Opinion
F062098
01-05-2012
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DEAN CROOKS, Defendant and Appellant.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF132427A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Steven Dean Crooks of violating Penal Code section 666, petty theft. He challenges this conviction on the grounds that (1) the trial court abused its discretion in excluding a portion of a pretrial statement made by him, and (2) the prosecutor committed prejudicial misconduct. Alternatively, he contends that if he has forfeited the prosecutorial misconduct claim, his counsel rendered ineffective assistance.
We conclude that the trial court did not err and Crooks has forfeited any claim of prosecutorial misconduct. We also conclude defense counsel did not render ineffective assistance. Therefore, we will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In February 2010, Juan Martinez, an asset protection specialist, observed Crooks inside the Home Depot store on Rosedale Highway in Kern County. Martinez saw Crooks take two tarps from the paint department and place them in the child seat area of his cart. Crooks then went to the hardware section of the store and placed two Maglite LED flashlights under the tarps. Crooks then headed for the garden department. He happened to look over his shoulder and made eye contact with Martinez. Crooks abandoned the cart, walked out of the store, and left on his motorcycle.
In March 2010, Martinez again saw Crooks in Home Depot; he observed Crooks place two Maglite LED flashlights under two tarps in a cart. Martinez saw Crooks put his hands under the tarps near the flashlights. Martinez started running toward Crooks. Martinez and Crooks made eye contact; Crooks left the store. When Martinez examined the contents of the cart, he saw that the sensor tags had been cut from the Maglite flashlights.
In early May 2010, Martinez saw Crooks in Home Depot a third time. This time Martinez saw Crooks use a box cutter to cut the sensor tags off the Maglite flashlight packages. Crooks then lifted his shirt and concealed the flashlights under the waistband of his pants. Crooks began walking toward the exit when he again made eye contact with Martinez. Crooks returned to the cart and placed the flashlights in the cart. Martinez approached Crooks and asked him not to return to the store; Crooks walked out of the store and left on his motorcycle.
In May 2010, Joseph Hughes worked in asset protection for the Home Depot store on Ming Avenue. As part of his duties, he attended meetings on retail crimes held by the Bakersfield Police Department. At one of these meetings, Crooks was brought to his attention.
On May 28, 2010, Hughes recognized Crooks in the paint department of the Ming Avenue Home Depot store. Hughes watched as Crooks selected a tarp from the paint department and placed it in his cart and then walked over to the hardware department. Hughes saw Crooks select two Maglite flashlights and place them under the tarp in the cart. Hughes followed as Crooks walked to the flooring department and watched as Crooks used a pocketknife to remove the sensor tags from the flashlights.
Hiding between two display racks, Crooks stuffed the flashlights in the waistband of his pants. Crooks then pushed the cart to the paint department and returned the tarp to the shelf. Crooks left the cart and began walking toward the garden department. Hughes called an associate, Martin Zaragoza, and told Zaragoza to meet him outside the store for a possible apprehension.
Crooks left the store without attempting to pay for the flashlights. Hughes approached, identified himself, and asked Crooks to return to the store. Instead, Crooks ran and Hughes gave chase. Hughes eventually pushed Crooks to the ground and Hughes and Zaragoza handcuffed Crooks and escorted him to the office inside the store. Once inside the office, Hughes searched Crooks, found the concealed flashlights, and called police.
While waiting for the police, Crooks asked Hughes if there was any way Hughes would let him go without repercussions. Hughes asked Crooks if he had seen him, Hughes, watching him. Crooks had not. Crooks stated if he had, he would not have done what he did.
Officer Brian Looney arrived at the store. He searched Crooks and found no money on him. Hughes provided copies of the video surveillance of the store showing Crooks exiting the store, Hughes following, and Hughes and Zaragoza escorting Crooks back to the store.
On July 21, 2010, Crooks was charged with one count of violating Penal Code section 666. It also was alleged that Crooks had served four prior prison terms.
The jury trial began on December 20, 2010. On December 21, Crooks admitted the prior theft related convictions needed to make the current offense a felony. The People's motion in limine to exclude certain pretrial statements made by Crooks was granted. Also on that date, the trial court bifurcated the prior prison term allegations on a motion by Crooks.
Crooks testified during the trial. Crooks felt Martinez had "stalked" him when he went to Home Depot on Rosedale Highway. On May 28, 2010, he went to Home Depot on Ming Avenue because he did not feel comfortable at the store on Rosedale Highway any more. While at the store, he realized he did not have money in his wallet and returned the items to the shelves. He did not take any items from the store, remove the sensor tags, or conceal items in his waistband. He did not remember making any statements to Hughes.
The jury found Crooks guilty of the substantive offense. The trial court found true all prior prison term allegations. Crooks was sentenced to the upper term of three years on the Penal Code section 666 offense, plus an additional year for each of the prior prison terms, for a total of seven years.
DISCUSSION
Crooks contends the trial court abused its discretion when it admitted some of his statements made to Hughes, but excluded other statements. He also maintains the prosecutor committed prejudicial misconduct in closing argument and, if this issue is forfeited, defense counsel rendered ineffective assistance.
I. Exclusion of Statements
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." The purpose of this section is to prevent a party from using select aspects of a conversation, act, declaration, or writing to create a misleading impression on the subject presented to the jury. (People v. Arias (1996) 13 Cal.4th 92, 156.)
All further statutory references are to the Evidence Code.
Section 356 sometimes is referred to as the statutory version of the common law rule of completeness. According to the common law rule: "'"[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." [Citation.]' [Citation.]" (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3 (Parrish).) "The statute is founded on the equitable notion that a party who elects to introduce a part of a conversation is precluded from objecting on confrontation clause grounds to introduction by the opposing party of other parts of the conversation which are necessary to make the entirety of the conversation understood. Section 356 is founded not on reliability but on fairness so that one party may not use 'selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.' [Citations.]" (Id. at pp. 272-273.)
