Filed 12/10/18 P. v. Blakeley CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Edward Blakeley (defendant) appeals from a judgment entered after a jury convicted him of attempted first degree burglary (Pen. Code, §§ 459, 664)[1] and the trial court sentenced him to three years in prison—two years for the attempted burglary and one year for a prior prison term enhancement. Defendant contends the prosecutor committed misconduct by: (1) eliciting evidence of the victim’s fear, in violation of an in limine order; (2) stating during closing argument that a metal bar is a typical burglary tool; and (3) misstating the evidence during closing argument. Defendant also claims that to the extent his claims were forfeited, he was provided with ineffective assistance of counsel. We reject defendant’s contentions and affirm the judgment.

Factual and Procedural Background

On April 28, 2016, an information was filed alleging defendant committed first degree burglary (§ 459; count 1) and had served a prior prison term (§ 667.5, subd. (b)).

On April 2, 2016, 16-year-old E.J. was living with her mother in Fairfield, California. At about 4:00 a.m. that day, she woke up as her mother was leaving for work. After her mother left, E.J. went back to bed. About 15 minutes later, E.J. heard footsteps on the roof of her house. She called her mother, who said it was probably an animal. About five minutes after they hung up, E.J. heard a deep, male voice and the sound of the backyard gate moving. E.J. called her mother again and told her about the new noises.

As she spoke to her mother, E.J. heard her mother’s bedroom window “moving.” E.J.’s mother told her to get up, turn on the lights, and set the alarm. E.J. replied, “I can’t set the alarm, mom, because it says the [sliding door leading to the backyard] is opened.” At that point, E.J.’s mother became very concerned because the sliding door was closed when she checked it the night before. She immediately called 911, and the dispatcher called E.J.

As E.J. spoke to the 911 dispatcher, she heard the sliding door moving as if it were being “tugged and . . . banged on . . . .” After the noises stopped, she walked over to the sliding door and saw that it was open to where a bar stopped it from opening any further. There were vertical blinds on the sliding door so that someone from the outside would not be able to see inside and see E.J. standing there. E.J. closed and locked the sliding door. A recording of E.J.’s mother’s and E.J.’s conversations with the 911 dispatcher was played for the jury.

The police arrived shortly after E.J.’s mother called 911. E.J. opened the front door for Fairfield Police Officers Jackie Geddes and Lyann Fuentes and let them inside the house. Geddes walked over to the sliding door and heard someone attempting to open it. She went to the backyard through a side door and saw defendant standing there, holding a metal pipe. The screen from the sliding door was off its tracks and leaning against defendant.

Geddes told defendant to drop to the ground, and he complied. Defendant said the house belonged to a friend and that he was “just going in the back door” to pick up some of his belongings. Fuentes handcuffed and searched defendant. She did not find any of E.J.’s or her mother’s property on defendant. The police later found defendant’s cell phone at the residence. A recording from the body camera that Geddes wore during the encounter was played for the jury.

When E.J.’s mother returned home later that morning, she noticed that the screen had been taken off her bedroom window and was on the ground. The sliding door screen had also been removed and was on the ground. A gate, which was supposed to be closed, appeared to have been “pulled apart,” as “[i]t was just nailed up with . . . one or two nails, and it looked like a few of the wood pieces had been taken out . . . .” E.J. and her mother did not know defendant or give him permission to remove the screens or open the sliding door.

The jury found defendant guilty of the lesser included offense of first degree burglary—attempted first degree burglary (§§ 459, 664)—and defendant admitted the prior prison term allegation. The trial court sentenced defendant to three years in prison—two years for the attempted burglary and one year for the enhancement—to run concurrently to a three-year term for an offense in another case.

Discussion

1. Victim’s Fear

Defendant contends the prosecutor committed misconduct by eliciting evidence of E.J.’s fear, in violation of an in limine order. We reject the contention.

a. Background

Defendant’s trial counsel filed a pretrial motion “to exclude any testimony of how the alleged burglary has impacted the complaining witnesses or any reference to fear or anxiety the[y] experienced during or after the alleged burglary as such evidence is irrelevant, unduly prejudicial, and would mislead the jury regarding the ultimate issue to be decided.” After a hearing on the motion, the trial court granted the request.

