Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF118179. James M. Stuart, Judge.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury convicted appellant Edward Mathew James of petty theft with a prior conviction (Pen. Code, § 666) and misdemeanor battery (§ 243, subd. (a)), but found him not guilty of burglary (§ 460, subd. (b)). In a bifurcated trial, the court found true allegations that James had suffered a prior “strike” conviction within the meaning of section 667, subdivisions (c)-(j), and served a prior prison term within the meaning of section 667.5, subdivision (b). James was sentenced to state prison for a total term of 44 months, comprised of the lower term of 32 months (16 months doubled) for the petty theft conviction plus one year for the prior prison term. James also was sentenced to a concurrent six-month term in county jail for the misdemeanor battery conviction.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, James contends: (1) the trial court erred in failing to instruct the jury in accordance with Evidence Code section 412; (2) the trial court erred in failing to impose a discovery sanction for the prosecutor’s failure to timely disclose the misdemeanor convictions of a material prosecution witness; (3) the trial court provided an inadequate response to the jury’s request for clarification of the petty theft instruction; (4) the prosecutor’s objections and trial court’s responses in front of the jury during defense counsel’s closing argument were improper and unconstitutionally drew attention to the fact that James did not testify; (5) the cumulative effect of these errors was prejudicial; and (6) the trial court erred in discussing in front of the jury how James wished to proceed with the prior conviction allegations. As we shall explain, we disagree with all of these contentions and affirm the judgment.
STATEMENT OF FACTS
On November 29, 2006, at approximately 2:45 p.m., Jarrod Massey, a supervisor in the car audio department of an electronics store, saw a man, later identified as James, take a triangular shaped box that contained a silencing material used in car audio applications off a display shelf and tuck it underneath his white hooded sweatshirt. Massey immediately went to the front of the store to notify Richard Valdovinos, the store’s loss prevention officer, who was sitting at the loss prevention desk located immediately inside the store.
The store has a closed circuit television camera system that can be viewed only in the store. After Massey said something to him, Valdovinos positioned one of the system’s cameras to follow James throughout the store and watched him on the closed circuit television. He and Massey saw that James was holding something under his sweatshirt. James continued to walk around the audio department for about four minutes and then proceeded to the front of the store. James walked toward the exit doors without stopping at any cash register or help desk. Valdovinos could now see James without the security camera’s assistance and again saw something protruding from James’s sweatshirt. Valdovinos and Massey followed James with the camera until he attempted to exit the store. According to Valdovinos, although the cameras have blind spots and can lose sight of a customer, they were able to keep “a hundred percent visual” contact with James through Massey following James visually and the closed circuit television.
When defense counsel asked Massey on cross-examination whether “at some point you followed [James] on camera,” Massey responded “Correct.” Defense counsel then asked, “I take it everything was being recorded, correct?” Massey answered, “That is correct.”
At the front of the store are two sets of automatic sliding doors about eight feet apart, used to enter and exit the store. There are no cash registers or help desks in the area between the sets of doors, only candy machines and vendor stands. The second set of doors leads to the parking lot. James went through the first set of doors and was about a foot away from the second set of doors, which he was attempting to go through, when Valdovinos and Massey caught up with him. Valdovinos told James he was a loss prevention officer and James needed to come with him because he was being detained for shoplifting. Valdovinos gripped James’s arm and led him toward the loss prevention office located inside the store, accompanied by Massey. James denied having any store product in his possession. As the three of them approached the loss prevention office, however, the same product Massey saw James take from the display shelf fell out from underneath his sweatshirt. When Massey opened the door to the office and stepped inside, with James and Valdovinos behind him, James swung around in an attempt to get out and struck Valdovinos on his right cheek. Valdovinos testified his cheek was sore and visibly darker. The two store employees gained control of James and placed zip ties on his wrists. James was unable to produce a receipt for the product.
Bakersfield Police Department Officer Daniel Brewer was dispatched to the store and took James into custody. Officer Brewer examined Valdovinos’s face, but did not see any visible injury. Valdovinos told Officer Brewer that he videotaped the incident. Officer Brewer asked Valdovinos for a copy of the videotape. Valdovinos told him he could not provide it at that time, but he would provide a copy later. Valdovinos, however, never gave a copy of the videotape to police. Valdovinos did not have a copy of the videotape; the videotape was at the store’s corporate headquarters and never was released to him. Valdovinos explained that the store’s legal department asks to be sent all security tapes. When Valdovinos asked the legal department about this specific tape, he was told the legal department had not received a subpoena for it.
