Opinion
B161141.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. FIDEL JOEY CORTEZ, Defendant and Appellant.
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Fidel Joey Cortez was found guilty after jury trial of one count of first degree burglary, in violation of Penal Code section 459, and one count of receiving stolen property in violation of section 496, subdivision (a). Appellant admitted that he had previously been convicted of violating section 211, a serious felony within the meaning of the three strikes law, as a juvenile. He was sentenced to the low term of two years for the burglary, doubled to four years because of the prior, and imposition of sentence was suspended on the receiving stolen property count, pursuant to section 654. A restitution fine of $ 200 was ordered, as well as restitution to the victim. Appellant timely appealed. He contends on appeal that there was insufficient evidence to support the burglary conviction, that the prosecutor committed prejudicial misconduct, and that he was denied his federal and state constitutional rights to effective assistance of counsel. Because we find the evidence was sufficient to support appellants conviction of burglary as a direct perpetrator, and the record does not support appellants claim of prosecutorial misconduct or ineffective assistance of counsel, we affirm.
All further statutory references shall be to the Penal Code unless otherwise specified.
On December 6, 2002, Cortez filed a petition for habeas corpus (case No. B163288), which was ordered to be considered concurrently with this appeal. A separate order will be filed in that matter.
FACTUAL AND PROCEDURAL BACKGROUND
The defense did not present any evidence at trial. The prosecution evidence was as follows:
On April 10, 2002, Maria Valenzuela lived at 1395 Junipero Avenue in Long Beach with her husband and their six children. All family members left the house that day at about 9 a.m. Before leaving, Mrs. Valenzuela checked to make sure that everything was locked. The only window she did not check was the bathroom window. When she returned at about 12:30 p.m., her house was in disarray. Furniture had been turned upside down, closet doors were open and papers were thrown on the floor. Everything had been taken from her three-year-old childs room, including clothing, a large box of diapers, and video equipment. She found a crate under the bathroom window, which normally was not there. Jewelry, most of which was later returned to her, was missing. Also missing were stereo equipment and a computer, which were also later returned to her, although the computer was no longer working when it was returned. On her return home, Mrs. Valenzuela heard a helicopter overhead and learned that a neighbor had already called the police.
Souvanna Ly, an officer with the Long Beach Police Department, lived across the alley from the Valenzuelas. On April 10, at about 12:30 p.m., he heard trash containers being moved in the alley and immediately went to a window from which he could see the alley. He saw appellant on a bicycle and an African-American male moving what appeared to be a stereo system and a large black speaker into a trash container in the alley. Officer Ly saw appellant look back and forth from the left to the right two or three times, appearing to be watching out for anyone who might be in the area. Based on his four years of experience as a police officer, Officer Ly thought that appellant appeared to be engaged in criminal activity. Officer Ly saw appellant talking to the other person, but could not tell what was being said. He called 911 at about 12:45 p.m., and two or three minutes later he heard a helicopter overhead. He then heard appellant yell, "Hey, lets go," as he pedaled away on his bicycle. The other person also left on a bicycle, traveling in the same direction as appellant.
On April 10, 2002 Officer Michael Colbert of the Long Beach Police Department was working air support as the observer in a helicopter being piloted by a second officer. After being dispatched to the area of the 1300 block of Junipero, Officer Colbert observed through binoculars a male Hispanic, whom he identified as appellant, and an African-American male in the alley west of Junipero. He saw appellant placing a large black item into a trash receptacle, and he saw the other person 75 to 100 feet away, placing items inside another receptacle. Officer Colbert was able to keep his eyes on appellant the whole time. He saw appellant ride away on his bicycle, and saw him being detained by another unit.
When he was detained, appellant was wearing a gold chain on his neck and had a cross pendant in his pants pocket. Both items were identified by Mrs. Valenzuela as having been taken from her house. Computer parts, a large stereo speaker, and a Fisher stereo system with speakers were found in trash cans in the alley behind the Valenzuela home.
On the following day, at the AAA Pawn Shop, located at 1100 Long Beach Boulevard, in Long Beach, items of jewelry later identified as having been taken in the burglary were recovered and returned to the Valenzuelas. The pawnshop receipt indicated that the items had been received at 12:48 p.m. on April 10. A bag of baby clothing and the box of diapers which had been taken in the burglary were recovered by the police in a hotel room about five or six blocks from the Valenzuela home. There was no evidence connecting appellant either to the pawn shop or to the hotel.
The defense moved for acquittal of the burglary charge under section 1118.1. The court denied the motion.