The prosecutor asked the trial court to clarify its ruling, stating, “Well . . . , if the victim is able to testify during her testimony about different times where she was scared and it caused her to do certain things, I believe that’s relevant to her testimony, but I agree that overall there should be no testimony as to ‘this burglary has impacted me in this way.’ ” The court responded, “Well, I think the point would be that a question, ‘how did this make you feel,’ would be inappropriate. A question, ‘what did you do next,’ then she explains it and you say ‘why did you do that?’ ‘I was afraid’; that would be appropriate. [¶] So what he’s asking you is just the sort of for no good reason the witness is fear[ful] of the [defendant], that’s what’s going to be excluded; so it’s sort of the way you ask the question. [¶] If you ask her ‘what did you do next?’ ‘I picked up the phone and called the police.’ ‘Why [did] you do that?’ ‘I was afraid.’; I think that’s fair game because that explains the situation to the jury.”

During direct examination, E.J. testified several times that she called 911. A recording of the 911 call, however, showed that it was E.J.’s mother, not E.J., who called 911 and that the 911 dispatcher called E.J. after obtaining E.J.’s phone number from E.J.’s mother. Even after the prosecutor played a recording of the portion of the 911 call in which E.J.’s mother gave E.J.’s phone number to the 911 dispatcher, E.J. insisted she was the one who had initiated the 911 call.

The prosecutor then asked E.J., “When [you were] speaking with the 9-1-1 dispatcher, were you accurately relaying what was going on at the time?” E.J. answered, “Yes.” The prosecutor asked, “And how were you feeling?” E.J. replied, “I was scared.” E.J. testified—and the recording reflected—that she whispered the entire time she was on the phone with the 911 dispatcher. The prosecutor asked for “permission to move the 9-1-1 call into evidence,” and the trial court granted the request. Defense counsel did not object to the prosecutor’s question about how E.J. was feeling, and did not move to strike E.J.’s answer that she “was scared.”

During closing argument, the prosecutor stated, “[S]o, ladies and gentlemen, when the defendant was out at 4:00 a.m. taking window screens off of the home of the [victims], creating a situation that caused a 16-year-old to be in fear for her safety and protection, that is a violation of the law, and his intentions are clear.” Defense counsel objected, “Objection; misstates the law, in terms of a violation of anyone’s privacy and safety.” The court sustained the objection. Defense counsel did not ask the court to admonish the jury to disregard the statement.

b. Discussion

“ ‘A prosecutor’s conduct violates a defendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects “ ‘the trial with unfairness as to make the resulting conviction a denial of due process.’ ” ’ ” (People v. Hamilton (2009) 45 Cal.4th 863, 920.) Even if the behavior does not reach that level of egregiousness, it may still violate California law if it involves the “ ‘use of “deceptive or reprehensible methods” when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.’ ” (People v. Dykes (2009) 46 Cal.4th 731, 760.) “The focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.” (People v. Hamilton, supra, 45 Cal.4th at p. 920.)

Within the scope of permissible prosecutorial argument, a prosecutor is given wide latitude during argument “ ‘ “ ‘as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. . . .’ ” ’ ” (People v. Stanley (2006) 39 Cal.4th 913, 951.) “[W]hen 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.” (People v. Morales (2001) 25 Cal.4th 34, 44.) The prosecutor’s statements must be evaluated in the context of the entire record, including instructions and the argument as a whole. (Id. at pp. 45−47.)

“ ‘ “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.” ’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 894; People v. Gamache (2010) 48 Cal.4th 347, 371 [timely means objecting and requesting an admonition at the time the alleged misconduct occurs].)

