P. v. Ranson

Filed 10/19/06 P. v. Ranson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.

A jury convicted Joseph E. Ranson of first degree residential burglary. (Pen. Code, §§ 459, 460.)^[1] In a subsequent proceeding, the trial court found true allegations that Ranson had been convicted of two serious felony prior offenses, each of which constituted a strike. (§ 667.5, subd. (a)(1).) The court sentenced Ranson to 18 years in prison.^[2]

Ranson appeals, contending that his conviction must be reversed on three separate grounds: (i) the jury's verdict was not supported by substantial evidence; (ii) the prosecutor improperly vouched for the prosecution witnesses in closing argument; and (iii) Ranson received ineffective assistance of counsel. Our analysis of Ranson's contentions reveals them to be without merit. Consequently, we affirm the judgment.

FACTS

On January 22, 2004, Eve Garrett was locked out of her studio apartment when she encountered Ranson, a friend of her former husband. Ranson helped Garrett get into her apartment by doing "something to the window" that allowed access through that window to the apartment. While assisting her, Ranson indicated that he was waiting for his mother to arrive at her nearby apartment and was cold. Garrett offered to give Ranson some clothes and let him inside. While Garrett was getting the clothes, Ranson began asking about her computer, a newly purchased $1,500 Toshiba laptop that was sitting "about eye level across from" Ranson. Garrett told him it was her computer and moved it to the side. Ranson soon left the apartment.

The next day at around noon, Garrett's roommate, Michael McLaughlin, was asleep in the apartment when he was abruptly awakened by "rumbling" and "banging about" coming from the window blinds. When he got up to see what was happening, he saw Ranson coming through the front window. McLaughlin, who knew Ranson from previous encounters, recognized him and asked what he was doing; Ranson mumbled something about having heard a noise in the apartment. McLaughlin went behind a partition to put on some clothes and while doing so heard the front door open and close. When he emerged from the partition, he could see Ranson out the window, going down the stairs, carrying a black "square object." McLaughlin locked the door and replaced the window, which had been knocked out of its frame. He did not immediately notice that anything was missing and went back to sleep.

About 10 minutes later, Garrett returned home from work on her lunch hour. McLaughlin told her what happened and she immediately noticed her laptop computer was missing. Garrett and McLaughlin called the police, who responded to their apartment and took a report. One of the officers noticed that the front window had been damaged.

Approximately one week later, Garrett encountered Ranson and demanded that he return her computer. Ranson was "smiling at [her], kind of laughing it off," and stated, "I had to do what I had to do." In the face of Garrett's repeated demands, Ranson responded, "I'm sorry. I know I did wrong, . . . and I owe you $1,500." "I know I messed up. And maybe lost a friend." He told Garrett her computer was "somewhere in San Diego" and that he would try to get it back.

DISCUSSION

I

Ranson's Burglary Conviction Is Supported by Sufficient Evidence

Ranson contends that there was insufficient evidence to support the jury's verdict that he committed residential burglary because the verdict rested on the testimony of "two inconsistent and incredible witnesses," Garrett and McLaughlin, which according to Ranson, did not constitute "substantial evidence."

Our role in reviewing a challenge to the sufficiency of evidence is a limited one. "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)

In performing our review of the record, we are further limited by the fact that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Consequently, even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.)

In the instant appeal, Ranson emphasizes various inconsistencies and assertedly implausible aspects of the testimony, which he contends require an appellate finding that Garrett's and McLaughlin's testimony was "inherently improbable" as a matter of law.^[3] This argument is unpersuasive.

While Ranson documents a number of minor "[c]onflicts" in the testimony presented at his trial, these conflicts support, at most, a contention that the witness "testimony . . . is subject to justifiable suspicion" -- a showing that is insufficient to justify its rejection on appeal. (People v. Barnes (1986) 42 Cal.3d 284, 306 [" ' "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends" ' "].) " ' "To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." ' " (Ibid.) Here, Ranson fails to demonstrate that the falsity of McLaughlin's and Garrett's testimony -- particularly that testimony with respect to the key facts establishing Ranson's guilt -- is apparent on its face.

