P. v. Downing

Filed 3/3/06 P. v. Downing CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.

Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung Mar and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant, Tomara Rashe Downing, appeals following his conviction for second degree burglary. (Pen. Code,^[1] § 459.) Defendant admitted he was previously convicted of a serious felony. Defendant raises misconduct related arguments. We reject them and affirm the judgment.

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On September 2, 2004, Maricela Galvez, an employee of a laundromat on Centinela Avenue and Hazel Street, was responsible for opening, cleaning, and often closing the laundromat. Ms. Galvez can see the laundromat from the window and balcony of her home. When Ms. Galvez opened the laundromat at approximately 5:50 a.m. on September 2, 2004, the video machines were in good condition. When Ms. Galvez closed the laundromat the previous evening, the wall behind the coin machines near the Hazel Street entrance was fine except for a hole that had been patched in the past. When Ms. Galvez returned home after opening the laundromat on September 2, 2004, she saw defendant cross the street and enter the laundromat through the Centinela Avenue door. Ms. Galvez saw defendant shaking the video game inside the laundromat. Shortly thereafter, Ms. Galvez saw defendant put his head out the Hazel Street door and look in both directions. Defendant then left the laundromat, returning a minute later with a green bag. Ms. Galvez later heard what sounded like a power saw cutting something. Ms. Galvez became suspicious. Ms. Galvez called Natalio Montenegro, the owner of the laundromat. Mr. Montenegro was in Mexico. Therefore, Mr. Montenegro's cousin, Abel Navar, came to the laundromat. Mr. Navar telephoned the police on his way to the laundromat to report a burglary. Mr. Navar's passenger, identified only as Mr. Fragoso, remained in the car.

Thereafter, Ms. Galvez saw defendant and another individual in the laundromat shaking the video machines. Ms. Galvez identified codefendant Wallace Ferguson as the second individual. Mr. Ferguson is not a party to this appeal. Mr. Ferguson, defendant's accomplice, came out the Hazel Street door and looked in both directions. Defendant remained inside, where the noise of the power tool continued. When the police arrived, Mr. Ferguson ran inside quickly. Defendant ran out toward Centinela Avenue with the green bag. Defendant threw the green bag behind the laundromat. Mr. Navar arrived just after the police officers. Mr. Navar was within five feet as defendant ran out of the laundromat. Mr. Fragoso was still in Mr. Navar's automobile. Both Mr. Navar and Ms. Galvez identified the jacket marked as exhibit No. 3 as the one worn by defendant at the time of the burglary. Mr. Navar and Mr. Fragoso drove around the neighborhood looking for defendant. Mr. Navar and Mr. Fragoso returned to the laundromat approximately 20 minutes later. Upon returning to the laundromat, the police officers asked Mr. Navar and Mr. Fragoso to go to another location to independently identify an individual who was detained.

Inglewood Police Officer Jose Fernandez responded to the burglary call. Before arriving at the laundromat, Officer Fernandez was flagged down by Mr. Navar. Mr. Navar pointed Officer Fernandez in a particular direction. Officer Fernandez broadcast the location. While driving on Hazel Street, Officer Fernandez saw defendant who was wearing a yellow sweatsuit running away from the laundromat. Defendant turned into a driveway. Officer Fernandez found defendant hiding in a stairwell shortly thereafter.

Officer Mariano Salcedo arrived at the laundromat. Officer Salcedo saw a green duffle bag containing a machine grinder inside the laundromat. When the grinder was removed from the green bag, Officer Salcedo noticed it had white powder residue on the blade. There was also white residue inside the green bag. The handle of the grinder was warm to the touch. Ms. Galvez returned to the laundromat to speak to the police. While there, Ms. Galvez noticed a hole in the wall behind the change machines. The patch that had been in place the night before was missing and there was debris from the wall on the floor. In addition, the locks on the two video game machines had been broken or removed. One machine had no money remaining.

Defendant's sole argument on appeal is that the prosecutor's remarks regarding the credibility of Mr. Ferguson constituted prosecutorial misconduct because it shifted the burden of proof. In response to defense counsel's closing argument, the prosecutor argued: â€