Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC068025A
SIMONS, J.
Defendant Tommy Lee Anderson appeals his conviction by jury trial of two counts of petty theft with a prior conviction (Pen. Code, § 666) (counts 1 & 2) and receiving stolen property (§ 496, subd. (a)) (count 3). The trial court found true 14 prior felony convictions, including five “strike” convictions (§ 1170.12) and seven prior prison terms (§ 667.5, subd. (b)). He contends the prosecutor committed prejudicial misconduct during closing argument and the court’s admission of documentary evidence to prove the truth of the prior conviction allegations violated his rights under the confrontation clause (U.S. Const., 6th Amend.). We reject the contentions and affirm.
All undesignated section references are to the Penal Code.
Appellant was sentenced to 11 years in state prison.
BACKGROUND
Sometime during the first week of December 2008, Ethan O’Brien discovered that his car, parked in the driveway of his home on Hazelwood Boulevard in South San Francisco, had been ransacked and his iPod was missing.
About 9:00 p.m. on December 3, 2008, Christopher Gutierrez was in bed when his wife and son arrived at the family’s home on Greenwood Drive in South San Francisco. When Gutierrez got up to make sure the front door was locked, he saw a Black man dressed in black with a black beanie, walking southbound on the opposite side of Greenwood Drive. Gutierrez considered the man’s presence on the street at that time of night unusual. Gutierrez watched as the man approached and tried to open the doors of two different neighbors’ cars. Gutierrez called the police and then went back outside to continue observing the man. He saw the person walking northbound on the other side of the street, holding a briefcase which he had not had previously. Police arrived and Gutierrez gave a description of the person and what he had seen. Gutierrez was then taken to an in-field showup a mile from his home where he identified appellant as having the same clothing, height, weight, and ethnicity as the person he had previously seen. However, Gutierrez was not 100 percent sure that appellant was the person he had seen.
South San Francisco Police Officer Joshua Cabillo testified he interviewed Gutierrez at the scene before the in-field showup. About 10 minutes later, Cabillo noticed a person who matched appellant’s description. Cabillo turned on his marked patrol car’s red lights, exited the patrol car, and made eye contact with the person later identified as appellant. Appellant began to run, Cabillo yelled “stop, police” and Cabillo began chasing appellant on foot. Eventually Cabillo lost sight of appellant and radioed his location to other officers, who found appellant and arrested him. During a search of appellant’s person police found an iPod, a still lit flashlight, a Swiss army knife, loose change, and carwash tokens. At trial, O’Brien identified as his the iPod recovered from appellant.
About 9:30 p.m. on December 3, 2008, the police went to the Greenwood Drive home of Tenley Rosato, escorted her to her car and questioned her about its condition. Rosato noted the glove compartment was open and its contents disheveled; her Swiss army knife and container with change was missing. At trial, she identified the Swiss army knife and flashlight recovered from appellant as belonging to her. She said the volume of change recovered from appellant was about the same as that which had been in her car. The following morning, a neighbor of Rosato on Wildwood Drive found a briefcase in her driveway. Rosato identified the briefcase as the one missing from the trunk of her car.
About 10:45 p.m. on December 3, 2008, City of South San Francisco Police Officer Keawe Sham was continuing to look for vehicles that appeared to have been burglarized. He came upon a Toyota in the Brentwood neighborhood that had been reported stolen. Although appellant was listed as a suspect in that auto theft, fingerprints taken from the Toyota were not his.
On December 5, 2008, Michael Price, who resided on Wildwood Drive, discovered that his pickup truck had been ransacked sometime between November 30 and December 5. He later identified a Ziploc bag containing car wash tokens recovered from appellant as belonging to him.
DISCUSSION
I. Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct during his rebuttal argument that “trivializ[ed] the government’s burden of proof beyond a reasonable doubt.”
During his closing argument, defense counsel told the jury that proof beyond a reasonable doubt was the highest standard of proof and the jury only needed to agree on one piece of evidence pointing to appellant’s innocence to find him not guilty beyond a reasonable doubt. Thereafter, defense counsel stressed that no witnesses saw appellant near any of the cars that were broken into, appellant’s fingerprints were not found on any of the cars broken into and someone else’s fingerprints were found on the stolen car.
In his rebuttal argument the prosecutor stated: “Is the Defendant guilty? Now, ladies and gentlemen, I want you to think about putting together a puzzle. Because that’s kind of like what this case is about. And like some folks maybe you... try to put the outside of the puzzle together and then start filling it in from the edges. And as the puzzle begins you are just given the puzzle pieces initially, dumped onto the table. So you didn’t get the box. You don’t know quite what the picture is going to look like.