Here, defense counsel did not contemporaneously object to the prosecutor’s question about how E.J. was feeling, did not move to strike E.J.’s response that she “was scared,” and did not ask the trial court to admonish the jury regarding the question or answer. Later, when the prosecutor mentioned E.J.’s fear during closing argument, defense counsel objected only on the basis that this line of argument “misstates the law, in terms of a violation of anyone’s privacy and safety.” Counsel did not object to the reference to E.J.’s fear, did not object on the ground of prosecutorial misconduct, and did not request an admonishment. Defendant has therefore forfeited the claim.

In any event, the contention fails on the merits. First, the prosecutor’s conduct was not “ ‘so egregious that it infect[ed] “ ‘the trial with unfairness as to make the resulting conviction a denial of due process.’ ” ’ ” (People v. Hamilton, supra, 45 Cal.4th at p. 920.) As noted, the trial court ruled it would be “fair game” to ask about E.J.’s fear to the extent it explained her actions or the situation to the jury. In light of E.J.’s repeated, mistaken testimony that she was the one who initiated the 911 call, it was reasonable for the prosecutor to follow up by asking her how she was feeling during the 911 call. E.J.’s feelings at the time of the call, whether they be fear, confusion, or distraction, would have explained why she could not accurately recall how her conversation with the 911 dispatcher came about, and would show she was not being intentionally untruthful. Further, although the prosecutor also mentioned E.J.’s fear during closing argument, the statement was brief and not likely to have any significant impact on the jury. The question and answer, combined with the fleeting reference to E.J.’s fear, did not infect the trial with such unfairness as to result in a denial of defendant’s due process rights.

Second, even assuming the prosecutor’s acts were deceptive or reprehensible (People v. Hamilton, supra, 45 Cal.4th at p. 920) and therefore constituted misconduct under California law, we conclude defendant cannot show “ ‘it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.’ ” (People v. Dykes, supra, 46 Cal.4th at p. 760.)

It was logical and natural for E.J. to be “scared” or in “fear for her safety and protection” when a stranger was trying to enter her house at 4:00 or 5:00 in the morning, when it was dark outside and she was home alone. Her fear was not so shocking or unexpected that the jury would have construed the prosecutor’s question and E.J.’s answer, or the prosecutor’s comment during closing argument, in any inflammatory way. Moreover, E.J. can be heard whispering in fear during the entire 911 call. The recording, which was played at trial, would have independently informed the jury that the incident caused E.J. to be afraid.

Moreover, there was very strong evidence supporting the jury’s finding that defendant committed attempted burglary. A defendant commits attempted first degree burglary when the defendant attempts to enter an inhabited dwelling with the intent to commit a theft or a felony. (§§ 459, 460, subd. (a), 664.) In this case, E.J. heard defendant making multiple attempts to enter the house through the sliding door or window. Even after she closed and locked the sliding door, defendant continued to attempt to enter the home. When police officers found defendant in the backyard, they found him with a metal pipe in his hand, and the screen to the sliding door was off its tracks and leaning against him. The screen to E.J.’s mother’s bedroom window had also been taken off, and was on the ground. The side gate, which was supposed to be closed, had been pulled apart, suggesting defendant had entered with the intent to commit theft. (See People v. Michaels (1961) 193 Cal.App.2d 194, 199 [“Burglarious intent [can] be reasonably and justifiably inferred from the unlawful and forcible entry alone”]; People v. Walters (1967) 249 Cal.App.2d 547, 551 [“The felonious intent to commit theft may be inferred from the unlawful entry alone”].)

When apprehended, defendant told the officers he was just picking up some belongings from a friend. However, he acted in the early morning hours when most people would be asleep, and there was no evidence presented at trial that he had tried to enter the house by going to the front door or by seeking permission to enter from the occupants of the home. His false statement to police also evidenced his consciousness of guilt. (People v. Showers (1968) 68 Cal.2d 639, 643 [“False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt”].)[2]

In light of the strong evidence supporting a finding that defendant committed attempted burglary, and the minimal effect the brief references to E.J.’s fear likely had on the jury, we conclude that defendant has failed to show he was prejudiced by any misconduct that occurred.

