P. v. Payne

Filed 5/7/08 P. v. Payne 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Craig E. Robison, Judge. Affirmed.

Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

A jury convicted Elijah Ebenezer Payne of one count of grand theft (Pen. Code,  487, subd. (a)). The trial court granted Payne three years of formal probation on condition he serve 120 days in jail.

Payne challenges his conviction on one ground. He contends his trial counsel was ineffective for failing to object during closing argument when the prosecutor referred to the term abiding conviction in Judicial Council of California, Criminal Jury Instructions (2007‑2008) CALCRIM No. 220 as follows: Simply in a couple months if your friends ask you about this trial, and you feel like talking to them about it, and you say I found the defendant guilty, you are still going to be confident you made the right decision. Long lasting strong belief. Payne argues the prosecutors closing argument misstated and trivializ[ed] the meaning of reasonable doubt by inviting the jury to substitute for an abiding conviction a mere strong belief that stays with them for as little as a couple months.

We conclude Paynes trial counsel was not ineffective for failing to object because the prosecutors description of abiding conviction was not inaccurate. In any event, the failure to object did not cause Payne to suffer prejudice considering the overwhelming evidence of guilt. We therefore affirm.

Facts

In the early morning of June 19, 2006, Orange County Sheriffs Deputy Curtis Vincent and his partner were patrolling a service road in a business and industrial area along the border between the cities of Irvine and Lake Forest. All the businesses were closed, lighting was dim, and the patrol cars headlights were turned off. About 1:35 a.m., Deputy Vincent noticed a white, open‑bed pickup truck with its headlights off exiting an emergency access road abutting Spectrum Collision, an auto body shop servicing high‑end vehicles. A six‑foot‑high chain link fence topped with barbed wire separated Spectrum Collision from the emergency access road.

When Deputy Vincent turned on the patrol car headlights and spotlights, the pickup truck came to a stop. Deputy Vincent got out of the patrol car, walked to the passenger side of the pickup truck, and shined his flashlight into the cab. Payne was in the drivers seat. He appeared nervous and was sweating. Payne wore shorts, and Deputy Vincent saw freshly bleeding scratches down the lower portion of his leg. Deputy Vincent shined his flashlight into the truck bed and saw several car headlights and a toolbox mounted to the truck.

Deputy Vincent performed a consensual search of the truck and found a jacket, a pair of gray gardening gloves, and a burlap sack. The toolbox in the truck bed contained tools that could be used to remove parts from cars. In the truck bed, Deputy Vincent found 10 automobile headlights and one taillight from BMW, Audi, Volvo, and Bentley vehicles. The lights were worth about $1,500.

The manager of Spectrum Collision, Luis Pineda, testified that parts from repaired vehicles, including headlights and taillights, were saved and resold if neither the car owner nor the insurer wanted them. Only Pineda had authority to sell the vehicle lights. Pineda inspected the lights retrieved from Paynes truck, and testified they were the brands of lights Spectrum Collision would have saved. Pineda testified he had been told by a technician at Spectrum Collision that several headlights were missing from the boxes in which they were being stored.

The day after Payne was arrested, Pineda inspected Spectrum Collisions perimeter fence and found a spot where the bands holding the fence to a pole had been cut and the chain link pulled away to form a hole in the fence. The hole was large enough for a man to crawl through and led directly to the area of Spectrum Collision where headlights and taillights were stored.

Payne had been employed as a tow truck driver by a company that handled about 80 percent of Spectrum Collisions towing needs. Pineda testified a tow truck delivering a vehicle to Spectrum Collision has access to the body shop area.

Discussion

Between the close of evidence and closing arguments, the trial court instructed the jury with CALCRIM No. 220, the reasonable doubt instruction. The courts instruction informed the jury the defendant is presumed innocent and [t]his presumption requires that the People prove a defendant guilty beyond a reasonable doubt. The instruction defined proof beyond a reasonable doubt as proof that leaves you with an abiding conviction that the charge is true.