“And as you begin to fill in the pieces, you see that there is a green field, green area hilly on the right-hand side, green area on the left-hand side. You see there is a blue of one color at the bottom and a blue of another color at the top of this puzzle that you are piecing together.
“And the next thing you see are two large orange towers or spikes coming vertically from the bottom to the top. As you begin to put more and more pieces together, you put on what is the road bed of the Golden Gate Bridge. And though there may be one piece from the sky that’s missing, one piece from the Presidio side, one piece from the Marin Headlands and another piece from the Pacific Ocean beneath it. The fact that there are missing pieces does not leave you with a reasonable doubt that the puzzle that you have assembled is anything other than a picture of the Golden Gate Bridge.
“So ladies and gentlemen of the jury, just because nobody actually saw it, the taking, does not mean that the defendant, under the state of this evidence, is not guilty of counts 1 and 2.
“And that’s why I urge you to find him guilty of all three counts.”
Despite defense counsel’s failure to object below to the prosecutor’s challenged statement, we address the issue on the merits.
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]” (People v. Parson (2008) 44 Cal.4th 332, 359.) “Although counsel have ‘broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]’ ” (People v. Mendoza (2007) 42 Cal.4th 686, 702 (Mendoza).)
In support of his argument, appellant relies in large part on People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1264-1269 (Katzenberger). In that case, the prosecutor’s closing argument included a PowerPoint presentation in which six of eight puzzle pieces were shown one by one creating a picture immediately and easily recognizable as the Statue of Liberty, although a portion of the statue’s face and torch were not visible. (Id. at pp. 1264-1265.) Over objection that the exhibit demeaned the reasonable doubt instruction, the prosecutor argued that even without the missing pieces, one would know beyond a reasonable doubt that the picture depicted the Statue of Liberty, and that the jury’s task was to judge the case beyond a reasonable doubt. (Ibid.)
In addressing the defendant’s claim of prosecutorial misconduct, the Katzenberg court concluded the PowerPoint presentation misrepresented the proof beyond a reasonable doubt standard. (Katzenberger, supra, 178 Cal.App.4th at pp. 1265-1266.) The court stated the puzzle illustration left the “distinct impression that the reasonable doubt standard may be met by a few pieces of evidence” and “invite[d] the jury to guess or jump to a conclusion, a process completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.) Finally, the court stated the puzzle illustration inappropriately suggested a quantitative measure of reasonable doubt, i.e., 75 percent. (Id. at pp. 1267-1268.) However, Katzenberg concluded the error was harmless even under the higher Chapman standard (Chapman v. California (1967) 386 U.S. 18), because following the presentation the trial court said it would clarify the issue and proceeded to instruct the jury with the correct definition of reasonable doubt, and the case was not a close one. (Katzenberg, at pp. 1268-1269.)
Although not as problematic as the challenged argument in Katzenberg, the prosecutor’s argument in this case was impermissible. While it did not attach a specific numerical or percentage measure to reasonable doubt, its focus on the small number of missing pieces was misleading because the missing evidentiary pieces in this case—the lack of eyewitness identification and the lack of appellant’s fingerprints were significant. Had appellant objected to the prosecutor’s argument, the court would likely have sustained his objection and admonished the jury. Since an objection and admonition would have cured the error, appellant has waived the prosecutorial misconduct issue for appeal.
However, waiver notwithstanding, we conclude the prosecutorial misconduct was not prejudicial. The prosecutor did tell the jury, “The jury instructions are the law of the State of California.” The court instructed the jury on the correct definition of the beyond a reasonable doubt standard. The jury was also instructed that it must follow the law as explained to it by the court and must follow the court’s instructions if they conflict with the attorneys’ comments. It is presumed the jury understood and followed the court’s instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.) Thus, no prejudice occurred. (Mendoza, supra, 42 Cal.4th at p. 701.)
Appellant also asserts that defense counsel’s failure to object to the prosecutorial misconduct constituted ineffective assistance of counsel. Having concluded that the alleged misconduct was harmless error, we reject the ineffective assistance of counsel claim. (People v. Mendoza (2000) 24 Cal.4th 130, 170.)
II. Admission of Appellant’s Section 969b Packet Did Not Violate His Right of Confrontation
Appellant next contends that the trial court’s exclusive reliance on documentary evidence to prove the truth of his prior convictions violates his rights under the confrontation clause pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz).) In a related claim he contends that, in light of Crawford and Melendez-Diaz, section 969b is facially unconstitutional.
