Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC597317
McAdams, J.
A jury convicted defendant Robert Villarreal of one count of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and found true enhancement allegations that defendant had suffered five prior serious felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12) and that he had five prison priors (§ 667.5, subd. (b)). The court denied defendant’s motion to strike four of the strike prior convictions and sentenced defendant to 25 years to life on the burglary plus five years for the five strike priors.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends: (1) that there was insufficient evidence that the shed he burglarized was a building for the purposes of the burglary statute; (2) that the court abused its discretion when it allowed the prosecution to impeach him with evidence regarding his prior felony convictions in 1976, 1982, and 1987, and that his counsel was ineffective for failing to object to this evidence; (3) that the court abused its discretion when it allowed the prosecution to use his 1992 convictions for possession of drugs for impeachment; (4) that the court abused its discretion when it denied his motion to bifurcate the trial of the charged offense from the trial of the prior conviction allegations; (5) that the court erred prejudicially when it excluded evidence that all of his prior felony convictions were based on guilty pleas; (6) that the prosecutor committed prejudicial misconduct in his cross-examination of defendant and in argument; (7) that the court violated his due process rights when it instructed the jury with CALCRIM No. 376; (8) that there was insufficient evidence that his 1982 burglary conviction qualified as a strike because it was not a serious felony within the meaning of section 1192.7, subdivision (c); (9) that he was entitled to have the jury decide whether he was the person who suffered the prior convictions and whether the prior convictions qualified as strikes; (10) that the court abused its discretion when it denied his motion to strike four of his strike priors; and (11) that the resulting sentence was cruel and unusual under both the state and federal standards.
We conclude that there was insufficient evidence that defendant’s 1982 burglary conviction was a serious felony within the meaning of section 1192.7, subdivision (c)(18) (and thus qualified as a strike prior) and remand for resentencing in light of that conclusion. We conclude that defendant’s remaining claims of error are without merit, except for his assertions regarding his motion to strike the strike priors and his claim that his sentence amounted to cruel and unusual punishment, which we do not reach in light of our holding. We address the issues raised in defendant’s habeas petition in a separate order.
Facts
I. Prosecution Case
In 2005, Bernabe Balderas and his wife, Rosa Balderas, lived in a house in San Jose. Rosa’s mother had owned the house. By the time of trial, Rosa had lived in the house for 24 years. During most of that time, Rosa lived with her mother and her (Rosa’s) brother Arturo.
For ease of reference and not out of disrespect, we shall hereafter refer to Mr. and Mrs. Balderas, as well as other members of their household, by their first names.
Before she married Bernabe, Rosa had a long-term relationship with Jesse D., defendant’s half-brother (hereafter Brother). Rosa dated Brother from 1990 until 1997. During part of that time, Brother lived with Rosa and her family in her mother’s house. Rosa and Brother have a daughter; she is defendant’s niece (hereafter Niece).
Rosa married Bernabe in 2001. Rosa’s mother passed away in December 2004. At the time of the burglary in March 2005, Rosa lived in her mother’s house with Bernabe, Niece, and Rosa’s brother Arturo, who is mentally disabled.
In February 2005, Bernabe purchased a new toolbox and a set of tools. Rosa estimated the value of the toolbox and tools as between $500 and $600. Bernabe put the new tools and some old tools in the toolbox. Bernabe kept the toolbox in a shed in the back yard. The shed had a door with a lock in the doorknob. Bernabe and Rosa usually kept the shed door closed and locked. They were the only ones who had keys to the shed.
Bernabe testified through a Spanish interpreter. He referred to the structure at issue as a “tool room.” Rosa called it a “little shed” and defense counsel used the term “shed.” We shall refer to the structure at issue as a “tool shed” or “shed.”
A. Testimony of Bernabe Balderas
Bernabe got home between 3:10 and 3:15 p.m. on March 21, 2005. As he drove up, he noticed a blue car parked in the driveway, near the garage. Someone was seated inside the car. Bernabe saw defendant walking outside the house, carrying a toolbox. Bernabe did not realize it was his toolbox and did not do anything to stop defendant. He assumed his brother-in-law Ricardo, who was responsible for maintaining the property, had hired someone to work on the house.
Bernabe drove around the block, parked on a side street, and entered through a side gate just as the bus that drops off Arturo was pulling up. As he got out of his car, Bernabe saw defendant again. After he entered the house, Bernabe noticed that the blue car had moved to the side street and saw defendant put the toolbox in the trunk of the blue car. Bernabe did not speak to defendant or the driver of the car. He did not see defendant with Arturo.
Bernabe called Rosa, who was at work, to see if she had arranged for someone to work on the house. When Rosa got home, she suggested Bernabe check the tool shed. He found the shed door unlocked and open about an inch. There was no damage to the door or the lock. The toolbox and its contents were gone.
The last time Bernabe was in the shed or used his tools was about 15 days before the incident. During that 15-day period, Bernabe never noticed the shed door open. He never left the toolbox outside or in the driveway or in the garage. He never gave defendant permission to use the toolbox or the tools or to be in the shed or on his property. No one ever returned the toolbox.
B. Testimony of Rosa Balderas
Rosa testified that she never gave defendant permission to be on her property, to borrow anything, to borrow her husband’s tools, or to go inside the tool shed. After Rosa and Bernabe discovered the toolbox missing, they called the police.
The prosecutor anticipated that defendant would argue that he had borrowed the tools and that the Balderases considered defendant family. He therefore questioned Rosa about her relationship with defendant. She testified that defendant had been in her presence at the house at least three times since 1990. She saw him once while she was dating Brother. In 2003, defendant asked if he could have contact with Niece and visited her for the first time. He visited Niece at least three times but not as many as 10 times. The first time, he stayed for about 45 minutes and played basketball with Niece for about 10 minutes. The last time he visited was in January 2005. He stayed for about 45 minutes and spent 15 minutes talking with Niece. Rosa has never forbidden Niece from seeing defendant. Rosa never asked defendant to do any work in her yard.
C. Testimony of Veronica Barrientos
Veronica Barrientos was defendant’s girlfriend at the time of the incident. On March 21, 2005, she drove defendant to Rosa’s house in her blue Mazda hatchback. Defendant told her they were going there to see if Rosa needed any yard work done. Initially, Barrientos parked the car in the driveway. About 25 minutes later, defendant told her to move the car to the side street. Five minutes later, defendant came out of the Balderases’ backyard, carrying a toolbox and a blower and placed them in the back seat of the car. He was in a hurry to leave and cursed at Barrientos because of the way she had parked the car. She said, “You better not be doing what I think you’re doing.” As she drove off, Barrientos accused defendant of stealing the items and told him to get them out of her car.
Barrientos drove defendant to Washington Elementary School. Defendant sold the toolbox and blower to someone at a house near the school. Barrientos never saw the toolbox again. Defendant, who was living with her, never brought it to her house. Barrientos never told the police about the sale of the tools because she was afraid of defendant and was busy “going through her program.” Barrientos admitted prior convictions for drug offenses, violating a restraining order, misdemeanor welfare fraud, and presenting a false claim for public assistance. Barrientos did not have a mechanical problem with her car at the time of the incident.
II. Defense Case
A. Testimony of Niece
Niece testified that she first met defendant in 2000. The first time they met, they played basketball in her backyard. Niece described two other times that defendant visited her. She testified that she loved defendant; that she got along with him and cared about him before the tools were taken.
B. Defendant’s Testimony
Defendant testified at trial. He told the jury that Niece’s testimony was inaccurate; that he met her when she was a baby and tried to establish a relationship with her in 2001. Defendant testified that he visited Rosa’s house “quite a few times” while Rosa was dating Brother. He estimated that he was there “more than 30 times.” When Brother lived there, defendant did mechanical work with Brother in the garage. He also helped Brother mow lawns, install carpet, and set up a pool table in the garage. Defendant said the garage was converted into a game room for “the neighborhood home boys, home girls.”
Defendant drove by Rosa’s house two days before the incident, saw a bunch of garbage outside, and felt obligated to help the family. He spoke to a man who lived in a cottage on the property and asked him to talk to Rosa about doing some clean-up work. (Both Rosa and Bernabe testified that no one lived in the cottage.)
On the day of the incident, defendant returned to the cottage to see if the man had talked to Rosa. Barrientos drove him there. Nobody was home. Defendant and Barrientos waited for 30 to 45 minutes. As he was leaving, Defendant grabbed a toolbox that he found on the lawn on the side of the house, near the garage. Barrientos was having a problem with her muffler and defendant took the tools to fix her car. Defendant testified that he did not enter the shed. He did not try to open the shed door or touch the door knob.
As defendant walked out of the driveway, he saw Arturo, who had just come home. He told Arturo, who has Down’s syndrome, that he was taking the toolbox. While defendant talked to Arturo, Barrientos backed her car out of the driveway and parked it on the side street. Defendant admitted that he took the toolbox; he denied taking any other items. On cross-examination, defendant testified that Bernabe was also there. He stated that he stood next to Bernabe with the toolbox in hand, that he greeted Bernabe, and that Bernabe did not say anything to him about the toolbox.
Defendant told the jury that he intended to bring the tools back after he used them to fix Barrientos’s car, that he never intended to permanently deprive the owners of the tools, and that he would never steal from family. He was going to bring them back the next time he visited Niece. Defendant was not able to return the tools because he was arrested a week and a half after the incident. At that time, he still had not completed the repair work on Barrientos’s car.
Defendant did not leave a note or call Rosa to tell her he had taken the tools. He testified that he lost her phone number. He went to Rosa’s house two days after he took the tools to tell her that he had them, but no one was home.
Defendant denied selling the tools. He took the toolbox out of Barrientos’s car when he worked on her muffler and put it back in the trunk when he was done working on the car. Defendant testified that the tools were still in Barrientos’s car or in her parents’ backyard. While in jail, defendant wrote Rosa and Niece a letter and told them that he planned to return the tools the next time he visited Niece.
Defendant testified that he had been in prison for a number of different crimes and that there were “huge chunks of time” he could not visit Niece because he was in prison. On direct examination, defendant admitted prior felony convictions in 1976 for first degree burglary and robbery, in 1982 for burglary and robbery, in 1992 for grand theft, and in 1995 for possession of drugs. He told the jury that he did not have any felony convictions in the past 12 years.
Defendant admitted two convictions for possession of drugs in 1994. Although the conduct at issue occurred in 1994, the convictions dates were in 1995. We shall therefore refer to the drug convictions as the “1995” drug convictions.
