Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD181666, Melinda J. Lasater, Judge.
O'ROURKE, J.
A jury found Robert Christian Chaidez guilty of residential burglary of the Mabes' inhabited dwelling home (Pen. Code, §§ 459, 460, count 1), receiving stolen property (§ 496, subd. (a), count 2), residential burglary of the Tiffany Morgan/Nicholas Majersky inhabited dwelling home (§§ 459, 460, count 4) and unlawfully taking and driving Morgan's vehicle (Veh. Code, § 10851, count 5). In bifurcated proceedings, the jury found true special allegations that Chaidez suffered two prior serious felony convictions (§§ 667, subd. (a), 668, 1192.7, subd. (c)); two strike priors (§§ 667, subds. (b) through (i), 668 and 1170.12); and three prior prison terms (§§ 667.5, subd. (b), 668.) The trial court sentenced Chaidez to 60 years to life. (§ 654.)
All further statutory references are to the Penal Code unless otherwise stated.
Chaidez contends: (1) his convictions on counts 4 and 5 were not supported by sufficient evidence; (2) the trial court erroneously admitted into evidence proof of his prior convictions; and, alternatively, his trial counsel provided ineffective assistance by failing to object to that evidence; (3) the trial court erroneously denied his Pitchess motion; (4) he was denied his constitutional right to testify; and (5) the prosecutor committed misconduct. We affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535 (Pitchess).
FACTUAL BACKGROUND
Maston Mabe testified that on April 1, 2004, at approximately 3:00 a.m., he was at home on Aragon Drive, San Diego. His dog's barking alerted him that someone had entered his house without permission. The intruder had opened the kitchen window, and a step ladder was propped under the window. Mabe and his wife, Joanne Mabe, called the police. The intruder had taken money from Mabe's wallet; a pair of binoculars, Mabe's sheath knives, cell phone, food items and Joanne Mabe's bag and jewelry.
Tiffany Morgan testified she went to bed at approximately midnight on April 1, 2004, at Nicholas Majersky's home on Filipo Street, San Diego. At approximately 5:00 a.m., she discovered that her purse containing her car keys, and her Honda Civic car were missing.
Police Officer Abdiweli Heibeh testified that on April 2, 2004, he was on duty on Filipo Street, at approximately 3:55 a.m. Someone started a Honda Civic and accelerated in his direction, with the lights off. Heibeh turned on his light, drew his gun and yelled, "stop, police, stop." The driver did not stop. Heibeh broadcasted on his radio the vehicle's description and travel directions.
Michael Briley testified that at approximately 4:00 a.m. that day, he heard a car drive up on the curb outside his house on Tower Street in La Mesa. He saw an individual run out of a Honda Civic and "slink" into a neighbor's yard. Briley called 911. The police arrived quickly, and caught a man who Briley stated " 'definitely' " matched the size and shape of the individual Briley had seen.
Police Officer Bret Richards testified that at approximately 4:00 a.m. that day, he responded to a call to Tower Street, and saw the Honda Civic "parked oddly. It was two tires up on the grass, two tires in the street." Other police officers, including the canine unit, arrived and set up a police perimeter. After approximately an hour of seeing no other pedestrians in the vicinity, Richards saw Chaidez and ordered him to stop and show his hands. Chaidez ran. Another police officer drew his gun and also ordered Chaidez to show his hands. Richards tackled Chaidez and apprehended him in a yard. Richards searched Chaidez for weapons, and found in his pockets a crescent wrench, a screwdriver, a stocking cap, and a pair of black gloves. A knife was found on the sidewalk a couple of feet way from Chaidez. Richards stated that in his experience the screwdriver and wrench were typical tools used to commit burglaries. Richards found Tiffany Morgan's purse, keys and groceries inside the Honda Civic.
Police Officer Miseal Cerda testified he transported Chaidez to the jail. A metal detector sounded as Chaidez passed through. Chaidez was asked to empty his pockets and he pulled out a necklace marked "Joanne Mabe," a money clip and a small plastic bag. Chaidez gave them to Cerda saying, "Make sure they go into my property."
At the end of the prosecution's case-in-chief, the court read to the jury the parties' stipulation regarding Chaidez's prior convictions. The same stipulation was reread to the jury during the bifurcated proceedings on his prior convictions.
