Filed 2/6/18 P. v. Culross CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID ALEXANDER CULROSS,

Defendant and Appellant.


G053837

(Super. Ct. No. 15HF0586)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant David Alexander Culross contends his conviction for robbery must be reversed due to instructional error and prosecutorial misconduct. He also argues there is insufficient evidence to support the trial court’s true finding on a prior serious felony allegation. We reject appellant’s arguments and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
The underlying facts are detailed in codefendant Jonna Johnson’s appeal, which we incorporate by reference. (People v. Johnson (Sept. 28, 2017, G053293) [nonpub. opn.] at pp. 2-4.) Essentially, what happened is that appellant and Johnson violently confronted Liza Granse in her car and stole her purse, car keys and part of her cell phone. Although there was no dispute those items belonged to Granse, the defense argued Granse was not a credible witness and lied about the circumstances under which they were taken. The defense also pointed out there was some evidence that, in confronting Granse, appellant and Johnson were out to reclaim property that belonged to them. However, the jury convicted them of robbery and found appellant inflicted great bodily injury on Granse. Based on a burglary appellant committed in Michigan in 1985, the trial court also found he had suffered a prior serious felony conviction for purposes of the Three Strikes law and Penal Code section 667, subdivision (a). At sentencing, the court dismissed the Michigan prior for purposes of the Three Strikes law and sentenced appellant to eight years in prison.
DISCUSSION
Unanimity Instruction
Appellant contends the trial court erred in refusing to give a unanimity instruction respecting the nature of the property that was stolen from Granse. He fears that without such an instruction, “some of the jurors may have found a robbery based on property [he] or Johnson claimed was lawfully theirs and other jurors may have grounded their vote to convict based on . . . property [that] belong[ed] to Granse[.]” We do not believe a unanimity instruction was required under the circumstances presented in this case.
The idea that appellant and Johnson may have confronted Granse to reclaim property that belonged to them is primarily based on a pair of 911 calls that Granse made to the police during and immediately after the robbery. On the first call, appellant can be heard asking Granse, “Where is it?” and “Where’s our shit,” to which Granse responded, “I don’t have your shit, I don’t have anything of yours!” And during the second call, Granse told the dispatcher “they took my car keys [and my purse and] said I stole their vehicle, I have nothing to do with any vehicle.” However, Granse did say she knew appellant and Johnson before they robbed her. She was able to provide the dispatcher with appellant’s full name and Johnson’s first name.
At trial, Granse testified she had known appellant and Johnson for about a year and a half before the robbery. She said they were all friends and used to “hang out” together. But when appellant approached her during the robbery, he was very upset and asked her where his “things” were. Granse told appellant she did not know. On cross-examination, she denied stealing his car or having his registration documents.
During the hearing on jury instructions, Johnson’s attorney asked the court for a claim-of-right instruction on the theory Johnson and appellant may have been trying to retake property from Granse that was rightfully theirs. (See CALCRIM No. 1863.) However, he acknowledged defendants did not have any claim of right to Granse’s purse or car keys, which, along with her cell phone, was the property that was alleged to have been taken during the robbery. The trial court denied the request for a claim-of-right instruction for lack of evidentiary support.
Appellant does not challenge that ruling here. However, he contends the trial court erred in denying his request for a unanimity instruction pertaining to the particular property that was taken from Granse. In arguing in favor of such an instruction at trial, appellant’s attorney asserted “there is a dispute, and there is room for variance” as to which property was taken legally and which property was taken illegally. The trial court did not see it that way, nor do we.
“In California, a jury verdict in a criminal case must be unanimous. [Citation.] Thus, our Constitution requires that each individual juror be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with. [Citation.] Therefore, when the evidence suggests more than one discrete crime, either (1) the prosecution must elect among the crimes or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. [Citations.]” (People v. Hernandez (2013) 217 Cal.App.4th 559, 569, italics omitted.) However, a “unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. [Citations.] This . . . exception applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them.” (People v. Crandell (1988) 46 Cal.3d 833, 875, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364.)
Here, appellant’s main line of defense was to attack the victim’s credibility. In closing argument, appellant’s attorney argued that Granse’s testimony about being robbed was simply not believable and that she falsely accused appellant and Johnson of robbing her because she was afraid they were going to implicate her in criminal activity of her own. This was a blanket defense to the robbery charge. At no point did appellant’s attorney attempt to distinguish among the three items of property – Granse’s purse, car keys and cell phone – that formed the basis for the prosecution’s robbery theory. Nor did he argue appellant had a legal right to take any of those items. Thus, there was no legal or factual basis for the jury to make any sort of distinction among them. Under these circumstances, the trial court did not err in refusing to give a unanimity instruction. (See People v. Russo (2001) 25 Cal.4th 1124, 1132 [a unanimity instruction is required only when there is a danger that without it, some jurors might believe the defendant is guilty based on one act, while others might believe him guilty based on another act].)