On cross-examination, defendant told the jury that he had only been out of custody for 22 months in the 19 years prior to trial and that he was only out of custody for 14 months during the seven years that Rosa dated Brother. He testified that he received a “life sentence” for his 1976 offenses and that he was sentenced to prison for five years for his 1982 robbery conviction, for eight years for his 1987 assault with a deadly weapon conviction, for four years four months for his 1992 felony grand theft
conviction, and for eight years for his drug offenses. He also testified regarding his release on parole in 2001 and subsequent periods of incarceration for multiple parole violations.
Although defendant testified that he had been sentenced to prison for four years four months for his grand theft conviction, the actual sentence in that case was two years four months.
Discussion
I. Sufficiency of the Evidence that the Shed Was a Building for the Purposes of the Burglary Statute
Defendant contends that there was insufficient evidence that the tool shed he was convicted of burglarizing was a “building” within the meaning of section 459.
Section 459 provides in part: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, … locked or sealed cargo container, …, any house car, …, inhabited camper, …, vehicle as defined by the Vehicle Code, when the doors are locked, …, with intent to commit grand or petit larceny or any felony is guilty of burglary.” (Italics added.)
“It has long been the rule that a ‘building’ within the meaning of California’s burglary statute ‘is any structure which has walls on all sides and is covered by a roof.’ [Citations.] The walls can take various forms and need not reach the roof [citation], but they must ‘act as a significant barrier to entrance without cutting or breaking.’ [Citation.] ‘The proper question is whether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusions.’ ” (In re Amber S. (1995) 33 Cal.App.4th 185, 187 [open pole barn that did not have any walls was not a building within the meaning of the statute].)
“But ‘[w]hat comprises four walls and a roof has been broadly construed.’ [Citation.] The walls, in whatever form, must provide a significant barrier to entrance without being cut or broken. [Citation.] The composition of the walls is not an important factor. [Citation.] A building is ‘ “a structure which has a capacity to contain, and [is] designed for the habitation of man or animals, or the sheltering of property.” ’ [Citation.] The Legislature intended the broadest possible interpretation of ‘building’ to be used in the context of the burglary statutes.” (People v. Labaer (2001) 88 Cal.App.4th 289, 296.) Various structures have been found to be buildings, including a storeroom (People v. Coutu (1985) 171 Cal.App.3d 192), a telephone booth (People v. Nunez (1970) 7 Cal.App.3d 655), and a popcorn stand mounted on small wheels measuring eight feet by 10 feet by seven feet and consisting of a floor, four walls and a roof, entirely enclosed, and containing a door and two windows (People v. Burley (1938) 26 Cal.App.2d 213).
There was sufficient evidence that the tool shed in this case was a building within the meaning of section 459. The witnesses described the shed as a separate building that is not attached to the house and testified that it has four walls, a roof, no windows, and one door, with a lock in the door knob. Although the dimensions of the shed were not in evidence, Rosa testified that it was big enough for someone to walk inside. The Balderases used the shed to store tools and other equipment, including a sprayer, a circular saw, a tire jack, and a blower. A photograph of the shed was in evidence. Based upon the relationship of the shed to other items in the photo, including a house and a bicycle, the door appears to be a standard size for residential construction. The gabled wall where the door is located extends a few feet above the top of the door to the peak of the roof. The walls are made of corrugated metal and the shed appears to be permanently affixed to the ground.
Defendant argues that the structure in this case is similar to the gang box in People v. Knight (1988) 204 Cal.App.3d 1420, 1422-1424, which the court held was not a building with the meaning of section 459. A witness described the gang box in Knight as a small tool shed on wheels that locks. It was “ ‘six foot by four foot and about five foot tall.’ ” (Id. at p. 1422.) Photographs of the gang box revealed that it was “nothing more than a large metal toolbox.” (Id. at p. 1423.) The court stated, “It has wheels and a handle by which it can be pulled. A chain through that handle secured it to [an electrical contractor’s] construction trailer. It opens at the front and is slightly narrower at the top than at the bottom, but otherwise most closely resembles a small trash dumpster.” (Ibid.) The court concluded that “[t]his is not the type of man-made object … section 459 was designed to protect. If this is a ‘building,’ then so is a clothes dryer; the difference being one of degree in that the dryer is smaller and designed to hold something other than tools. That a human being might somehow fit inside either makes neither a ‘building.’ ” (Id. at pp. 1423-1424.)
The tool shed in this case is distinguishable from the gang box in Knight. It has four walls and a roof. It is not portable and a person can walk around inside. The walls and the locked door act as significant barriers to entrance without being cut or broken such that a reasonable person would expect protection from unauthorized intrusions.
For these reasons, we conclude that there was sufficient evidence to support the jury’s finding that defendant entered a building within the meaning of section 459.
II. Admission of Prior Felony Convictions for Impeachment
Defendant contends the court abused its discretion when it allowed the prosecution to impeach him with his prior felony convictions. He asserts that his 1987 conviction for assault with a deadly weapon was only minimally probative on the question of credibility, since it was a crime of violence. He argues that his 1976 and his 1982 convictions for burglary and robbery were too remote in time and that his 1976 and 1982 convictions for burglary were too similar to the crime alleged in this case. The Attorney General does not respond to these contentions.
In his brief, defendant refers to the 1982 burglary and robbery convictions as the “1981” convictions. Although the conduct at issue occurred in 1981, defendant was convicted in 1982. We shall refer to these prior offenses as the “1982” convictions.
A. Factual and Procedural Background
The amended information contained enhancement allegations that defendant had suffered five prior convictions that qualified as strikes under the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12) and that defendant had served five prior prison terms (§ 667.5, subd. (b)).
The strike prior allegations included the 1987 conviction for assault with a deadly weapon, the burglary and robbery convictions in 1976, and the burglary and robbery convictions in 1982. The prison prior allegations included the 1995 felony conviction for possession of cocaine, the 1992 conviction for grand theft, the 1987 conviction for assault with a deadly weapon, the 1982 burglary conviction, and the 1976 robbery conviction.
On the first day of trial, the prosecutor made motions in limine to set aside defendant’s motion to bifurcate the allegations regarding the prior offenses and to impeach defendant with the charged prior offenses, if he testified. Defense counsel advised the court that defendant intended to testify and that he (defense counsel) intended to ask defendant about his prior convictions. He also stated that if defendant decided not to testify, he would request a court trial on the prior conviction allegations. The trial court ordered the priors bifurcated.
On the fourth day of trial, defendant told the court that he would be testifying. He made a motion to exclude evidence of his prior convictions that occurred between 1976 and 1992 under Evidence Code section 352 on the grounds that they were either too old or too similar to the burglary alleged in this case.
The prosecutor told the court he wanted to introduce the prior convictions that had occurred between 1976 and 1992, plus defendant’s 1995 conviction for possession of methamphetamine and cocaine, since it was charged as a prison prior. He argued that all of the priors were relevant and probative on the issues of defendant’s general credibility, to refute claims that he was close to Niece, and to support Rosa’s testimony that she rarely saw defendant. He asked to introduce evidence of a parole violation on April 6, 2005, arguing that it was relevant to the “washout period” for the prison priors alleged. He also asked the court to overturn its order bifurcating the trial of the strike prior and prison prior allegations.
The prosecutor referred to “the conviction,” in the singular. But defendant was charged with and convicted of two counts, one for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and one for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He was sentenced on both counts, with the sentence on the possession of methamphetamine count to run concurrent to the sentence on the possession of cocaine count. The prosecution alleged only the conviction for possession of cocaine as a prison prior; the prior conviction allegations did not include the conviction for possession of methamphetamine.
The court denied defendant’s request to exclude the priors, stating, “Although they are old, it appears that the defendant has had basically a constant course of conduct since 1976 involving serious felonies, and has even been in prison or on parole for most of that time … so I find that the … evidence is more probative than prejudicial and that the People will be allowed to both question the defendant about the convictions and then prove up the convictions on rebuttal since there’s just no reason to have a bifurcated trial once the jury hears about these….”
B. Governing Legal Principles
Article I, section 28, subdivision (f) of the California Constitution provides in pertinent part that “[a]ny prior felony conviction of any person in any criminal proceeding … shall subsequently be used without limitation for purposes of impeachment … in any criminal proceeding.” However, a trial court has discretion to exclude a prior felony conviction under Evidence Code section 352 if it finds the probative value of such conviction is substantially outweighed by its prejudicial effect. (See People v. Clair (1992) 2 Cal.4th 629, 654.)
When the defendant’s credibility is at issue, the weighing process properly includes consideration of the “Beagle factors.” (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle).) Under Beagle, four factors “should be considered in deciding whether to admit or exclude a prior conviction under Evidence Code section 352. These factors are: (1) whether the prior conviction ‘rest[s] on dishonest conduct’; (2) the ‘nearness or remoteness of the prior conviction’; (3) whether ‘the prior conviction is for the same or substantially similar conduct for which the accused is on trial’; and (4) ‘what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.’ ” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532-1533 (Kwolek), quoting Beagle, supra, 6 Cal.3d at p. 453; Kwolek superseded by statute on other grounds as stated in People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534-1535.)
We review a trial court’s ruling under Evidence Code section 352 for an abuse of discretion and will not disturb that ruling on appeal unless the court “ ‘exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (Kwolek, supra, 40 Cal.App.4th at p. 1533.) “The rule is settled that the trial court’s discretion to exclude or admit relevant evidence under Evidence Code section 352 ‘is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.’ (People v. Collins (1986) 42 Cal.3d 378, 389….)” (Id. at p. 1532.)
C. Admission of 1987 Conviction for Assault with a Deadly Weapon
Defendant argues that the first Beagle factor (whether the prior conviction rests on dishonest conduct) weighs against the admission of his 1987 conviction for assault with a deadly weapon. He argues that although it is considered a crime of moral turpitude, it has only minimal probative value on the question of his credibility as a witness. He argues that although it was “marginally relevant,” it was “highly inflammatory.”
“To be relevant to credibility, [a] prior offense must be a crime displaying moral turpitude or depravity, indicating a ‘general readiness to do evil.’ Only then can a prior conviction properly lead to an inference of a readiness to lie.” (People v. Massey (1987) 192 Cal.App.3d 819, 822, citing People v. Castro (1985) 38 Cal.3d 301, 315 (Castro).)