The following exchange took place regarding the stipulation:
Chaidez testified that on April 2, 2004, he was buying cigarettes at a gas station at the corner of 70th Street and El Cajon Boulevard. He was wearing a leather coat because it was raining. He saw a police patrol car; a police officer was staring at him. The police were readily familiar with him because of his parole status, and they had routinely detained and harassed him. Therefore, he decided to go to a 7-Eleven store to benefit from the store's video camera, which would provide evidence if the police decided to pull him over or "jump" him.
Chaidez left the store and the police car followed him. It stopped about two houses ahead of him; the driver got out and disappeared. Chaidez saw police cars all around him. He stood against a fence for approximately 45 minutes watching the commotion the police were causing. Chaidez saw the police coming towards him, and he jumped across three fences. The last fence broke, he fell, and the police apprehended him.
Chaidez said he had on him a money clip, money, a "beanie" a screwdriver, and a wrench. On direct examination, Chaidez's counsel asked him, "What about the knife?" Chaidez answered, "Oh yeah, my knife. I don't know if I should cop to that. Big old knife. But, yeah, I do have a knife, a big old weed eater." Chaidez testified the knife was not on him when he was apprehended: "I had to throw it because I didn't know the extent of how these cops are going to treat me. They started . . . to beat me, swinging on me. I'm going to defend myself to the full extent. [¶] If I die, go to prison for life, I don't care. I'll take somebody with me. Oh, well, that's my mindset through that." Chaidez testified Police Officer Cerda planted Mabe's necklace on him after his arrest.
Immediately following this admission, Chaidez stated, "I didn't throw it. I swear to God I didn't throw it. It bounced." He added, "It's there. It doesn't look like it's mine. No cop seen it, nobody seen it bounce off me. Nobody seen it come off me."
The defense presented evidence of other burglaries that also were committed in the same neighborhood late on April 1, 2004 and early on April 2, 2004.
DISCUSSION
I.
Chaidez contends the evidence did not establish his identity as the person who burglarized the Morgan/Majersky home and stole Morgan's car.
When sufficiency of the evidence is challenged on appeal our role in reviewing the evidence is limited. We do not reweigh the evidence and substitute our judgment for that of the jury. (People v. Escobar (1996) 45 Cal.App.4th 477, 481.) Instead, we must determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294, 314.) "When reviewing a claim of insufficiency of the evidence to support a conviction, we view the entire record in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment." (People v. Abrego (1993) 21 Cal.App.4th 133, 136.) This standard applies whether direct or circumstantial evidence is involved. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) This court's authority on appeal begins and ends with a determination of whether any substantial evidence, disputed or not, supports the verdict. Thus, where the record discloses substantial evidence―that is reasonable, credible and of solid value―we accord due deference to the trier of fact. (People v. Jones, supra, 51 Cal.3d at p. 314.)
Chaidez's convictions were supported by substantial evidence. Heibeh saw someone start and drive the Honda Civic speedily with the lights off on Filipo Street. He ordered the driver to stop. The driver ignored the order, and finally stopped in front of Briley's house. Briley saw someone running from the car. When Police officer Richards arrived at the scene, he did not see any pedestrian in the area. Chaidez testified he watched the police for approximately 45 minutes, but he hid from them, and ran when they spotted him. Briley testified Chaidez "definitely" matched the person he had seen running from the Honda. Chaidez had on his person a screwdriver, wrench, and a knife, which Richards testified were items commonly used in burglaries. The police found Morgan's purse in her car. Joanne Mabe's necklace was found on Chaidez's person, and he asked the police to keep it with his property. Finally, the jury was advised by stipulation of Chaidez's prior convictions.
II.
A.
Chaidez contends "the trial court abused its discretion and violated [his] federal constitutional rights to fair trial and due process of law by admitting [his] prior burglary, vehicle theft, and receiving stolen property convictions to prove identity, intent, motive, knowledge and common plan or scheme under Evidence Code section 1101, subdivision (b)." Although Chaidez originally brought an in limine motion to exclude evidence of his prior convictions, he eventually entered into a binding stipulation admitting them. " 'Stipulations are ordinarily entered into for the purpose of avoiding delay, trouble or expense. As a general rule they should receive a fair and liberal construction, in harmony with the apparent intention of the parties and the spirit of justice.' " (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 144; accord People v. McClain (1962) 209 Cal.App.2d 224, 227-228.) Accordingly, we reject this contention.