In closing argument, the prosecutor stated: Put simply, do you have an abiding conviction that the charges in this case are true . . . [.] . . . [A]biding means long lasting. A conviction is a strong belief. Do you have a long‑lasting, strong belief in the defendants guilt? [] Simply in a couple months if your friends ask you about this trial, and you feel like talking to them about it, and you say I found the defendant guilty, you are still going to be confident you made the right decision. Long lasting strong belief. The prosecutor then stated, [r]emember my burden in this case is only to prove the case to you beyond a reasonable doubt. It is not proof 100 percent. At this point, defense counsel objected to quantifying that with percentages. The trial court sustained the objection.

Payne argues the prosecutor committed misconduct by misstating the meaning of reasonable doubt in defining abiding conviction. Defense counsel waived any claim of prosecutorial misconduct by not objecting to or moving to strike the challenged portion of closing argument. (People v. Panah (2005) 35 Cal.4th 395, 462; People v. Brown (2003) 31 Cal.4th 518, 553.)

Conceding his trial counsel did not object and an objection would not have been futile, Payne asserts ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the defendant must prove: (1) his or her attorneys representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his or her attorneys deficient representation subjected him or her to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a probability sufficient to undermine confidence in the outcome. (Ibid.)

We reverse on direct appeal for ineffective assistance of counsel only when the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions. (People v. Lucas (1995) 12 Cal.4th 415, 442.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Kraft (2000) 23 Cal.4th 978, 1068‑1069.) The record in this case does not reveal why Paynes trial counsel did not object. A satisfactory explanation is that counsel might have preferred not to emphasize the prosecutors argument or draw the jurys attention to it by objecting.

On the merits of the ineffective assistance of counsel claim, Payne has not satisfied either part of the Strickland v. Washington test. First, Paynes trial counsel was not deficient for failing to object to the challenged comments because the prosecutor did not misstate the meaning of reasonable doubt. The term abiding conviction in the reasonable doubt instruction convey[s] the requirement that the jurors belief in the truth of the charge must be both long lasting and deeply felt. (People v. Light (1996) 44 Cal.App.4th 879, 885; see People v. Brigham (1979) 25 Cal.3d 283, 290-291.) The prosecutors definition of abiding conviction as a long‑lasting, strong belief conveys the same meaning. The prosecutor did not suggest that abiding had a two‑month time limit by stating, [s]imply in a couple months if your friends ask you about this trial, . . . and you say I found the defendant guilty, you are still going to be confident you made the right decision. Both before and after making those comments, the prosecutor referred to abiding as a long‑lasting, strong belief. Thus, placed in context, the couple months comments were intended to convey an illustration of long-lasting, not to impose a 60‑day time limit. Further, we do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one. (People v. Howard (1992) 1 Cal.4th 1132, 1192.)

Second, Payne suffered no prejudice from his trial counsels representation, even if it were deficient. The evidence of Paynes guilt was overwhelming. He was apprehended at 1:35 a.m. driving a truck with its headlights turned off on an emergency access road outside an auto body shop catering to high-end vehicles. In the trucks bed were 10 headlights and one taillight from BMW, Audi, Volvo, and Bentley vehicles. Also in the truck bed was a toolbox. Payne was nervous and sweating, and his legs were scratched and bleeding, likely from crawling through a hole that had been torn away from the chain link fence along the auto body shops perimeter. The hole was large enough for a man to crawl through, and led directly to the spot where vehicle lights were stored. The auto body shop manager testified the shop saved and resold lights from repaired vehicles and identified the lights found in Paynes truck as being of the type saved and stored at the shop. A technician at the body shop had reported headlights were missing from their storage boxes. Payne likely knew where the lights were stored because he had driven a tow truck for a company that performed most of the auto body shops towing needs.

In light of this evidence of guilt, we find no reasonable probability the jury would have reached a different verdict had trial counsel objected to the prosecutors comments.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

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