DISCUSSION
I. Failure to Instruct with Evidence Code section 412
Evidence Code section 412 provides: “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.”
Based on this provision, James contends that because the prosecution failed to produce the surveillance videotape, which would have been stronger evidence than the testimony of Massey and Valdovinos, the jury should have been instructed to view their testimony with distrust. (People v. Taylor (1977) 67 Cal.App.3d 403, 412 (Taylor); People v. Simms (1970) 10 Cal.App.3d 299, 312.) James claims the failure to instruct on this principle was reversible error because the videotape “would serve to reduce the ambiguities of the accounts presented to the jury.”
James also claims that because the prosecution could have obtained the videotape but did not, the trial court erred when it instructed the jury with CALJIC No. 2.11 (production of all available evidence not required) and commented during defense counsel’s closing argument that the videotape “was not subpoenaed by either party” and “[t]here is no evidence in this case indicating that anyone made any requests or that anyone issued a subpoena.” James asserts the court’s instruction and comments, along with the failure to instruct with Evidence Code section 412, erroneously placed the failure to produce the videotape equally on the defense instead of placing the burden on the prosecution, thereby lightening the prosecution’s burden of proof.
CALJIC No. 2.11 states: “Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. [¶] Neither side is required to produce all objects or documents mentioned or suggested by the evidence.”
The court’s comments were made after the prosecutor objected to defense counsel’s statement during closing argument that the prosecution withheld the videotape from the defense. The objection was made on the ground the statement assumed facts not in evidence. The court agreed, stating the videotape “was not withheld, it was not provided. It was not subpoenaed by either party.” Defense counsel responded: “We made requests multiple times.” The prosecutor again objected on the ground the statement assumed facts not in evidence. The court ruled, “There is no evidence in this case indicating that anyone made any requests or that anyone issued a subpoena.”
Evidence Code section 412 applies only if it can be shown that a party actually possesses or has access to better and stronger evidence than it presented. (Taylor, supra, 67 Cal.App.3d at p. 412.) Assuming the prosecutor had access to the videotape, James failed to demonstrate the videotape was stronger evidence than the eyewitness testimony presented because the record fails to disclose exactly what the videotape showed. The videotape apparently did not capture James taking the store product, since Valdovinos did not focus the camera on James until after he had taken the product off the shelf and put it under his sweatshirt. Valdovinos testified he had a store security camera focused on James as he walked through the store. Massey testified they “followed [James] with that camera until he reached a point of attempting to exit the store,” and confirmed on cross-examination that he was following James on camera and “everything was being recorded.” Neither witness testified, however, that James’s apprehension or the battery in front of the loss prevention office was on camera or videotaped. In addition, Valdovinos testified that sometimes there are blind spots in the cameras, and they were able to follow James with both the camera and Massey’s visual observations. Although Officer Brewer confirmed that Valdovinos told him he videotaped the incident, Officer Brewer did not testify about whether the videotape captured the entire incident. None of the witnesses testified that they viewed the videotape or about what it showed, other than to testify that a videotape existed.
Citing Evidence Code sections 452, subdivision (h) and 459, subdivision (a), James has requested that we take judicial notice of the location of the store’s corporate headquarters, apparently for the purpose of establishing the prosecution’s ability to access the videotape. Since we are assuming for purposes of our analysis that the prosecution had the ability to access the videotape, the location of the headquarters is irrelevant to the issues before us. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276 [only relevant material may be judicially noticed].) Accordingly, James’s request is denied.
On the other hand, the eyewitness testimony in this case was strong. Massey testified that he saw James take the store product from the shelf and put it under his sweatshirt. Both Massey and Valdovinos saw James walk through the store with the product partially visible and proceed through the doors leading out of the store. Both stopped James as he was exiting the store, saw the product fall out from under his sweatshirt as he was being led to the loss prevention office, and testified that James struck Valdovinos on the cheek as he was attempting to flee.
Because the record does not disclose precisely what the videotape depicted, it would be wholly speculative to conclude that the videotape was “stronger” or “more satisfactory” evidence than the eyewitness testimony presented. Accordingly, the trial court did not err in not instructing sua sponte with Evidence Code section 412. Since this was not error, the court also did not err in instructing with CALJIC No. 2.11 or in commenting that neither party had subpoenaed the videotape. We also note that in a case where, as here, the defendant does not testify, sua sponte instruction based on Evidence Code section 412 is almost certain to result in a reversal. (People v. Coleman (1972) 28 Cal.App.3d 36, 46; People v. Romero (1966) 244 Cal.App.2d 495, 504-505.)