Chaidez seeks to escape the stipulation's binding consequences by citing to an exchange that occurred during the in limine motion hearing:
"The court: . . . I'm going to throw something out. This is not a ruling, but it's something the two of you could just talk about.
"[Prosecutor]: Okay.
"The court: And that is the People getting their [Evidence Code] 1101 [subd.] (b) evidence, and the defense getting in as far as the actual burglaries are concerned that occurred in the area, and the people who were viewed. Nothing about charges or dismissed counts. [¶] I'm just throwing that out. [¶] Any feelings or reactions?" (Emphasis added.)
Chaidez claims, "The trial court ultimately stated it would only allow the admission of third party culpability evidence if counsel agreed to the admission of [his] prior convictions. Over objection, defense counsel succumbed to these conditions." We read the record differently. The trial court's comments were tentative, and in no way required Chaidez to "succumb" to any conditions. The trial court encouraged the parties to reach an agreement stating, "As I understand it . . . if we get into the [Evidence Code, subd] 1101 [subd.] (b), the issue of somebody having committed a crime before the one that you would have to do — well, why don't the two of you talk first. If you resolve it, I think you'll both be able to work around it better than [me]. [¶] If I get involved, I'm probably going to do something that both of you are unhappy with. At least this way you have some say over how it's run." Nothing in the record suggests that Chaidez was compelled to enter into the stipulation.
B.
In the alternative, Chaidez claims he received ineffective assistance of counsel because, "There could be no tactical reason for defense counsel's failure to object to the admission of [Chaidez's] priors when they were statutorily identical to the current charges, and therefore, extremely prejudicial". We apply a deferential level of scrutiny to trial counsel's performance, and the appellant must affirmatively prove prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 216; 217.)
"The law governing defendant's [ineffective assistance] claim is settled. 'A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citation.] "Construed in the light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance." ' [Citations.] It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.] We have summarized defendant's burden as follows: ' "In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because 'his representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citation.] [¶] Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: ' "Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Chaidez's trial counsel reasonably stipulated to Chaidez's prior crimes for the tactical purpose of showing that the police were familiar with Chaidez's criminal history and used it as a basis to search, arrest, and frame him for the underlying crimes. Chaidez's trial counsel argued to the jury, "Now, I don't think it's any secret in this case that our theory . . . is that Mr. Chaidez is a kind of a bad guy. [¶] We're saying that the police are trying to help him get back to Pelican Bay. [¶] No question about it. Our theory is the police planted this evidence on Mr. Chaidez." Defense counsel added, "[Chaidez] told you that recently when he was getting arrested, they started to treat him a little more brutally; they were starting to beat him up a little bit. [¶] And, so, we have let into evidence — we stipulated to let his prior arrest sheet in there."
These arguments were reiterated in a motion for a new trial, when Chaidez's trial counsel explained the reasons for his trial strategy:
"What we had was evidence found on Mr. Chaidez. That it was in his pocket is pretty conclusive evidence that he was a burglar. So if that evidence is not disputed in some way, which would have to be disputed, it would be pretty much a completed case at that point.
"So in order to show that the evidence was planted, we had to pursue a lot of different avenues: whether the evidence was available to other people, whether the police were at the scene and could have acquired the evidence, whether the police would have any motive to want to see Mr. Chaidez incarcerated and taken off of the streets."
Chaidez's trial counsel elaborated: "[The police] had to have the opportunity to acquire the property. They had to have a motive to want to implicate someone. . . . A lot of times people have an idea that the police are planting things on them, or that's their theory. [¶] Usually the police would have no motive to do that in minor cases, but with Mr. Chaidez and based on his testifying and the criminal history that he had and the high profile he had as a parolee, there was some evidence that the police might have wanted to take a special interest to get him off of the streets." (Emphasis added.) We conclude trial counsel's conduct fell within the wide range of reasonable professional assistance.
Substantial evidence supported Chaidez's conviction; therefore, he was not prejudiced because there was no reasonable probability of a different outcome if his prior convictions were excluded from evidence. His trial counsel's performance did not make the trial result unreliable or the proceeding unfair or otherwise undermine our confidence in the outcome. (In re Harris (1993) 5 Cal.4th 813, 833.)
III.
