Opinion
A120178
2-20-2009
THE PEOPLE, Plaintiff and Respondent, v. KENNETH HUE CLARK, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Kenneth Hue Clark appeals from judgment following a bifurcated trial. The jury convicted defendant of petty theft (Pen. Code, § 484, subd. (a).) Thereafter, the trial court found true the allegation that defendant had been previously convicted of a theft-related crime (Veh. Code, § 10851, subd. (a)), thereby elevating the petty theft conviction to petty theft with a prior (§ 666). The trial court suspended imposition of sentence and placed defendant on probation for five years.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court committed prejudicial error by informing prospective jurors that he was charged with petty theft with a prior conviction. Defendant also contends the prosecutor engaged in prejudicial misconduct in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin), by commenting on defendants failure to testify at trial. Rejecting each contention, we affirm the judgment.
I. EVIDENCE AT TRIAL
On June 5, 2007, at approximately 12:15 p.m., Brittany Taylor-Vernon, a student at Laney College in Oakland, arrived at her Human Values and Ethics class, which was scheduled to begin at 1:00 p.m. The classroom was open so she went inside and took a seat in the front row. Taylor-Vernon propped the door open with a garbage can. She had a backpack with her, along with some water and a bag of chips.
After sitting in the classroom for about 15 minutes, Taylor-Vernon left to use the bathroom, leaving her backpack and food at her seat. Inside her backpack were two textbooks, an academic planner, and a pair of prescription glasses. Taylor-Vernon was out of the classroom for about two to five minutes. On her way back from the bathroom, Taylor-Vernon saw her classmate, Tasheilia Jones, sitting in the courtyard outside the classroom. Jones told Taylor-Vernon that she had just seen a man come out of their classroom. Jones described the man as wearing tan pants and no shirt. She explained the man was carrying something in front of him that was wrapped in a white t-shirt. Jones saw the man hop over the garbage can and quickly walk away in the direction of the student center. Jones described the perpetrator as a Caucasian male with long sideburns.
After Jones told Taylor-Vernon what she had witnessed, Taylor-Vernon immediately went into the classroom to check on her things. Her backpack, food, and water were missing. Taylor-Vernon and Jones went to the student center to report the theft. Jones then returned to class and Taylor-Vernon waited for the police. Approximately five minutes later, Alameda County Sheriff Deputy Charles Brown arrived and spoke with Taylor-Vernon. Taylor-Vernon described the incident and her missing property.
Deputy Brown and Taylor-Vernon then went to the campus bookstore and advised the manager to be on the lookout for two stolen textbooks; they described the textbooks to the manager and asked him to call the sheriff if someone tried to sell these specific books back to the bookstore. Taylor-Vernon returned to her Ethics class.
The stolen textbooks were entitled, "Freedom from the Known," and "Ethics, Theory and Practice."
Approximately 20 minutes later, the sheriff received a call from the manager at the campus bookstore, who reported that a man, wearing a white t-shirt and brown pants, was at the store attempting to sell books matching the description given by Taylor-Vernon. When Alameda County Sheriff Deputy Glen Pace arrived at the bookstore, he asked the man, who was later identified as defendant, what he was doing there; defendant replied, "`Im here to sell back my books. " Deputy Pace asked defendant if he was selling the two books that the store manager had in his hands; defendant replied, "`Yes, those are my books. " Deputy Pace detained defendant and Deputy Brown went to Taylor-Vernons Ethics class to show her the books. Taylor-Vernon identified the books as her own by the highlighting marks on the pages; the rest of Taylor-Vernons items were never found. At trial, Taylor-Jones submitted a receipt from the campus bookstore, documenting her purchase of the aforementioned books.
Sometime after defendant had been detained, Deputy Brown retrieved Jones from class for a show-up identification. After reading a field identification admonishment card to Jones, Deputy Brown bought her outside to observe defendant. Although Jones only had peripheral vision in her left eye, she had 20/20 vision in her right eye. Without hesitation, she identified defendant as the man she had observed coming out of the classroom.
According to registration records, defendant had been a student at Laney College in 2004. However, defendant had not been enrolled in any classes in 2007.
The defense did not call any witnesses at trial, but showed the jury a distinctive tattoo on defendants back, which Jones did not recall seeing on the perpetrator on the day of the theft. The defense also argued that the highlighting marks in Taylor-Vernons books were not distinctive and that everyone in the class had purchased the same books; thus, according to the defenses theory of the case, there was insufficient evidence to establish that the books in question actually belonged to Taylor-Vernon.
II. DISCUSSION
A. Informing the Jury of Prior Theft Conviction
Defendant contends the trial court committed prejudicial error by informing the jury of defendants prior theft conviction. Defendant argues that the trial courts statement during voir dire that defendant was charged with "petty theft with a prior" constitutes prejudicial error because this information was a sentencing factor, and was not an element of the charged offense. Mentioning the prior conviction to the jury, defendant argues, was particularly prejudicial because the trial court had bifurcated the proceedings, thereby precluding mention of the prior in the guilt phase. According to defendant, advising the jury of his prior conviction served no purpose other than to show that he had a propensity to commit theft-related crimes.
