P. v. Guigosa

Filed 5/9/07 P. v. Guigosa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and Janine R. Busch Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Jose Manuel Guigosa, was convicted after a jury trial of second degree burglary of a vehicle (Pen. Code,  459, count one) and receiving stolen property (Pen. Code,  496, subd. (a), count two). On June 14, 2006, the trial court suspended imposition of sentence and placed appellant on probation upon various terms and conditions. On appeal, appellant contends the trial court erred in admitting into evidence appellants possession of other items that were not related to the allegations. Appellant also claims prosecutorial misconduct.

FACTS

On January 25, 2006 at 12:45 a.m., Craig Resch was in his apartment when he heard an automobile alarm sound. Resch looked out the window and saw two people in black jackets breaking into a customized Honda owned by his neighbor, Keith Plantenberg. The Honda was parked within 20 feet of Resch. The two doors to the Honda were open, with one person leaning into the car on each side. Each person was wearing dark clothing.

A white van with a driver seated in it was parked directly behind the Honda. The van was older and Resch could hear its motor running. When Resch walked out of his apartment, the two men in the Honda fled to the van, which then left the scene. Resch knocked on Plantenbergs door and told him his car had been burglarized.

Plantenberg explained that he had invested in a number of customized additions to his Honda, adding fairing around the bottom, a Jensen stereo, a tachometer, and special headlights. When Plantenberg checked on his car, he found no scratches or broken windows. Plantenberg did find rubber insulation around a window that appeared to be forced, bent inward. The support to the tachometer was broken and the tachometer was gone, with the connecting wires hanging unconnected. The Jensen stereo was also missing along with the headlights, which had been sitting loose in the back of the car. Plantenberg did not know appellant and did not give him permission to enter his car.

Visalia police officer Mark Lyon was dispatched to the scene of the burglary at 12:46 a.m. As Lyon drove, he observed a white van turn from one street onto another. This was between three to five minutes after the dispatch. The white van was no more than a half mile from the scene of the burglary.

Lyon stopped the van. Appellant was sitting in the front passenger seat. Appellant, the rear passenger, and the driver of the van were all wearing black jackets. Appellant and the rear passenger were also wearing dark colored jeans. The driver was wearing light colored pants. Plantenbergs Jensen stereo was sitting on the dashboard of the van in front of appellant. Plantenbergs tachometer was on the floorboard in front of the rear passenger seat. There was a pair of headlights in the back of the van.

Lyon found a pair of gloves and two flashlights under the front seats of the van. On the front bench seat, between the passenger and driver, there was a screwdriver. Lyon found a pair of pliers on the rear seat floorboard. There was an amplifier behind the rear passenger seat. Over an objection from appellant, the court permitted Lyon to testify that there were five stereos under the rear passenger seat. Lyons explained that nighttime burglaries are carried out by people wearing dark clothing and that burglars often work in groups. Burglars commonly use flashlights and hand tools. No fingerprints were taken.

Appellant testified that he did not burglarize the Honda, although he was sitting in the front passenger seat of the van when it was stopped.^[1] Appellant said he was out with a group of friends from Sanger looking for girls in Visalia, whose names he could not remember. Appellant stated that he remained in the front passenger seat the entire time, falling asleep after taking Tylenol. He was unaware of the burglary until after he awoke.

EVIDENCE OF TOOLS AND OTHER STEREOS

At the commencement of trial, defense counsel made a motion to exclude evidence of the additional stereos and tools found in the van that did not belong to Plantenberg because they were inadmissible under Evidence Code section 352.^[2] The trial court denied the motion, finding it was for the jury to determine the significance, if any, of the items not belonging to Plantenberg. Appellant contends the admission of this evidence was inflammatory and its probative value was outweighed by its prejudicial effect under section 352.

In reviewing an assessment made by the trial court under section 352, appellate courts will not disturb the ruling absent a finding the trial court abused its discretion. (People v. Robinson (2005) 37 Cal.4th 592, 625.) Under section 352, evidence is substantially more prejudicial than probative if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Jablonski (2006) 37 Cal.4th 774, 805.) The admission of relevant evidence does not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair. (Ibid.)

The admission of evidence of other stereos in the van, as well as tools commonly used by burglars, was relevant to the prosecutions case. The tools and appellants clothing were direct evidence of his involvement in the burglary of the victims car. Evidence of other stereos in the van was indirect evidence of appellants intent.^[3] Admission of this evidence did not violate fundamental notions of due process. The probative value of the evidence outweighed any prejudicial effect. We do not find admission of this evidence inflammatory.