“Castro makes no attempt to list or define those felonies which involve moral turpitude but it makes clear that moral turpitude does not depend on dishonesty being an element of the felony. ‘... it is undeniable that a witness’ moral depravity of any kind has some “tendency in reason” (Evid. Code, § 210) to shake one’s confidence in his honesty.’ ” (People v. Cavazos (1985) 172 Cal.App.3d 589, 593 (Cavazos), citing Castro, supra, 38 Cal.3d at p. 315.) “The Castro court also makes reference to its prior opinion in People v. Rist (1976) 16 Cal.3d 211, 222, … that ‘convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity’ [citation] and then concludes ‘ “Not as heavily” does not, of course, mean “not at all.” ’ [Citation.] Thus, we have a clear indication from the Supreme Court that assaultive crimes bear some relevance to the credibility of a witness.” (Cavazos, at pp. 593-594.)
Assault with a deadly weapon is a crime of moral turpitude for the purpose of determining whether it comes in to impeach a witness in a criminal proceeding. (Cavazos, supra, 172 Cal.App.3d at pp. 593-595; People v. Armendariz (1985) 174 Cal.App.3d 674, 681.) Although the conviction was from 1987, we do not consider it remote because defendant spent the majority of the intervening time in prison. Defendant testified that he was sentenced to eight years in prison for the assault with a deadly weapon and that he was out of custody only 22 months between 1987 and 2006. (People v. Carpenter (1999) 21 Cal.4th 1016, 1056.) The prior conviction was not similar to the charged offense and defendant did testify. These factors support admission of the prior assault with a deadly weapon conviction for impeachment. We therefore conclude the court did not err when it admitted the assault with a deadly weapon conviction for this purpose.
D. Remoteness of 1976 and 1982 Convictions
Acknowledging that he has not lead a “blameless life” since his first conviction at age 21, defendant argues that his burglary and robbery convictions from 1982 and 1976 are “truly ancient” and had little bearing on whether he was likely to tell the truth at trial in 2006, 24 and 30 years later respectively. He asserts that given the remoteness of these crimes, the court abused its discretion when it allowed the prosecutor to impeach him with the 1976 and 1982 convictions, since other, more recent convictions were available to impeach his credibility.
With regard to remoteness, Beagle teaches that a conviction from “long before,” which “has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.” (Beagle, supra, 6 Cal.3d at p. 453, internal quotation marks omitted.) The trial court thus is entitled to consider not only the length of time elapsed since the prior offense, but also the defendant’s subsequent conduct. (People v. Burns (1987) 189 Cal.App.3d 734, 738-739 (Burns).)
Cases have concluded that 20-year-old convictions are not too remote to have probative value for impeachment purposes. (People v. Massey, supra, 192 Cal.App.3d at p. 825; Burns, supra, 189 Cal.App.3d at pp. 737-738 [20-year-old prior conviction]; People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [prior conviction approximately 20 years old at time of trial] and People v. Green (1995) 34 Cal.App.4th 165, 183 (Green) [20-year-old prior conviction].) Although the prior convictions at issue were 24 and 30 years old at trial, defendant did not lead a “ ‘legally blameless life’ ” after his convictions. (Beagle, supra, 6 Cal.3d at p. 453.) Defendant suffered his first robbery and burglary convictions in 1976 and was sentenced to an indeterminate term in prison. Next, in 1982, he was convicted of a robbery and a burglary occurring in separate incidents in 1981 and sentenced to five years in prison. In 1987, while on parole, he was convicted of an assault with a deadly weapon that occurred in 1985 and sentenced to eight years in prison. In 1992, he was convicted of a grand theft that occurred in 1991 and sentenced to two years four months in prison. In 1995, he suffered two convictions for possession of drugs and was sentenced to eight years in prison. The systematic occurrence of defendant’s priors over a 30-year period created a pattern that was relevant to his credibility. (Green, at p. 183, citing People v. Muldrow (1988) 202 Cal.App.3d 636, 648.) Moreover, the subsequent and intervening convictions from 1982 until 1992 involved crimes of moral turpitude (robbery, burglary, assault with a deadly weapon, and grand theft) that were probative of the defendant’s honesty and credibility. (Mendoza, at p. 926.) Admission of the 1976 and 1982 felony convictions thus was within the court’s proper discretion.
E. Similarity of 1976 and 1982 Burglary Convictions
Defendant argues that the similarity between the 1976 and 1982 burglary convictions and the charged offense weighs heavily in favor of excluding those convictions and that excluding those two convictions “would have sacrificed nothing in terms of confronting [defendant] with this past record of moral turpitude, as the prosecution could still have impeached him with the two robbery convictions from the exact same time period.”
“Prior convictions for the identical offense are not automatically excluded. ‘The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.’ ” (Green, supra, 34 Cal.App.4th at p. 183.) In Green, where the defendant was charged with unlawful vehicle taking (Veh. Code, § 10851, subd. (a)), the appellate court held that it would not be an abuse of discretion to allow the prosecution to impeach the defendant with six prior auto theft convictions, reasoning that the defendant’s “series of crimes may be more probative than a single crime.” (Green,at p. 183.) Here, to preclude the prosecution from impeaching defendant with his prior burglary convictions would have given defendant a “false aura of veracity.” (Beagle, supra, 6 Cal.3d at p. 453.)
For these various reasons, we conclude the court did not abuse its discretion when it denied defendant’s motion to exclude evidence of his 1976, 1982, 1987 convictions.
III. Admission of 1995 Drug Convictions for Impeachment.
Defendant contends the trial court abused its discretion when it permitted the prosecution to impeach him with evidence of his 1995 convictions for possession of methamphetamine and cocaine because those convictions did not involve moral turpitude. He argues that this claim of error was not forfeited by his counsel’s failure to object on this ground and that if it was forfeited, his counsel was ineffective. The Attorney General contends defendant forfeited this claim by not objecting on this ground below, that the court did not err when it admitted this evidence because it was not admitted for impeachment purposes, and that defense counsel’s performance was not ineffective.
A. Factual and Procedural Background
One of the prison prior allegations was based on defendant’s 1995 conviction for possession of cocaine. When defendant made his motion to exclude evidence of his prior convictions on Evidence Code section 352 grounds, defendant discussed each of the prior felony convictions that had occurred between 1976 and 1992, but did not mention the 1995 convictions for possession of methamphetamine and cocaine.
On direct examination, defendant admitted the two convictions for possession of cocaine and methamphetamine. On cross-examination, he admitted that he had been sentenced to eight years in prison for the drug offenses.
B. Forfeiture
“Generally, reviewing courts will not consider a challenge to the admissibility of evidence absent ‘ “a specific and timely objection in the trial court on the ground sought to be urged on appeal.” ’ ” (People v. Champion (1995) 9 Cal.4th 879, 918, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) Defendant argues that there was no forfeiture because his motion to exclude all prior convictions for impeachment under Evidence Code section 352 was sufficient to preserve this claim.
Although defendant objected to the admissibility of the evidence of his pre-1995 convictions on Evidence Code section 352 grounds, he did not object to the admissibility of the 1995 drug convictions on any ground. Moreover, he did not object on the ground that the 1995 convictions could not be used to impeach him because they were not crimes of moral turpitude, the specific ground urged on appeal. Champion requires a specific and timely objection on the same ground urged on appeal. Since defendant did not raise the impeachment issue or object on any ground below, we conclude he has forfeited any claim of error related to the admission of his drug convictions in 1995.
C. Ineffective Assistance
Defendant contends his counsel was ineffective for failing to object that the 1995 drug convictions were inadmissible for impeachment because they were not crimes of moral turpitude.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).)
“ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624.) “ ‘Finally, prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (Id. at p. 624.)
We begin by examining whether the 1995 drug convictions could be used to impeach defendant. In Castro, the court held that a “prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude,” subject to the trial court’s discretion under Evidence Code section 352. (Castro, supra, 38 Cal.3d at p. 317.) The court also held that simple possession of drugs “does not necessarily involve moral turpitude.” (Ibid.) Thus, it would have been appropriate for defense counsel to object to the admission of the 1995 drug convictions for impeachment purposes.
However, the 1995 drug convictions were admissible for other purposes. First, evidence of the conviction for possession of cocaine was admissible to prove one of the prison prior allegations. Second, one of defendant’s defenses was that he borrowed the toolbox and tools and did not intend to permanently deprive the Balderases of them. He attempted to show that he had a personal relationship with the Balderas family, through his contacts with his niece and his relationship with Rosa, and testified that he would never steal from family. He testified that even though Rosa never married his half-brother, members of his family “consider her as a sister-in-law.” The prosecutor attempted to rebut defendant’s claim that he had a close relationship with Niece and Rosa with evidence that defendant did not visit them very often because he was incarcerated most of the time between 1995 and 2005 as a result of his sentence on the 1995 drug offenses and subsequent parole violations. Third, defendant testified that he did yard work for the residents of the neighborhood where Rosa lived and had a regular clientele, dating back to 2001. The prosecutor rebutted this claim with evidence that, after his drug convictions, defendant was in and out of custody repeatedly between August 2001 and April 2005. Since evidence of the 1995 drug convictions was admissible for these various purposes, it would have been futile for defense counsel to object to the admission of this evidence. Counsel has no duty to make a futile motion. (See People v. Memro (1995) 11 Cal.4th 786, 834.) We therefore conclude that defendant has not met his burden of showing that counsel’s performance was deficient.
Even if counsel was ineffective for failing to object to the admission of the drug convictions, the error was not prejudicial. As noted previously, evidence of the cocaine conviction was admissible to prove the prison prior allegation. The possibility that the jury would punish defendant for his prior drug offenses was diminished by the evidence that he had already been punished for those crimes. Moreover, the court properly admitted evidence of six prior felony convictions for impeachment: the two burglaries, the two robberies, the assault with a deadly weapon, and the grand theft. In view of the damaging nature of that evidence, we find no reasonable probability that the result of the proceeding would have been different if defense counsel had objected to the admission of the evidence of the prior drug offenses.
For these reasons, we conclude defendant has not met his burden of showing that defense counsel was ineffective when he failed to object to this evidence.
IV. Denial of Motion to Bifurcate
Defendant contends the trial court abused its discretion when it denied his motion to bifurcate the trial of the charged offense from the trial of the truth of the strike prior and prison prior allegations. He argues that submitting the prison prior allegations to the jury at the same time as the charged offense allowed it to hear testimony and review detailed documentary evidence about his prior prison terms, as well as his many parole violations.