Even if the court erred in not giving the instruction on Evidence Code section 412 and commenting that neither party had subpoenaed the videotape, the errors were harmless under any standard of review. The trial court instructed the jury on how to evaluate eyewitness testimony and witness credibility. (CALJIC Nos. 2.20, 2.23, 2.21.1, 2.21.2, 2.22, 2.27.) It is presumed the jury understood and followed the court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662 (Holt).) The evidence of James’s guilt was substantial. The testimony of a single witness is sufficient to support the judgment, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608.) Here, the prosecution presented two eyewitness accounts of the shoplifting incident and battery. Although the defense was free to argue, as it did, that the eyewitness testimony was not credible because the store refused to produce the videotape, the jury properly was permitted to determine what weight, if any, to give that testimony. While James contends the jury would have reached a more favorable result had it been instructed with Evidence Code section 412 because there was no physical evidence of injury and James never left the store, we disagree, since the jury was free to determine the weight of the eyewitness testimony. (See People v. Wharton (1991) 53 Cal.3d 522, 571; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Dieguez (2001) 89 Cal.App.4th 266, 277-278.)
James contends the failure to instruct with Evidence Code section 412 and the court’s comments lessened the prosecution’s burden of proof. We disagree. The jury was instructed thoroughly on the burden of proof and the presumption of innocence. (CALJIC No. 2.90.) The jurors are presumed to have understood and followed the court’s instructions. (Holt, supra, 15 Cal.4th at p. 662.) The jury’s ability to apply this instruction is demonstrated by the not guilty finding on the burglary count. Thus, there is no basis upon which to reverse James’s convictions.
II. The Court’s Failure to Impose a Discovery Sanction
James contends the trial court erred in failing to impose a discovery sanction for the prosecution’s failure to timely disclose Massey’s misdemeanor convictions. We disagree.
Trial Proceedings
About two and half months before trial, James requested discovery pursuant to section 1054.1. On the day of trial, James filed in limine motions, the fifth of which requested “full discovery” pursuant to section 1054.1, and the sixth of which requested the prosecution be required to “inquire about and make available to the defense information concerning the felony convictions and misdemeanor misconduct of material prosecution witnesses whose credibility is likely to be critical to the outcome of the trial.”
During the hearing on the motions, the court noted that the fifth motion was for discovery and asked the prosecutor whether she had given defense counsel everything she had. The prosecutor responded that she had not, as she had run a rap sheet on Massey which showed he had “a misdemeanor crime of moral turpitude,” about which she had not had an opportunity to talk to defense counsel. The prosecutor explained that Massey had two convictions, one on September 1, 2004, for manufacturing a deceptive government identification in violation of section 529.5, and the other on June 9, 2003, for using false evidence of age in violation of Business and Professions Code section 25661. The court noted the prosecutor had provided the information and granted the sixth motion requiring the prosecution to make available to the defense information regarding the misdemeanor misconduct of material prosecution witnesses. Defense counsel did not object to the disclosure as untimely or request a continuance.
During trial, defense counsel asked Massey on cross-examination if he had been convicted of forgery. Massey denied that he had, but testified he understood he “was convicted of reproduction of the California State seal, which is [a] separate charge from forgery.” Defense counsel then asked whether on September 1, 2004, he was convicted under section 529.5 for manufacturing a deceptive government identification. Massey responded that was the conviction he had been explaining. Defense counsel asked if in 2004 he was also convicted under the Business and Professions Code for possessing and using false evidence. Massey answered that it was not false evidence, but a false identification card. Massey denied that he considered those convictions to be forgery.
Later during cross-examination, defense counsel continued to ask Massey about his convictions for “forgery.” The court interrupted counsel’s questions and explained that the question had been asked and answered, as Massey already had admitted to the conviction for having a false identification card, and there was a big difference between a forgery, which is a felony, and manufacturing a deceptive government identification. When defense counsel persisted in asking Massey about his honesty, the court stated the question had been asked and answered, and when defense counsel responded that he would rephrase the question, the court told the jury, “While he’s thinking about rephrasing it, ladies and gentlemen, I’ll do the same, whether it’s a defense lawyer or prosecutor. We establish the facts, we argue their significance later. We don’t get to go through it two, three, four times just because it sounds good.”