Chaidez acknowledges, "the [trial] court's overall treatment of [him] as a pro per . . . was relatively generous." However, he contends the trial court's "refusal to grant [his] Pitchess request as to Officer Verduzco was unreasonable under the circumstances. Given [Chaidez's] detailed verbal statement establishing specificity, plausibility and relevance at the time of the motion and in the presence of the San Diego Police Department's representative." Chaidez also asks us to independently review the trial court's ruling on the Pitchess motion regarding members of the La Mesa Police Department. The Attorney General does not oppose our independent review.
In Pitchess, the California Supreme Court held that "a criminal defendant has a limited right to discovery of peace officer personnel records in order to ensure 'a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.' " (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038, fn. 3, quoting Pitchess, supra, 11 Cal.3d. at p. 535.) Based on the accused's need for disclosure as well as an officer's privacy expectations, and to prevent abuses, the Legislature codified the court's decision in Pitchess and set out procedures designed to implement the court's discovery rule. (Pen. Code §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047; see People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).)
To obtain Pitchess information, the defendant must file a written motion. (Evid. Code, § 1043 subd. (a).) It must describe "the type of records or information sought" and include "[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid. Code, § 1043, subds. (b)(2) & (3).) This good cause showing is a "relatively low threshold for discovery." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.) Assertions in the affidavits "may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information." (Mooc, supra, 26 Cal.4th at p. 1226.) If the defendant establishes good cause, the court must review the records in camera to determine what, if any, information should be disclosed. (Ibid.; Evid. Code, § 1045, subd. (b).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) We review the trial court's disclosure ruling for abuse of discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Jackson (1996) 13 Cal.4th 1164, 1220; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.)
Chaidez, acting in pro per, brought a Pitchess motion to discover information about the following La Mesa police officers: M. Becker, M. Cerda, S. Lawton, M. Pierce, B. Richards, M. Rothrock, and D. Willis, and 23 officers from the San Diego Police Department, including E. Verduzco. At a May 24, 2005 hearing, La Mesa Police Department did not oppose the motion. The trial court granted the motion as to these police officers, conducted an in-camera review, and concluded there was nothing discoverable in the files. We have examined the personnel records in camera, and conclude the trial court did not abuse its discretion in finding there was nothing in the records of the above listed La Mesa Police officers that was relevant to the proposed defense articulated by Chaidez's Pitchess motion.
The San Diego Police Department objected that Chaidez's Pitchess motion was untimely, did not set forth good cause for an in-camera review, and violated the affidavit requirement of Evidence Code section 1043. At the hearing on the motion, Chaidez conceded he had not served an adequate motion on the San Diego Police Department. Chaidez stated that he "figured [he] would just have to do [the motion] over," and in the "next couple weeks." The trial court responded, "No. No. You have a trial date next week. You had plenty of time to do it right the first time. I'm not necessarily jumping onto the idea that just because you've finally filed a declaration — and I don't even have it, how do I even know if it's sufficient?" (Emphasis added.) The trial court denied the motion, finding that "based upon the phraseology that was used in the motion, as well as in the argument, it really does appear to be a fishing expedition."
Evidence Code section 1043 subdivision (3) states, "No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records."
At the hearing on the Pitchess motion, Chaidez conceded he was untimely in sending the appropriate notice to the San Diego Police Department:
The motion also was served on the El Cajon Police Department, which objected that the motion did not list any officer from their department. On that basis, the trial court denied the motion as to the El Cajon Police Department. Chaidez does not challenge that ruling on appeal.
The trial court did not err in finding that Chaidez had failed to provide timely and adequate notice for the motion: "To obtain Pitchess information, the defendant must file a written motion. [Citation.] It must describe 'the type of records or information sought' and include '[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70; accord Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 426 ["Because police personnel records are confidential, their disclosure requires adherence to the motion and hearing requirements of Evidence Code sections 1043 and 1045"] Accordingly, the trial court did not abuse its discretion in refusing to require the production of his personnel file about Detective Verduzco and others in the San Diego Police Department. The trial court itself did not have a copy of the motion, and concluded Chaidez had not made a sufficient showing for the discovery sought.
