Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA082995, James B. Pierce, Judge. Affirmed.
Stanley L. Friedman for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury convicted defendant Thomas Martin of first degree burglary (Pen. Code, § 459) and stalking (§ 646.9, subd. (a)). The court (following his jury waiver) found true allegations the he had suffered one prior strike conviction (§§ 667, subds. (b) – (i); 1170.12, subds. (a) – (d)) and had served two prior prison terms (§ 667.5, subd. (b)). He was sentenced to 19 years in state prison. He appeals from the judgment of conviction, contending: (1) erroneously admitted evidence and prosecutorial misconduct require reversal; (2) the trial court erred in denying defendant’s motion for a new trial; (3) the trial court erred in preventing defendant from cross-examining the victim, Green Whittaker, about her prior drug use; and (4) the trial court misunderstood its sentencing discretion and was estopped from sentencing defendant to more than 18 years in state prison. We affirm.
All further section references are to the Penal Code.
BACKGROUND
Defendant’s opening brief fails to contain a statement of facts. (See Cal. Rules of Court, rule 8.204(a)(2)(C) [brief must “[p]rovide a summary of the significant facts limited to matters in the record”]; rule 8.204(a)(1)(C) [brief must “[s]upport any reference to a matter in the record by a citation to a volume and page number of the record where the matter appears”]; rule 8.360(a) [with exceptions not here pertinent, briefs in criminal cases “must comply as nearly as possible with rule[]... 8.204”].) It is not our burden to review the evidentiary record on defendant’s behalf when defendant fails to include adequate references to the record. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) Therefore, we provide only a brief summary of the evidence introduced at trial. Having failed to include a statement of facts, defendant “cannot be heard to complain that we have overlooked any disputed or undisputed material facts” (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435-436, fn. 2) and cannot challenge the sufficiency of the evidence (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu)).
All further rule references are to the California Rules of Court.
Prosecution Evidence
In April and May 2009, defendant sometimes spent the night at the condominium of a woman, Green Whittaker, with whom he was friends. Although he sometimes slept in her bed, they were not involved romantically or physically. One morning, Whittaker awoke to find defendant trying to perform oral sex on her. She kicked him away, and he said that he did not mean it. On another occasion, after drinking cocktails made by defendant, Whittaker fell asleep or passed out. When she awoke, her pants were down around her ankles. On a third occasion, at the end of April or early May, defendant “blew up” at Whittaker, cursing and flailing his arms, and slamming the door as he left.
Frightened, Whittaker attempted to end all contact with defendant. However, he continued to call and text her several times a day. Following a brief attempt by Whittaker to give defendant a second chance, in early July 2009 she broke off contact again, and defendant began a course of harassment that included such things as hanging an offensive sign on her building, leaving obscene phone messages, and calling and texting many times each day. He rode his bicycle in the alley outside her home and yelled her name. He appeared at the junior college where she attended classes. Because of this conduct, Whittaker became afraid of defendant, even being fearful of turning on the lights in her residence because it might signal to defendant that she was home.
Upon returning to her residence in the early morning hours of July 24, 2009, she tried to use her remote control to close the garage door but found that the cable had been cut. As she called 911, the door leading to the lobby opened. Defendant appeared, and ran back inside. Whittaker continued to talk to the 911 operator, telling her that defendant had been stalking her, that she was “not putting anything past him, ” and that he had just gotten out of jail and was on parole.
A recording of the 911 call was played for the jury.
Long Beach Police Officers Brian Dapello and Matthew Heady responded. They observed Whittaker to be hysterical, shaking and stuttering. Whittaker’s key to the elevator was missing from the place where she kept it in the garage. In the past, defendant had seen where Whittaker kept the key. Whittaker’s roommate came downstairs and brought Whittaker and the officers upstairs. Whittaker’s closet and bedroom had been ransacked and several personal items including jewelry were missing. Some of the property was later discovered outside under a car.
A few days later, defendant began calling Whittaker again and sent mail and email to her containing love notes and explicit sexual comments. In an attempt to stop the harassment, Whittaker agreed to meet defendant at a hotel where they had drinks. She told defendant that she was scared, asked him to stop the harassment, and asked him to return her things. Defendant apologized, admitted that he had broken in, and said that he would return her things.