A. Applicable Legal Principles
The trial court possesses broad discretion to decide whether a trial should be bifurcated. (People v. Calderon (1994) 9 Cal.4th 69, 75 (Calderon).) “[T]he denial of a defendant’s timely request to bifurcate the determination of the truth of a prior conviction allegation from the determination of the defendant’s guilt is an abuse of discretion where admitting, for purposes of sentence enhancement, evidence of an alleged prior conviction during the trial of the currently charged offense would pose a substantial risk of undue prejudice to the defendant.” (Id. at pp. 77-78.)
“[H]owever, bifurcation is not required in every instance. In some cases, a trial court properly may determine, prior to trial, that a unitary trial of the defendant’s guilt or innocence of the charged offense and of the truth of a prior conviction allegation will not unduly prejudice the defendant. Perhaps the most common situation in which bifurcation … is not required arises when, even if bifurcation were ordered, the jury still would learn of the existence of the prior conviction before returning a verdict of guilty.” (Calderon, supra, 9 Cal.4th at p. 78.) The Calderon court gave examples of situations in which admission of the prior conviction to prove sentence enhancement allegations would not unduly prejudice the defendant. The examples included witness impeachment. The court stated, “when it is clear … that the defendant will testify and be impeached with evidence of the prior conviction [citation], denial of a request for a bifurcated trial generally would not expose the jury to any additional prejudicial evidence concerning the defendant. Under such circumstances, a trial court would not abuse its discretion in denying a defendant’s motion for bifurcation.” (Ibid., fn. omitted.)
“In ruling upon a defendant’s timely request for bifurcation, the trial court first should consider the potential prejudicial effect of admission of evidence that the defendant has suffered the alleged prior conviction. … The potential for prejudice will vary, however, depending upon the circumstances of each case. Factors that affect the potential for prejudice include, but are not limited to, the degree to which the prior offense is similar to the charged offense [citations], how recently the prior conviction occurred, and the relative seriousness or inflammatory nature of the prior conviction as compared with the charged offense [citations].” (Calderon, supra, 9 Cal.4th at p. 79.) “The determination whether the risk of undue prejudice to the defendant requires that the trial be bifurcated rests within the sound discretion of the trial court, and that determination will be reversed on appeal only if the trial court abuses its discretion.” (Ibid.)
C. Analysis
The court’s denial of defendant’s motion to bifurcate was consistent with the standard set forth in Calderon. After defendant decided to testify, the prosecution was entitled to impeach him with evidence of six of his prior felony convictions (the 1976 and 1982 robberies, the 1976 and 1982 burglaries, the 1985 assault with a deadly weapon, and the 1992 grand theft). Five of those prior convictions were alleged as strike priors; four were alleged as prison priors. After the court determined that those prior convictions were admissible for impeachment, denial of defendant’s request to bifurcate the trial did not expose the jury to any additional evidence that posed a substantial risk of undue prejudice to defendant. (Calderon, supra, 9 Cal.4th at pp. 77-78.) Applying the factors set forth in Calderon, we observe that two of the six prior convictions were for the same crime, burglary. The prior convictions occurred between 1976 and 1992, the last of which was not too remote in time in light of defendant’s history of incarceration. The prior convictions did not involve offenses that were more serious or inflammatory than the burglary alleged in this case.
Although the prior drug convictions should not have been admitted for impeachment under Castro, supra, 38 Cal.App.3d 301, it would have made little sense to deny bifurcation with regard to the other six offenses and grant it with regard to proof of the one drug offense (the 1995 conviction for possession of cocaine) that was alleged as a prison prior. As we noted previously, given the damaging effect of defendant’s other prior offenses, any error in admitting evidence regarding the drug offenses was harmless. Once the six prior felonies were admitted for impeachment, the damage to defendant’s credibility was already done. Thus, the court did not abuse its discretion when it denied defendant’s motion for bifurcation. (Calderon, supra, 9 Cal.4th at p. 78.)
Defendant complains that the denial of his motion to bifurcate allowed the prosecutor to present evidence that he was sentenced to: (1) life in prison for burglary and robbery in 1976; (2) five years in prison for burglary and robbery in 1982; (3) eight years in prison for assault with a deadly weapon and personally inflicting great bodily injury in 1987; (4) two years four months in prison for grand theft in 1992; and (5) eight years in prison for possession of cocaine and methamphetamine in 1995.
Defendant asserts that to prove the alleged prison priors were not subject to the five-year “wash-out” period, the prosecutor was also allowed to present evidence that defendant had been out of custody for only 22 months since 1987 and only 14 months between 1990 and 1997. He contends the denial of his motion to bifurcate allowed the prosecution to present evidence regarding time he served for parole violations. On cross-examination, defendant testified (1) that he was paroled in August 2001, arrested three days later, and sent back to prison; (2) that he was paroled on March 30, 2002, arrested again on July 10, 2002, and remained in custody until September 27, 2002; (3) that he was back in custody in October 2002 and paroled on June 10, 2003 (4) that he was arrested again six days later on a parole violation; (5) that he was arrested in 2004, paroled on January 19, 2005, and remained out of custody until his arrest on April 6, 2005, for the charges in this case.
Generally, evidence of a prior felony conviction offered for impeachment is restricted to the name or type of crime and the date and place of the conviction. (People v. Allen (1986) 42 Cal.3d 1222, 1270 (Allen).) Unless the proponent of the evidence suggests some other theory of relevance, inquiry into the details of the prior conviction will not be permitted. (Ibid.) Although evidence regarding the length of defendant’s prison sentences would not have been admitted solely for impeachment purposes under the standard set forth in Allen, it was admitted to prove the five prison prior allegations. Each of the prisons terms set forth above corresponds to one of the prison prior allegations. Once evidence of the prior felony convictions came in for impeachment, it would have been reasonable for the jury to assume that defendant had served time in prison for each of the convictions. Thus, information regarding the length of each sentence did not prejudice defendant further.
Defendant also complains that as a result of the court’s denial of his motion to bifurcate, “the jury was presented with more than 80 pages of court documents containing highly prejudicial details about [his] prior crimes and prison sentences that were not mentioned in any other testimony,” including evidence that he used a gun to commit the 1976 and 1982 robberies, that he was charged with burglarizing a garage in 1982, and that he allegedly assaulted a female victim with a knife in 1987 and was charged with burglary and kidnapping in that case. Defendant also argues that as proof of the prison prior allegations, the jury was given 25 pages of prison records showing that he was returned to prison for parole violations more than a dozen times between 1984 and 2005 and that he committed various rules violations while incarcerated. Defendant contends none of this evidence would have been admissible in the first phase of the trial if the court had granted his motion to bifurcate.
With regard to this contention, the evidence presented to the jury indicated that defendant’s codefendant, and not defendant, was charged with burglarizing a garage. Defendant was charged with and convicted of second degree burglary of a house. We shall therefore not address this contention further.
The documentary evidence included certified copies of informations, verdict forms, minute orders; abstracts of judgment, transcripts of a preliminary examination and a change of plea and sentencing proceeding, and two section “969b packets,” which contained records from the Department of Corrections and Rehabilitation that showed the dates defendant was in custody. As we discuss more fully in section VIII, these types of documents are admissible to prove prior conviction allegations. “[I]n determining the truth of a prior conviction allegation, the trier of fact may ‘look beyond the judgment to the entire record of the conviction’ [citation] ‘but no further.’ ” (People v. Trujillo (2006) 40 Cal.4th 165, 177 (Trujillo).) The prosecution may not call eyewitnesses to prove the nature of the prior conviction and is limited to documents that are part of the record of conviction that are admissible under some exception to the hearsay rule. (People v. Reed (1996) 13 Cal.4th 217, 230 (Reed).) The record of conviction includes the accusatory pleading, documents that reflect the defendant’s plea of guilty or nolo contendere, and a reporter’s transcript of a preliminary hearing. (People v. Guerrero (1988) 44 Cal.3d 343, 345, 355-356 (Guerrero); Trujillo, supra, 40 Cal.4th at p. 177.) Under section 969b, certified records of a penal institution are prima facie evidence of a prior conviction and service of a prior prison term. Thus, the documents that defendant complains of were all admissible to prove the prior conviction and prior prison term allegations.
For the following reasons, we also conclude these documents did not create a substantial risk of undue prejudice to defendant. To prove the prior robbery convictions, the prosecution submitted the complaint, information, verdict form, trial minute order, and abstract of judgment for the 1976 robbery and the information and the preliminary hearing transcript for the 1982 robbery. Defendant contends these exhibits were prejudicial because they show that he was armed with a gun when he committed both robberies. As set forth above, these documents were admissible to prove the prior conviction allegations. The 1976 robbery charges included enhancement allegations that defendant was armed when he committed the robbery, which the jury found true. Since the gun allegations were part of the offense, we find no undue prejudice in submitting this evidence to the jury. Likewise, we find no undue prejudice in the admission of the evidence of the 1982 robbery conviction. The minute order of the court trial in that case, which was before the jury, indicates that the arming allegations were stricken on the prosecution’s motion.
Defendant argues that the records admitted to prove his 1987 conviction for assault with a deadly weapon were prejudicial, because they showed that he assaulted a female victim with a knife and was charged with burglary and kidnapping in that case. The records of the 1987 conviction included: (1) the information, which charged defendant with five counts (first degree burglary, kidnapping, battery with serious bodily injury, false imprisonment, and assault with a deadly weapon (a knife) with an enhancement for inflicting great bodily injury); (2) the minute order on his change of plea, which indicates that defendant pleaded guilty to the assault with a deadly weapon count only and admitted the enhancement for great bodily injury; and (3) the abstract of judgment and an amended abstract of judgment, both of which indicate that defendant was only convicted of assault with a deadly weapon and that the remaining counts were dismissed. Although it may have been preferable to ask the court to redact the documents and admit only the evidence of the charge that resulted in a conviction, the remaining documents make it clear the defendant was only convicted of one offense.
The last item of evidence that defendant complains of are two Penal Code section 969b packets, which contain Department of Corrections records regarding his incarceration, including his various periods of parole and returns to custody after violating parole. Section 969b provides that these records are admissible to prove the prison priors. In addition, the prosecution relied on these documents to prove that defendant had not been free from custody for more than five years prior to this offense. In view of the evidence of defendant’s multiple felony convictions, the admission of these documents did not unduly prejudice defendant.