Defendant also claims he was provided with ineffective assistance of counsel to the extent his trial counsel failed to object to the prosecutor’s references to E.J.’s fear. “ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674.) To establish ineffective assistance of counsel, a defendant must prove: (1) that “counsel’s representation fell below an objective standard of reasonableness” in that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (2) there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 687−688, 694.) Here, even assuming defense counsel’s failure to object fell below an objective standard of reasonableness, we reject defendant’s ineffective assistance of counsel claim because, for the same reasons discussed above, he would not be able to show he was prejudiced. (See People v. Centeno, supra, 60 Cal.4th at p. 676 [defendant “bears the burden of showing prejudice” under Strickland].)

2. The Metal Bar

Defendant contends the prosecutor committed misconduct by stating during closing argument that a metal bar is a typical burglary tool. We disagree.

a. Background

During cross-examination, defense counsel asked Fuentes whether defendant wore a mask or gloves, and whether he had with him a “lock pick,” “Slim Jim,” “anything to use to cut glass,” a “backpack,” a “duffel bag,” or “bags that [he] could load things into[.]” Fuentes responded defendant did not. During closing argument, the prosecutor discussed the evidence of defendant’s guilt, stating, “We know he had a metal bar in his hand, which is actually in People’s 12. There was a metal bar in his hand when the officers caught him. [¶] We know he didn’t know the homeowners. [E.J. and her mother] testified that they did not know the defendant; don’t know anyone by the name of Edward Blakeley. We know that they didn’t know him. [¶] We know he was not given permission to go into the home, and we know that he . . . lied to the police about his reason for being there once he was contacted. [¶] Now, there’s only one reasonable conclusion based on this evidence. You have that he was caught with a metal bar. When defense counsel asked questions about typical burglary tools, well, ladies and gentlemen, that is something that burglars have.” Defense counsel objected, “Facts not in evidence; objection.” The trial court overruled the objection, stating, “Again, what the lawyers say is argument; it’s not evidence.”

b. Discussion

As noted, a prosecutor is given wide latitude during argument “ ‘ “ ‘as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. . . .’ ” ’ ” (People v. Stanley, supra, 39 Cal.4th at p. 951.) “ ‘ “It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” ’ ” (People v. Williams (1997) 16 Cal.4th 153, 221.)

Here, the prosecutor’s argument amounted to fair comment on the evidence that fell within the ambit of her wide latitude during argument. In light of the fact that defense counsel had asked Fuentes whether defendant had a mask, “anything to use to cut glass,” a duffel bag, or other items associated with burglaries, it was reasonable for the prosecutor to respond by arguing in closing that while defendant did not have any of those specified items, he did have a metal bar. Although there was no testimony that a metal bar is a burglary tool, it is common knowledge and experience that burglars use bars to pry open locked areas, and that someone simply visiting a friend would not show up with a metal bar.

Moreover, there was evidence supporting a finding that defendant used the metal bar for the very purpose of attempting to commit a burglary. (See People v. Kelly (2007) 154 Cal.App.4th 961, 963 [box cutter and slingshot were “certainly” “burglary tools” under section 466, which criminalizes possession of burglary tools, where the box cutter and slingshot were found in the possession of the defendant who intended “to use them as such”].) For example, E.J. testified that someone “tugged” and “banged” at the sliding door and made noises while moving her mother’s bedroom window. Geddes heard someone attempting to open the sliding door, and immediately thereafter saw defendant standing by the sliding door, mid-break-in, with a metal bar in his hand and the screen from the sliding door leaning against him. Thus, the prosecutor did not commit misconduct when she argued that defendant “was caught with a metal bar,” which is “something that burglars have.”

3. Misstating the Evidence

Defendant contends the prosecutor committed misconduct by misstating the evidence during closing argument, specifically, that there was no evidence defendant knocked on the victims’ door. We reject defendant’s contention.

a. Background

During the preliminary hearing, the prosecutor asked Fuentes about the statements defendant made to Fuentes after he was detained. The prosecutor asked, “[W]hen you had this conversation with the defendant . . . were you asking him questions or did he spontaneously say anything?” Fuentes responded, “I wasn’t asking him questions. He was spontaneously stating that he didn’t know what he did. He [said he] was trying to get his belongings.” When the prosecutor asked whether defendant said “anything about knocking at the door,” Fuentes said, “Yes. He said he was just knocking. He was trying to get his belongings.”