The core of the case against Ranson was that McLaughlin observed Ranson break into the apartment through the window and abruptly leave, without explanation, with an object that the jury could reasonably infer was Garrett's computer. (People v. Rayford (1994) 9 Cal.4th 1, 23 [appellate court must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence" ' "].) Garrett testified that immediately after the break-in, she observed her computer was missing, and later when she confronted him, Ranson essentially admitted that he had taken it. While the record revealed potential flaws in this testimony, which the defense was able to, and did, argue to the jury, the testimony was not inherently improbable -- i.e., its falsity is not apparent on its face. Consequently, we are not permitted to override the jury's credibility determination and reject the testimony.

Ranson repeatedly argues that Garrett's testimony that she even owned a computer should be rejected because she failed to describe the technical specifications of her laptop computer and did not present documentation of the computer's existence. Garrett, in fact, explained that there were cords, diskettes, instructions and receipts that came with the computer -- a "satellite Toshiba" laptop -- but she kept those items in the computer case, which was stolen along with the computer. Further, she stated that she had retained a pamphlet with the serial number of the computer on it, although no one had asked her for it. Far from being inherently improbable, this testimony appears quite reasonable, and it was the prerogative of the jury, not an appellate court, to accept or reject it. Similarly, Garrett's inability to specify for defense counsel on cross-examination "how many megabytes [the computer] had on it" and the "features" of the computer does not render her testimony that she owned a computer "inherently improbable" as a matter of law.

In sum, Ranson has failed to demonstrate that the testimony of the prosecution witnesses was so flawed as to warrant its rejection on appeal. Consequently, given that the jury was entitled to credit the testimony of McLaughlin and Garrett, the record contains sufficient, substantial evidence to support Ranson's residential burglary conviction.^[4]

II

The Prosecutor's Comments in Closing Argument Do Not Warrant Reversal

Ranson contends that his conviction must be reversed because the prosecutor in closing argument: (i) improperly asserted that the prosecution witnesses were telling the truth -- an argument that Ranson contends violates the prohibition on "vouching" for a witness's credibility (see People v. Turner (2004) 34 Cal.4th 406, 432-433 ["a 'prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record' "]); and (ii) impermissibly mischaracterized the evidence by arguing that it "was not clarified" whether McLaughlin had "testified that he went back to [sleep]," before or after Garrett left (see People v. Hill (1998) 17 Cal.4th 800, 823 (Hill) ["Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct"]).^[5]

Ranson's contention that reversal is warranted based on the prosecutor's comments in closing argument is unavailing because he forfeited these claims by failing to object in the trial court.^[6] (People v. Samayoa (1997) 15 Cal.4th 795, 841 ["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"]; People v. Mincey (1992) 2 Cal.4th 408, 471 (Mincey) [where defense counsel objected to prosecutor's closing argument, trial court sustained objection and counsel requested no further relief, defendant could not raise issue on appeal].)^[7]

Recognizing the obstacle to relief presented by his failure to object at trial, Ranson alternatively contends that the failure of his counsel to object violated his constitutional right to effective assistance of counsel. We again disagree.

A claim of ineffective assistance of counsel based on counsel's failure to object to the prosecutor's closing argument cannot succeed on direct appeal unless "the appellate record discloses ' "no conceivable tactical purpose" ' " for defense counsel's omission. (People v. Lewis (2001) 25 Cal.4th 610, 674-675.) Here, the appellate record does not demonstrate the requisite absence of a conceivable tactical purpose.

A failure to object in closing argument can often be explained by an attorney's tactical determination that: (i) the objectionable statement is not sufficiently damaging to warrant objection; and/or (ii) an objection would highlight the objectionable statement (or inference to be drawn from that statement), causing more prejudice than the objectionable statement alone. Given these considerations, and the split-second decision required to lodge a timely objection during an opponent's closing argument, courts routinely have recognized that "the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one" (People v. Padilla (1995) 11 Cal.4th 891, 942, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823), and "a mere failure to object to . . . argument seldom establishes counsel's incompetence." (People v. Ghent (1987) 43 Cal.3d 739, 772.)