1. Background
Prior to trial, the trial court granted defendants motion to bifurcate the trial, reserving proof of the charged prior conviction unless and until the jury found defendant guilty of the charged offense. The trial court also requested that the parties verify that the information, which charged defendant with "petty theft with a prior," was correct. Then, before commencing voir dire, the trial read the entire information to the prospective jurors. During voir dire, defendant moved to dismiss the panel of prospective jurors, or alternately dismiss the charges, on the ground that the trial court acted contrary to its bifurcation order, by informing the jury that defendant had a prior conviction.
The trial court responded that it had read the charges in the information precisely the way the parties had agreed upon, and that no further mention of the prior would be made to the jury. Thereafter, the trial court denied the motions to dismiss the panel and the charges; no further mention of the prior was made to the jury.
No argument has been made by the prosecution that any objection was waived by the doctrine of invited error.
2. Analysis
Pursuant to People v. Bouzas (1991) 53 Cal.3d 467 (Bouzas), a defendant charged with petty theft with a prior under section 666 can stipulate to the prior conviction to prevent the jury from learning of the prior conviction. (Bouzas, supra, at p. 469.) The rationale for this type of stipulation is that "the prior conviction and incarceration requirement of section 666 is a sentencing factor for the trial court and not an `element of the section 666 `offense . . . ." (Id. at p. 480.) Thus, a defendant has the "right to stipulate to the prior conviction and incarceration and thereby preclude the jury from learning of the fact of his prior conviction." (Ibid.; see also § 1025, subd. (e).)
Here, however, defendant denied the truth of the prior conviction and requested a bifurcated trial. Thus, it is doubtful that Bouzas has precedential value under these circumstances. In any event, assuming without deciding that the trial court erred in telling the jury defendant was charged with committing petty theft with a prior, we conclude any error was harmless. (See Bouzas, supra, 53 Cal.3d at p. 481 [applying harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836-837]; see also People v. Wade (1996) 48 Cal.App.4th 460, 470.)
Defendant relies on Bouzas, supra, 53 Cal.3d 467, People v. Weathington (1991) 231 Cal.App.3d 69 (Weathington), and People v. Young (1991) 234 Cal.App.3d 111 (Young), in arguing that the trial court committed prejudicial error by advising the jury that defendant had a prior conviction. As to the prejudice issue, these cases are readily distinguishable. In Bouzas the trial court permitted the prosecution to prove during its case-in-chief of the charged theft that defendant had a prior theft-related offense. (Id. at p. 470.) Here, by contrast, the court mentioned defendant had a prior conviction very briefly when it read the charging document to the prospective jurors. No further mention was made of the prior conviction.
Similarly, in Weathington, supra, 231 Cal.App.3d 69, the trial court denied a motion to bifurcate, which the appellant argued "`forced [him] to "choose between admitting the prior conviction[s] and losing his opportunity to contest . . . [their] existence and validity, or denying the prior conviction[s] and subjecting himself to the prejudicial effect of evidence that would otherwise have not been admissible."" (Id. at p. 85.) In the instant case, defendant was not faced with this type of dilemma. Rather, the trial court granted defendants motion to bifurcate, thus preserving defendants ability to challenge the existence of the prior conviction. In fact, no evidence of the prior conviction was admitted at trial.
Likewise, Young is inapposite. There, the defendant stipulated to the prior conviction, but the jury was nevertheless informed of the prior conviction in contravention of sections 1025 and 1093. (Young, supra, 234 Cal.App.3d at p. 114.) Here, however, defendant denied the truth of the prior conviction.
Section 1025, subdivision (e) provides: "If the defendant pleads not guilty, and answers that he or she has suffered the prior conviction, the charge of the prior conviction shall neither be read to the jury nor alluded to during trial . . . ." Section 1093, subdivision (a) reiterates that the allegation of a prior conviction, if admitted, shall not be read to the jury.
Finally, in both Bouzas and Young, the court concluded that informing the jury the defendant had a prior conviction was prejudicial because the charged offense was a close question; defendants defense was plausible and the prosecutions case was weak. (See Bouzas, supra, 53 Cal.3d at p. 381; Young, supra, 234 Cal.App.3d at p. 115.) By contrast here, the prosecution presented a strong case against defendant. An eyewitness saw defendant quickly exit the classroom with something concealed in a shirt held out in front of him. Then within an hour of the theft, defendant appeared at the campus bookstore, attempting to sell back the same two books that Taylor-Vernon had reported as stolen. There was no plausible explanation for defendant, then age 38, to be on campus on the day in question to sell back "his" books. At the time of the theft, defendant was not a student at the college, and had not taken classes there since 2004. Moreover, Taylor-Vernon testified that the books defendant was attempting to sell belonged to her. Taylor-Vernon identified the books by the highlighting marks; she also presented a receipt showing that she had purchased the two books from the campus bookstore.