Analysis
James contends the untimely disclosure of Massey’s misdemeanor convictions required the trial court to issue a discovery sanction. James asserts that sanction should have been instruction with CALCRIM No. 306, which he claims the trial court should have given sua sponte.
CALCRIM No. 306 (Untimely Disclosure of Evidence) provides, in pertinent part: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: <describe evidence that was not disclosed> [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
Pursuant to section 1054.1, the prosecuting attorney is required to disclose to the defense felony convictions of a material witness whose credibility is likely to be critical to the trial’s outcome and any exculpatory evidence. (§ 1054.1, subds. (d) & (e).) As James recognizes in his reply brief, disclosure of a witness’s misdemeanor conviction is not required by section 1054.1, since it is neither a felony nor exculpatory evidence. (People v. Santos (1994) 30 Cal.App.4th 169, 177-178 (Santos).) James, however, claims that a discovery sanction nevertheless should have been imposed. We disagree for the simple reason that James has not established he was entitled to discovery pursuant to statute, which is a prerequisite to obtaining the sanctions authorized by statute. In addition, James never requested sanctions, as required by section 1054.5.
Section 1054.5, subdivision (b) provides that before a party may seek court enforcement of any disclosures required by the discovery statutes, that party must seek to informally resolve the dispute, and only after that may that party seek a court order, which may include “advis[ing] the jury of any failure or refusal to disclose and of any untimely disclosure.”
If James was entitled to disclosure of the misdemeanor convictions, it would have been because that discovery was necessary to afford him due process under the federal Constitution. (Santos, supra, 30 Cal.App.4th at pp. 178-179; see People v. Tillis (1998) 18 Cal.4th 284, 290-291, 294.) As this court explained in Santos, a criminal defendant has a constitutional right to disclosure, upon request, of a witness’s misdemeanor convictions bearing on credibility. (Santos, supra, 30 Cal.App.4th at pp. 178-179.) Discoverable information must be provided in a timely manner. (See People v. Pinholster (1992) 1 Cal.4th 865, 940-941 (Pinholster).) The record shows that James requested information regarding misdemeanor misconduct of prosecution witnesses on the day of trial and the prosecutor provided that information on the morning of trial, before jury selection. Once James was given the information, the only issue remaining was whether he was given sufficient opportunity to prepare his defense. James, however, never claimed at trial that he was prejudiced by any tardiness, nor did he request a continuance, which was a prerequisite to any claim he was harmed by an untimely disclosure. (Pinholster, supra, 1 Cal.4th at p. 941.)
Even if disclosure was untimely, the delay did not so prejudice the preparation or presentation of the defense that James was prevented from receiving a fair trial. (United States v. Gordon (9th Cir. 1988) 844 F.2d 1397, 1403; United States v. Shelton (9th Cir. 1978) 588 F.2d 1242, 1247.) James’s attorney was able to use the convictions to impeach Massey. Although James claims his attorney was less than effective in doing so because he kept asking Massey whether he was convicted of forgery, the record shows that Massey accurately described his convictions in front of the jury. The trial court’s comments in response to his counsel’s questioning on the convictions were not egregious, and do not show that James was prevented from receiving a fair trial. Nothing in the record shows James was prejudiced by any delay in disclosing the information.
III. Instructional Error
James contends the trial court erred when it provided an inadequate answer to the jury’s request for clarification of the petty theft jury instruction. We disagree.
Trial Proceedings
With respect to the petty theft charge, the jury was instructed with CALJIC No. 14.41, as follows: “The defendant is accused in count two with having committed the crime of petty theft, in violation of Penal Code section 666, which is defined as follows: Every person who steals, takes, or carries away the personal property of another, with the specific intent to permanently deprive the owner of his, her or its property, is guilty of the crime of petty theft.” The jury also was instructed that in the crime charged as petty theft, “there must exist a union or joint operation of act or conduct, and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime to which it relates is not committed.” (CALJIC No. 3.31.)