After the meeting, the harassment continued, including telephone messages. In one, defendant said “you kinda fucked with the wrong person” and “what you’re doing is unacceptable.” In another, he said, “nobody has to go back to prison, ok. Both of us have allowed drugs to control the situation ok, I got like a day and half of uh not doing it, um, everything is completely different than when I’m fucking around with that.” In still another, he said that if she did not “do the right thing” “before the authorities get in” then “you’re the one that’s gonna get fucked, ok, ” and “you ain’t got enough money to fuck with me.” He left other messages, demanding that she call him.
Whittaker interpreted defendant’s frequent calls and statements as threatening, and was still afraid at the time of trial.
Defense Evidence
When Officer Rocio Gonzalez interviewed Whittaker, she said that she and defendant had kissed and had oral sex in the beginning, but were just friends. When Whittaker spoke to Officer Brian Depello, she said that she and defendant had not had a sexual relationship.
According to CJ Gallina, defendant came to her apartment at some point on the night of July 24, 2009, but she was uncertain as to the time, perhaps around 1:00 a.m.
DISCUSSION
Prosecutor’s Allegedly Prejudicial Comments and Evidence
Defendant contends that his convictions must be reversed, because the trial court erred in admitting certain prejudicial evidence and because the prosecutor committed prejudicial misconduct in referring to that evidence in his opening statement and closing argument. However, as we have noted, defendant’s opening brief contains no statement of facts. This irregularity is aggravated because his arguments likewise fail to refer to the entirety of the trial evidence so as to put the purported errors in context or properly explain how the errors were prejudicial. Therefore, by his violation of settled rules of appellate procedure, he has failed to rebut the presumption of correctness on appeal and has forfeited all his claims contending that prejudicial evidentiary errors and prosecutorial misconduct require reversal. (See People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [failure to specify how evidence failed to support the verdict forfeited the contention]; Nwosu, supra, 122 Cal.App.4th at p. 1246 [argument forfeited when not supported by adequate citations to the record].)
In the alternative, we briefly dispose of the claims.
Defendant contends that the prosecutor “injected significant prejudice” in his opening statement by referring to the evidence, later introduced at trial, that on one occasion Whittaker awoke to find defendant performing oral sex on her. It appears that defendant is contending that the comment constituted misconduct. However, defense counsel objected to the comment only on the ground that he had not received any reports concerning the incident. The prosecutor explained that Whittaker had told him of the incident and that he had given the defense all the details he had. There was no further objection. Thus, any objection on the ground of misconduct was forfeited. (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
Similarly, to the extent defendant contends that the testimony was later improperly admitted at trial, he failed to object to the evidence, and thus has forfeited the claim. (People v. Guerra (2006) 37 Cal.4th 1067, 1122 (Guerra), overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) In any event, the evidence of oral copulation, as well as all the other evidence of defendant’s sexualized conduct toward and statements to Whittaker (on appeal defendant complains of several incidents, none of which was objected to and thus cannot be challenged) was admissible to prove defendant’s misapprehension as to the nature of his relationship with Whittaker, his resultant motive and mental state in burglarizing her residence and in stalking her, and the reasonableness of Whittaker’s fear of defendant as relevant to the stalking charge. (See § 646.9, subd. (g) [element of “credible threat” for stalking requires that victim “reasonably fear for his or her safety or the safety of his or her family”].)
Defendant contends that the prosecutor prejudiced the jury by eliciting testimony from Whittaker and presenting other evidence showing that she knew defendant had been in prison and was on parole. He also contends that the prosecutor improperly referred to such evidence in argument. However, Whittaker’s knowledge of defendant’s prison past was admissible on the stalking charge, as relevant to prove the reasonableness of Whittaker’s fear for her safety from defendant’s conduct and statements. That is, Whittaker’s knowledge of defendant’s prison past helped explain why Whittaker interpreted defendant’s harassment as threatening (as she told the 911 operator, “I’m not putting anything past him at this time.... Again, he just got out of jail, on parole.”). (People v. Uecker (2009) 172 Cal.App.4th 583, 597-598 [evidence that defendant told victim he was a registered sex offender properly admitted to support victim’s fearful interpretation of defendant’s conduct and statements]; People v. Garrett (1994) 30 Cal.App.4th 962, 966-967 [evidence that victim knew defendant had a prior conviction of manslaughter admissible to prove reasonableness of victim’s fear].)
