Filed 7/26/17 P. v. Avila CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL AVILA,

Defendant and Appellant.

F072171

(Super. Ct. No. SF018077A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Michael Avila (defendant) stands convicted, following a jury trial, of first degree burglary, during the commission of which someone other than an accomplice was present in the residence (Pen. Code, §§ 460, subd. (a), 667.5, subd. (c)(21); count 1), possessing a burglary tool (§ 466; count 3), and delaying a peace officer in performance of his or her duties (§ 148, subd. (a)(1); count 4). After a bifurcated court trial, he was found to have suffered two convictions for serious felonies (§ 667, subd. (a)) that were also strikes (id., subds. (c)-(j), 1170.12, subds. (a)-(e)) and to have served four prior prison terms (§ 667.5, subd. (b)). His motion to strike one of his prior convictions was denied, and he was sentenced to a total of 11 years plus 25 years to life in prison and ordered to pay restitution as well as various fees, fines, and assessments. He now appeals, raising claims of ineffective assistance of counsel and instructional error. We affirm.
FACTS
At approximately 9:00 p.m. on February 2, 2015, Kern County Sheriff’s Deputy Vollmer was on patrol in the area of Filburn Avenue and Pepper Tree Close in Wasco. He saw a Hispanic male (subsequently identified as Barrios) in dark clothing, sitting on a bicycle near the area of Filburn and the open south end of the Pepper Tree Close cul-de-sac. When Barrios saw Vollmer’s patrol vehicle, he started to ride away on his bicycle. Vollmer lost sight of him.
Vollmer noticed a second bicycle lying in a grass area just outside the opening in the wall separating Filburn from Pepper Tree Close. Suspecting possible criminal activity in light of Barrios’s appearance and conduct, Vollmer pulled over and stopped. Not seeing anyone in the vicinity, he walked to where he could see into the residential area, which was well lit. The garage door was open in a residence on Pepper Tree Close, and the light was on inside.
As Vollmer approached the garage, he saw the back of a subject inside. Vollmer could see clearly in the garage. The person, who was wearing a gray hooded sweatshirt with the hood down, a white or light-colored hat, and blue jeans, was standing just inside the garage near a cardboard box. Vollmer saw his face from no farther away than five feet and instantly recognized him, from a number of prior contacts during which they had spoken face-to-face, as defendant. Defendant acted as if he was looking around inside the garage, then he reached down toward the box.
Vollmer approached along the passenger side of a vehicle that was parked in the driveway. Defendant noticed him and came out of the garage crouched down, and went between the two vehicles in the driveway. When Vollmer loudly yelled, “Sheriff’s Department. You better stop,” defendant stood up and looked at Vollmer. Vollmer again had a clear view of his face from a few feet away. There was no doubt in Vollmer’s mind concerning defendant’s identity. They made eye contact, and defendant ran south through the opening in the wall, and then west along the grass area on Filburn. Vollmer chased after him. Defendant began throwing three items — Armor All original cleaner, tire cleaner, and Armor All soap — from the front pocket of his sweatshirt. As he ran, he looked back at Vollmer.
Vollmer lost defendant in a residential area one block to the west. Vollmer broadcast defendant’s description (Hispanic male, white hat, gray sweatshirt, blue jeans), then went back to retrieve the items defendant had dropped. He then returned to his patrol vehicle. Within minutes, Deputy Davis broadcast that he had seen the subject running near the 1900 block of Broadway, which was one block east of Pepper Tree Close. At first, Davis did not get a good look at the person, who was running away from him and jumping fences between houses. Davis unsuccessfully tried to cut him off. As Davis drove eastbound on 16th Street, he saw a Hispanic male in a gray hooded sweatshirt in his rearview mirror. The person was running toward some apartments. Davis turned around and got a clear look at the subject. It was defendant, whom Davis had seen before.
Upon hearing Davis’s broadcast, Vollmer began driving around the area in an attempt to locate defendant. When he saw Davis turn down 16th Street, he followed. Both deputies exited their vehicles in front of an apartment complex on 16th Street. They contacted two subjects — defendant and Barrios — who were standing at the bottom of the apartment complex stairwell. Defendant was wearing a gray hooded sweatshirt and blue jeans, the same outfit Vollmer had seen a few minutes earlier minus the hat. Barrios was straddling the same bicycle he had had earlier. Defendant was standing in front of him as they conversed. Despite the fact it was fairly cold, there was sweat dripping off defendant’s head and he was breathing heavily. This was no more than 10 minutes after Vollmer saw defendant inside the garage, which was about three blocks away.