Shortly after the jury began deliberations, it sent the following note to the trial court: “Does the defendant need to be outside the store with an unpaid item, past both sets of doors, to be considered committing petty-theft or commercial burglary. What is the law regarding this?” In discussions held outside the jury’s presence, the court stated the simple answer to the question was no. The prosecutor agreed, but defense counsel did not, explaining he believed it would be “a critical error” to advise the jury of that. The court responded: “Counsel, I’m not interested in that comment from you, because what I was trying to do, first of all, and apologize to you, the simple answer is no, and I intend to give them that. And then I intend to respond to their comment about what is the law regarding this. And as to that, I’m going to reread CALJIC 14.50, just as I read it here.” Defense counsel stated the only appropriate response to the question was to refer the jury to the instruction, not just to say no. The court responded it was going to read the instruction to the jury.
When the jury was brought in, the court explained it was safer to use “legal words” to respond to the question, rather than to use its own words. After addressing the burglary instruction, the court stated: “Now, with regard to the petty theft, that simply says that every person who steals, takes, or carries away the personal property of another, with the specific intent to permanently deprive the owner of his or her or its property, is guilty of the crime of petty theft. Does the person need to leave the building? No.” The court sent the jury out to continue deliberations. Outside the jury’s presence, defense counsel objected to the court’s explanation because “that response would mislead the jury into reaching an erroneous decision in this case.” Defense counsel explained “[t]hese are questions of fact for the jury to decide. The law says if a person takes something with intent to deprive that person permanently. The question of whether he left the store or not is for the jury to decide. It’s a reason of fact for the jury [to] decide.” The court noted the objection. An hour later, the jury returned its verdict.
Analysis
James contends the court erred when it told the jury that a person does not need to leave the building to be guilty of petty theft because the instruction “foreclosed the jury from considering [his] failure to exit the store as a factor in determining whether all the elements of the crime of petit theft had been met.” James further explains his “failure to leave the store is a factor to determine whether [he] had the requisite intent; the court’s supplemental instruction in response to the jury’s inquiry failed to make this clear to the jury.”
A person does not have to remove merchandise from a store in order to be guilty of petty theft. All that is required is the person take possession of the property, detach it from the store shelves or other location, and move it slightly with the intent to deprive the store of the merchandise permanently. (People v. Davis (1998) 19 Cal.4th 301, 305-306; People v. Shannon (1998) 66 Cal.App.4th 649, 654-656.) The person’s intent can be proved circumstantially from the act itself and the theft’s surrounding circumstances. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.)
In his reply brief, James cites to a case distinguished in Shannon, supra, 66 Cal.App.4th at p. 655, People v. Ingram, which held that the defendant had to walk away with the merchandise to be guilty of theft by larceny. The California Supreme Court, however, granted review of People v. Ingram on October 14, 1998 (S072712), thereby superseding the opinion and making it no longer citable. (See Cal. Rules of Court, rules 976(d), 977(a).) On January 27, 1999, the Supreme Court dismissed review and remanded the cause to the Court of Appeal, Fourth Appellate District, Division One.
Thus, the court was correct when it told the jury that a person does not need to leave the building to be guilty of petty theft. Contrary to James’s assertion, the explanation did not foreclose the jury from considering his failure to leave the store when determining whether he intended to permanently deprive the store of the merchandise. The court did not tell the jury they should find James guilty if he remained in the store; the court merely told them that it was not necessary for a person to have left the store to be found guilty. The court properly instructed the jury with CALJIC No. 14.41, which specifies that to be found guilty of petty theft, a person must have the specific intent to permanently deprive the owner of its property. The court also instructed with CALJIC No. 3.31, which states that the specific intent has to exist in order for the crime to be committed. We presume the jury followed these instructions. (Holt, supra, 15 Cal.4th at p. 662.)
IV. Trial Court’s Comments During Closing Argument
James contends the trial court committed misconduct when it made comments during defense counsel’s closing argument that violated his privilege against self-incrimination. Specifically, James contends the trial court commented on his failure to testify in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin).
Trial Proceedings
The complained of comments occurred during defense closing argument:
“[DEFENSE COUNSEL]: Thank you, Judge. Do you recall what I told you at the beginning of this case? Something is missing. Something critical. The most critical, the most important evidence in this case is missing. Do you know why it’s missing? Because they withheld it from us.
“[PROSECUTOR]: Objection; assuming facts not in evidence.
“THE COURT: It was not withheld, it was not provided. It was not subpoenaed by either party.
“[DEFENSE COUNSEL]: We made requests multiple times.
“[PROSECUTOR]: Objection; assuming facts not in evidence.