We reject Chaidez's contention that because he was self-represented, the trial court should have overlooked his failure to comply with the notice requirements and granted his request based on his oral explanation of the basis for the motion. A defendant who chooses to serve as his own attorney " 'is not entitled either to privileges and indulgences not accorded attorneys or to privileges and indulgences not accorded defendants who are represented by counsel.' " (People v. Maddox (1967) 67 Cal.2d 647, 653 quoting People v. Mattson (1959) 51 Cal.2d 777, 794, disagreed with on another ground in People v. Crandell (1988) 46 Cal.3d 833, 861-862, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) "But neither is he entitled to less consideration than such persons." (People v. Maddox, supra, at p. 653.) The trial court, in requiring Chaidez to comply with the applicable statutes, treated him no differently than it would a party represented by an attorney.
IV.
Even though Chaidez testified extensively during the defense's case-in-chief, he contends he was denied his constitutional right to testify because he was not permitted to take the stand after the prosecutor's rebuttal case. "When the record fails to disclose a timely and adequate demand to testify, 'a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.' " (People v. Alcala (1992) 4 Cal.4th 742, 805.)
Chaidez initially represented himself. When he subsequently agreed to accept representation by a lawyer, the court advised him of his right to testify:
"The court: . . . . Now remember what we said before, let me make sure you understand this: It's going to be [defense counsel] who will in the end decide the trial tactics, whether to call certain people or not call certain people. Do you understand that?
"[Chaidez:] Yeah. Yeah.
"The Court: You and he may disagree. If you and he disagree and he decides it's best not to do it your way, he's going to do it his way. Do you understand that?
"[Chaidez:] Yeah.
"The court: The other thing is you do, though, have the absolute right to testify, that one is your right and he can't stop you from testifying. But you also have the absolute right to refuse to testify. Once again, that's your decision, not the attorney's decision. Do you understand that?
"[Chaidez:] Yes.
"The Court: That's the only area where he doesn't have the final say. [¶] Do you still want to have [defense counsel] represent you?
"[Chaidez:] Yes."
At trial, Chaidez testified for over 250 pages of record transcript. Before the last witness testified and both sides rested, the court asked Defense counsel, "Are you going to call your client again? If you could forewarn my bailiff." Immediately afterwards, the court noted, "He shook his head no." The record transcript does not clarify whether "he" refers to defense counsel or Chaidez. In any event, both Chaidez and his attorney were reminded that Chaidez could testify again, and Chaidez did not do so before the defense rested.
After the jury returned verdicts on the underlying charges, and during the bifurcated proceedings regarding the prior convictions, Chaidez for the first time informed the court that he had wanted to testify before the guilt phase of his trial concluded. Chaidez's counsel denied telling Chaidez not to take the stand; rather, he elected not to call him to testify, reasoning, "The way I looked at it at the time was that [the issues Chaidez wanted to testify about] just open[ed] him to whole range of further cross examination that the state of the case at that time was better off without." We conclude the trial court did not err in finding untimely Chaidez's claim he was denied the right to testify.
We reject Chaidez's claim that defense counsel provided ineffective assistance by failing to advise the court of his conflict with Chaidez regarding Chaidez's exercise of his right to testify. First, Chaidez cannot show prejudice because the trial court apprised him that irrespective of his lawyer's advice, he retained the right to testify on his own behalf. Moreover, the trial court raised the issue shortly before the defense rested, and Chaidez could have exercised his right to testify. On this record, trial counsel's tactical decision to advise Chaidez against testifying was reasonable and did not fall below an acceptable standard. Based on the substantial evidence of Chaidez's guilt, there was no reasonable probability that but for counsel's performance the results of the trial outcome would have been different.
V.
Chaidez contends the prosecutor committed various acts of misconduct that individually and cumulatively violated his constitutional due process rights. A prosecutor's intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the entire trial with such unfairness as to make the conviction a denial of due process. "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. Samayoa (1997) 15 Cal.4th 795, 841.) "To determine whether an admonition would have been effective, we consider the statements in context." (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.) "[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. Ayala (2000) 23 Cal.4th 225, 284.) " '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." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
We analyze each claimed act of misconduct below, and conclude Chaidez waived the contentions because―with one exception―he failed to object on the basis of prosecutorial misconduct or request an admonition. Further, on the merits, we conclude there was no prosecutorial misconduct, and Chaidez has not shown prejudice.