DISCUSSION
A. Sufficiency of the Evidence
Appellant contends that there was insufficient evidence to sustain his conviction of burglary based on the prosecutions theory that appellant aided and abetted the commission of the burglary. Appellant argues that the timing of events compels us to conclude that he was only guilty of receiving stolen property and could not have been involved in the burglary. We disagree, and find the evidence of appellants involvement as a direct perpetrator in the burglary sufficient to sustain his conviction.
In order to prove the commission of a burglary in violation of section 459, it must be established that (1) a person entered a building, and (2) at the time of the entry, the person intended to commit larceny or any felony. (People v. Valencia (2002) 28 Cal.4th 1, 3.) "Because the crime of burglary is complete (that is, all of the elements of the offense have been satisfied) upon the perpetrators entry into the structure with felonious intent, a person may be found guilty as an aider and abettor only if he or she formed the requisite intent to commit, encourage, or facilitate the offense prior to or during entry by the perpetrator. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1039-1040, 874 P.2d 903.)
In its presentation of the evidence against appellant and argument to the jury, the prosecution here relied on a theory of aiding and abetting to establish appellants guilt. Because there was no direct evidence that appellant was inside the house, such as fingerprints (in spite of evidence that fingerprints had been recovered from the scene), the prosecutor argued that the circumstantial evidence established his participation in the burglary as an aider and abettor. That evidence included the fact that appellant had been observed in the alley behind the burgled house moving property which had been taken from the house, and he had jewelry from the burgled house on his person when he was detained. On the basis of this evidence, the jury could reasonably have found that appellant had been inside the Valenzuela residence during the burglary.
It is undisputed that the jewelry was logged into the pawnshops records at 12:48 p.m., which was about the same time that Souvanna Ly called 911 to report what he was observing in the alley behind the Valenzuela home. The pawnshop was a mile and a half to three miles away from the Valenzuela home. It would not be unreasonable to infer that a person taking the jewelry to the pawnshop would go there directly after committing the burglary. Moreover, it could reasonably be inferred from the evidence that one could traverse the distance between the house and the pawnshop in a few minutes, even on a bicycle, assuming that was the mode of transportation all the burglars used. And allowing a few minutes for the pawnshop transaction, it would be reasonable to infer from the circumstantial evidence that the time was sufficient for appellant to have participated with others in the burglary, to have been inside the house, to have received his split of the jewelry, and then to have gone outside to secrete the large items which the burglars were unable to carry off immediately.
The manner in which appellant looked up and down the alley evidenced his concern that someone from the alley might see them, but there was no evidence that either appellant or his cohort in the alley feared being apprehended by someone who might have returned to the Valenzuela house. Nor was there any evidence that the burglars had been interrupted by the residents of the burgled house. It would therefore be reasonable to infer that the attempt by appellant and his cohort to secrete bulky items in trash receptacles in the alley took place shortly after the items had been taken from the house.
At the moment appellant was seen in the alley, he was already wearing a necklace taken from inside the house and had another item of jewelry in his pocket. There were no other small items of stolen property in the alley. Based on this evidence, it was reasonable to infer that the small items of property had been taken away immediately to be pawned, except for the items appellant had, and the large items were being hidden close by to be retrieved later. This evidence would support an inference that the burglars did not have the necessary transportation to take the larger items with them immediately, explaining appellants activities.
We are satisfied that even without resort to an aiding and abetting theory, there was sufficient circumstantial evidence to support appellants conviction as a direct perpetrator in the burglary. We therefore find appellants claim of insufficiency of the evidence to be without merit.
B. Prosecutorial Misconduct
Appellant asserts two separate instances of asserted prosecutorial misconduct that, singly or together, were so prejudicial as to require reversal. Appellant first contends that during argument to the jury, the prosecutor twice committed Griffin error. In addition, appellant contends that the prosecutor misstated facts and the applicable law in argument to the jury, thereby creating a reasonable probability that the jury was misled. We reject both of appellants assignments of error based on alleged prosecutorial misconduct.
Griffin v. California (1965) 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.
In opening argument to the jury, the prosecutor stated, "and how do we know whats going on in [a criminals] mind? Because we cant ask [defendant] what his intent was. We have to look around at the circumstances because hes not telling us. But what we know is what his body language is telling us, his behavior in that alley." The prosecutor further commented on the sufficiency of the states circumstantial evidence in rebuttal: "[defendant] is not going to tell us what was going on in his mind, but he doesnt need to because we have ample circumstantial evidence and direct evidence from all of the officers and from the victim that show us this guy is guilty . . . ."
"Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendants failure to testify in his defense. It is well established, however, that the rule prohibiting comment on defendants silence does not extend to comments on the state of evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses. (See People v. Mayfield (1993) 5 Cal.4th 142, 178-179, 852 P.2d 331; People v. Morris (1988) 46 Cal.3d 1, 35, 249 Cal. Rptr. 119, 756 P.2d 843, and cases cited.)" (People v. Medina (1995) 11 Cal.4th 694, 755, 906 P.2d 2 (Medina II).)
In Medina II the defendant was convicted of murder. The prosecutors alleged misconduct consisted of remarks during summation that despite the presence of five people at the scene of the crime, the accomplices testimony had not been refuted. (Medina II, supra, 11 Cal.4th 694.) Holding that no prejudicial Griffin error had occurred, the court explained: "First, the prosecutors comments were made without objection from defendant and, accordingly, the point was waived for appeal. . . . [P] Second, the prosecutors comments were directed to the general failure of the defense to provide an innocent explanation as to why defendant was armed, and in the possession of the [car in question], at the time of the robberies." (Id. at p. 756.)
In the instant case, there was no Griffin error for the same reasons as those cited in Medina II. First, appellant failed to object to the prosecutors comments, and consequently waived the issue on appeal. Second, as in Medina II, the two statements in this case referred to the prosecutors use of circumstantial evidence to establish criminal intent, and merely highlighted appellants general failure to provide an innocent explanation for his conduct. The emphasis of these comments was not appellants failure to testify, but, rather, that there was ample evidence — both circumstantial and direct — to prove that appellant had formed the requisite intent to aid and abet a burglary.
We reject appellants contention that it would have been futile to object because a request for admonition would not have cured the harm. (People v. Herring (1993) 20 Cal.App.4th 1066, 1074). Although the courts general admonition and instruction to the jury to disregard any misstatement of the law by an attorney and not to draw any inferences from defendants failure to testify cured any possible prejudice that might have resulted from the prosecutors remarks, a more specific admonition, given at the time the remarks were made, would have immediately cured any possible harm. (CALJIC No. 2.60.)
Compare People v. Medina (1974) 41 Cal. App. 3d 438, 457, 116 Cal. Rptr. 133, holding that there was prejudicial Griffin error when the prosecuting attorneys final summation referred several times to the defendants failure to come forward to refute scathing testimony from three witnesses. The entire thrust of the prosecutors remarks was to emphasize defendants failure to testify and not to comment on the state of evidence.
Even if the prosecutions remarks in this case amounted to Griffin error, we nevertheless find the error was harmless beyond a reasonable doubt. (People v. Medina, supra, 41 Cal. App. 3d 438, 460 (Medina I).) "The prosecutor bears the burden of demonstrating that a particular Griffin violation proved entirely inconsequential; once such a showing has been made, however, the violation no longer serves as basis for reversal." (People v. Modesto (1967) 66 Cal.2d 695, 712, 59 Cal. Rptr. 124, 427 P.2d 788.) "We need not reverse [a] conviction for the sole reason that we might be able to conceive of some possibility, however remote, that a jury could have been marginally influenced by the comment in question." (Id. at pp. 712-713.)
In People v. Vargas (1973) 9 Cal.3d 470, 108 Cal. Rptr. 15, 509 P.2d 959, the court found Griffin error where the prosecutor twice referred to the defendants failure to testify during closing argument: "Ladies and gentlemen, there is no evidence whatsoever to contradict the fact that [the witness] saw [defendants] over [the victim]. And there is no denial at all that they were there. The defendants are guilty beyond any reasonable doubt . . . ." (People v. Vargas , supra, 9 Cal.3d at p. 474.) The court nevertheless affirmed the robbery conviction, holding that "the prosecutors remark here . . . was brief and mild, and amounted to no more than an indirect comment upon defendants failure to testify without suggesting that an inference of guilt should be drawn therefrom." (Id. at p. 479.)
Here, the prosecutors remarks regarding appellants failure to testify were "brief and mild," in contrast to the prosecutors"" machine-gun repetition"" of Griffin error in Chapman, which was "`"`designed and calculated to make [defendants] version of the evidence worthless."" (Medina I, supra, 41 Cal. App. 3d at pp. 460-461.) Furthermore, "[a] forbidden comment . . . is less likely to affect the substantial rights of a defendant [citation] if that comment merely notes the defendants silence and includes no suggestion that, among the various inferences which might be drawn therefrom, those unfavorable to the defendant are the more probable." (People v. Modesto , supra, 66 Cal.2d at p. 713.) ""Indirect, brief and mild references to defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error." [Citation.]" (People v. Boyette (2002) 29 Cal.4th 381, 455-456, fn. omitted.) The prosecutors comment in the present case, which merely noted appellants silence and did not suggest any inference of guilt based on that silence, did not amount to prejudicial Griffin error. Rather, the remark referred only to the states lack of direct evidence regarding the requisite intent element for aiding and abetting burglary.