A bifurcated court trial was held on appellant’s prior conviction allegations. Without objection by appellant, the court admitted two of appellant’s 969(b) packets. “Section 969b permits the use at trial of certified records of penal institutions to establish that a person has been convicted of a crime or has served time in a penal institution.” (People v. Moreno (2011) 192 Cal.App.4th 692, 707 (Moreno).) The section 969b packets included fingerprint cards, abstracts of judgment, photographs, and California Department of Corrections and Rehabilitation (CDCR) logs reflecting the chronological history of actions pertaining to appellant. Each section 969b packet was accompanied by a cover page on CDCR stationery by a CDCR correctional case records employee certifying that the attached documents are true and correct copies of the original documents. This statement on each of the two cover pages is followed by the employee’s signature. One of the cover pages bears the official stamp of the CDCR.
Section 969b provides: “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.”
Despite defense counsel’s failure to object below to the court’s admission of the section 969b packets, we address the issue on the merits.
Appellant again asserts defense counsel’s failure to object constituted ineffective assistance of counsel.
The Sixth Amendment’s confrontation clause protects a criminal defendant’s right to confront and cross-examine the witnesses against him. In Crawford, supra, 541 U.S. 36, and its progeny, the United States Supreme Court has concluded that where a prosecutor attempts to introduce an out-of-court statement for its truth, even if the statement is admissible under state law hearsay rules, it is barred by the confrontation clause if the statement is “testimonial, ” unless the declarant was available at trial and subject to cross-examination, or if unavailable at trial, had been subject to an earlier cross-examination. (Davis v. Washington (2006) 547 U.S. 813, 821 (Davis); People v. Cage (2007) 40 Cal.4th 965, 978, fn. 7 (Cage).)
The Crawford court declined to spell out a comprehensive definition of “testimonial, ” but did articulate a “core class of ‘testimonial’ statements” covered by the confrontation clause. (Crawford, supra, 541 U.S. at p. 51.) These include “ ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorialy, ’ [citation]; ‘extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, ’ [citation]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’ [citation].” (Id. at pp. 51-52.)
In People v. Taulton (2005) 129 Cal.App.4th 1218 (Taulton), the court upheld the admission of documents submitted under section 969b against a Crawford challenge. The court stated that the records described in section 969b “are prepared to document acts and events relating to convictions and imprisonments. Although they may ultimately be used in criminal proceedings, ... they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue. Therefore, these records are beyond the scope of Crawford, and the court properly admitted them and considered them for the statutory purposes.” (Taulton, at p. 1225.) In People v. Morris (2008) 166 Cal.App.4th 363, 373 (Morris), the rationale in Taulton was extended to certified California Law Enforcement Communications System rap sheets admitted as proof of prior prison terms. Morris concluded the certified rap sheets are not testimonial hearsay and therefore their admission does not violate the confrontation clause under Crawford. (Morris, at p. 373.)
Recently, in Moreno, supra, 192 Cal.App.4th 692, the Fourth District considered the same issue raised by appellant—that admission of a section 969b packet violated the defendant’s right of confrontation under Melendez-Diaz. (Moreno, at pp. 709-710.) Moreno agreed with Taulton that the documents in the section 969b packet “are created primarily for the administrative purposes of the [CDCR]. ‘... [T]hey are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue.’ ” (Moreno, at p. 710, citing Taulton, supra, 129 Cal.App.4th at p. 1225.) Moreno stated, “Melendez-Diaz strengthens Taulton’s holding because, as the high court made clear, documents ‘created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial... are not testimonial.’ ” (Moreno, at p. 711, citing Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. pp. 2539-2540].)
Moreno also rejected the argument that the clerk’s certification of the section 969b materials is testimonial. (Moreno, supra, 192 Cal.App.4th at p. 711.) It noted that Melendez-Diaz distinguished forensic analyst reports, which were testimonial, from a nontestimonial clerk’s certificate authenticating an official record for use as evidence. “A clerk, the [Melendez-Diaz] court explained, ‘could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did [in Melendez-Diaz]: create a record for the sole purpose of providing evidence against a defendant.’ ” (Moreno, at p. 711.) Moreno held, “[t]he clerk’s certification of the materials in the 969b packet here are precisely the kind of authenticating affidavit approved of in Melendez-Diaz.” (Ibid.)
We agree with the reasoning and result in both Taulton and Moreno and reject appellant’s claim of evidentiary error. For the same reasons, we reject appellant’s assertion that section 969b is facially unconstitutional on the grounds that it cannot be applied without violating a defendant’s Sixth Amendment right of confrontation.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.