P. v. Riley

Filed 7/9/09 P. v. Riley CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez, Judge. Affirmed.

Tara K. Hoveland for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette and Pamela C. Hamanaka, Assistant Attorneys General, Paul M. Roadarmel Jr. and Rama R. Maline, Deputy Attorneys General for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Elmertha Riley, also known as Mary Jenkins, was convicted on one count of petty theft with a prior (Pen. Code,  666). She was sentenced to a total prison term of four years. She appeals from the subsequently entered judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

On November 16, 2007, Cinthia Sedano was working as a loss prevention officer at J.C. Penny in the Lakewood Mall. At about 12:45 p.m., she was with Antonio Coleman and Gerardo Diaz in a hidden camera room containing many monitors. Sedano saw appellant carrying a big, red, Target bag. Appellant was on the first floor in the fashion jewelry section. She then walked to the womens handbags department. Appellant put two South Pole purses into the Target bag, walked towards the exit doors, stopped to talk to a customer, looked at some merchandise, and then exited the store.

Sedano and Coleman ran toward appellant. Sedano stated she was a loss prevention officer and told appellant to return to the store. Appellant started to comply, but when she was one foot inside the store, began to scream and yell. Appellant dropped the Target bag. When Coleman put handcuffs on appellant, appellant dropped to the ground and started rolling into the street.

Both Sedano and Coleman called mall security for help. Los Angeles County Deputy Sheriff Sean Stamper responded to Sedanos radio call. When he arrived, appellant was handcuffed, lying on the ground, and surrounded by loss prevention officers. Deputy Stamper assisted in escorting appellant back to J.C. Pennys loss prevention office. Deputy Stamper asked where the Target bag had come from. Appellant told Deputy Stamper that she had brought the Target bag from home, which was empty when she took it inside J.C. Penny. Appellant also admitted taking the purses from the store. Sedano found in the Target bag two South Pole purses, two purses from Macys, and Macys return slips. Macys puts return slips in purchased merchandise to identify the purchaser, how the item was purchased, and the cost of the item. No receipts for the purses were found in the Target bag. Appellant had her own purse, but it was empty. She had no wallet, money, identification, or credit cards. Deputy Stamper arrested appellant.

J.C. Pennys video recorder captured most of the events. The images captured on the recorder, could only be viewed in the store. However, photographs or digital stills of the recorders images were introduced into evidence. They showed appellant selecting purses, looking into a red bag, and exiting the store.

B. Procedure.

Appellant was charged in count one of an information with second degree commercial burglary (Pen. Code,  459), and in count two with petty theft with a prior (Pen. Code, 666/484). It was further alleged that appellant had suffered one prior serious or violent felony (Pen. Code,  667, subds. (b)(i), 1170.12, subds. (a)(d), 667, subd. (a)(1)), served one prior prison term (Pen. Code,  667.5, subd. (b)), and had two prior convictions (Pen. Code, 1203, subd. (e)(4)).

Prior to a jury trial, appellant admitted the prior conviction allegations. Thereafter, the trial court struck the Penal Code section 667.5, subdivision (b) allegation. The jury convicted appellant on count two. The jury deadlocked on count one and the trial court declared a mistrial on that count.

Appellant was sentenced to two years in prison, doubled to four years pursuant to the three strikes law. Appellant appealed from the judgment.

DISCUSSION

A. The argument presented by the prosecutor was proper.

Appellant first contends there was prosecutorial misconduct because the prosecutors argument shifted the burden of proof to her. This contention is not persuasive.

The applicable federal and state standards regarding prosecutorial misconduct are well established.  A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.   [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves   the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.   [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

[A] prosecutor is free to give his [or her] opinion on the state of the evidence, and in arguing his [or her] case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.] (People v. Padilla (1995) 11 Cal.4th 891, 945-946, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Here, in closing statement, the prosecutor, summarized the evidence against appellant, including that she had walked into J.C. Penny with a large Target bag, but had no money, no checkbook, no credit cards, and no way to purchase anything. After mentioning the burglary charge, the prosecutor summarized the testimony from Sedano and why this, and other evidence, proved appellants guilt on count two, petty theft with a prior. The prosecutor then stated that appellant wasnt holding onto the items in her Target bag until she can pay. She put them in there with the intent to leave the store and . . . deprive J.C. Pennys of their property.

Appellant suggests the next statements made by the prosecutor impermissibly shifted the burden of proof to her: You heard -- you heard from the loss prevention person who saw her, who recovered the items. She also told you in preparation for this case she had to review the tape. You know, you will see -- and you also heard from her it had to be played only on their special equipment, so unfortunately you were not able to see it. And you do have that instruction that all evidence may not be presented to you. It is available to both sides. If there is something different on that, Ms. Sedano was misleading you, defense counsel would have -- Defense counsel objected that [t]he prosecution is shifting the burden of proof. . . . [by indicating that I have to prove something]. The trial court overruled the objection indicating it was permissible argument. The prosecutor finished her argument by summarizing the testimony of Sedano and asking the jury to find appellant guilty on both counts.