“THE COURT: There is no evidence in this case indicating that anyone made any requests or that anyone issued a subpoena. [¶] … [¶]
“[DEFENSE COUNSEL]: … What evidence is more important than that? I mean, we watch television, we see videos being played on televisions, people going to convenience stores, robbing convenience stores and running away. The video gives them away. It does not lie. Why was it withheld? It was withheld by, you heard the testimony, I’m not making it up, [electronics store] corporate headquarters.
“[PROSECUTOR]: Objection; misstating the facts.
“THE COURT: Headquarters, in their legal department. Are you drawing that distinction, because the testimony was in fact that it was they who refused to turn it over. They said there was no subpoena. That’s my recollection of the testimony. Objection is overruled. If you have a different recollection as to exactly what was said by either of the witnesses on either occasion, you may address that in your closing argument, counsel.
“[PROSECUTOR]: Thank you, your Honor.
“[DEFENSE COUNSEL]: Thank you. In the testimony by Valdovinos or Massey, I can’t remember which one said it, the tape was withheld on the advice of their legal department. They have a legal defendant. They reviewed the tape to see the implications.
“[PROSECUTOR]: Objection; stating facts not in evidence.
“THE COURT: Counsel, there is no evidence that anybody in that department reviewed that tape and considered any implications, and you are arguing that as if it is a direct fact established by the evidence. I’m assuming that you, as an experienced trial lawyer, might want to suggest that you might consider some inferences, and if you wish to do it that way, you certainly may. But there was no evidence. The D.A.’s objection to the manner in which you describe that to the jury is sustained. [¶] … [¶]
“[DEFENSE COUNSEL]: Here’s my take. Here’s my inference as to why this tape is being withheld: Because [electronics store] does not want itself to be subjected to civil liability because they’re unlawful for no just cause. He stood inside the store, he never left the store, never intended to leave the store. Don’t get me wrong, I’m not making excuses for him. What he did was pure stupid. He should have just left the store. If he felt humiliated, if he felt he was being treated unlawfully, being denied
[PROSECUTOR]: Objection; stating facts not in evidence.
THE COURT: Counsel, what you’re arguing now is not supported by the evidence the way you are arguing it. Objection is sustained. I’ll just remind the ladies and gentlemen of the jury that they are to base their decision, whatever it is, just on the evidence that was presented here in court, and inferences that may logically be drawn from evidence that was presented here. [¶] … [¶]
“[DEFENSE COUNSEL]: … What would you think? I’m not a magician. I’m not in their mind. I don’t know what they thought. If they felt an offense was committed against them, what is the most natural thing for them to do? Produce the tape. Do I have to ask you for it? Of course we did ask for it.
“[PROSECUTOR]: Objection; assuming facts not in evidence.
“THE COURT: Counsel, there’s no evidence, other than – well, there’s no evidence in front of this jury.
“[DEFENSE COUNSEL]: Again, like I said, I’m not trying to make excuses for him. He should have left the store because he was being followed around like a thief. He’s 24 years old. Still growing up. He became upset. Why was he being unfairly profiled?
“[PROSECUTOR]: Objection; assuming facts not in evidence.
“[DEFENSE COUNSEL]: Judge, I’m sorry.
“THE COURT: You’re just plain wrong. There was no testimony with regard to profiling, and I didn’t instruct on profiling. And there is no evidence with regard to that whatsoever. I mean, it sounds nice, it sounds good, but I heard you say in your opening statement, and I kept waiting for the evidence that there was something in that regard, and it never came.
“[DEFENSE COUNSEL]: May I respond?
“THE COURT: No. I’ve made my ruling and I’m comfortable with my ruling. Proceed, please.”
Analysis
James argues the trial court’s comments were prejudicial to the jury’s credibility determination because the comments (1) erroneously placed the failure to produce the tape on the defense, and (2) violated his privilege against self-incrimination as stated in Griffin by indirectly calling the jury’s attention to his failure to testify. As explained in Section I, supra, there is no merit to James’s first claim. His second claim is also meritless.
“Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendant’s failure to testify in his defense. It is well established, however, that the rule prohibiting comment on defendant’s 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 the jury’s attention to a defendant’s failure to testify at trial runs the risk of inviting the jury to consider defendant’s 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 defendant’s failure to testify at trial. (People v. Clair (1992) 2 Cal.4th 629, 663.)