Vollmer again yelled, identifying himself and ordering defendant and Barrios to stop. Defendant and Vollmer made eye contact; Vollmer recognized him as the person he had seen in the garage. Defendant and Barrios ran up the stairwell into the apartment complex. They entered the apartment at the top of the stairs and were taken into custody. Davis then took defendant back downstairs and searched him. In defendant’s right front pants pocket was what was known as a shaved key. Davis had training and experience in identifying burglary tools, specifically shaved keys. Such keys usually are used for getting into cars and houses, as well as for stealing cars. A shaved key has wear marks, such as brush marks from sandpaper or some sort of sanding tool.
While Davis transported both subjects to the substation, Vollmer contacted Anthony Gomez, a resident of the house in the garage of which defendant had been. Gomez and his parents had been inside the house around 9:00 p.m. that evening when Gomez heard a noise in the garage. A short time later, Gomez went into the garage and was contacted by Vollmer. Vollmer took Gomez to view some items in the grassy area by the cul-de-sac opening. Gomez identified the items as having come from the carwash kit Gomez had in a box inside the garage. Gomez did not know defendant, who did not have permission to be inside the garage or to take the items.
DISCUSSION
I
INEFFECTIVE ASSISTANCE OF COUNSEL
On direct examination, Vollmer testified:
“Q And when you first saw the defendant at those apartments, did you notice anything about him physically that caught your attention?
“A You could — as we approached, I mean, you could see the sweat dripping off of his head. And you could tell, just by his chest and stomach movement, that he was breathing heavily.
“Q What did that indicate to you?
“A That he was, obviously, the subject that just ran from us and that we were pursuing.” (Italics added.)
Again on direct examination, Davis testified concerning his training and experience with regard to shaved keys and their uses. He testified that the shaved key he found in defendant’s pocket was consistent with the shaved keys he had seen on other occasions, and that he knew of no legitimate purpose for which someone would possess such a key. This ensued:
“Q Now, based on your training and experience, did you form an opinion in this case as to what the key was that you found in the defendant’s pocket?
“A Yes.
“Q What is that opinion?
“A That is a burglary tool used to break into vehicles.” (Italics added.)
Defendant did not object at trial to either instance of purportedly improper opinion testimony. Recognizing this bars direct consideration of his claim of error on appeal (e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76; People v. Mickey (1991) 54 Cal.3d 612, 669), defendant says he received ineffective assistance of counsel. This claim lacks merit.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland).) “In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘ “whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” ’ [Citation.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Vollmer’s challenged testimony constituted lay opinion. “A lay witness may testify to an opinion if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his testimony. [Citation.]” (People v. Farnam (2002) 28 Cal.4th 107, 153; see Evid. Code, § 800.) Davis’s testimony about the shaved key constituted expert opinion. “The subject matter of such an opinion is limited to ‘a subject that is sufficiently beyond common experience that [it] would assist the trier of fact.’ [Citation.] ‘Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness. [Citation.]’ [Citation.]” (People v. Chapple (2006) 138 Cal.App.4th 540, 546-547; see Evid. Code, § 801.) Neither a lay nor an expert witness may express an opinion on a defendant’s guilt (People v. Vang (2011) 52 Cal.4th 1038, 1048; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 77; People v. Torres (1995) 33 Cal.App.4th 37, 46-47) or as to whether a crime has been committed (People v. Torres, supra, at pp. 47-48).
Assuming, without deciding, that the challenged testimony was objectionable (compare, e.g., People v. Frederick (2006) 142 Cal.App.4th 400, 412 [trial court properly permitted expert witnesses to testify regarding indicia of endless chain schemes, but not whether organization at issue was in fact such a scheme] with People v. Carter (1997) 55 Cal.App.4th 1376, 1378 [trial court properly admitted expert opinion testimony that defendant possessed rock cocaine for purposes of sale]) and that this is one of those rare cases in which the failure to object to evidence constitutes deficient performance by counsel (see People v. Gurule (2002) 28 Cal.4th 557, 609-610), we find no reasonable probability defendant would have obtained a more favorable result absent counsel’s shortcomings. Both officers had prior contacts with defendant and recognized him immediately upon seeing his face. The challenged portion of Vollmer’s testimony added little or nothing to the already strong identification of defendant as the perpetrator. The challenged portion of Davis’s testimony was merely cumulative to other, unchallenged testimony concerning the attributes of a shaved key and its lack of a legitimate purpose. (See People v. Torres, supra, 33 Cal.App.4th at p. 49.) In addition, jurors were instructed that it was up to them alone to decide what happened, and that they were not required to accept lay or expert opinions as true or correct.