Notwithstanding our conclusion that the court did not abuse its discretion when it denied the motion to bifurcate, we are left with the impression that the prosecution was allowed to “pile on” the evidence regarding the prior felony convictions and the prison priors, to borrow a phrase used by defendant’s counsel. In our view, even when a case passes muster under Calderon, if the prior conviction allegations and the prison prior allegations in that case are being tried to the jury, it is incumbent upon the court, the prosecution, and defense counsel to carefully review the evidence, especially the documentary evidence, that is being presented to the jury. We remind counsel and the court of their responsibility under Evidence Code section 352 to present and admit only what is necessary for impeachment purposes and what is necessary to establish the priors.
V. Exclusion of Evidence that Defendant Pleaded Guilty to the Prior Offenses
Three times on redirect, defense counsel asked defendant whether he had pleaded guilty or gone to trial in any of his prior felony cases. Each time, the court sustained the prosecution’s relevance objection.
Defendant contends the trial court erred prejudicially when it excluded evidence that “all of his prior felony convictions” were based on guilty pleas. Defendant argues that he should have been allowed to testify that he pleaded guilty to the prior offenses because a brief explanation rebuts or tempers the negative inferences raised by this type of impeachment evidence. The Attorney General argues that the court properly excluded this evidence on relevance grounds, that it was properly excludable under Evidence Code section 352 because it was likely to confuse the jury and result in undue consumption of time, and that the exclusion of the plea evidence was not prejudicial.
An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including decisions on admissibility that turn on the relevance of the evidence in question. (People v. Waidla (2000) 22 Cal.4th 690, 717.) “That is because it so examines the underlying determination as to relevance itself.” (Id. at p. 718.) Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)
We begin by reviewing the factual predicate for defendant’s argument, as that will narrow the scope of our review. The record reveals that in 1976, a jury convicted defendant of robbery and burglary. Defendant’s 1982 convictions for burglary and robbery were based on “Bunnell” pleas. In Bunnell v. Superior Court (1995) 13 Cal.3d 592, 600-602, the court held that a criminal defendant may submit his case to the court for decision on the basis of the transcript of the preliminary hearing and any other evidence the parties agree to submit to the court. Submission of a cause for decision on such a record is a trial. (Id. at pp. 602, 604.) Thus, defendant’s 1982 convictions for robbery and burglary were the result of a court trial, not a plea.
The record reveals that defendant’s 1987 conviction for assault with a deadly weapon and his 1992 conviction for grand theft were based on guilty pleas. Finally, the record does not indicate whether defendant’s 1995 convictions for possession of cocaine and methamphetamine were the result of pleas or a trial. Thus, the record does not support the assertion that defendant’s 1995 drug convictions were based on guilty pleas. In summary, this contention only applies to defendant’s prior convictions for assault with a deadly weapon and grand theft.
Defendant does not cite any California cases that support his contention. He cites a case from Illinois, People v. Ridley (Ill.App. 1975) 323 N.E.2d 577, in which the court held that rather than barring use of a prior conviction based on a guilty plea for impeachment, a criminal defendant should be allowed to “argue that a guilty plea, as such, does not affect credibility, i.e., be allowed to show that the conviction was by a plea, and that when he was in fact guilty, the defendant admitted it.” (Id. at p. 602.) Defendant cites other Illinois cases that follow Ridley. He also acknowledges that there are problems with this type of evidence, including the problem of discerning how much of a defendant’s decision to plead guilty in the prior case was the result of pragmatic concerns as opposed to a desire to admit guilt and accept responsibility.
There are a number of reasons defendant may have chosen to plead guilty that have nothing to do with his veracity at trial and are thus irrelevant to the issue of impeachment. A defendant may decide to plead guilty because the prosecutor has agreed to dismiss other charges pending against him, because the evidence against him is overwhelming, or because he hopes for leniency at sentencing. (Turner v. State (Md.App. 1984) 482 A.2d 869, 871; People v. Burg (1981) 120 Cal.App.3d 304, 306 [defendant’s early admission of guilt not a mitigating factor for purpose of sentencing, since he “admitted guilt for one reason only – the dismissal of two other felony charges and five alleged prior felony convictions”].)
The documentary evidence regarding defendant’s prior guilty pleas reveals that two of these motives played a role in the convictions at issue. In 1987, in exchange for defendant’s guilty plea on the assault with a deadly weapon count, the prosecutor agreed to dismiss four other felony counts, including charges of first degree burglary, attempted kidnapping, battery with serious bodily injury, and false imprisonment. In addition, in exchange for defendant’s agreement to admit one of the prior conviction enhancement allegations, the prosecution dismissed one prior felony conviction and two prison prior enhancement allegations. In 1992, in exchange for defendant’s guilty plea to the sole felony charged in that case (grand theft) and his admission of three prison prior enhancement allegations, defendant was sentenced to the lower term of 16 months plus one year on one of the prison priors, with the sentences on the other enhancements stayed, a lenient sentence.
For all these reasons, we conclude the court did not abuse its discretion when it excluded evidence that some of defendant’s prior convictions were the result of guilty pleas. In any event, defendant was not prejudiced by the ruling, since the documentary evidence regarding the 1987 and 1992 prior convictions included evidence that defendant had pleaded guilty in those cases.
VI. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct in three ways during the trial. He asserts it was misconduct for the prosecutor: (1) to cross-examine defendant about privileged information regarding his decision to testify; (2) to argue facts not in evidence; and (3) to make improper comments about his role as a prosecutor in argument. Defendant objected on relevance grounds to the allegedly improper questions about his decision to testify, but did not object to the other acts of alleged misconduct. He contends it would have been futile to object and that an admonition would not have cured the harm. He also argues that if any of his claims were forfeited by his counsel’s failure to object, then counsel was ineffective.
The Attorney General contends defendant forfeited any claim of prosecutorial misconduct by failing to object and failing to request an admonition in the trial court. On the merits, he argues that the prosecutor did not commit misconduct, and that, in any event, defendant was not prejudiced.
A. Factual and Procedural Background
We review the facts and procedure surrounding defendant’s claims of prosecutorial misconduct. Defendant contends the prosecutor committed misconduct when he asked defendant, “How long have you known you were going to … testify in this trial?” Defendant’s relevance objection was overruled and defendant responded that he decided to testify when he first asked for a trial, at least a couple of months before the trial started. The prosecutor then asked defendant whether he had been thinking about what he was going to say that entire time, which defendant denied. Defendant contends the prosecutor committed misconduct because his questions “encroached upon an area protected by both [the] attorney-client privilege and the privilege against self-incrimination.”
Defendant testified that he and Barrientos went directly from the Balderas home to the parking lot at Happy Hollow, a petting zoo and amusement park in San Jose, where he worked on her car with the tools he had borrowed. On cross-examination, the prosecutor twice asked defendant whether Happy Hollow charges patrons to park and defendant responded “No.” The prosecutor inquired a third time asking, “you don’t have to pay when you park at Happy Hollow?” Defendant responded “Not after – no.” There was no other evidence on the question whether one has to pay to park at Happy Hollow. In closing argument, the prosecutor stated, “Now there’s a lot of misdirection that’s been going on in this case. … [¶] … [¶] … so he’s going to a public park, actually a petting zoo that charges you to park, never had to do that, never had to pay, and that’s where he does his work. … It’s an added on little thing of the defendant’s that makes no sense. It’s a little bit of a misdirection.” (Italics added.) Defendant contends the prosecutor committed misconduct when he told the jury that Happy Hollow charges the public to park because there was no evidence that supported that assertion.
Defendant complains of the following comments from the prosecution’s opening argument regarding the factors to consider in evaluating Barrientos’s credibility: “You’ve heard no evidence of leniency. What you’ve heard is its opposite. Veronica Barrientos was asked by [defense counsel], ‘You’re on probation. You’ve committed misdemeanors in your past. Have you been promised anything?’ No. She said, ‘No.’ [¶] That evidence, if it existed, would have had to have been disclosed and would be before you now if she was lying, so that’s something to consider.” (Italics added.) Defendant contends the prosecutor committed misconduct when he told the jury that any promises of leniency would have had to have been disclosed because there was no evidence that supported the assertion.
Defendant contends the prosecutor committed misconduct when he made the following statement in his opening argument: “We all have roles in this court. The judge provides the law and runs this trial. Our reporter keeps a clean record of everything that we do. Our clerk manages the paperwork, the exhibits, and keeps the case file going. Our deputy is in charge of security in the courtroom. My job is to put on facts and ask juries to decide what happened. Defense attorney’s job is to defend their client. [¶] Your job is to decide what the facts are and apply the law the judge gives you.” (Italics added.) Defendant contends that “[b]y asserting his own objectivity and contrasting it with the defense attorney’s role as an advocate,” the prosecutor “deliberately sought to persuade the jury that he was the one who could be trusted to present the ‘facts.’ ” We begin by addressing the forfeiture issue.
B. Forfeiture of Prosecutorial Misconduct Claim
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also, e.g., People v. Farnam (2002) 28 Cal.4th 107, 167; People v. Stewart (2004) 33 Cal.4th 425, 502-503.)
There is an exception to the general rule of forfeiture, however, which applies in the case of futility, incurability, or impracticability. (People v. Hill (1998) 17 Cal.4th 800, 820-821 (Hill).) “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.” (Id. at p. 820, internal quotation marks omitted; see also, e.g., People v. Estrada (1998) 63 Cal.App.4th 1090, 1099 (Estrada) [curative admonition inadequate where the misconduct was “constant and pervasive”].)
Defense counsel did not object to the asserted prosecutorial misconduct at trial on the grounds raised on appeal, nor did he ask the court to admonish the jury to disregard the evidence and argument. Accordingly, he has forfeited the argument for the purpose of this appeal. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1253 [claim that prosecutor presented perjurious testimony].)
With regard to each of his claims of prosecutorial misconduct, defendant argues that this case fits within the exception for futility, incurability or impracticability.
Defendant contends it would have been futile to object on the grounds of prosecutorial misconduct to the prosecutor’s questions regarding defendant’s decision to testify since the court had already overruled his relevance objection to the same inquiry. We are not persuaded that it would have been futile to object. Our review of the record demonstrates that the court entertained objections by both attorneys on a variety of grounds and sustained more of the objections than it overruled. Assuming without deciding whether the question was objectionable, that the court overruled an objection on relevance grounds does not mean it would have overruled an objection that was proper on other grounds.