See Chapman v. California (1967) 386 U.S. 18, 19, 17 L. Ed. 2d 705, 87 S. Ct. 824, holding that the prosecutor committed Griffin error when the states attorney "filled his argument to the jury from beginning to end with numerous references to [defendants] silence and inferences of [defendants] guilt resulting therefrom" (over 20 references to defendants failure to testify).
Appellant also contends that an alleged misstatement of fact and law during the prosecutions closing argument constituted prosecutorial misconduct requiring reversal. In summarizing the facts of the prosecutions case to the jury, the prosecutor stated that "the defendant was with another guy in the alley with the goods. Theyre both putting the goods in the trashcans. They hadnt left the structure." (Italics added.) Appellant asserts that the prosecutor mischaracterized the alley as part of the Valenzuela residence in order to avoid the states obligation to prove all the elements of aiding and abetting a burglary. We disagree.
CALJIC No. 14.54 provides: "In order for an accused to be guilty of burglary as an aider and abettor, he must have knowledge of the perpetrators unlawful purpose and must have formed the intent to commit, encourage or facilitate commission of the crime before the perpetrators final departure from the structure."
"A prosecutor may vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom. [Citation.]" (People v. Sandoval (1992) 4 Cal.4th 155, 183, 841 P.2d 862.) The prosecution also has "wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 522, 950 P.2d 1035.)
Here again, defense counsels failure to object to the alleged misstatement of fact operates as a waiver of the claim on appeal. (People v. Hill (1998) 17 Cal.4th 800, 823, 952 P.2d 673.) And appellant suggests no reason why a prompt objection and admonition could not have cured any harm from the statement. (People v. Lucas (1995) 12 Cal.4th 415, 473, 907 P.2d 373.)
Even assuming the remark constituted a misstatement of fact, it was harmless in light of the evidence of appellants active participation in the burglary. Two police officers had seen appellant transferring stolen property in the alley behind the burgled house, appellant warned another suspect to flee when the police helicopter arrived, and appellant was later detained leaving the crime scene with a stolen necklace and pendant on his person identified as missing from the burgled house. Moreover, any possible prejudice from the prosecutors statement was cured by the courts instructions that statements made by the attorneys during trial are not evidence, and requiring the jury to determine the facts from the evidence received in trial and not from any other source. (CALJIC Nos. 1.00, 1.02)
Finally, we reject appellants contention that the cumulative effect of these errors requires reversal of the judgment. Since we have determined that the prosecutions remarks did not constitute prosecutorial misconduct, there was no "series of trial errors [that rose] by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844.)
C. Ineffective Assistance of Counsel
Appellant contends he was deprived of effective assistance of counsel based on his trial counsels failure to object to the prosecutors alleged "two . . . Griffin errors she committed, and to her mischaracterization of facts and misstatement of law as to the critical final departure element of the prosecutors vicarious liability theory of aiding and abetting burglary." We disagree.
"To show ineffective assistance of counsel, defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for the counsels unprofessional errors, the result would have been different." (People v. Kelly (1992) 1 Cal.4th 495, 519-520, 822 P.2d 385, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Frierson (1991) 53 Cal.3d 730, 747, 280 Cal. Rptr. 440, 808 P.2d 1197.) "The mere failure to object rarely rises to a level implicating ones constitutional right to effective legal counsel." (People v. Boyette, supra, 29 Cal.4th at p. 433.) "Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] When a defendant makes an ineffective [assistance of counsel] claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention must be rejected. [Citation.]" (People v. Kelly, supra, 1 Cal.4th at p. 520.)
Moreover, appellant has altogether failed to establish actual prejudice from his counsels failure to object to the prosecutors argument. (Williams v. Taylor (2000) 529 U.S. 362, 394, 146 L. Ed. 2d 389, 120 S. Ct. 1495.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test [citation] and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." (Strickland v. Washington , supra, 466 U.S. at p. 693.) Appellant has shown no adverse effect on the defense from his counsels failure to object, and his claim of ineffective assistance of counsel thus fails. Furthermore, inasmuch as we have concluded that the prosecutors remarks did not constitute misconduct, defense counsel cannot be faulted for failing to object. (People v. Boyette, supra, 29 Cal.4th at p. 433.)
DISPOSITION
The judgment is affirmed.
We concur: NOTT, Acting P.J., and ASHMANN-GERST, J.