Defendant argues Vollmer’s purportedly improper opinion “presupposed and usurped” the special knowledge of the judge concerning how circumstantial evidence should be evaluated by the trier of fact. Defendant says Davis testified that defendant ran up the staircase; therefore, a reasonable conclusion was that defendant was winded and sweaty from running up the staircase.
Defendant’s interpretation of the testimony is not supported by the record. Davis testified that he saw defendant running before defendant reached the bottom of the staircase in the apartment complex, and that after Vollmer told defendant to stop, defendant continued to run up the staircase. Vollmer testified that when he pulled up by the apartment complex, he saw defendant standing with Barrios at the bottom of the stairwell. When Vollmer first saw defendant at the apartments, Vollmer could see sweat dripping off his head and could tell he was breathing heavily by his chest and stomach movement, despite the fact it was fairly cold that night. It was only after these observations that defendant ran up the stairs. In light of this testimony, which was uncontradicted, it would have been unreasonable for jurors to conclude defendant was winded and sweaty from running up the staircase. Accordingly, any error in admitting the challenged evidence did not interfere with the instructions given by the trial court.
II
ALLEGED INSTRUCTIONAL ERROR
With respect to count 3, the trial court instructed:
“Defendant is charged in count 3 with possession of burglary tools, in violation of Penal Code section 466, a misdemeanor. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant willfully and unlawfully possessed a bump key; and, two, the defendant had the intent to use the burglary tool to break or enter into a building or vehicle.
“A bump key is a burglary tool.” (Italics added.)
Defendant now contends the emphasized portion of the instruction violated his federal constitutional rights to trial by jury and due process. He says (1) insufficient evidence supported the “bump key” portion of the instruction, because the evidence adduced at trial was of a “bunk key”; (2) the emphasized portion of the instruction was erroneous as a matter of law because a shaved key is not the same as or legally interchangeable with a bump key; and (3) the challenged portion of the instruction directed a verdict, thereby amounting to instructional error that requires reversal of the conviction on count 3 and that also prejudicially contributed to the burglary verdict on count 1.
We turn first to defendant’s claim the evidence adduced at trial was of a “bunk key,” not a “bump key.” The reporter’s transcript uses both terms interchangeably, sometimes even in the same paragraph. We conclude the reporter’s transcription of “bunk key” is in error, a finding we are not precluded from making by the presumption that official duty has been regularly performed. (Evid. Code, § 664; see People v. Harrison (2005) 35 Cal.4th 208, 226.) Significantly, defense counsel implicitly conceded, in his argument to the jury, that defendant possessed a “bump key.” He did not argue the evidence showed a “bunk key” and not a “bump key” as referenced in the jury instruction, but rather that the prosecution failed to prove defendant possessed the item for an improper purpose. Moreover, the reporter’s transcript contains several other, more obvious errors. Under the circumstances, sufficient evidence supported the “bump key” instruction.
Defendant next argues the instruction was erroneous as a matter of law, because the shaved key referenced at trial and a bump key are not the same thing. He cites no evidence for this proposition. A law review article cited for the first time on appeal does not suffice to establish error in a jury instruction that was responsive to the uncontradicted evidence actually presented at trial, to wit, that the two items are the same thing and the terms are used interchangeably. Accordingly, we reject this portion of defendant’s argument.
Defendant’s main contention is that by telling the jury a bump key is a burglary tool, the trial court directed a verdict in contravention of the Sixth and Fourteenth Amendments to the United States Constitution. As the United States Supreme Court has explained, the fundamental right to trial by jury guaranteed by the Sixth Amendment “includes, . . . as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ [Citation.] Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. [Citations.] [¶] What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged [citations], and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements [citations].” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.)
We independently review whether instructions correctly state the law and whether they effectively direct a finding adverse to the defendant by removing an issue from the jury’s consideration. (People v. Posey (2004) 32 Cal.4th 193, 218.)