At trial, Fuentes testified that defendant told her he was at the house “to pick up his belongings.” Defense counsel asked, “And he said he didn’t know what he did, correct?” Fuentes replied, “I don’t recall that statement.” Defense counsel asked Fuentes if she remembered testifying at the preliminary hearing, and Fuentes said she did. As defense counsel attempted to ask whether the transcript from the preliminary hearing would refresh Fuentes’s recollection, the prosecutor objected.

Outside the presence of the jury, the trial court asked defense counsel to explain his line of questioning. Counsel responded, “Well it’s essentially simply impeachment . . . . I just asked Officer Fuentes right now if [defendant] made a statement, that he didn’t know what he did, at [the] preliminary hearing, there was testimony that he made that statement.” Defense counsel explained that at some point after Geddes’s body camera stopped recording, defendant spontaneously told Fuentes that he did not know what he did, and that he was trying to get his belongings.

The trial court excluded the statements as hearsay, stating it would have allowed the statement in “as a completion of a statement” “[i]f it was part and parcel to the statement [that defendant made earlier to Geddes] . . . , but it sounds like it’s separate enough; it’s a different officer; it’s a different point in time.”

During closing argument, the prosecutor stated: “Ladies and gentlemen, I would submit to you, that if you were at your friend’s house, if you wanted to go get something, you would not come at 4 o’clock in the morning, especially at a time when people traditionally are sleeping, and more importantly, when it’s dark outside. [¶] Secondly, he didn’t knock on the door. Why would you—”

Defense counsel objected, “Objection; facts not in evidence.” The trial court overruled the objection and admonished the jury, “Ladies and gentlemen, what the lawyers say isn’t evidence. What the facts are and what you determine them to be from the evidence that you heard from the witness stand that was put into evidence.”

The prosecutor continued: “There’s no evidence that the defendant knocked at the door. In fact, what is in evidence is that [E.J.] heard steps on the roof, and then after hearing steps on the roof, she heard the window screen and window of her mother’s room being messed with. Then she heard the sliding glass door being messed with. If there were knocks at the door, she would have said that. [¶] Also, we know that the defendant went to the back of the house to try to get in. The reason why we know that is because [E.J.] said she heard the noise at the window and then heard the noise at the sliding glass door.”

b. Discussion

As noted, a prosecutor is given wide latitude during argument “ ‘ “ ‘as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. . . .’ ” ’ ” (People v. Stanley, supra, 39 Cal.4th at p. 951.) Here, there was no evidence presented at trial that defendant knocked on the door. Neither E.J. nor the officers heard anyone knock on the door at any time. Rather, the evidence showed that defendant opened the backyard gate, walked onto the roof, tugged and banged on the sliding door, partially opened the sliding door, and took off the screens to the sliding door and to E.J.’s mother’s bedroom window. The prosecutor’s closing argument was therefore true, and fair comment on the evidence. (See People v. Lawley (2002) 27 Cal.4th 102, 156 [prosecutor’s commenting on absence of evidence not presented at trial was fair comment on the evidence].)

Defendant asserts the prosecutor engaged in misconduct because she “sought to exclude the evidence that [defendant] ‘was just knocking’ on the door, then argued to the jury as fact that [defendant] did not knock on the door.” The record shows, however, that the trial court excluded defendant’s statement to Fuentes “that he didn’t know what he did . . . .” When the court and the parties discussed Fuentes’s preliminary hearing testimony, they did not discuss whether any other statements defendant made to Fuentes—including his statement regarding knocking on the door—should be excluded. The defense did not move to admit that testimony, the prosecutor did not move to exclude it, and the court’s ruling did not encompass it. Accordingly, the prosecutor never argued the absence of facts she successfully excluded from evidence.

Disposition

The judgment is affirmed.

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Jenkins, J.

We concur:

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Siggins, P. J.

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Fujisaki, J.

A149363/People v. Blakeley