Chaidez cites to the following instances of prosecutorial misconduct from closing argument:
"When Officer Cerda walked Mr. Chaidez through the metal detector. . . . [¶] [It] goes off. He asks him what's in his pocket. Mr. Chaidez removes two items, the baggie and the clip. [¶] He says, oh, yeah, put that with my property. [¶] . . . [¶] How did we know that he knew that the property was stolen? [¶] First of all, it has the name Joanne Mabe. Joanne Mabe is not the name of Robert Chaidez. That's the first. [¶] Second of all, he ran from the police. [¶] Third of all, ladies and gentlemen, first he said that he wanted them to put it with his personal property. [¶] Okay. [¶] Second, he said he found it. [¶] Now, two years later, they are saying [the police] planted it on him. [¶] We are talking about someone, again, trying to get away with a crime that he committed, ladies and gentlemen." (Emphasis added.)
In rebuttal arguments, the prosecutor disputed that Detective Verduzco framed Chaidez, noting that Verduzco's report ― which the defense had received two years earlier ― stated Verduzco had found the necklace on Chaidez. The prosecutor noted Chaidez claimed at the jail that the necklace was his, and added, "Then, today, two years later, it's the La Mesa Police Department who planted it. . . . Mind you, these are things that they have known now for two years." (Emphasis added.)
Chaidez contends that in both instances "The prosecutor's use of the pronoun 'they' plainly referred to defense counsel and appellant. Such an insinuation ― that defense counsel participated in fabricating a defense with his client ― was improper." Chaidez also contends the prosecutor committed misconduct because she "referred to [him] as a 'liar' and to his defense as 'lies' well over 20 times."
Obviously, "A Defendant's conviction should be based on the evidence adduced at trial, and not on the purported improprieties of his counsel." (People v. Frye (1998) 18 Cal.4th 894, 978.) The prosecutor's use of "they" was inappropriate. Nonetheless, we conclude it is unlikely the jury interpreted the prosecutor's comment as implying the defense attorney colluded with Chaidez to fabricate his defense.
"Referring to testimony as 'lies' is an acceptable practice so long as the prosecutor argues inferences based on the evidence and not on the prosecutor's personal belief." (People v. Sandoval (1992) 4 Cal.4th 155, 180.) The prosecutor did not commit misconduct in referring to Chaidez's statements as lies. In any event, Chaidez failed to object to the prosecutor's arguments on the basis of prosecutorial misconduct and request an admonition, and the issue is waived.
Chaidez cites to an exchange during closing arguments to claim prosecutorial misconduct:
"[The prosecutor:] Not only is [Chaidez] a criminal who [is] trying to get away with crimes, but he's a dangerous criminal. [¶] One who, by his own words, while stationed at Pelican Bay State Prison, thought that molesters and rats should be eliminated. 'Rats' meaning people who tell the police what happened. [¶] That's the kind of person he has described himself as. [¶] This is a dangerous person, ladies and gentlemen. And more than that, he is a criminal who breaks into someone's home in the middle of the night, after having just been released and discharged on parole. Just two months after having been discharged on parole for the same type of offenses. . . . He's a dangerous criminal. Do not let him get away with these crimes.
"[Defense counsel:] Objection, your honor.
"The court: Sustained.
"[Defense counsel:] Improper argument.
"The court: Sustained.
"[Defense counsel:] Motion to admonish opposing counsel.
"The court: Ladies and gentlemen, I'm going to ask you to disregard everything after 'This is a dangerous person,' [sic] including that one. . . .
" [¶] . . . [¶]
"[Prosecutor:] The conduct that he has described by his own words . . . is what you can consider in this case. [¶] . . . .These crimes that he committed, they are crimes because everyone has the right to go to sleep at night without having someone break into their homes. Someone like Mr. Chaidez, who had just been released or had spent time at Pelican Bay SHU, the most maximum security prison in the state of California. [¶] This is why this is a crime, ladies and gentlemen.
"[Defense counsel] Objection. It's calling for a conviction based upon prior history of the defendant.
"[The court:] Sustained.[¶] Ladies and gentlemen, use the evidence from this trial in deciding the issues that I present to you in the instructions." (Emphasis added.)
Chaidez contends the prosecutor committed misconduct because: (1) she referred to him as " 'a dangerous criminal' " four times; (2) her "comments improperly urged the jurors to rely on propensity evidence to convict [him];" and (3) she improperly appealed to the jury's passions and prejudices. Chaidez's objection on the basis of improper argument was sustained. We see no reason to conclude that the court's comments failed to cure any prejudice. Once again, the contention is waived because no objection was made on the basis of prosecutorial misconduct.