The trial court did not commit Griffin error, as its comments did not directly or indirectly refer to James’s failure to testify and were fair comments on the state of the evidence. Each of the prosecutor’s objections were in response to defense counsel’s use of facts not in evidence and not before the jury. The court did not suggest that the facts defense counsel impermissibly argued before the jury would have been before the court had James testified.
The court’s first statements were in response to the prosecutor’s objections to defense counsel’s arguments that the defense had requested the videotape many times and the store was withholding the videotape. Neither of these facts, however, could have been provided through James’s testimony. The next objections and statements were in response to defense counsel’s assertion that the store reviewed the videotape. Again, this fact could not have been provided through James’s testimony. The prosecutor also objected to defense counsel’s arguments that the store refused to turn over the videotape because it had been “unlawful for no just cause” and unfairly profiled James, with the court responding the arguments were not supported by the evidence and there was no evidence regarding profiling. Only the store could present evidence as to why the videotape was not given to Officer Brewer immediately or why it was not turned over to either party absent subpoena. In addition, evidence of unfair profiling is also not evidence which only James’s testimony could have provided.
James asserts the court indirectly referred to his failure to testify by noting the lack of evidence of his state of mind. The prosecutor did object to defense counsel’s argument that the store was withholding the videotape because it did not want to be subject to civil liability and what James did was “pure stupid. He should have just left the store. If he felt humiliated, if he felt he was being treated unlawfully, being denied –,” on the ground the argument stated facts not in evidence. The court sustained the objection, explaining that what defense counsel was “arguing now is not supported by the evidence the way you are arguing it.” To the extent the objection and response referred to the absence of evidence of James’s state of mind, it did not amount to Griffin error because it was a permissible comment on the state of the evidence. (See People v. Font (1995) 35 Cal.App.4th 50, 56-57 [“‘The point being that all we have is the word of these two gentlemen that that statement was, that they heard that statement. We have no evidence with regards to any state of mind of any other defendant’” constituted permissible comment on state of evidence].)
Moreover, even if we were to accept James’s characterization of the court’s comment, i.e. that the court’s comment implicated his failure to testify, the comment establishes no more than an indirect, brief and mild reference to his failure to testify without any suggestion of an inference of guilt. “Indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44 Cal.3d 543, 572; see also People v. Font, supra, 35 Cal.App.4th at p. 57.)
V. Cumulative Prejudice
James contends reversal is required based on the cumulative effect of the prejudice from the above claimed errors. We have found either that error did not occur or when it did occur, it was harmless. Accordingly, we conclude the cumulative effect does not warrant reversal of the judgment. (People v. Geier (2007) 41 Cal.4th 555, 620.) “A defendant is entitled to a fair trial but not a perfect one.” (Lutwak v. United States (1953) 344 U.S. 604, 619.) James received a fair trial.
VI. Trial on Prior Convictions
James contends the trial court erred when it discussed, in the jury’s presence, how he wished to proceed with respect to trial on the prior conviction allegations. James asserts not only was this improper, but the court’s rationale for doing so “has no place in determining whether or not a criminal defendant chooses to waive his right to a jury trial.” James contends discussing the matter in front of the jury “impermissibly injected an improper factor into [his] decision regarding whether to try the priors before a jury,” should be considered structural error which deprived him of a jury trial, and cannot be deemed harmless.
Trial Proceedings
After the jury had rendered its verdict and was still present in the courtroom, the following exchange occurred:
“THE COURT: It appearing indeed to the satisfaction of all that the verdict is unanimous with regard to each of the charges. We do accept the same. Ready to go on phase two?
“[PROSECUTOR]: I am.
“THE COURT: You ready to go on phase two?
“[DEFENSE COUNSEL]: I am not ready to go on phase two.
“THE COURT: You will be ready at 1:30.
“[DEFENSE COUNSEL]: Court
“THE COURT: Court trial.
“[DEFENSE COUNSEL]: Correct.
“THE COURT: You talk this over with your client?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Okay. So I can send the jury home, then, and take the waiver right now?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Mr. James, you know there is a potential second phase in this particular case with regard to priors that are alleged, correct?
“THE DEFENDANT: No, I don’t even know what you’re talking about, honestly.
“THE COURT: That’s okay.
“[DEFENSE COUNSEL]: It was bifurcated.
“THE COURT: Right.
“[DEFENSE COUNSEL]: So I believe the jury should be dismissed and we’ll put
“THE COURT: It’s the same jury that tries the second phase.
“[DEFENSE COUNSEL]: It’s been tried to the Court.