Defendant argues that it would have been futile to object to the prosecutor’s argument regarding the respective roles of the prosecutor and defense counsel, since the court used similar language to describe the roles of the prosecutor and defense counsel at the beginning of jury selection and that it is unlikely that an admonition would have cured the harm, since the comments played on a popular misconception that prosecutors are more objective and less partisan than defense attorneys. Finally, with regard to defendant’s claims that the prosecutor committed misconduct when he argued facts not in evidence, defendant argues that it is unlikely that an objection and a request for admonition would have cured the harm, because the prosecutor asserted these facts as if they were within his personal knowledge and the jury would have disregarded the court’s admonition.
Nothing in this case suggests that the court responded negatively or inappropriately to defense counsel’s objections or that the court failed to control the trial proceedings. (See e.g., Hill, supra, 17 Cal.4th at pp. 820-822; People v. Arias (1996) 13 Cal.4th 92, 159-160.) Defendant does not point to any specific comment by the court or to any occurrence during trial that supports his claim that the jury would not have followed an admonition to disregard argument that was not based on the evidence or to disregard argument regarding the role of the prosecutor. “[T]he general rule is that on appeal we must assume the jury followed the court’s instructions and admonitions.” (People v. Frank (1990) 51 Cal.3d 718, 728; see People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Moreover, the jury was instructed that nothing the attorneys say is evidence and that only the witnesses’ answers are evidence.
For these reasons, we conclude that defendant forfeited the claims of misconduct that he now raises. However, defendant’s claim of ineffectiveness of counsel based on this same conduct persuades us that we should reach the merits of his prosecutorial misconduct claim. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
C. Ineffective Assistance of Counsel Based on Failure to Object to Alleged Prosecutorial Misconduct
As we discussed previously, to prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. (People v. Benavides, supra, 35 Cal.4th at pp. 92-93.) “Failure to object rarely constitutes constitutionally ineffective legal representation….” (People v. Boyette (2002) 29 Cal.4th 381, 424.) To determine whether counsel’s performance was deficient for failing to object to the alleged acts of prosecutorial misconduct, we review general principles regarding prosecutorial misconduct.
D. General Principles Regarding Prosecutorial Misconduct
“Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury.” (People v. Price (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Although prosecutors are given “wide latitude” in arguing their cases, they nevertheless “are held to an elevated standard of conduct.” (Hill, supra, 17 Cal.4th at p. 819.) The imposition of this higher standard is justified by their “unique function … in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820.)
To warrant reversal, the challenged conduct must be prejudicial. “What is crucial to a claim of prosecutorial misconduct is … the potential injury to the defendant.” (People v. Benson (1990) 52 Cal.3d 754, 793.) When the claim “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa, supra, 15 Cal.4th at p. 841; see also, e.g., People v. Smithey (1999) 20 Cal.4th 936, 960.) To answer that question, we examine the prosecutor’s statement in the context of the whole record, including arguments and instructions. (Hill, supra, 17 Cal.4th at p. 832; People v. Morales (2001) 25 Cal.4th 34, 44.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.)
As a matter of federal constitutional law, a prosecutor’s behavior constitutes prejudicial misconduct when it is “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks omitted.) Thus, for example, federal constitutional error may be found where a pervasive pattern of misconduct “threatened defendant’s right to a fair trial.” (Id. at p. 838.) By contrast, there would be “no error of constitutional dimension” where, for example, “inaccuracies in the [prosecution] witness’s testimony were not material errors ‘in the sense that [their] suppression undermines confidence in the outcome of the trial.’ ” (People v. Padilla (1995) 11 Cal.4th 891, 929, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
E. Analysis
1. Failure to Object to Argument That Mentioned Facts Not in Evidence
“[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks omitted.) Referring to facts not in evidence is “ ‘clearly ... misconduct’ [citation], because such statements ‘tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’ [Citations.] ‘Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ ” (Id. at pp. 827-828.)
The prosecutor referred to facts not in evidence when he suggested in argument that defendant was lying because he testified that he did not have to pay to park at Happy Hollow and when he suggested that if Barrientos had been offered leniency in exchange for her testimony, that fact would have been disclosed to the jury. During summation, counsel “may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks omitted.)
Even if these two statements were misconduct, there was no prejudice to defendant in counsel’s failure to object. The comments regarding Happy Hollow were a brief and minor part of a larger argument that defendant’s version of events did not make sense and was unbelievable. (Hill, supra, 17 Cal.4th at p. 838.) The prosecutor addressed more than 10 aspects of defendant’s testimony, arguing that they were “misdirection[s]” that did not make sense. Moreover, defendant had already been impeached with evidence of his seven prior convictions. The prosecutor’s statement that Barrientos had not been offered leniency was supported by her testimony that she had not been offered anything in exchange for her testimony. The comment that any promise of leniency would have had to have been disclosed was a correct statement of the law. (People v. Pinholster (1992) 1 Cal.4th 865, 939-940.) In addition, the court instructed the jury that the attorneys’ arguments and questions were not evidence, that the jury decided the facts, and that the jurors were entitled to use their common sense and experience to evaluate witness credibility.
For these reasons, we conclude that defense counsel was not ineffective for failing to object to the prosecutor’s references to facts not in evidence.
2. Failure to Object to Questions About Privileged Matters
Citing Griffin v. California (1965) 380 U.S. 609 (Griffin), defendant contends that the prosecutor’s question asking him when he decided to testify “invited speculation as to why he might not have wanted to testify before making that decision, which violated his Fifth Amendment privilege against self-incrimination.” He also argues that the question sought information about a matter that is the product of consultation with counsel and was therefore protected by the attorney-client privilege.
In Griffin, the court held that the Fifth Amendment forbids both “comment by the prosecution on the accused’s silence” and “instructions by the court that such silence is evidence of guilt.” (Griffin, supra, 380 U.S. 379 at p. 615.) The prosecutor violates this rule not only by commenting directly upon the defendant’s failure to testify, but also by commenting indirectly, including by “argu[ing] 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.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) There was no Griffin error here, since defendant decided to testify and forego his right to remain silent.
In addition, the prosecution’s question did not violate the attorney-client privilege. The prosecutor did not ask defendant anything about his communications with his counsel. He asked defendant when he decided to testify and whether he had been thinking about what he was going to say since that time. Defendant was not asked to divulge any privileged communications with his attorney. Thus, the prosecutor did not commit misconduct in his questioning of defendant. Since we conclude the prosecutor did not commit misconduct on this ground, defendant’s claim of ineffective assistance of counsel based on this alleged misconduct fails.
3. Failure to Object to Argument Regarding the Prosecutor’s Role.
Defendant contends the prosecutor committed misconduct when, in discussing the roles of the participants in the trial, he stated that his “job is to put on facts and ask juries to decide what happened” and defense counsel’s “job is to defend [his] client.”
“It is misconduct for prosecutors to vouch for the strength of their cases by invoking … the prestige or reputation of their office in support of it.” (People v. Huggins (2006) 38 Cal.4th 175, 206-207 (Huggins).) “[A] prosecutor’s reference to his or her own experience, comparing the defendant’s case negatively to others the prosecutor knows about or has tried, is improper. [Citation.] Nor may prosecutors offer their personal opinions when they are based on their experience or other facts outside the record.” (Id. at p. 207.) Although a prosecutor may not misstate the law (People v. Bell (1989) 49 Cal.3d 502, 538) or vouch for the strength of the prosecution’s case by invoking the prestige of his or her office (Huggins, at p. 207), a prosecutor may make correct statements of the law and refer to matters of common sense (People v. Wharton (1991) 53 Cal.3d 522, 567).
The prosecutor’s remarks regarding the roles of the prosecutor and defense counsel were fair comment and no misconduct occurred. The prosecutor has a duty to present facts and evidence to prove the charged crime beyond a reasonable doubt. Defense counsel has a duty to defend his client. Unlike the prosecutor, defense counsel has no obligation to present evidence and may rest on the state of the evidence. “This case does not involve such forbidden prosecutorial tactics as falsely accusing counsel of fabricating a defense or otherwise deceiving the jury.” (Huggins, supra, 38 Cal.4th at p. 207.) This claim’s lack of merit forecloses any notion that defendant was denied the effective assistance of counsel when his attorney failed to object to the prosecutor’s argument regarding the roles of counsel.
VII. CALCRIM No. 376
Defendant contends the trial court violated his due process rights under the Fifth and Fourteenth Amendments by instructing the jury with CALCRIM No. 376. He asserts that the inference of guilt the instruction endorsed was illogical since it was not adequately supported by his possession of the toolbox. He also asserts that the word “slight” in the instruction served to reduce the prosecution’s burden of proof.
The Attorney General argues that defendant had forfeited this claim of error by failing to raise it below and that there was no instructional error.
A. Instruction at Issue
The trial court instructed the jury, without objection from defendant, with CALCRIM No. 376 as follows: “If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property along with any other relevant circumstance tending to prove his guilt of burglary. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
B. Forfeiture
Although defendant did not object to the instruction at trial, “there is no forfeiture of an instructional issue on appeal where, as here, the issue asserts a violation of substantial constitutional rights.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574 (O’Dell) [CALCRIM No. 376]; People v. Barker (2001) 91 Cal.App.4th 1166, 1173 (Barker) [CALJIC No. 215, the predecessor to CALCRIM No. 376], both citing People v. Smithey, supra, 20 Cal.4th at p. 976, fn. 7.)
C. Propriety of Instructing With CALCRIM 376
CALCRIM No. 376, like its predecessor CALJIC No. 2.15, is based on a “longstanding rule of law which allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances which tend to show guilt.” (Barker, supra, 91 Cal.App.4th at p. 1173.)
In Barnes v. United States (1973) 412 U.S. 837, 843 (Barnes), the United States Supreme Court noted that “ ‘for centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods.’ [Citation.] The court in Barnes found that such inference comported with due process if ‘the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt….’ ” (Barker, supra, 91 Cal.App.4th at p. 1173-1174.)
In California, CALJIC No. 2.15 evolved “from cases holding that proof of possession of recently stolen property is insufficient by itself to support a guilty verdict as to a theft-related offense. [Citations.] It is a permissive, cautionary instruction which inures to a criminal defendant’s benefit by warning the jury not to infer guilt merely from a defendant’s conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendant’s guilt. [Citations.] Such an inference of guilt has been held not to relieve the prosecution of its burden of establishing guilt beyond a reasonable doubt. [Citations.] The prosecutor’s use of this permissive inference comports with due process unless there is no rational way for the jury to make the logical connection which the presumption permits. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157.)” (Barker, supra, at 91 Cal.App.4th at p. 1174.) The language of CALCRIM No. 376 is very similar to the language of CALJIC No. 2.15.
