Opinion
G054246
02-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHNATHON ALLEN STANFIELD, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF0770) OPINION Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. BACKGROUND
On a dark, windy morning in March 2016, police found 25-year-old Johnathon Stanfield in the backyard of a house in Orange, crouching by the downstairs master bedroom French doors. He was wearing dark clothes and gloves. He was arrested on suspicion of attempted burglary.
His defense was that he was riding his bicycle back from his girlfriend's house that morning when two thugs approached him and said they were going to take his bike. He panicked, threw his bicycle at them, and ran to hide. In his desperation he made his way to the backyard where he was found.
When police found Stanfield he had no burglary tools. In fact he had nothing with which to carry off any loot. Nor were his fingerprints found on the lever to the door of the master bedroom. Nevertheless, he was convicted of attempted burglary, and given probation. He now contends the evidence was not sufficient to convict him, and that the prosecutor committed misconduct in her closing argument to the jury. He also questions one of the conditions of his probation, namely a requirement to stay away from the house and its occupant.
We affirm the judgment of conviction against the insufficiency of evidence argument. First, Stanfield's story breaks under its own weight. Second, the victim distinctly heard her door latch being tested, and her testimony in that regard bore up under intense cross-examination by Stanfield's trial attorney. A reasonable jury could conclude from that testimony that Stanfield did indeed intend to enter her house. Finally, the prosecutor's closing argument - particularly a statement about holding the defendant "accountable" - does not, when read in context, cross the line from allowable comment to reversible error.
We will, however, modify the sentence on appeal to make it reflect the trial judge's intent that the stay-away order was imposed as a condition of probation, as distinct from being a more typical domestic violence stay-away order. The problem is the judge simply used a handy, but inapplicable, judicial council form. As shown by the reporter's transcript, his intent was that the stay-away order function as a condition of probation. There is thus no need to reverse; a simple modification on appeal will do.
II. SUBSTANTIAL EVIDENCE
Since the facts in the case are coterminous with the substantial evidence issue, we will set them out in the context of that challenge. The substantial evidence issue turns on whether there was evidence Stanfield intended to enter the house for some larcenous purpose, or was merely hiding from two miscreants who had tried to take his bike. We begin with Stanfield's own testimony since it sets the stage for what turns out to be the prosecution's coup de grace on the issue of whether Stanfield actually intended to enter the house - the victim's testimony she heard someone testing her door latch. A. Stanfield's Story
Stanfield took the stand in his own defense and told this story: He lives in Villa Park, with his mother. His girlfriend lives in Anaheim Hills. On the night of March 23, 2016, he peddled from Villa Park to his girlfriend's place, arriving about half past midnight. The trip took about 40 minutes, slowed because the rear tire on his mountain-style bike was flat - as he described it, "completely flat." The tire had popped about two days before and Stanfield hadn't gotten around to fixing it.
Around 4:00 in the morning Stanfield headed back to his home in Villa Park. Heading south on Santiago, Stanfield rode his bike on the sidewalk, on the left-hand side of the road, facing traffic. He came across two men he described as possibly Hispanic and "thug-kind" of looking: They walked toward him on the sidewalk, blocking his way. Stanfield had long hair, and as he approached them, one of them said Stanfield looked "girlish with [his] hair and that they should jump [him] for [his] bike." They might also have used a derogatory term for a gay man.
About 10 feet from the two men, Stanfield panicked. He "jumped" off his bike and "threw" it toward the two men. Stanfield then ran past them. He decided not to ride away because he thought he would go faster on foot.
He felt like he was running for his life. He ran down the sidewalk. He turned a corner and ran onto a driveway that led to a white gate. He opened and closed the gate, ran to the back of the house, and crouched down by a window. He didn't call out for help for fear of giving away his position to the men who had scared him. But he never looked back to see if he was being followed, and admits he closed the gate behind him very softly.
As it turned out, the window was really a French door, a fact Stanfield would acknowledge on the stand. He said he chose the spot because he thought that if the thugs followed him, he might be able to hit the window or door to notify someone of his predicament.
But a sensor light came on, illumining Stanfield as he crouched by the door. At the time, he was dressed in a black hoodie and a black and red shirt and black shorts. And while he owns a phone, he told the jury he didn't have it with him to call for help.