The prosecutor argued to the jury that although it had heard evidence regarding other burglaries committed around the same time as those Chaidez was accused of committing, the jury should focus on the allegations against Chaidez:
"[Prosecutor:] If you hear anything else, if you hear anything unrelated to these three victims, disregard it because you are not here to decide what someone else said, what someone else did, or whether or not . . . anyone else in this area . . . was the victim of a burglary. [¶] That's not what you are to decide. [¶] You are only focused
"[Defense counsel:] Objection.
"The court: Overruled. This is argument.
"[Defense counsel:] The evidence was admitted into trial.
"The court: It's up to the jury to decide what evidence they wish to use. It's their decision to make.
"[Defense counsel:] [The prosecutor] asked [the jury] to disregard it entirely based upon
"The court: This is argument. The jury may choose to disregard it; they may choose to use it. It's up to them.
"[Prosecutor:] Again, ladies and gentlemen, you are to decide these three households. If you hear any other evidence about any of the other possible burglaries that may have occurred that night, disregard it because you are here only
"[Defense counsel:] Objection.
"[Prosecutor:] — for one purpose.
"The court: Overruled.
"[Prosecutor:] You are here only for one purpose. You may disregard the rest of it because this is your job. You are only deciding these three households, nothing else. . . .
"The court: Excuse me. I'm going to correct myself. [¶] The jury must consider all the evidence and, from that, you decide what the facts are. Any evidence that pertains to facts that you determine not to exist, you may disregard it."
Chaidez contends "the prosecutor improperly informed the jury they should disregard all evidence unrelated to the charged offenses. This essentially informed jurors they should disregard appellant's defense of third party culpability." The contention is waived because Chaidez did not object on the basis of prosecutorial misconduct and request an admonition on that basis.
On the merits, we conclude there was no prosecutorial misconduct. The prosecutor's comment focused the jury's attention on the evidence relevant to the charges against Chaidez. Chaidez has not shown that the admonition was insufficient to cure any prejudice that resulted from the prosecutor's comments. Any misunderstanding on the part of the jury was further cured by the court's comments and CALCRIM 222: "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom."
Chaidez claims it was misconduct for the prosecutor to argue that, "[Police Officer Heibeh] described the driver [of the Honda Civic] as [either] white or Hispanic." Moreover, Chaidez protests that the prosecutor stated three times in closing argument that Briley testified along these lines: "the person who ran out of that car was the same exact person who the police had detained." In each instance defense counsel objected that the evidence was misstated. In each instance the trial court instructed the jury to this effect: "use the evidence as you recall it." Chaidez has not shown that the trial court's admonitions failed to cure any prejudice the prosecutor's argument might have caused.
Chaidez cites the prosecutor's cross-examination of a witness as a further instance of prosecutorial misconduct. Marjorie Van Nuis, a defense investigator, testified that she lived in the neighborhood where the burglaries occurred, and was a percipient witness to some of the events relating to the underlying crimes. She testified she was awakened by screaming outside her window, and she saw her neighbor running across her lawn. Shortly afterwards she spoke with the neighbor, who stated the burglar was a black male who wore a dark hood.
This description was significant because it pointed to a possibly different suspect than Chaidez, who described himself as a "bald headed Mexican." The neighbor testified at trial that he did not get a good look at the burglar and therefore he never told the police anything regarding the burglar's race.
During cross-examination, the following exchange took place:
"[The prosecutor:] Ms. Van Nuis, you said that you were a paralegal?
"[Witness:] Yes, ma'am.
"Q. How long have you been a paralegal?
"A. Since 1994.
"Q. You know good and well that there are discovery rules that are followed in court, correct?
"[Defense counsel:] Objection. Argumentative.
"The court: Sustained as phrased.
"By [the prosecutor:]
"Q. You know there are discovery rules that have to be followed during a trial, correct?
"A. Yes ma'am.
"Q You know that if you were testifying as a witness in a case that you have to turn over any statements that are going to be made to either side; is that correct?
"A. Turn over or verbally inform you, correct.
"Q. Now, did you, in this case, turn over any reports to the district attorney's office regarding your observations of anything that you saw that night?
"A. Yes, ma'am, I did.