We are not persuaded by defendants attempt to challenge Joness identification based on her visual impairment and her failure to notice his alleged tattoo. Although defendant had a tattoo at the time of trial, the record reflects that the police report failed to reference that defendant had any tattoos, distinctive or otherwise. Moreover, conflicts and testimony subject to suspicion do not justify the reversal of a judgment, because it is the "`"`exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends . . . ."" (People v. Franz (2001) 88 Cal.App.4th 1426, 1447.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the fact finder could have drawn from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
Thus, we conclude that it is not reasonably probable that the result would have been any different had the trial court not mentioned defendant had a prior theft-related conviction.
B. Prosecutors Comments
Defendant contends that the prosecutor committed misconduct in closing argument by referring to defendants failure to produce documentary evidence that the books belonged to him and his failure to explain his presence on campus on the day of the incident.
1. Background
During closing argument, the prosecutor argued that the victim had been able to present documentary proof that the books belonged to her, but defendant had not presented any such evidence. The prosecutor argued, "Wouldnt you expect some kind of proof that those books were the defendants, some kind of receipt, something? [¶] We had a receipt from . . . Taylor-Vernon, didnt we? If you bought those books, isnt there some way, from the bookstore receipt, to a credit card receipt, some way to show they were the defendants books, proof as to why he had those books for that specific class 30 minutes after they had been stolen, any proof, any witness to come in and say hes holding my books?" Defense counsel objected on the ground of prosecutorial misconduct. After the trial court told the prosecutor to "be careful," he further argued there was no "proof as to why defendant was on campus that day." Defense counsel again objected. The trial court overruled the objection and advised the prosecutor that defendant "does not have the burden of proving anything," The prosecutor responded by stating, "Exactly . . . [¶] I agree." The trial court then admonished the prosecutor to "proceed accordingly. Otherwise, youre going to be in trouble."
2. Analysis
Defendant argues that the argument about his failure to establish ownership of the books and to provide a plausible explanation for his presence on campus "amounted" to Griffin error, which prohibits the prosecution from commenting on a defendants failure to testify. (People v. Lewis (2004) 117 Cal.App.4th 246, 256 (Lewis)).
"It is well established, however, that the rule prohibiting comment on defendants silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses." (People v. Medina (1995) 11 Cal.4th 694, 755.) "Directing a jurys attention to a defendants failure to testify at trial runs the risk of inviting the jury to consider the defendants silence as evidence of guilt." (People v. Lewis (2001) 25 Cal.4th 610, 670.) In evaluating Griffin error, we must determine whether there is a reasonable likelihood that the jury construed the statements as a comment on the defendants failure to testify at trial. (People v. Clair (1992) 2 Cal.4th 629, 663.)
Here, the prosecutor did not commit Griffin error, as his comments did not directly or indirectly refer to defendants failure to testify, but were fair comments on the state of the evidence. We find support for our conclusion in Lewis, supra, 117 Cal.App.4th 246, in which this division held that a prosecutor did not improperly shift the burden of proof by commenting on a defendants failure to demand a live lineup. (Id. at p. 258.) In so holding, we explained that it has long been established that Griffin prohibits reference to a defendants failure to take the stand in his or her own defense; the rule does not extend to comments on the state of the evidence, the failure of the defense to introduce material evidence or to call logical witnesses. (Id. at p. 257.) Indeed, as a general rule, prosecutors may allude to a defendants failure to present exculpatory evidence without violating Griffin or erroneously implying that the defendant bears the burden of proof. (Ibid.) We further noted that Griffins protection of the right to remain silent is a shield, not a sword to cut off the prosecutions fair response to the evidence and argument of the defendant. (Ibid.)
In the instant case, the arguments about defendants inability to provide proof of ownership of the books or to provide a plausible explanation for his presence on campus "referred to his failure to develop exculpatory evidence; they were not aimed at the exercise of his right to remain silent and were not likely to be understood by the jury as reflecting on that right." (Lewis, supra, 117 Cal.App.4th at p. 258.)
Defendant nevertheless maintains that there was no right to comment on the failure to produce material evidence or call logical witnesses in this instance because there was no way for him, "short of taking the stand himself," to prove he owned the books or to explain why he was on campus on the day in question. We disagree. As explained in Lewis, supra, 117 Cal.App.4th 246, "It may be Griffin error to argue to the jury `that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. [Citation.] However, there is no such error when the prosecutor refers to a lack of proof `which might have been presented in the form of physical evidence or testimony other than that of defendant. [Citation.]" (Id. at p. 258, italics omitted.)
Contrary to defendants assertion, his ownership of the books could have been presented in the form of physical evidence, such as a bookstore receipt or credit card statement. Similarly, testimony from the campus registrar or other campus official could have provided a plausible explanation for defendants presence on campus on the day in question.
Finally, even if the prosecutors arguments could be considered misconduct, the trial court admonished the jury that arguments by counsel are not evidence that the defendant has a constitutional right not to testify, and that the jury was not to infer guilt from the fact that the defendant does not testify. The court also instructed the jury on the burden of proof, explaining that the defense has no such burden. Jurors are presumed to follow the courts admonitions and instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.) We find that the courts instructions to the jury cured any potential Griffin error by the prosecutor.
III. DISPOSITION
The judgment is affirmed.
We concur:
Reardon, J.
Rivera, J.