A few minutes later Orange police officers, alerted by the homeowner who heard someone trying her French door, found Stanfield still crouching by the French doors, and arrested him. They noticed he was wearing baseball-type batting gloves with the fingertips cut off. His bike was never found. B. And Its Collapse
The superficial plausibility of Stanfield's story is the centerpiece of his appeal from his subsequent conviction of attempted first degree residential burglary. His opening brief notes several points in his favor in this regard. When he was found, he had no burglary tools on him. He had no backpack or any other way of carrying back loot. And no fingerprints were found on the lever to the door of the French doors. Stanfield thus argues that there is insufficient evidence to show he had an intent to enter the house for one of the nefarious purposes required by the statute. Given the "strong winds" that early morning, he asserts it is nothing more than speculation to conclude he tried the door lever to get in.
But on review, it is not hard to see why the jury disbelieved Stanfield's story. First and foremost, the homeowner heard someone rattling her French door. The jury was entitled to believe she could distinguish between wind rattling the doors and someone trying the handle. That would have been enough to support his conviction. The flat tire presents another flaw. A reasonable jury could readily believe that it would be impossible, on a "completely flat" rear tire, to achieve any locomotion on a mountain bike. And the flat tire would certainly make travel on a bike so slow and unsteady that no one would actually prefer it to walking. (Cyclists usually just walk their bikes when they have completely flat tires.) Stanfield himself impliedly recognized that point when he testified that in his flight from the two thugs he preferred to go on foot rather than try to generate any speed on the bike.
The significance of the flat tire story (as pointed out by the prosecutor in her closing argument) was that it had to be invented so as to provide some excuse for Stanfield's not doing the obvious when confronted by two sidewalk miscreants: turning around to "get the heck out of there."
Second, the story of the two thugs is problematic As the aerial pictures of the location show, there is a bike lane on Santiago at that point, which would have allowed Stanfield to get off the sidewalk in plenty of time to evade the two thugs by riding around them in the virtually non-existent traffic between 4:00 and 5:00 in the morning.
And, finally, there is the hiding place. In the backyard there was a walled off pool equipment area. This would have made a much better hiding place if Stanfield's real purpose was to hide, rather than to enter the dwelling.
In short, this is not just a case of a jury believing one witness over another. It is a case of a jury making reasonable judgments about Stanfield's story. We are in no position to question those judgments. C. The Evidence of Intent
That brings us to the intent issue. Mrs. V. owned the house by whose French doors Stanfield was found hiding. Mrs. V. testified that she lives in a house that is actually to the back of another residence on the property, with the two properties sharing a common driveway. In fact, Mrs. V.'s house is not visible from the street. Stanfield thus had to bypass the first house to reach the backyard of the second house.
Mrs. V. was lying in bed around 4:30 or 4:45 that morning. The French door has a lever that makes a distinct clicking sound if one even "checks" to see if is locked. As Mrs. V. testified, "Whether you call [it] a click or a noise, it has a very distinct noise. When somebody tries it, you can hear it."
And that morning Mrs. V. heard that distinct clicking noise. She looked through the shutters of the French door that comes into her bedroom and she saw something that looked like a body. She also heard "somebody push" against the door. The human form ducked down, suggesting it really was a human being. Mrs. V. called 911 and asked the operator to stay on the line with her.
If the jury had any doubts about whether Mrs. V. actually heard a click and then a push against the door from her testimony on direct, those doubts were removed in what proved to be a fairly relentless cross-examination mostly focused on what Mrs. V. could remember, in court, as to the precise words she used in her call to the 911 operator. (The jury had a transcript of the 911 call.)
The tactic backfired. Our review of the reporter's transcript reveals that on cross-examination there were no less than eight instances in which Mrs. V. stuck to her story about hearing a click and then a push.
Which is not to say it was even in the same zip code as ineffective assistance. Sometimes defense counsel must try to make bricks without straw, that is, focus of the weakest part of the prosecution's case even if the tactic risks ultimately strengthening the prosecution's case.
A reasonable jury could easily conclude that a longtime occupant of a house knows the distinct sound of the door handle to the outside of her bedroom being tested to see if it will open. The prosecutor in fact played a six-second video (People's 4) of the door handle being tested and Mrs. V. testified the video made the same distinct sound she heard that morning. Given such evidence, it would have been far more speculative of the jury to have concluded that the wind made the noises heard by Mrs. V. than that Stanfield made them.
III. ALLEGED PROSECUTORIAL MISCONDUCT
Stanfield's opening brief identifies three groups of statements made by the prosecutor in oral argument which he now asserts constituted prosecutorial misconduct. The first group revolves around the use of the word "accountable." The second group, says Stanfield, show the prosecutor improperly vouching for Mrs. V.'s testimony. And the third group are purportedly references to facts not in evidence at trial.