“THE COURT: No, it was just a bifurcation. It was not a waiver of jury trial. Talk with your client real quick about that, so he understands that. If you want a court trial on it, that’s fine. I just need to take a waiver and I can send the jury home and they can go back to work.
(Attorney/client discussion.)
“THE COURT: Counsel?
“[DEFENSE COUNSEL]: Judge, he’s waiving jury trial.
“THE DEFENDANT: Yes, sir.”
The trial court reiterated that James had a right to a jury trial on “the priors that are alleged.” James affirmed he was giving up that right and was doing so free of any threat or promise. The court stated that James had “probably talked it over once before, you just forgot about it as we got to trial, right?” James responded, “Yes, sir.” Defense counsel joined in the waiver and the prosecutor also agreed. The court explained to the jury what had just happened and released them.
When the court trial on the prior convictions began after the noon recess, defense counsel stated for the record that he “was a little surprised when the Court started asking me in front of the jury as to how I wish to proceed on the priors, and whether you had told the jury the nature of the prior. The intention was outside the presence of the jury how do I wish to proceed on the prior. The prior would have not been in this court.” The court responded there was “[n]o harm, no foul, because you always intended to have a court trial,” and explained that when the proceedings were bifurcated before trial, that did not include waiver of a jury trial. The court further explained that while it usually addresses the waiver issue before the jury returns a verdict, it handled things differently in this case because it wanted to see if the attorneys would bring the matter up on their own and how the matter would “play out, if the issue came to fruition,” and since the attorneys were late coming into the courtroom for the verdict, the court had the jury return to the courtroom before the attorneys’ arrival, which precluded discussion of the issue outside the jury’s presence. The court stated the issue was moot because James had waived his right to a jury trial. Defense counsel responded “I would ask to have removed my client.” The court responded, “Why?” Defense counsel explained, “To discuss the pending trial.” The court viewed this as a request by defense counsel for time to talk with his client and called a recess. The court trial was held after the recess.
Analysis
According to section 1025, a defendant has a statutory right to have a jury determine the truth of an allegation that he has suffered a prior felony conviction. (People v. Epps (2001) 25 Cal.4th 19, 23-28 (Epps).) Official government documents, if admissible, presumptively establish that the conviction occurred. (Id. at p. 27.) The jury “determine[s] whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.” (Ibid., italics omitted.) A defendant may choose to waive his statutory right to a jury trial and have the trial court determine the truth of the prior conviction. (§ 1025, subd. (b).) If the defendant is deprived of his or her statutory right to have a jury determine the truth of the prior conviction, it is an error of state law and subject to harmless error analysis under Watson, supra, 46 Cal.2d at p. 836. (Epps, supra, 25 Cal.4th at pp. 28-29.)
The record shows James made an informed and voluntary waiver of his right to a jury trial on his prior convictions. Defense counsel clearly stated he already had spoken to James about the matter and was prepared to waive a jury trial. When James said he did not know what the court was talking about, the court directed defense counsel to explain the issue to him and an attorney/client discussion was held. After that discussion, James waived his right to a jury trial. There is no indication in the record that James’s decision to waive a jury trial was improperly influenced by the court’s discussion of the issue in front of the jury.
Even if the court’s discussion in front of the jury denied James his statutory right to have a jury determine the truth of the prior convictions, the error was harmless under the Watson test. (Watson, supra, 46 Cal.2d at p. 836.) The only factual question here was whether James had been convicted in 2002 of first degree burglary (§ 460, subd. (a)) and in 2001 of unlawful sexual intercourse (§ 261.5, subd. (c)). During the court trial, the prosecutor presented, and the trial court considered, a certified copy of the “969(b) packet,” which showed James’s prior prison terms, and two abstracts of judgment from case numbers BF099319-A and BF095333-A, which showed that James had been convicted of first degree burglary in 2002 and unlawful sexual intercourse in 2001, respectively. The attorneys submitted the issue on these documents, which constitute official government documents by which the truth of the convictions was established. (Epps, supra, 25 Cal.4th at pp. 27, 29-30.)
Accordingly, it is not reasonably probable a jury would have reached a more favorable result had it determined the truth of James’s prior convictions. While James asserts discussing waiver of a right to a jury trial on the prior conviction allegations in front of the jury should be considered structural error that deprived him of a jury trial, Epps is the controlling authority in California by which we are bound. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Hill, J.