Citing Barnes and Ulster, defendant argues that when the inference of guilt to be drawn from the defendant’s possession of recently stolen property becomes too attenuated, the instruction should not be given. He contends that “the logical connection between [his] possession of the toolbox and the conclusion that he committed a burglary is practically nonexistent.” We disagree.
As the court stated in Barker, the inference to be drawn from possession of stolen property “ ‘is applicable whether the crime charged is theft, burglary, or knowingly receiving stolen property.’ ” (Barker, supra, 91 Cal.App.4th at p. 1174, citing People v. McFarland (1962) 58 Cal.2d 748, 755.) Defendant was charged with burglary. In the context of theft crimes other than receiving stolen property, the instruction permits the jury to infer that the defendant knew the property was stolen, that the defendant was the one who committed the crime, that the defendant intended to steal the property, or that the property in the defendant’s possession had been stolen from the victims. (Barker, at pp. 1174-1175, citing People v. Gamble (1994) 22 Cal.App.4th 446, 453, People v. Holt (1997) 15 Cal.4th 619, 676-677, & People v. Johnson (1993) 6 Cal.4th 1, 35-38.)
Here, there was evidence that the victims kept the toolbox in a locked shed; that on the date of the incident, Bernabe found the shed door open and the toolbox missing; that Bernabe saw defendant carrying the toolbox away from Bernabe’s house; and that defendant sold the toolbox. Defendant admitted that he took the toolbox. It was logical to infer from this evidence that defendant entered the shed to steal the toolbox. Thus, the inference CALCRIM No. 376 recommended was not illogical in this case.
D. Whether Instruction Reduced Prosecution’s Burden of Proof
Defendant contends that this instruction, especially its reference to “slight” evidence, is defective because it diluted the prosecution’s burden to prove the burglary charge beyond a reasonable doubt and thus violated defendant’s constitutional rights. This contention was rejected by the appellate court in People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1228 (Snyder) with regard to CALJIC No. 2.15. In Snyder, the court held that “CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property, or reduce the prosecution’s burden of proof to a lesser standard than beyond a reasonable doubt. Rather, the instruction ‘relates a contrary proposition: a burglary … may not be presumed from mere possession unless the commission of the offense is corroborated.’ [Citation.] The inference permitted by CALJIC No. 2.15 is permissive, not mandatory. Because a jury may accept or reject a permissive inference ‘based on its evaluation of the evidence, [it] therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt.’ [Citation.] Requiring only ‘slight’ corroborative evidence in support of a permissive inference, such as that created by possession of stolen property, does not change the prosecution’s burden of proving every element of the offense, or otherwise violate the accuser’s right to due process unless the conclusion suggested is not one that reason or common sense could justify in light of the proven facts before the jury.” (Snyder, at p. 1226.)
CALJIC No. 2.15, the predecessor to CALCRIM No. 376, has withstood numerous challenges to its constitutionality in the appellate courts of this state. (See, e.g., People v. Yeoman (2003) 31 Cal.4th 93, 130-132; People v. Prieto (2003) 30 Cal.4th 226, 248-249 (Prieto); People v. Holt, supra, 15 Cal.4th at pp. 676-677; People v. Williams (2000) 79 Cal.App.4th 1157, 1172-1174 (Williams) and cases cited there; Snyder, supra, 112 Cal.App.4th at pp. 1225-1229 and cases cited there.) More recently, the court in O’Dell, supra, 153 Cal.App.4th at pages 1573-1577, rejected such a challenge to CALCRIM No. 376. “ ‘CALJIC No. 2.15 did not directly or indirectly address the burden of proof,’ nor did it affect the prosecution’s ‘burden of establishing guilt beyond a reasonable doubt.’ ” (People v. Najera (2008) 43 Cal.4th at p. 1140, citing Prieto, supra, 30 Cal.4th at p. 248.)
Nevertheless, defendant insists that federal cases support his position, citing United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500; United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1255-1256; and United States v. Partin (5th Cir. 1977) 552 F.2d 621. We disagree. The cases defendant relies on dealt with a conspiracy instruction tied to the substantive element of a conspiracy charge. For example, in Gray, the jury was instructed on the elements of conspiracy and then told that “[t]he Government need only introduce slight evidence of a particular defendant’s participation, once the conspiracy is established, but must establish beyond a reasonable doubt that each member had a knowing, special intent to join the conspiracy.” (Gray, supra, 626 F.2d at p. 500.) The Fifth Circuit has consistently condemned that instruction, finding that it lowers the reasonable doubt standard. (Ibid.; United States v. Brasseaux (5th Cir. 1975) 509 F.2d 157, 161, fn. 5 and cases cited there.) Here, the issue was whether guilt may be inferred from the possession of recently stolen property. The federal cases are not analogous or persuasive.
As this court stated in Williams, “an inference of guilt may rationally arise from the concurrence of conscious possession and many other circumstances.” (Williams, supra, 79 Cal.App.4th at p. 1173.) In our view, CALCRIM No. 376, like CALJIC No. 2.15 “correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (Ibid.)
Nothing in CALCRIM No. 376 absolved the prosecution of its burden of establishing guilt beyond a reasonable doubt. (People v. Prieto, supra, 30 Cal.4th at p. 248.) In fact, CALCRIM No. 376 reminds the jury of the prosecution’s burden to prove its case beyond a reasonable doubt. Moreover, other instructions properly instructed the jury on its duty to weigh the evidence, what evidence it may consider, how to weigh that evidence, and the burden of proof.
For these reasons, we conclude the court did not err when it instructed the jury with CALCRIM No. 376.
VIII. Sufficiency of the Evidence That Defendant’s 1982 Burglary Conviction Was a Strike
Defendant contends there was insufficient evidence that his 1982 burglary conviction qualified as a strike because it was not a serious felony within the meaning of section 1192.7, subdivision (c)(18) (hereafter section 1192.7(c)(18)). He argues that the jury’s finding that the 1982 burglary conviction was a strike must be reversed and that the case must be remanded for resentencing. He also agues that double jeopardy bars retrial of this prior conviction allegation, citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
The Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12) imposes a sentence enhancement upon a finding that a defendant whose current conviction is a felony was previously convicted of a “violent felony” or a “serious felony.” (§ 667, subds. (b)-(e).) A serious felony for these purposes is any offense defined in section 1192.7, subdivision (c). (§ 667, subd. (d)(1).) Subdivision (c)(18) of section 1192.7 sets forth the circumstances under which a burglary qualifies as a serious felony. It currently provides that “any burglary of the first degree” is a serious felony. As relevant here, a first degree burglary is defined as “[e]very burglary of an inhabited dwelling house.” (§ 460, subd. (a).)
Section 460, subdivision (a) provides: “Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.” All other burglaries are second degree burglaries. (§ 460, subd. (b).) Since the evidence of the 1982 burglary conviction indicates that defendant was charged with burglarizing a “house,” we shall refer only to the portion of section 460 that defines first degree burglary as the “burglary of an inhabited dwelling house.”
In 1982, following a court trial, defendant was convicted of second degree burglary. Second degree burglary is not a serious felony. (§ 1192.7(c)(18).) But even though defendant was convicted of second degree burglary in 1982, if the conduct underlying that conviction meets the current definition of first degree burglary – that is, a burglary of “an inhabited dwelling house” (§ 460, subd. (a)) – the prior conviction qualifies as a serious felony, which in turn supports imposition of the Three Strikes sentencing enhancement. (People v. Garrett (2001) 92 Cal.App.4th 1417, 1422-1432.)
Defendant contends there was insufficient evidence that his 1982 second degree burglary conviction was for the burglary of an inhabited dwelling house.
Under the federal Constitution’s due process clause, there is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Under this test, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Ibid.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent. … ‘[O]ur task … is twofold. First, we must resolve the issue in the light of the whole record —i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements … is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.) These sufficiency-of-the-evidence standards apply to review of sentencing enhancements. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
As we noted above, “in determining the truth of a prior conviction allegation, the trier of fact may ‘look beyond the judgment to the entire record of the conviction’ citation ‘but no further.’ ” (Trujillo, supra, 40 Cal.4th at p. 177, citing Guerrero, supra, 44 Cal.3d 343, 355-356.) In Guerrero, the court observed that this rule was fair because “it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.” (Guerrero, at p. 355.) The prosecution may not call eyewitnesses to prove the nature of the prior conviction and is limited to documents that are part of the record of conviction and are admissible under some exception to the hearsay rule. (People v. Reed (1996) 13 Cal.4th 217, 230 (Reed).) In Guerrero, the record of conviction included “an accusatory pleading charging a residential burglary and the defendant’s plea of guilty or nolo contendere.” (Guerrero, at p. 345.) “A reporter’s transcript of a preliminary hearing is a part of the record of a prior conviction within the meaning of the rule announced in Guerrero.” (Trujillo, at p. 177, citing Reed, at p. 230.) But the record of conviction does not include a defendant’s statements to the probation officer in a post-conviction probation report. (Trujillo, supra, 40 Cal.4th at p. 179.) Statements “that appear in a probation officer’s report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not ‘reflect the facts of the offense for which the defendant was convicted.’ ” (Ibid.)
The evidence that was presented to prove that defendant’s 1982 burglary conviction was for the “burglary of an inhabited dwelling house” included defendant’s trial testimony that he was convicted of “a burglary,” “a felony burglary” in 1982 and documentary evidence. The documentary evidence included the information, a one-page minute order on the court trial on defendant’s Bunnell plea, the abstract of judgment, and the transcript of the sentencing hearing. The information filed in Santa Clara County Case No. 79611 on June 29, 1981, charged defendant with violating “section 459 (burglary)” and alleged that defendant “enter[ed] a building, to wit: a HOUSE, … with intent to commit theft.” It did not specify the degree of the offense. The minute order of defendant’s March 3, 1982 trial indicates that defendant was charged with second degree burglary “by stipulation” and “3 priors.” The priors were stricken on the prosecution’s motion. The matter was submitted to the court “on [the] transcript” (presumably the transcript of the preliminary hearing), and the court found defendant guilty of second degree burglary. The evidence used to prove this prior conviction did not include a copy of the preliminary hearing transcript. The abstract of judgment indicates that defendant was convicted of “Burglary-Second Degree” and sentenced to three years in prison concurrent to the sentence on his 1982 robbery conviction. Nothing in the transcript of the sentencing proceeding indicates whether the court found that defendant had burglarized an “inhabited dwelling house.”