The argument about the second and third groups has been waived, because there was no objection to them at the time. (See People v. Jackson (2016) 1 Cal.5th 269, 367 ["By failing to object, Jackson forfeited his claim of prosecutorial misconduct . . . ."].) As to the first group (references to accountability), we think that the two uses of the word "accountable" were, in context, simply requests for the jury to find the defendant guilty.
While the opening brief attempts to make the accountability references seem like they were peppered throughout the prosecutor's argument, in fact they are all found in a single paragraph at the bottom of page 300 in the reporter's transcript, plus a few brief words on page 301. The prosecutor had just finished making the point that one doesn't need burglary tools to commit a burglary, and no actual entry is required to attempt a burglary. She then elaborated on the distinction between attempted burglary and completed burglary, and it was in that context she made the statements on which Stanfield bases his accountability prosecutorial misconduct argument here.
"We know that the defendant was executing a plan with specific intent to enter and commit some type of crime when inside the home. Public policy tells us we do not have to wait for someone to actually gain entrance into it for it to be crime. Public policy tells us we do not have to wait until someone tries to execute that plan with a gun, a knife, or some type of weapon in order for it to be a crime. Public policy detours bad behavior. Entering someone's yard at 5 a.m., dressed the way you are, gloves, jiggling door handles, pushing your body against door handles, that's bad behavior. I ask you to hold the defendant accountable." "The court: Were you finishing?
"Ms. Etemadian: Yes, your honor.
"The court: All right. Finish.
"Ms. Etemadian: I ask you to hold the defendant accountable. Why?
"Ms. Salazar: Objection, your honor.
"Ms. Etemadian: We know -
"The court: No, overruled. It's argument."
Defense counsel's objection to the statements was overruled. But though the objection was overruled, the prosecutor clarified her argument, essentially retracting the accountability thought and merely reiterating a prosecutor's standard burden of proof in its stead: "Now, don't get me wrong. My burden isn't accountability. My burden is to prove this case to you beyond a reasonable doubt and the evidence, as it came out from that witness stand, the exhibits that have been entered for your review, has done that. It has proved each and every element of this crime beyond a reasonable doubt."
While the word "accountable" is not the most felicitous synonym for guilty, in context it appears to be no more than a way of urging a guilty verdict. Moreover, given the prosecutor's prompt and explicit retraction, any crossing of the line was harmless beyond a reasonable doubt.
The second and third group of statements now claimed as prosecutorial misconduct were not, even if there had been objections to them. The rule against vouching for a witness arises from the concern that prosecutors must not invoke the prestige of their office or their personal reputation, prestige or experience to bolster their case. (See People v. Bonilla (2007) 41 Cal.4th 313, 336-337.) The talisman of such misconduct is the suggestion the prosecutor is aware of evidence outside the record. (Id. at p. 336.) That didn't happen here: Noting a witness was "clear in her testimony" (alleged misconduct 1), or had no reason to lie (alleged misconduct 2) do not go outside the record. And while the prosecutor 's use of the word "truthfully" (saying Mrs. V. "truthfully testified about hearing the clicking sound (alleged misconduct 3)) was arguably treading close to the line of suggesting extra-record knowledge, we see it here as harmless beyond a reasonable doubt, even if erroneous. Defense counsel had spent a good deal of her case trying to attack Mrs. V.'s credibility on the clicking sound, and had failed repeatedly. The use of the word "truthfully" was, in context, an assertion of what the jury already knew - Mrs. V. had stuck to her story under intense cross-examination.
As to facts not proved at trial, Stanfield is only belatedly objecting to reasonable inferences that the jury itself could readily draw from the evidence before them. (See People v. Peoples (2016) 62 Cal.4th 718, 796 [prosecutors are given wide latitude to comment on the evidence and draw reasonable inferences from it].) We take those comments in quick order:
(1) Stanfield pressed down with his palm on the lever of the door. This was an inference supported by his wearing gloves and Mrs. V.'s testimony she heard a click. How could the door handle have been tried if it wasn't pressed down?
(2) Stanfield made a second attempt pushing at the door. This is a reasonable inference from Mrs. V.'s testimony she heard a push after the click.
(3) Stanfield knew there was a slope in the back and a gutter drain that goes to Santiago Road. These are facts obvious to anyone who looks at the property (see, for example, People's exhibit 3), as Stanfield did.
(4) Mrs V. saw the person who was manipulating the door handle crouch down beside her door. This was a reasonable inference from Mrs. V.'s testimony she saw a single figure outside the door, heard the handle click, saw someone crouch down, and only Stanfield was found there when police came.
(5) We know the bike was not in the backyard but whether it was hidden elsewhere we are not sure. This is a reasonable inference from the fact no bike was found.