In the instant case, the appellate record does not disclose that Ranson's counsel's failure to object was based on incompetence, rather than on permissible tactical considerations. Thus, as the record "sheds no light on why counsel acted or failed to act in the manner challenged," and this is not a situation where "there simply could be no satisfactory explanation," reversal on the ground of ineffective assistance of counsel is not warranted. (People v. Gray (2005) 37 Cal.4th 168, 207 (Gray); People v. Wharton (1991) 53 Cal.3d 522, 567 [finding no ineffectiveness where counsel failed to object to prosecutor's referral to evidence outside the record on direct appeal because counsel might not have wanted to highlight the point with the jury and make it wonder if there really was such evidence]; People v. Milner (1988) 45 Cal.3d 227, 245 [finding no ineffective assistance of counsel where counsel would have acted well within the bounds of reasonable competence had he chosen to ignore the statements rather than draw attention to them with an objection].)^[8]

III

Ranson's Other Ineffective Assistance of Counsel Claims Fail

In addition to his claim regarding his counsel's failure to object during closing argument, Ranson also contends that the appellate record, as supplemented by the evidence presented in support of his motion for a new trial, demonstrates that he received ineffective assistance of counsel because his trial counsel: (i) "failed to promptly and thoroughly investigate the facts of the case," causing her to fail to locate two potential witnesses; (ii) "failed to make an opening statement"; and (iii) "failed to request an instruction on the lesser offense of misdemeanor trespass." We review each of these claims below after setting forth the standard of review and pertinent facts.

A. Standard of Review

To obtain relief on the grounds of ineffective assistance of counsel, a defendant must establish both counsel's deficiency and resulting prejudice, i.e.: (i) that " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms' "; and (ii) " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (In re Fields (1990) 51 Cal.3d 1063, 1069, 1070, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-694.) It is the defendant's burden on appeal to establish both deficiency and prejudice. (People v. Williams (1988) 44 Cal.3d 883, 937 (Williams).) In demonstrating prejudice, the defendant "must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (Ibid.) Where, as here, a claim of ineffective assistance of counsel is raised on direct appeal, the facts supporting both deficiency and prejudice must appear in the appellate record. (Gray, supra, 37 Cal.4th at p. 207.)

In reviewing claims of ineffective assistance of counsel that were previously raised in a motion for a new trial, we grant deference to the trial court's factual findings, but review de novo the ultimate question of whether the facts established in the trial court demonstrate a violation of the constitutional right to effective assistance of counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)

B. Facts Established in Hearing on New Trial Motion

After the jury verdict, Ranson informed the court that, in his view, his counsel had not actively investigated his case and was not sufficiently responsive to the inquiries made by his family members. In response, the court appointed independent counsel to review the case and determine whether a motion for a new trial based on ineffective assistance of counsel was warranted.

Ranson's newly appointed counsel subsequently moved for a new trial. At a hearing on the motion, the trial court heard testimony from Cherie Brenner, Ranson's former trial counsel, and Robert Mosemak, the primary investigator assigned to the case, and received documentary evidence submitted by the parties. The testimony primarily concerned trial counsel's efforts to locate two potential witnesses, Jose Arevalo and Daniel Piete.

1. Facts Regarding Potential Witness Jose Arevalo

Brenner testified that prior to trial her client suggested she contact a witnesses named "Jose." Ranson did not know Jose's full name, but provided rough directions to his residence, "a trailer located on a private party's land." Ranson's counsel testified that she requested an investigation of both Jose and Piete prior to trial.

Mosemak, the investigator, testified that the directions regarding "Jose's" whereabouts were faulty. Mosemak stated that he finally located a yard with "some trailers" that corresponded with the directions given, but despite repeated visits "couldn't get any response from anyone residing there." After extensively canvassing the area, however, Mosemak did finally locate a Jose Torato, who said he did not know anything about Ranson's case.^[9]

In support of his motion for a new trial, Ranson included an affidavit from his new counsel stating, "After exhaustive investigation, I was able to locate Jose Jesus Arevalo, the 'Jose' that Mr. Ranson asserted to his counsel could corroborate his version of the events." (Capitalization omitted.) According to counsel, Jose was in state prison. A summary of an investigator's interview with Arevalo, attached to counsel's declaration, provided the testimony that Arevalo would have given. Arevalo told the investigator that at around 9:00 a.m. on an unspecified day in January, Arevalo drove Ranson to Garrett's apartment complex, and that about 30 minutes later he encountered Ranson carrying a bag that appeared to contain clothing. Arevalo said he never saw Ranson carrying a laptop computer.^[10]

2. Facts Regarding Potential Witness Daniel Piete

Mosemak also testified that he tried to locate Daniel Piete, who was referenced as Garrett's neighbor in a police report, but Piete had moved from the address that was given for him, and the only forwarding address was a post office box. Mosemak's efforts to locate Piete resulted only in his finding a phone number that had been disconnected. Ranson's counsel at the new trial motion acknowledged that "[t]o this day [Piete] hasn't been located" despite additional efforts to find him for purposes of the new trial motion.