Defendant contends that the trial court erred in admitting, and that the prosecutor committed misconduct in argument by referring to, evidence that defendant had used drugs. Defendant forfeited the claims by failing to object at trial. (Guerra, supra, 37 Cal.4th at p. 1122.) In any event, defendant’s drug use was relevant to explain his harassing behavior. As he said in one of his phone messages, “[b]oth of us have allowed... drugs to control the situation ok.... [E]verything is completely different than when I’m fucking around with that.” Moreover, the evidence of drug usage was not unduly prejudicial, given that defendant had hung a sign on Whittaker’s building that said, among other things, that Whittaker was “a drug addict” and that she had “drug dealers going in and out of [her] place.”
Denial of New Trial Motion
Defendant contends that the trial court erred in denying his motion for a new trial. He fails to cite to applicable authority and makes inadequate reference to the record. Therefore, the contention is forfeited. (Stanley, supra, 10 Cal.4th at p. 793 [failure to support argument with citations to relevant authority and record forfeits contention].)
Cross-Examination of Whittaker
Defendant contends that the trial court erred in ruling that he could not cross-examine Whittaker about her past drug use. He has forfeited the contention by failing to adequately cite to the record and present reasoned argument. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).) In any event, the contention is meritless. Defendant sought to introduce testimony of witnesses that they had used drugs with Whittaker in the past, arguing that it was relevant to her credibility because she had purportedly testified at the preliminary hearing that she had only used drugs once. The trial court excluded such evidence under Evidence Code section 352. We find no abuse of discretion. At the preliminary hearing, Whittaker testified merely that she had used drugs with defendant once (“Q. You and Mr. Martin take drugs together? [¶] A. Once.”). Moreover, evidence of her drug use other than when she made pertinent observations relevant to the charges did not reasonably tend to attack her credibility as a witness and was unduly prejudicial.
Sentencing
Defendant contends that the trial court misunderstood its sentencing discretion under the 2007 amendments to section 1170, subdivision (b), and People v. Sandoval (2007) 41 Cal.4th 825, 847 [trial court has “broad discretion” under the amended sentencing scheme]. His sole argument is that “the sentencing judge failed to take into consideration such discretion when he calculated the sentence in the mechanical way he did.” Because he fails to support the contention with reasoned argument and citation to relevant authority, and fails to adequately cite to and explain the relevant record, the claim is forfeited. (Stanley, supra, 10 Cal 4th at p. 793; Badie, supra, 67 Cal.App.4th pp. 784-785.) Moreover, he failed to object in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith) [claims involving court’s failure to properly exercise sentencing discretion are forfeited absent an objection in the trial court].) In any event, we have examined the record, and nothing supports the notion that the trial court misunderstood its sentencing discretion.
Defendant contends that the trial court was estopped from sentencing him to more than 18 years, because, when he rejected the prosecution’s pretrial offer of a nine year sentence in exchange for a guilty plea, the trial court asked the prosecutor, “So max of 18 and an offer of nine?”, and later referred to the maximum possible sentence as “somewhere around 18” years. The claim is forfeited, because it amounts to a claim that the trial court had promised not to sentence him to more than 18 years, and that he relied on that promise in electing to go to trial. It is thus tantamount to a challenge to the manner in which the trial court exercised its discretion in sentencing defendant to 19 years and defendant failed to object below. (See Smith, supra, 24 Cal.4th at p. 852.) In any event, the doctrine of estoppel does not apply because, among other reasons, the court’s comments cannot reasonably be construed as an assurance that defendant could not be sentenced to more than 18 years if he was convicted after trial, and there is nothing in the record to suggest that defendant relied on the trial court’s statements. Indeed, defendant’s attorney simply informed the court: “My client would prefer to have a trial.”
Ineffective Assistance of Counsel
For the first time in his reply brief, defendant contends that to the extent his appellate contentions are forfeited by trial counsel’s failure to object, he received ineffective assistance of counsel. Because it is first raised in the reply brief, the contention is forfeited. (People v. Zamudio (2008) 43 Cal.4th 327, 353-354.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J.SUZUKAWA, J.