P. v. Sears

Filed 4/26/06 P. v. Sears CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Patrick Deshaun Sears was convicted by a jury of three counts of robbery in the second degree (Pen. Code, §§ 211-212.5, subd. (c))[1] occurring at a liquor store in south San Jose late in the evening on September 19, 2003.[2] The jury also found true the allegation that each count of robbery was committed through defendant's personal use of a firearm (§ 12022.53, subd. (b)). Defendant was sentenced to a total term of 13 years in prison as to the count 1 conviction and received concurrent 13-year sentences as to both counts 2 and 3.

On appeal, defendant asserts that there was prosecutorial misconduct at trial compelling reversal. Specifically, he contends that in closing argument, the prosecution improperly commented on defendant electing not to testify at trial, a violation of Griffin v. California (1965) 380 U.S. 609, 615 (Griffin). In addition, defendant argues that the prosecution during closing argument (1) made improper appeals to sympathy, (2) misstated the law, and (3) referred to a portion of a CALJIC instruction that was not given to the jury. He argues that the alleged misconduct was prejudicial and requires that his convictions be overturned.

We conclude that there was no Griffin error and that any prosecutorial misconduct was not prejudicial. We therefore will affirm the judgment.

FACTS

We present a summary of the evidence from the trial utilizing the applicable standard. We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)

I. Prosecution Witnesses

A. Wahabunissa (Mary) Ahmed

Wahabunissa (Mary) Ahmed is the co-owner of the Gavilan Bottle Shop liquor store (store or liquor store) located on Blossom Hill Road in San Jose. Mary's business partners are Dan Thompson (Dan) and Janice Thompson (Janice).[3] She became partners with the Thompsons approximately three months before the robbery at issue here.

Mary lived at the Magic Sands Mobile Home Park (Magic Sands), located across the street from the liquor store. She understood that defendant also lived at the Magic Sands, and she passed by where he lived--Space 400--several times a day traveling to and from work; several times when she did so, she saw defendant outside of his home.

Defendant had also been a customer at the store before the robbery. Mary knew him by appearance and by where he lived but did not know his name. About two weeks before the robbery, defendant attempted to buy cigarettes and hard liquor at the store. She refused because defendant would not show identification, and defendant cursed at her. This instance enhanced Mary's ability to recognize defendant when she saw him again.[4]

Mary and the Thompsons were present in the liquor store at approximately 11:00 p.m. on September 19. Mary observed a young (around 20 years old) African-American enter the store, wearing a do-rag and a black mesh mask covering his face below his eyes. She estimated that he was around five feet, four inches to five feet, five inches tall.

The man first pointed a gun at Dan and commanded, â€