Consequently, "'"[i]n applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. 'In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence....' [Citation.]"' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 334-335; accord, Parrish, supra, 152 Cal.App.4th at p. 274.)
Here, the prosecution sought to admit Crooks's statements to Hughes asking if he could "get out of this" and that if he had known he was being watched, he would not have done what he did. The prosecution sought to exclude Crooks's statements to Hughes that he was a heroin addict and that this would be his third strike offense.
The trial court admitted the comments the prosecution sought to admit, ruling that the statements were implicit or explicit admissions of guilt. The trial court excluded the statement about being a heroin addict, which the defense agreed should be excluded. The trial court, however, also excluded the comment about this being a third strike offense for Crooks, although the defense argued this statement should be admitted as it showed Crooks's state of mind when he made the inculpatory statements that were admitted. The trial court, however, did allow Crooks to testify that he feared imprisonment when he made the statements.
The key is that to be admissible, the omitted portions of an interview or conversation must have some connection to that which was admitted. (People v. Lawley (2002) 27 Cal.4th 102, 155.) Regardless, although section 356 allows additional portions of a conversation to be admitted for clarification by the opposing party, "'The rule is not applied mechanically to permit the whole of a transaction to come in without regard to its competency or relevancy ....' [Citation.]" (People v. Perry (1972) 7 Cal.3d 756, 787 (Perry).)
The trial court found the third strike statement to be irrelevant to the question of whether or not Crooks committed the crime, unlike the inculpatory statements that were admitted. A trial court has broad discretion to exclude evidence it deems irrelevant. (People v. Pride (1992) 3 Cal.4th 195, 235.) Crooks's statement that this would be his third strike offense was not necessary to a clear understanding of the inculpatory statements he made; nor did exclusion of this comment cause the admitted statements to be misleading. (Parrish, supra, 152 Cal.App.4th at pp. 272-273.)
The statements that were admitted were complete and understandable on their own. (People v. Zapien (1993) 4 Cal.4th 929, 959.) Statements pertaining to other matters may be excluded. (People v. Williams (1975) 13 Cal.3d 559, 565.) The third strike statement did not address guilt or innocence; rather it pertained to potential punishment. Moreover, admission of the statement could have misled the jury; Crooks was not facing a third strike offense. (Perry, supra, 7 Cal.3d at p. 787.)
The proponent of the evidence, in this case Crooks, has the burden of establishing its relevance. (People v. Von Villas (1992) 10 Cal.App.4th 201, 272.) Crooks has failed to meet this burden. He has failed to show how an inaccurate statement on a subject that is not relevant to guilt, but only to potential punishment, was relevant.
Also, Crooks failed to explain his state of mind when making the statements to Hughes, even though the trial court ruled that he could. Crooks testified that he did not remember making any statements to Hughes.
We conclude the trial court did not abuse its discretion in excluding the third strike statement made by Crooks. (People v. Johnson (2010) 183 Cal.App.4th 253, 288.)
II. Prosecutorial Misconduct
During closing argument, the prosecutor stated:
"Defendants are only presumed innocent until you've heard all the evidence, and now that you've heard the evidence, ladies and gentlemen, you can draw your own conclusions. Remember, reasonable doubt is aNo objection was made to the comment and there was no request for an admonition.
standard used in courts all over the country. It's not some impossible standard. Verdicts are rendered every single day in this country."
Crooks contends that the prosecutor's comment on presumption of innocence misstated the law and constituted prejudicial misconduct. (People v. Bell (1989) 49 Cal.3d 502, 536-540 [improper for prosecutor to mislead judge or jury by misstating facts or law].) Because Crooks did not object or request that the jury be admonished concerning any of the remarks, the claim has been forfeited.
"'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' [Citation.]" (People v. Prieto (2003) 30 Cal.4th 226, 259.) "In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct. [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1146 (Gutierrez).)
Assuming for purposes of argument that the prosecutor's remark here misstated the law, an admonition clearly would have cured any harm. Therefore, the claim has been forfeited and is not reviewable on appeal. (Gutierrez, supra, 28 Cal.4th at p. 1146.)
Alternatively, Crooks contends that if the issue is deemed forfeited, defense counsel rendered ineffective assistance. Crooks maintains that counsel's failure to object and ask for an admonishment amounted to a denial of his right to the effective assistance of counsel.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to the defendant's claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
Prejudice must be proved affirmatively. The record must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury).) "Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense. [Citation.]" (People v. Moore (1988) 201 Cal.App.3d 51, 57.) "Failure to object rarely constitutes constitutionally ineffective legal representation [citation] ...." (People v. Boyette (2002) 29 Cal.4th 381, 424.)
Here, shortly after the prosecutor made the remark objected to by Crooks, the trial court instructed the jury:
"You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
Crooks does not contend the trial court erroneously instructed the jury on the presumption of innocence or the prosecution's burden of proof. We presume jurors are intelligent persons and capable of understanding and correlating all jury instructions that are given. (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) We also presume that jurors follow those instructions. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
The jury was instructed correctly on the presumption of innocence and the prosecution's burden of proof. The jury also was instructed correctly to follow the law as stated by the trial court, not the attorneys. In light of these instructions and the presumption that jurors apply and follow the instructions, we cannot conceive of any possible prejudice from the prosecutor's remark, assuming it was erroneous.
Consequently, we cannot conclude on this record that counsel's performance was deficient as there was no possible prejudice. (Maury, supra, 30 Cal.4th at p. 389.)
DISPOSITION
The judgment is affirmed.
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CORNELL, J.
WE CONCUR:
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WISEMAN, Acting P.J.
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GOMES, J.