Information regarding Piete's likely testimony was contained in a police report completed shortly after the burglary.^[11] Piete saw Ranson on the sidewalk of Garrett's building on the night before the robbery. Then, on the date of the burglary, Ranson called Piete to tell him that he had something to sell him, but Piete quickly hung up because Ranson was "bad news." About a minute later, Piete heard Ranson calling his name from outside his apartment. Piete's phone then started ringing again, and Ranson told Piete that he was calling him from McLaughlin's apartment. Piete again ended his conversation with Ranson. His phone again started ringing; this time it was McLaughlin who left messages on Piete's answering machine that Ranson "had just broken into [McLaughlin's] apartment" and asked Piete for Ranson's full name.

C. The Trial Court Did Not Err in Concluding that No Prejudice Resulted from the Failure to Locate Piete or Arevalo

The trial judge, who presided over the trial and heard the testimony of the witnesses at the new trial motion, concluded that Brenner's performance was not deficient in her failure to locate Piete or Arevalo, and that even if her performance had been deficient there was an inadequate showing of prejudice to warrant relief. We agree with the trial court's conclusion regarding prejudice and therefore need address only that prong of the ineffective assistance of counsel claim. (Fields, supra, 51 Cal.3d at p. 1079 [" 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies[ i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice' "].)

Given that the proffered testimony of witnesses Arevalo and Piete did little to support Ranson's claims of innocence, and was at least as damaging to the defense case as it was helpful, Ranson has failed to meet his burden of establishing that " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (In re Fields, supra, 51 Cal.3d at p. 1070, quoting Strickland, supra, 466 U.S. at pp. 693-694.)

With respect to witness Piete, the defense was able to elicit testimony at trial through Deputy Johnson that Piete had heard Ranson using the phone on the day of the burglary, impeaching somewhat the testimony of McLaughlin. As the trial court noted, this evidence of Piete's statement "came out in [the] best form" possible for the defense. Had Piete testified in person, his testimony would have included not only the favorable testimony elicited through Deputy Johnson, but also significant damaging testimony. According to Piete's statement, he saw Ranson on the sidewalk of Garrett's building on the night before the robbery -- corroborating Garrett's testimony. Piete also stated that Ranson called him to tell him that he had something to sell him, that Piete quickly hung up because Ranson was "bad news," and that immediately after Ranson's suspicious phone calls, McLaughlin called to say Ranson "had just broken into his apartment" -- all of which was unfavorable to the defense.

Witness Arevalo similarly placed Ranson at the scene of the burglary engaging in somewhat suspicious behavior. In addition, due to the lack of a precise date of Arevalo's observations and a time (9:00 a.m.) that conflicted with the time of the offense (12:00 p.m.), the portion of Arevalo's testimony that was purportedly favorable -- that Arevalo did not see Ranson with a computer -- provided little, if any, support to the defense case.

In sum, even if the evidence that was omitted because of trial counsel's asserted investigative errors had been discovered prior to trial and presented to the jury, Ranson has not demonstrated " 'a reasonable probability that . . . the result of the proceeding would have been different.' " (In re Fields, supra, 51 Cal.3d at p. 1070.) Ranson's claims to the contrary -- such as his contention that if Arevalo had been located earlier he would have recalled more details regarding the case -- are mere "speculation," insufficient to establish the requisite prejudice. (Williams, supra, 44 Cal.3d at p. 937.)^[12]

D. Ranson Cannot Establish that His Counsel's Failure to Present an Opening Statement Constitutes Ineffective Assistance of Counsel

Ranson also contends that his trial counsel's failure to give an opening statement constitutes ineffective assistance of counsel. We disagree.

At the hearing on the new trial motion, Brenner testified that she did not make an opening statement because she had been "given different explanations of what happened" on the day of the burglary and wanted to "hear the People's case" before she "lock[ed] [her]self in to one state of events." The trial court found the decision not to give an opening statement to be a reasonable tactical decision.