We find no prosecutorial misconduct. First, defense counsels objection stopped the prosecutor from finishing her statement. Thus, it is speculative to surmise what the prosecutor would have said. Additionally, the statements that were uttered by the prosecutor, at the most, suggested that if there was other evidence which could have proven appellants innocence, the defense had not presented it. This is permissible argument as prosecutors may comment on the defenses failure to introduce evidence or to call logical witnesses. (People v. Cornwell (2005) 37 Cal.4th 50, 90, disapproved on other grounds in People v Doolin (2009) 45 Cal.4th 390, 421, fn. 22); People v. Boyette (2002) 29 Cal.4th 381, 434.) Contrary to appellants assertion, the prosecutor was not suggesting that appellant was required to testify in order to refute the testimony about J.C. Pennys recorder. The photographs of the images substituted for the evidence that would have been obtained from the recorder.

Appellant also contends that the above-quoted statements by the prosecutor violated the prohibition in Griffin v. California (1965) 380 U.S. 609 that a prosecutor may not directly or indirectly comment upon a defendants failure to testify. First, defense counsel failed to object to the prosecutors statements on these grounds. Second, had such an objection been posed, it would have been overruled. It is well established . . . that the rule prohibiting comment on defendants silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.] (People v. Medina (1995) 11 Cal.4th 694, 755; accord, People v. Cornwell, supra, 37 Cal.4th at p. 90.) As explained above, the prosecutors statements were comments on the evidence and on appellants failure to introduce material evidence or to call logical witnesses. The prosecutor did not comment on appellants failure to testify. Thus, there was no Griffin violation.

There was no prosecutorial misconduct.

B. Defense counsels failure to raise a Miranda objection does not warrant reversal.

Prior to the presentation of evidence, the trial court, the prosecutor, and defense counsel discussed a number of evidentiary issues, including the inability of defense counsel to view the film on the J.C. Penny recorder. Thereafter the prosecutor stated, One of the things I wanted to do with the officer is to run statements, Miranda, 402 with the officer right now. To which defense counsel stated, No, there isnt going to be a Miranda issue. During trial, when Deputy Stamper testified about the admissions appellant had made at the scene of the crime, defense counsel did not raise a Miranda objection.[1]

On appeal, appellant contends defense counsel rendered ineffective assistance of counsel by failing to object to her admissions made to Deputy Stamper.  Appellant claims defense counsel should have made a Miranda objection because Deputy Stamper should have read her constitutional rights before he asked her questions.  She states that there is simply no satisfactory explanation in light of the evidence presented at trial to explain the failure [to raise a Miranda objection] other than ineffective assistance of counsel. We note, however, that in raising her argument, appellant never states, nor does the record reflect, that Miranda warnings were not given.

Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation.  If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation],  the contention must be rejected. [Citation.] A reviewing court will not second-guess trial counsels reasonable tactical decisions. [Citation.] (People v. Kelly (1992)1 Cal.4th 495, 520; see also, People v. Myers (2007) 148 Cal.App.4th 546, 552.)

Here, it is clear from the discussion prior to the presentation of evidence that defense counsel made a conscious choice not to object to Deputy Stampers testimony based upon Miranda.  This decision could have a reasonable explanation.  For example, defense counsel may have known that Deputy Stamper had givenwarnings prior to asking appellant questions.  Thus, defense counsel could have concluded that to raise a Miranda objection would have been futile and also given more emphasis to the Deputys testimony.  Without additional facts, we cannot conclude defense counsel rendered the assistance of counsel ineffective as there could be a satisfactory explanation for defense counsels decision, as we have demonstrated.

In any event, to establish ineffective assistance of counsel, a defendant must not only demonstrate that counsels representation fell below the standard of care, but must also show that there is a reasonable probability that but for such errors the result of the case would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)

Here, witnesses testified that appellant entered J.C. Penny carrying a large bag from another store, a Target bag.  She was seen selecting purses and putting them into the Target bag.  She left the store without paying for the purses.  Many of these events were captured on J.C. Pennys recorder and the images presented to the jury on photographs.  Appellant entered the store with no means of paying for any merchandise as she had no wallet, no money and no credit cards.  She brought with her the Target bag that easily could hide merchandise.  She was found with merchandise in that bag.  The only reasonable conclusion to be drawn from these facts and the uncontested testimony is that appellant knowingly stole the purses found in the Target bag.  Thus, even if appellants counsel should have raised a Miranda objection, there is no reasonable probability that the outcome would have been different.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1]Miranda v. Arizona(1966) 384 U.S. 436.