ALLEGED PROSECUTORIAL MISCONDUCT

Appellant asserts that the prosecutor committed misconduct in asking Officer Lyon if he was ever contacted by the defense to have fingerprints taken from rubber gloves found in the van. Defense counsel immediately objected on the ground that the prosecutor was shifting the burden of proof to defendant. The prosecutor continued this line of examination, asking Lyon whether the defense requested fingerprint tests on the gloves or the car stereos. Lyon answered each question in the negative. Appellant contends this line of questioning constituted prosecutorial misconduct.

Appellants claim is similar to an argument made in People v. Lewis (2004) 117 Cal.App.4th 246, 256-257 (Lewis), that questioning by the prosecutor about a lineup improperly shifted the burden of proof. In Lewis, the defendant argued that a comment by the prosecutor that the defendant failed to request a lineup improperly shifted the burden of proof in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin). It has long been established that Griffin prohibits reference to a defendants failure to take the stand in his or her own defense; the rule does not extend to comments on the state of the evidence, the failure of the defense to introduce material evidence or to call logical witnesses. As a general rule, prosecutors may allude to a defendants failure to present exculpatory evidence without violating Griffin or erroneously implying that the defendant bears the burden of proof. (Lewis, supra, at p. 257.) Lewis further noted that Griffins protection of the right to remain silent is a shield, not a sword to cut off the prosecutions fair response to the evidence and argument of the defendant. (Ibid.)

Here, appellant questioned investigators extensively concerning whether they took fingerprints from evidence seized from the van or from the victims car. It was a major theme of the defense case, carried by defense counsel into closing argument to the jury.

We agree with respondent that the argument made by the prosecutor in Lewis on the issue of a lineup is akin to the argument made by the prosecutor here concerning the failure of the defendant to request that fingerprints be taken. The appellant, in effect, was using the absence of fingerprint evidence by the prosecution as a sword. Under the circumstances, the prosecutors questioning of Lyon did not shift its burden of proof or violate Griffin.

Even if the prosecutors questions could be considered misconduct, the trial court admonished the jury after the prosecutors questioning of Lyon regarding fingerprint evidence as follows:

I ruled [that the] defense has no obligation to ask fingerprints be done. So thats the District Attorneys burden of proof as you understand, and as wee talked about at the outset of the case, the burden of proof is on the prosecution. The defense has no burden.

By so stating, Im not stating, suggesting or implying, certainly, that its required that there be fingerprint evidence in the case. Every case is different. Youll decide whether or not based upon the evidence presented [if] the District Attorney has proven the truth of the charge beyond a reasonable doubt.

Jurors are presumed to follow the courts admonitions and instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.) We find that the courts admonition to the jury cured any potential Griffin error by the prosecutor.

Finally, appellant contends that in closing argument, the prosecutor improperly shifted the burden of proof in arguing to the jury that appellant made excuses, but told the jury to not be fooled for a minute to think that these three guys werent all involved together. The prosecutor argued that appellants excuses were insulting, that he had an excuse for every little thing, and he was almost like the kid who got caught putting his hand in a cookie jar.

The prosecution has broad discretion to state its views concerning the state of the evidence and what inferences the jury may draw therefrom. It may vigorously argue its case. (People v. Welch (1999) 20 Cal.4th 701, 752-753.) The prosecutor may point out the failure of the defendant to introduce material evidence or to call logical witnesses. (People v. Hughes (2002) 27 Cal.4th 287, 372.) To prevail on a claim of prosecutorial misconduct based on comments to the jury, the defendant must show a reasonable likelihood the jury understood or applied the prosecutors comments in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970.) We find nothing improper in the prosecutors argument to the jury, which was justified by the state of the evidence adduced at trial.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P. J., Harris, J., and Wiseman, J.

^[1] Appellant previously told police that he did not steal anything from the van.

^[2] Unless otherwise indicated, all statutory references are to the Evidence Code.

^[3] Burglary is a specific intent crime. (See People v. Ringo (2005) 134 Cal.App.4th 870, 880.) Direct evidence of specific intent is rarely available and may be shown by circumstantial evidence. (People v. Misa (2006) 140 Cal.App.4th 837, 843.) We therefore reject appellants argument that evidence of the tools or the stereos not belonging to the victim had nothing to do with the charged offenses pursuant to section 210.