Section 466 provides, in pertinent part: “Every person having upon him or her in his or her possession a . . . bump key . . . or other instrument or tool with intent feloniously to break or enter into any building . . . or vehicle . . . is guilty of a misdemeanor.” “[I]n order to sustain a conviction for possession of burglary tools in violation of section 466, the prosecution must establish three elements: (1) possession by the defendant; (2) of tools within the purview of the statute; (3) with the intent to use the tools for the felonious purposes of breaking or entering. [Citation.]” (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.)
In light of the express statutory language, a bump key falls within the purview of section 466 as a matter of law. Thus, defendant’s jury “merely was instructed on a point of law that was not open to dispute.” (People v. Carrington (2009) 47 Cal.4th 145, 190.) Jurors were left to decide the factual questions whether the item in issue constituted a bump key, whether defendant possessed the item, and, if so, whether he did so with the requisite intent. There was no error. (See id. at pp. 189-190 [not error to instruct, as to firearm use allegation, that “ ‘firearm includes a Smith and Wesson .357 magnum revolver’ ” where evidence showed weapon used was Smith and Wesson .357 magnum revolver; jury was instructed on point of law not open to dispute and was left to decide factual question whether defendant used Smith and Wesson .357 magnum revolver in commission of crimes]; People v. Brown (1988) 46 Cal.3d 432, 443-444 [not error to instruct, as to peace-officer-killing special circumstance, that Garden Grove police officers are peace officers, where evidence showed victim was Garden Grove police officer; jury was merely instructed on point of statutory law not open to dispute, and was left to determine all elements of special circumstance, including whether victim was Garden Grove police officer]; People v. Moore (1997) 59 Cal.App.4th 168, 179-187 [not error to instruct, as to charge of conspiring to misappropriate public monies with public officer, that specific water district constituted “district” for purposes of offense where it was so denominated in Water Code; jury was left to determine all elements of charge, including whether alleged coconspirator was officer of district]; People v. Dimitrov (1995) 33 Cal.App.4th 18, 25-26 [where statute defined “destructive device” to include any bomb, not error to instruct, in prosecution for possession of destructive device, that pipe bomb was destructive device; instruction merely conveyed applicable statutory definition of “destructive device” and did not tell jury subject device was pipe bomb]; People v. Runnion (1994) 30 Cal.App.4th 852, 855-857 [not error to instruct, regarding firearm use enhancement, that “ ‘word “firearm” includes handgun’ ”; instruction merely told jury that legal definition of firearm included handgun, and left jury to determine whether item at issue in case was handgun].)
People v. Figueroa (1986) 41 Cal.3d 714, on which defendant relies, is not controlling. In that case, the defendants were charged with the sale of unqualified securities under the Corporations Code. (People v. Figueroa, supra, at p. 718.) The trial court instructed that certain instruments constituted “securities” as a matter of law. The California Supreme Court held this amounted to an unconstitutional directed verdict, since, although the statute defining a “security” contained a list of instruments coming within the definition, case authority adhered to the principle that substance governed over form. Thus, it was not a foregone conclusion that the instrument in question constituted a “security” under the statute, as resolution of that point depended on questions of fact that should have been submitted to the jury. (Id. at pp. 734, 741; see id. at p. 741 (conc. opn. of Reynoso, J.).) Similarly, in People v. Flood (1998) 18 Cal.4th 470, 477, 482, which involved a prosecution for evading a pursuing peace officer resulting in serious bodily injury or death, the California Supreme Court held the trial court improperly removed an element of the offense from the jury’s consideration by instructing that the specific officers involved in the pursuit were peace officers. In the present case, by contrast, the trial court did not tell jurors defendant possessed a bump key or even that the item before them constituted such a device. Rather, “it merely instructed pursuant to the unquestionable and clear terms of the relevant statute[]” that a bump key is a burglary tool (People v. Brown, supra, 46 Cal.3d at p. 444, fn. 6), an issue “conclusively resolved” by the language of section 466 itself (People v. Moore, supra, 59 Cal.App.4th at p. 187).
III
CUMULATIVE ERROR
Defendant contends his constitutional rights were violated by the cumulative effect of the errors in this case. We have assumed only one error — that trial counsel’s failure to object to certain opinion testimony constituted deficient performance — and found it did not prejudice defendant. His contention fails. (See People v. Tully (2012) 54 Cal.4th 952, 1061; People v. Richie (1994) 28 Cal.App.4th 1347, 1364, fn. 6.)
DISPOSITION
The judgment is affirmed.