Ranson attempts to establish that his counsel was ineffective by citing a number of legal practice manuals that counsel against the waiving of opening statement, one of which states, " '[u]nless there are unusual circumstances, . . . the trial attorney should not waive her right to make an opening statement.' " (Lane, Goldstein's Trial Techniques (3d ed. 1991) § 10:10.) This showing is insufficient.

Our Supreme Court has recognized that the decision to waive an opening statement can be a reasonable trial strategy in circumstances analogous to those presented here. When faced with uncertainty about what the prosecution's evidence will ultimately show, "[r]easonably competent counsel could have determined to wait to hear the prosecution's case before deciding whether to present a defense." (People v. Mitcham (1992) 1 Cal.4th 1027, 1059 ["The decisions whether to waive opening statement and whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess"]; People v. Carter (2005) 36 Cal.4th 1114, 1189 [decision "to forego making an opening statement" did not constitute ineffective assistance of counsel as a "reasonably competent counsel could have determined to hear the prosecution's case prior to deciding whether to present a defense"].)

In the instant case, the sole facts in the record regarding trial counsel's waiver of opening statement support a reasonable tactical basis for doing so. Consequently, as we must "indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy," we cannot conclude that trial counsel was ineffective. (Gray, supra, 37 Cal.4th at p. 207.)

E. Ranson Fails to Demonstrate His Counsel Was Ineffective for Failing to Request a Jury Instruction on Trespassing

Ranson finally contends for the first time on appeal that his trial counsel's representation was deficient because she "failed to request an instruction on the lesser-related offense of simple trespass."^[13]

Again, Ranson's contention fails because the record does not demonstrate that Brenner's failure to request the instruction was not a reasonable tactical decision. Courts have recognized that legitimate tactical reasons exist for declining to request lesser related offense instructions (see, e.g., People v. Le (1995) 39 Cal.App.4th 1518, 1523) and, in the instant case, Brenner informed the trial court that she was not requesting any lesser related offense instructions for "case specific," "tactical" reasons. There is nothing in the record that calls Brenner's statement into question.

Consequently, as viable tactical reasons exist for the decision not to request a lesser related offense instruction, and the record does not demonstrate the absence of such reasons here, we cannot conclude that the failure to request a jury instruction on trespassing constitutes ineffective assistance of counsel. (Gray, supra, 37 Cal.4th at p. 207.)^[14]

DISPOSITION

Affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Ranson's 18-year sentence was increased by an additional two years eight months based on his guilty plea in a second residential burglary case not at issue in this appeal.

^[3] Ranson devotes 14 pages of his brief to an exhaustive chronicle of inconsistencies and asserted implausibility in the testimony -- most of which concern relatively minor evidentiary points. Ranson contends, inter alia, that Garrett's testimony must be disregarded because she failed to remember that Ranson was one of a number of people who had previously helped her move into her apartment, and testified that McLaughlin was awake when she returned home while McLaughlin testified that he was asleep. Ranson also exhaustively chronicles various inconsistencies between the preliminary hearing transcript and the trial testimony -- for example, at the preliminary hearing Garrett testified that she encountered Ranson "a couple of days" after the burglary, not, as she testified at trial, "[a]bout maybe a week later."

^[4] There is little question that given the testimony of McLaughlin and Garrett, there was sufficient evidence to support a residential burglary conviction -- i.e., that Ranson entered an inhabited dwelling with the specific intent to steal and permanently take away someone else's property. (CALJIC No. 14.50.) McLaughlin testified he saw Ranson come in "through" the window, "[b]reaking into my apartment." (This testimony rebuts Ranson's factually erroneous contention on appeal that "McLaughlin only testified to finding appellant in the apartment -- an event that does not constitute burglary at all . . . .") Ranson, without explanation, then fled down the stairs, carrying an object that was consistent with Garrett's missing computer, and later implicitly admitted that he had stolen the computer. (See People v. Hughes (2002) 27 Cal.4th 287, 357 [jury could reasonably infer that defendant harbored requisite intent to rob when he entered apartment, based on fact that he did commit a robbery once there].)

^[5] In closing argument, the prosecutor argued that inconsistencies between Garrett's testimony and that of other witnesses were "innocent misrecollection[s]" on Garrett's part, tried to suggest hypothetical explanations for why Garrett did not recall Ranson previously had helped her move, and why McLaughlin and Garrett testified inconsistently about whether McLaughlin was asleep or awake when she arrived home after the burglary. In addition, toward the end of the closing argument the prosecutor asserted generally that Garrett and McLaughlin "told the truth," "they didn't lie about who did it" and "the People submit that they were telling the truth."