Defendant contends that the aforementioned evidence does not prove that he was convicted of burglarizing a “dwelling house” that was “inhabited.” He argues that it is far from clear that the use of the word “house” in the information can be considered in determining whether the conviction was for first degree burglary where neither the “plea” nor the guilty finding incorporated this charging language. He observes that none of the evidence used to prove the prior conviction reflects that defendant was found guilty “as charged.” He argues further that there is no evidence the house was inhabited.
We have combed the record of this prior conviction and agree there is no evidence that supports the conclusion that defendant was convicted of burglarizing an “inhabited dwelling house.” In 1982, first degree burglary was defined as “Every burglary of an inhabited dwelling house … committed in the nighttime.” (Former § 460, Stats.1978, c. 579, p. 1985, § 23, p. 1985; italics added.) All other burglaries were second degree burglaries. (Ibid.) Under the statute at the time, a daytime burglary of an inhabited dwelling house would have been a second degree burglary. Such a burglary would be a first degree burglary and a serious felony under the current statutes. (§§ 460, 1192.7(c)(18).) Under former section 460, the burglary of an uninhabited dwelling house or of a structure other than a dwelling would also have been a second degree burglary. These offenses are still second degree burglaries and are not serious felonies. The record of conviction does not disclose the details of the court’s findings in 1982 and we cannot assume that the court found that defendant committed a daytime burglary of an inhabited dwelling house as opposed to some other type of second degree burglary.
The Attorney General cites the following language from Garrett, supra, 92 Cal.App.4th at page 1433: “Charging documents in conjunction with a no contest plea may be considered in determining the truth of a residency allegation.” He relies on People v. Colbert (1988) 198 Cal.App.3d 924 (Colbert) and People v. Harrell (1989) 207 Cal.App.3d 1439 (Harrell). In Colbert, the court found the evidence sufficient where the information alleged that in 1981 the defendant had “ ‘enter[ed] the residence … occupied” by the victims and the jury found the defendant “guilty ‘as charged in the information.’ ” (Colbert, at pp. 927; id. at p. 930.) In Harrell, the court found sufficient evidence where the information alleged that the defendant had entered “ ‘the residence of Stephen Lewis’ ” and a minute order stated that the defendant had pleaded no contest to “Burglary … as charged in the Information.” (Harrell, supra, at p. 1444.) The Harrell court also addressed the effect of the 1987 amendment to section 1192.7 (c)(18), which deleted the language that provide that the “burglary of a residence” was a serious felony and amended it to make “burglary of an inhabited dwelling house” a serious felony. (Id. at pp. 1444-1445.) The court concluded that “past judicial construction of the term ‘residence’ and the legislative history of the amendment, show that ‘residence’ and ‘inhabited dwelling house’ are equivalent terms.” (Id. at p. 1446.)
This case is distinguishable from Harrell and Colbert. In both of those cases, the documents that were used to prove the prior serious felony alleged that the defendant had entered a “residence.” In Colbert, the information even stated that the residence was “occupied.” In this case, the information alleged only that defendant entered a “house” without specifying whether that house was inhabited or used as a dwelling. The information did not use the term “residence.” Moreover, even if we were to conclude that the reference to a “house” was sufficient, which we do not, nothing in the record indicates that the court found defendant guilty “as charged.”
The Attorney General argues that “by his guilty plea,” defendant acknowledged that the evidence was sufficient to support the charged offense. However, the 1982 burglary conviction resulted from a court trial, not a guilty plea.
The Attorney General also suggests that we consider defendant’s testimony outside the presence of the jury (in which defendant stated that he could not recall whether the 1982 burglary was a burglary of a residence) and statements in his post-trial motion to dismiss some of his strike priors that included additional facts regarding the 1982 burglary conviction. None of this evidence was before the jury. Consequently, it is irrelevant to the issue of the sufficiency of the evidence that was presented to the jury on the prior conviction allegation.
For these reasons, we hold that the trial court’s finding that defendant’s 1982 second degree burglary conviction qualifies as a serious felony within the meaning of section 1192.7(c)(18) and the Three Strikes Law is not supported by substantial evidence.
Defendant argues that, after Apprendi, supra,530 U.S. 466 and its progeny, double jeopardy principles bar retrial of the prior conviction. We disagree. People v. Monge (1997) 16 Cal.4th 826, Monge v. California (1998) 524 U.S. 721, and People v. Barragan (2004) 32 Cal.4th 236 hold that retrial of prior conviction allegations is not barred. We are bound by that precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We shall remand this case for resentencing unless the prosecutor elects to retry the prior serious felony allegations pertaining to defendant’s 1982 conviction in Santa Clara County case number 79611.
IX. Alleged Violation of Jury Trial Rights on Prior Conviction Allegations
Defendant contends that, pursuant to the Sixth Amendment and Apprendi, supra, 530 U.S. 466, he was entitled to have the jury decide whether he was the person who suffered the prior convictions and whether the prior convictions qualified as strikes. The Attorney General responds that defendant has forfeited this claim and that, in any event, there was no violation of defendant’s jury trial rights.
A. Procedural Background
Outside of the presence of the jury, after defendant testified regarding his prior convictions, the trial court determined that defendant was the person named in the documentary evidence that was used to prove the prior convictions. Although defendant argues that no one made a finding that the offenses qualified as strikes under the Three Strikes law, we imply that the trial court made such a finding from the fact that the case proceeded to trial on the truth of the strike prior allegations. In the trial court, defendant did not demand a jury trial on the question whether he was the person who suffered the prior convictions or the question whether his prior convictions qualified as strikes.
B. Forfeiture
“Not all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights.” (People v. Vera (1997) 15 Cal.4th 269, 276.) Among those rights is the constitutional right to a jury trial. (Id. at pp. 276-277.) Given the constitutional implications of the error at issue, we question whether the forfeiture doctrine applies at all. (Ibid.) We shall therefore address defendant’s claim on the merits.
C. Analysis
Under California law, the trial court, not the jury, determines whether the defendant is the person who suffered an alleged prior conviction. (§ 1025, subd. (c); People v. Epps (2001) 25 Cal.4th 19, 23, 25.) In addition, the trial court, and not the jury, decides whether an alleged prior conviction qualifies as a serious felony or a strike. (People v. McGee (2006) 38 Cal.4th 682, 695-709 (McGee).)
Defendant “recognizes that this Court is bound by Epps and McGee to the extent [that] those cases have not been overruled by the United States Supreme Court.” He argues, nonetheless, that “Apprendi and the Supreme Court cases following it have overruled McGee and have so undermined Epps that reliance on that case is no longer justified.” We disagree.
We begin by reviewing the holdings in Almendarez-Torres v. United States (1998) 523 U.S. 224 and Apprendi, which are at the heart of defendant’s contention that Epps and McGee are no longer good law. In Almendarez-Torres, the United States Supreme Court concluded that the fact of a prior conviction was not an element of the charged offense, and, thus, need not be charged in the indictment even though it may be used to increase the defendant’s maximum penalty. (Id. at pp. 226-227, 240-247.) Almendarez-Torres “stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged.” (Jones v. United States (1999) 526 U.S. 227, 248; id. at p. 249, fn. 10.)
Two years later, in Apprendi, the court held that the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Sixth Amendment’s notice and jury trial guarantees, require that “ ‘any fact (other than [the fact of a] prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” (Apprendi, supra, 530 U.S. at p. 476.) The court discussed Almendarez-Torres and described it as a “narrow exception” to its holding. (Id. at pp. 490.)
Defendant argues that comments in the majority and concurring opinions in Apprendi and subsequent decisions of the United States Supreme Court, in particular Justice Thomas’s concurring opinion in Shepard v. United States (2005) 544 U.S. 13, indicate that the Supreme Court will overrule Almendarez-Torres which in turn undermines Epps and McGee. The California Supreme Court addressed this contention in McGee, stating: “We recognize the possibility that the United States Supreme Court, in future decisions, may extend the Apprendi rule in the manner suggested by the Court of Appeal below. But because in our view there is a significant difference between the nature of the inquiry and the fact finding involved in the type of sentence enhancements at issue in Apprendi and its progeny as compared to the nature of the inquiry involved in examining the record of a prior conviction to determine whether that conviction constitutes a qualifying prior conviction for purposes of a recidivist sentencing statute, we are reluctant to assume, in advance of such a decision by the high court, that the federal constitutional right to a jury trial will be interpreted to apply in the latter context.” (McGee, supra, 38 Cal.4th at p. 709.) The court echoed that reasoning in People v. Black (2007) 41 Cal.4th 799, 819, footnote 8, stating: “Although some of the reasoning in Almendarez-Torres [citation] which focused upon whether Congress in its reference to recidivism intended to create an element of a crime or a sentencing factor, is inconsistent with the court’s later reasoning in Apprendi and Blakely, which focuses upon the practical effect of the factual finding required, the court in both Blakely and Cunningham continued to exempt explicitly ‘ “the fact of a prior conviction.” ’ [Citations.] Because Cunningham, Blakely, and Apprendi explicitly acknowledge that the federal right to jury trial does not extend to the fact of a prior conviction, we decline to speculate that the high court will change its position on that issue.”
For these reasons, we reject defendant’s contention that Epps and McGee have been undermined or overruled. Pursuant to Epps and McGee, defendant was not entitled to have the jury decide whether he was the person who suffered the prior convictions or whether the prior convictions qualified as strikes.
X. Denial of Romero Motion; Cruel and Unusual Punishment
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant contends the trial court abused its discretion when it denied his motion to strike all but one of his strike prior convictions, which resulted in a sentence that violated both state and federal constitutional provisions against cruel and unusual punishment. Since we reverse and remand for resentencing and possible retrial of the strike prior allegations regarding the 1982 burglary conviction, we shall not reach these issues, except to note that upon remand, the court will have an opportunity to reconsider whether its denial of the motion is warranted for a 53-year-old man who burglarized a tool shed.
Defendant moved to dismiss his 1976 convictions for burglary and robbery and his 1982 convictions for burglary and robbery. He did not ask the court to dismiss his fifth strike prior, the 1987 conviction for assault with a deadly weapon.
Defendant is presently 53 years old. His date of birth is February 7, 1955.
Disposition
The judgment is reversed. The case is remanded for resentencing unless the prosecutor elects to retry the prior serious felony allegations pertaining to defendant’s 1982 burglary conviction in Santa Clara County case number 79611. Retrial is limited to that issue.
WE CONCUR: Mihara, Acting P.J., Duffy, J.