Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09HF2038, Gary S. Paer, Judge.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O’LEARY, J.
We appointed counsel to represent Juan Carlos Villeda on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court no issues were found to argue on his behalf. We gave Villeda 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court in conducting its independent review counsel set forth the facts and provided the court with information as to one issue that might arguably support an appeal. We have reviewed the information provided by counsel and have independently examined the record. We found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the judgment.
FACTS
Late one evening, Thomas Mevellec-Sagnier returned home, parked and locked his car, and went inside for a few minutes to take a telephone call. Sagnier left numerous personal items in the car including a surfboard, a backpack with a computer, an iPod, and his wallet and passport. When he went outside he saw Villeda, a stranger, rummaging around in his car. He also saw his backpack and surfboard had been removed from the car and were on the ground.
Sagnier asked Villeda what he was doing. Sagnier saw his wallet in Villeda’s hand and grabbed it. Villeda took a bottle of liquor out of his pocket and moved towards Sagnier. Villeda began waving the bottle towards Sagnier and demanded money from him. As Villeda approached him, Sagnier was fearful Villeda might break the bottle on his head. Sagnier stepped back and began calling 911. While he was on the telephone, Sagnier saw Villeda walk away with the backpack on his back and the surfboard under his arm.
After the police arrived, Sagnier returned to his car and discovered the driver’s side window had been shattered and his car stereo was missing. An officer arrested Villeda at the scene, and Sagnier’s iPod charger, headphones, and sunglass case were found in Villeda’s sweatshirt pocket. When Villeda was questioned at the police station, he was observed to be intoxicated but coherent.
Villeda denied any criminal involvement on the night of the incident. Villeda maintained that as he was walking home, Sagnier ran up to him and grabbed him. Villeda explained this almost caused him to drop the liquor bottle he was carrying. Villeda feared he was going to be stabbed or robbed. When Villeda pushed Sagnier away, Sagnier stumbled. As he began to get up, Sagnier started reaching for his pocket. At this point, Villeda ran away.
An information charged Villeda with attempted second degree robbery (Pen. Code, §§ 664, subd. (a), 211, 212.5, subd. (c)), and second degree vehicle burglary (Pen. Code, §§ 459, 460, subd. (b)). A jury convicted Villeda of both counts. The trial court suspended imposition of the sentence and placed Villeda on three years of supervised probation under the usual felony probation terms. As a condition of probation, the court ordered Villeda to serve 365 days in the county jail. Villegas filed a timely notice of appeal.
DISCUSSION
Pursuant to Anders, supra, 386 U.S. 738, counsel noted one potential claim: “[Was] the prosecutor’s unobjected-to mention in closing argument that lots of people leave bars drunk and do not know how they got home was prejudicial misconduct?” Counsel cites People v. Redd (2010) 48 Cal.4th 691 (Redd), and People v. McDermott (2002) 28 Cal.4th 946 (McDermott).
Where the defendant fails to object to a prosecutor’s comment during closing argument on the grounds it is improper, defendant has forfeited this contention on appeal. (Redd, supra, 48 Cal.4th at p. 741.) “Generally, ‘“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] This general rule, however, does not apply if a defendant’s objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct; nor does it apply when the trial court promptly overrules an objection and the defendant has no opportunity to request an admonition. [Citation.]” (McDermott, supra, 28 Cal.4th at p. 1001.)
We conclude that because Villeda did not object the prosecutor was referring to evidence outside the record or was otherwise improper, he has forfeited this contention on appeal. Even if we were to consider this issue on the merits, we find no error. Although there was no evidence that “lots of people leave bars drunk and do not know how they got home, ” we do not find the comment improper. A prosecutor may comment on matters outside the record if such matters are common knowledge. (People v. Cunningham (2001) 25 Cal.4th 926, 1026.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.