(6) We know that he had gloves on covering most of his fingerprints and we know someone's fingerprints were on that door handle. To be sure, the assertion of fingerprints on the door handle appears to be an incorrect statement on the prosecutor's part. An Orange police officer testified that the lever was dusted for fingerprints and none were found. However, this was mere misstatement, a slip of the tongue, and in context harmless. Importantly, earlier in her oral argument the prosecutor had emphasized the absence of any fingerprints on the door lever, including Mrs. V.'s. The point was made to minimize the obvious defense point that Stanfield's fingerprints were not on it either: "We also know one other thing, not a single fingerprint was found on that door, meaning, [Mrs. V.] our victim, who has lived in that home for - I believe she said over 20 years, she hadn't left any fingerprints on that door handle."
If there had been fingerprints, it would have been great news to the defense which could have used the fact none were introduced as evidence someone else tried the door. But it could not, as the case played out, have hurt the defense that the prosecutor misspoke on this occasion. It could only have helped.
IV. STAY AWAY ORDER
After Stanfield's conviction for first degree residential burglary the prosecutor recommended a mid-term (two-year) sentence, giving Stanfield credit for time served, with the remainder of the term to be served on probation. The trial judge was skeptical of the leniency of the recommendation, and expressed concern about Stanfield's having dropped out of a "program" in a prior - apparently drug possession - case. Nevertheless the court went along with the recommendation despite the fact the case involved an elderly victim.
The prosecution also requested a protective order, given the "particularly elderly and vulnerable victim." Defense counsel objected, pointing out it wasn't "a domestic violence case," but the court signed and issued the protective order.
The order, however, was on a Judicial Council form, CR-161, which referenced two statutes, Penal Codes section 136.2 and 646.9, subdivision (k). Section 136.2 is for witness intimidation, and the box in the caption for an order pursuant to it was not checked. The box for section 646.9, subdivision (k) was checked, but that statute only applies to stalking situations. In this case, there are no facts to suggest either witness intimidation or stalking. Imposing a stay-away order pursuant to an inapplicable statute can result in the order being stricken (e.g., People v. Robertson (2012) 208 Cal.App.4th 965, 996) or, sometimes, in a remand for a reconsideration under an applicable statute (e.g., People v. Selga (2008) 162 Cal.App.4th 113, 120 (Selga)).
All further statutory references are to the Penal Code.
Section 646.9, subdivision (k) provides: "(1) The sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. [¶] (2) This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation."
Subsection (a) of section 646.9 shows that "the victim" being referred to is a person who has been harassed or threatened by someone guilty of stalking: "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison."
Selga is particularly instructive here. In Selga, the trial court imposed a protective order under section 1203.097, which applies to domestic violence cases. The appellate court held that was an abuse of discretion since the case did not involve domestic violence. (Selga, supra, 162 Cal.App.4th at p. 120.) But the Selga court also noted that there is a general statute, section 1203.1, which permits stay-away orders as a condition of probation. (See also People v. Lent (1975) 15 Cal.3d 481, 486 ["a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality"].) Accordingly, the Selga court thus remanded the case for the trial court to "exercise its discretion under section 1203.1." (Selga, supra, 162 Cal.App.4th at p. 120.)
In particular we note subdivision (j) of section 1203.1: "The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer, and that should the probationer violate any of the terms or conditions imposed by the court in the matter, it shall have authority to modify and change any and all the terms and conditions and to reimprison the probationer in the county jail within the limitations of the penalty of the public offense involved." (Italics added.)
The Judicial Council might want to consider a separate form for stay-away orders pursuant to section 1203.1. --------
In the case before us we need not go through anything so convoluted. The reporter's transcript shows that the prosecutor's recommendation was in the context of probation, as distinct from domestic violence, or stalking: "And the reason for the People's recommendation is Mr. Stanfield's limited criminal history and the fact that the People are asking for probation in order to have a valid protective order protecting the victim of this crime and ordering Mr. Stanfield to stay 100 yards away from her person and her home." (Italics added.) Unlike the Selga court, we already know that the trial judge wanted to exercise his discretion as a corollary to a grant of probation. We can amend the order to conform to the court's intention as expressed in open court. (See In re P.A. (2012) 211 Cal.App.4th 23, 30, fn. 4.)
V. DISPOSITION
The judgment is modified so that it is clear the protective order is imposed as a general condition of probation pursuant to section 1203.1, not section 646.9. Specifically, we therefore hereby amend the "criminal protective order - other than domestic violence" filed September 23, 2016 to say "Penal Code, § 1203.1" in the box now checked as "Penal Code, § 646.9(k)." As modified, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. IKOLA, J.