever" as to him. He calls this a deceptive or reprehensible effort to persuade the jury and "argument suggesting knowledge of facts not in evidence." He concedes having raised no such objection below and thus forfeited the claim here, but he urges that the lack of objection was ineffective assistance, there being no tactical reason for the inaction. We address the misconduct claim to the extent necessary to decide the ineffective assistance claim. (People v. Ochoa (1998) 19 Cal.4th 353, 431.)
Initially, inferring that money, drugs or other small items motivated the burglary was not nearly as "speculative" as Clark assumes. An inference is unreasonable if based only on speculation (People v. Holt (1997) 15 Cal.4th 619, 669), i.e., mere guess, surmise or conjecture (Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655); it is reasonable if the product of "logic and reason" based on evidence (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651). Here, evidence showed a forced entry into a residence where no one was home. Fast-acting police found a childrens bedroom relatively untouched but an adults bedroom thoroughly ransacked. Large items in plain sight had not been taken, yet small containers had been pulled from shelves and opened. A jewelry chest, a usual receptacle for some small things of value, was not disturbed. To argue from these facts that theft was the motive and that the intruders focused on places where an adult might stash items like drugs or money, was entirely reasonable. Neither suspect had drugs or much money on them when apprehended in the apartment, and thus a further inference was that nothing had yet been taken because the intruders had not yet found what they wanted. This was not "mere" or "pure" speculation.
If we nevertheless reason that competent counsel would have considered objecting anyway, out of concern for prejudice at the idea of a drug motive, we have no reason to doubt that counsel did so and, in opting not to object, relied on her impressions of the jury, impressions we cannot second-guess on a cold record. Moreover, counsel may well have been loathe to object to "unreasonable" drug inferences when her own strategy was to invite similar, and far more speculative, inferences of drugs, conflict and retaliation as explaining the ransacking. By not claiming misconduct, she also allowed the prosecutor to set out a drugs-or-money theory and, in her own argument, branded it pure speculation that showed even the prosecutor unsure of what motivated the crime.
Defense counsels first words in closing argument were that this case was about the "rules of the street," a phrase she repeated regularly. Invoking standard instructions that jurors faced with competing reasonable interpretations of circumstantial evidence must adopt one that points to innocence (CALJIC No. 2.01), she urged that, with nothing taken from the apartment and with an unapprehended third person, it was mere surmise that Clark was the one who broke in or that he intended to steal. At the same time, defense counsel planted an idea, cultivated in her witness questioning, that this was an act of retaliation against Scotts boyfriend, Rodney Oliver. In cross-examination, she had pressed Scott intensely about her familiarity with Clark and Galloway and whether Oliver spent more time at the apartment than Scott was letting on. Counsel elicited that Oliver was unemployed at the time and that he hung out at a North Richmond intersection (Willard and Filbert) with people Scott did not know. Thus, beyond the idea that the third person broke into the apartment and stayed there undiscovered for some time, one clear set of defense inferences was that Oliver was a drug dealer, that he had perhaps crossed someone, and that the ransacking of the apartment—which included opening containers in which he kept his own belongings—had been retaliation against him or meant to "send a message." Counsel further implied that her client, Clark, might know who was responsible but be prevented by the "rules of the street" from testifying and revealing who it was. Counsel chided the absence of Oliver, asking: "Why didnt the prosecution bring [in] Mr. Oliver, have him say, `Im not a drug dealer, Ive never dealt drugs, I wouldnt—I have no idea why they would have done this? That absence of evidence is significant."
Counsel summarized: "So I submit to you that the prosecutor did not present a reasonable explanation of the events of that night. I submit to you that what happened that night well never know. Why it happened, well never know. [¶] Mr. Clark has an absolute right not to testify. There are a myriad of reasons [sic] why someone wouldnt testify. I submit to you rules of the street cover that. [¶] What do we know? Rules of the street sort of, in our common understanding, is an idea of crime. And where crime is committed, theres a code, theres an honor that people follow. People dont come in and testify. People dont snitch people out. Theres a rule of the streets thats followed. [¶] Mr. Oliver may have broken that rule. Mr. Clark may have broken that rule. Somebody may be being punished for something that we have no idea about. We probably will never know."
There were, therefore, tactical reasons for not objecting on misconduct grounds to the prosecutors inference of drug motivation. Clark fails to show ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur:
Haerle, Acting P.J.
Richman, J.