"Q. Where are they?
"A. I verbally told you.
"Q. I'm asking you, did you turn over reports to the district attorney's office?
"A. No. I never wrote a report.
"Q. Did you ever write down anything that [a neighbor] ever told you?
"A. No, ma'am.
"Q. And did you ever — you're aware that if you were calling someone as a witness, that both sides have to turn over a report, correct?
"A. If I verbally have told you something
"Q. I'm asking you, Ms. Van Nuis, if you are aware as a paralegal, since you've been one for ten years, that both sides are required to turn over discovery and reports before the trial starts?
"A. I am aware of that, yes, ma'am.
"Q Why didn't you prepare a report in this case?
"[¶] . . . [¶]
"The witness: . . . .I know I verbally told you at central jail when we met to look at the evidence the entire story about [the neighbor's] comments to me. I told you.
"Q. Why didn't you prepare a report as required?
"[Defense counsel:] Argumentative.
"The court: Sustained. Assumes facts not in evidence."
Chaidez contends the prosecutor committed misconduct by impugning Van Nuis's integrity, and misrepresenting the law regarding discovery by implying Van Nuis had a duty to document her conversation with her neighbor. The claim is waived because Chaidez, once again, did not object on the basis of prosecutorial misconduct and request an admonition on any basis.
Based on the foregoing, we reject Chaidez's contention that reversal is required because of the cumulative effect of the prosecutor's misconduct.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.
"[Prosecutor:] Your honor, at this time the People would offer a signed stipulation that has been lodged with the court. [¶] Do you have a copy of it?
"The court: Is it the parties' desire, then, that the court read the stipulation at this time?
"[Prosecutor:] Yes, your honor.
"The court: And defense as well?
"[Defense counsel:] That's fine.
"The court: Okay. Ladies and gentlemen, I told you I would tell you of any stipulation. This is a stipulation between the parties. You are to regard these facts as having been conclusively proved.
"It is hereby stipulated between the parties that:
"One, the defendant, Robert Chaidez, was previously charged and convicted by jury trial of violation of . . . section 459/460, burglary of an inhabited dwelling house . . . occupied by Megan Taylor, with the intent to commit theft.
"The defendant, Robert Chaidez, was also previously charged and convicted by jury trial of a violation of Vehicle Code section 10851, unlawful taking of a vehicle, in that on the same day as the burglary above, he did willfully and unlawfully drive and take a vehicle, to wit: a 1986 Honda Accord, the property of Megan Taylor, without her consent, and with the intent to deprive the owner of possession of the vehicle.
"Defendant, Robert Chaidez, was also previously charged and convicted by jury trial of a violation of . . . section 496 [subd.] (a), possession of stolen property, in that on the same day as the residential burglary and unlawful taking of the vehicle above, he did willfully and unlawfully receive, conceal, withhold property, to wit: three gold necklaces belonging to Marsha Baker, which had been stolen, knowing that said property had been stolen.
"The defendant, Robert Chaidez, was previously charged and convicted by jury trial of violation of . . . section 496 [subd.] (a), possession of stolen property, in that on the same day as the residential burglary, unlawful taking of the vehicle above, he did willfully and unlawfully receive, conceal, withhold property, to wit: a purse containing keys, a wallet, miscellaneous items belonging to Jacquelin Lopez, which had been stolen, knowing that said property had been stolen.
"Two, Robert Chaidez was previously charged and convicted by jury trial of violation of . . . section 459/460, burglary of an inhabited dwelling; that he unlawfully entered an inhabited dwelling house in the nighttime with the intent to commit theft."
"The Court: [Y]ou did not file the correct paperwork and file police report or an affidavit that is sufficient on its face. And [the San Diego Police Department is arguing] that you were not in compliance with the code nor the case law.
[Chaidez]: Yeah. Yeah. After I read that, I didn't get a chance to respond to them because I just got it. But I never filed my rejection to everything they were saying. But instead of doing all that, I just decided to do it all over again, this time put affidavit and everything and send it to them all over again.
"The Court: I don't have that.
"[Chaidez]: No. I was going to file it today or yesterday, but we can't do it over the weekend. I just got their response. I wrote this — I wrote my rejection tot heir response. Then I decided, you know what, just to even it all out, I'm going to file it all over again, everything with the police reports and everything, affidavit and everything, so there won't be no excuses next time."