Moreover, the evidence firmly established the keys, phone and purse taken during the robbery all belonged to Granse. Because appellant did not have a legitimate claim of right defense to any of those items, it doesn’t matter which one(s) formed the basis for the jury’s verdict, and the failure to give a unanimity instruction respecting those items was manifestly harmless. The absence of such an instruction is not cause for reversal.
Prosecutorial Misconduct
Appellant asserts the prosecutor committed misconduct in closing argument. The argument is largely based on the fact the prosecutor accused defense counsel of having an “agenda” in terms of how they cross-examined witnesses and argued their case. (See People v. Johnson, supra, G053293, at pp. 4-6.) Johnson raised the same argument in her appeal. As we explained there, the context of the prosecutor’s remarks shows they were neither improper nor prejudicial. (Id. at pp. 6-9.)
Appellant also takes issue with some of the comments the prosecutor made during her rebuttal argument. Speaking to the elements of robbery, the prosecutor noted the law requires the property in question be taken by “force or fear.” (Pen. Code, § 211.) She said, “it is an ‘or’, not an ‘and’. I heard it stated as an ‘and’ in [defense counsel’s] closing argument --.” As he did at trial, appellant contends this remark unfairly disparaged his attorney by insinuating he had intentionally misstated the law on robbery. But we agree with the trial court that the prosecutor’s comments were unobjectionable. Indeed, the record shows that during his closing argument, appellant’s attorney referred to the force or fear requirement in both disjunctive and conjunctive terms. The prosecutor was within her rights in clarifying this issue for the jury.
Appellant further contends the prosecutor improperly vouched for the arresting officer’s credibility by describing him as a “professional.” However, “‘so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” her comments cannot be characterized as improper vouching.’ [Citations.] Misconduct arises only if, in arguing the veracity of a witness, the prosecutor implies she has evidence about which the jury is unaware. [Citations.]” (People v. Fernandez (2013) 216 Cal.App.4th 540, 561.)
Here, the evidence established the arresting officer was an experienced member of the Orange County’s Sheriff’s Department. He was assigned to the Special Enforcement Team and had worked in law enforcement for 18 years at the time of trial. Based on this, the jury could reasonably infer he was a “professional” officer. Therefore, it was not improper for the prosecutor to allude to him as such. (Hines v. McDaniel (9th Cir. 2002) 50 Fed.Appx. 853, 854 [“The prosecutor’s reference to certain witnesses as ‘trained’ and ‘professional’ was not improper vouching”]. No prosecutorial misconduct has been shown.
Michigan Burglary Conviction
Lastly, appellant contends there is insufficient evidence his prior conviction from Michigan constitutes a serious felony under California law. Again, we disagree.
Section 667, subdivision (a)(1), states that “any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.”
For purposes of this section, a serious felony includes burglary in the first degree (§§ 667, subd. (d), 1192.7, subd. (c)(18)), which is defined as the “burglary of an inhabited dwelling house, vessel . . . or trailer coach . . . or the inhabited portion of any other building[.]” (§ 460.) The term “inhabited” means “currently being used for dwelling purposes, whether occupied or not.” (§ 459.)
The scope and wording of our burglary statute is important in this case because an enhancement for a prior serious felony conviction “is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense. [Citation.]” (People v. Crane (2006) 142 Cal.App.4th 425, 433.) In examining the record of a foreign conviction to make this determination, the trial court is not allowed to engage in independent factfinding, but it may consider the facts the defendant admitted as the basis for his guilty plea. (People v. Gallardo (Dec. 21, 2017, S231260) __ Cal.5th __.)
Here, the record of appellant’s prior conviction shows that in 1985 he was charged in Michigan with breaking and entering an occupied dwelling with unlawful intent. In pleading guilty to the charge, appellant admitted, “I broke into a house in Southfield and tried to comit [sic] a larceny.” He was then sentenced to a term of 18 months to 15 years in prison pursuant to Michigan’s then extant burglary statute, which provided as follows:
“‘Any person who breaks and enters any occupied dwelling house, with intent to commit any felony or larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison for not more than 15 years. For the purpose of this section, “any occupied dwelling house” includes one that does not require the physical presence of an occupant at the time of the breaking and entering but one which is habitually used as a place of abode.’” (People v. Muhammad (Mich. Ct. App. 1988) 428 N.W.2d 762, 769, quoting M.C.L. § 750.110.)
As one court has observed, “The Michigan and California statutes proscribing burglary of a residence are identical in all essential respects.” (People v. Reynolds (1989) 211 Cal.App.3d 382, 387; see also People v. Burns (1960) 181 Cal.App.2d 480, 484 [“The California burglary statute is worded broadly enough to encompass all acts which comprise burglary in Michigan.”].) Nonetheless, appellant contends the trial court’s finding respecting his prior burglary conviction must be reversed because the record fails to show whether the structure he burglarized in Michigan was inhabited for purposes of California law. In so arguing, he posits that under Michigan law, even if he broke into an uninhabited structure such as a barn, he would still be guilty of burglary if the structure was within the curtilage of the owner’s dwelling house. (See, e.g., People v. Griffith (Mich. 1903) 95 N.W. 719.)
However, appellant did not plead guilty to breaking and entering a barn or other uninhabited outbuilding. Rather, he admitted breaking into a “house” in Southfield, Michigan, which is a suburb of Detroit. A house is commonly understood as a structure that is used for human habitation and that serves as a person’s residence (People v. Moreland (1978) 81 Cal.App.3d 11, 18, fn. 4), and there is no evidence the house appellant burglarized in Michigan was vacated or abandoned. Therefore, based on appellant’s guilty plea, the trial court could reasonably find his Michigan prior constituted a serious felony under California law. We see no reason to disturb that finding.
 
DISPOSITION
The judgment is affirmed.



BEDSWORTH, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.