^[6] During trial, Ranson objected to only one statement in the prosecutor's closing argument, and the trial court implicitly sustained the objection and provided all relief requested by Ranson's counsel. Thus, as Ranson received all the relief he requested in the trial court, his claims of prosecutorial error are forfeited on appeal. (Mincey, supra, 2 Cal.4th at p. 471.)

^[7] We reject Ranson's conclusory assertion that the court's instruction to the jury that it was their job to determine the facts "made it clear any further objections would have been futile." While it is true that a failure to object may be excused where objection would have been "futile," the trial court's favorable ruling on an earlier defense objection is not sufficient to demonstrate futility. (Hill, supra, 17 Cal.4th at pp. 820, 822.) Instead, the futility exception applies in narrow and extreme circumstances -- such as where the trial court had repeatedly expressed disdain for defense counsel's objections in front of the jury -- that are not present here. (Id. at pp. 821, 822 [trial court repeatedly dismissed and expressed disdain for defense counsel's objections in front of the jury, allowing counsel to forego further objection because "if he persisted in objecting[, he] would risk additional critical comments from the bench that would suggest to the jury the trial court believed [he] was unnecessarily prolonging the proceedings by interposing 'meritless' objections"]; People v. Riel (2000) 22 Cal.4th 1153, 1213 ["normal rule requiring an objection applies" except in "extreme circumstances" such as those in Hill].) Here, the court's sua sponte curative instruction in response to the earlier defense objection did not suggest that further objection would be futile. To the contrary, the court's action indicated that it would be receptive to future objections.

^[8] Ranson also highlights the following unobjected-to comment of the prosecutor: "It's impossible for the People to present more evidence, so that you the jury will be convinced more and more and more that [Ranson] is guilty. Cumulative evidence is as His [] Honor has instructed you is [sic] not an appropriate equation to make in a case." The prosecutor's comment appears to be a reference to the standard jury instruction, which the trial court had given to the jury without objection, that: "Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence." (CALJIC No. 2.11.) Any error in the prosecutor's use of the word "impossible" (an admittedly poor word choice in this context) was forfeited by the failure to object, and we cannot conclude on the appellate record that Ranson's trial counsel's failure to object to the statement demonstrates ineffective assistance of counsel. Ranson's counsel could reasonably have concluded that the statement (which is virtually incoherent) did not warrant objection, or that an objection would increase the damage by highlighting the statement for the jury.

^[9] Mosemak testified that 33.7 hours were logged investigating Ranson's case.

^[10] Arevalo also told the investigator that he had "heard that an investigator was looking for him in the middle [of] 2004" -- presumably Mosemak.

^[11] The parties stipulated that the court could consider this information for purposes of the new trial motion.

^[12] We similarly reject Ranson's conclusory and unexplained contentions that his counsel was ineffective for failing to "conduct a timely and thorough investigation," "interview prosecution witnesses," and "timely and adequately confer with" him, because (apart from the arguments we have already addressed) Ranson does not explain how, absent these asserted deficiencies, "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) To establish ineffective assistance of counsel, Ranson must point to specific unprofessional acts or omissions of his counsel and explain how those acts or omissions prejudiced his defense. (Id. at pp. 693-694.) Generic speculation that more able, timely, or thorough representation would have resulted in a different outcome is insufficient. (Ibid.; Williams, supra, 44 Cal.3d at p. 937.)

^[13] Ranson concedes that trespass is a lesser related, not included offense of burglary. (See People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8 ["It appears well settled that trespass is not a lesser necessarily included offense of burglary, because burglary, the entry of specified places with intent to steal or commit a felony (§ 459), can be perpetrated without committing any form of criminal trespass (see § 602)"].) Consequently, the trial court was not permitted to sua sponte instruct on that offense absent a defense request and the acquiescence of the prosecutor. (Ibid.; People v. Steele (2000) 83 Cal.App.4th 212, 217 [trial court may not "instruct on lesser related offenses, absent the stipulation of both parties, or a party's failure to object to such an instruction"].)

^[14] As we conclude that Ranson has not established any error in the proceedings below, we necessarily reject his final contention that the "cumulative effect" of error at trial requires reversal.