Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Michele D. Levine No. RIF142521, Judge.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Following a jury trial, defendant Jeffery Maxwell Bench was convicted of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and was sentenced to four years in state prison. He appeals the conviction claiming (1) his trial counsel was ineffective for failing to object to prosecutorial misconduct during closing argument; and (2) the trial court erred in instructing the jury it could consider defendant’s failure to explain or deny evidence against him. We affirm.
BACKGROUND
A. Evidence Presented by the People
At approximately 8:00 a.m. on the morning of April 2, 2008, the victim, who owned a 1998 Ford Explorer, went into his garage to start the engine and allow it to warm up, and reentered the house. Shortly thereafter, as he was ready to leave for work, he instructed his daughter to get into the car, only to discover the car was gone from the garage. The theft was reported to authorities.
At approximately 11:00 a.m. that morning, defendant arrived at the residence of Dawn S., whom he had met on the internet, driving the 1998 Ford Explorer, and he asked her to alter some suits for him. Defendant asked Dawn how she liked his new car, and he asked her to help him get some software out of the car with him. Defendant had the keys to the car and drove to Dawn’s residence alone.
About 20 minutes after defendant arrived, Dawn noticed the police. Sheriff’s Deputy Giallorenzo had been on patrol when he detected a LoJack signal. Using his global positioning system (GPS), he located the vehicle parked in front of the house where Dawn lived. He waited for backup to arrive and set up a perimeter around the house.
When defendant noticed the police, he told Dawn to tell them that somebody had parked the car, got out, and walked away, and that she did not know who it was. Defendant then went to the living room and threw the car keys behind her television. When Deputy Giallorenzo contacted Dawn, he asked her if she knew anything about the vehicle and Dawn related that Jeff had brought it. Deputy Giallorenzo detained the defendant and recovered the keys from behind the television. He also searched the vehicle, retrieving computer certificates in defendant’s name, two guitars, several men’s suits with store tags on them, miscellaneous computer software, and some items that belonged to the victims.
At the station, while defendant was being booked, another deputy asked Deputy Giallorenzo what he had picked defendant up for, and Giallorenzo explained he picked defendant up on a LoJack hit. Defendant stated he did not realize the car had LoJack; he thought Dawn had called the police. During a post-arrest interview, defendant told the deputy that Dawn had picked him up in the car at 3:00 a.m., but the deputy knew the car was not stolen till 8:00 a.m. He also told the deputy that he figured something was wrong with the vehicle but he had an interview to get ready for.
B. Evidence Presented by Defendant
Defendant testified in his own defense. He admitted he had two prior convictions, one for burglary and one for stalking, and he pled guilty to each charge. At the time, he lived at a sober living home with several roommates. At 8:00 a.m. on the day of the vehicle theft, he went to a bus stop to catch a bus to Banning where he had a storage unit. While he waited at the stop, one of his roommates drove up in a Ford Explorer. He had never seen his roommate with a car previously, but he knew his roommate had gone to his mother’s house the previous night and assumed the roommate was driving his mother’s vehicle.
The roommate initially offered to give defendant a ride to his storage unit. However, they drove back to the sober living home and the roommate allowed defendant to use the car to go to Banning alone. Defendant drove the Explorer to Banning and picked up some suits and some computer certificates because he had a job interview the next day; he also picked up two guitars. Then he drove to Dawn S.’s house to have the pants tailored for his interview. Dawn asked defendant where he got the new car, and defendant told her he borrowed it from a friend. When Dawn noticed the police outside her house, she stuffed a baggie of methamphetamine in her bra. At the time, Dawn was in the front room and defendant was in the back room looking out the back window. Dawn had the keys to the Explorer because she had helped defendant get items out of the car. Defendant did not see or know where the keys went.
The police asked defendant about the truck he had driven and defendant said it was not his truck. He told the officer he got the car on consignment, which defendant understood to mean he borrowed it. During booking, defendant did not state he did not know that there was a LoJack; he said he thought the officer told him that she had called the police. When he was interviewed, he could not tell the officers he got the car from his roommate because he feared retaliation. Instead, he tried to give hints to the officer by suggesting that if he fingerprinted the vehicle he would find out who took the car without defendant having to name him.
Defendant thought his roommate had permission to lend him the car, and did not recall making a statement to Deputy Giallorenzo that he figured something was wrong with it. Defendant denied telling Dawn what to tell the police about how the car came to be parked in front of the house. He believed she lied to protect herself because of the methamphetamine issue. Defendant denied telling Deputy Giallorenzo that Dawn was driving the car.
C. Procedural Background
Defendant was arrested and charged with unlawful driving or taking a motor vehicle (Veh. Code, § 10851, subd. (a), count 1), and receiving stolen property. (Pen. Code, § 496d, subd. (a), count 2.) It was further alleged that he had suffered two prior convictions for which he had served separate prison terms. (Pen. Code, § 667.5, subd. (b).)
Following a jury trial, defendant was convicted of the unlawful driving charge in count 1, and found not guilty of the receiving stolen property charge in count 2. On July 11, 2008, the court conducted a court trial on the prior conviction allegations and found both enhancement allegations were true. On August 22, 2008, defendant was sentenced to four years in state prison, and he appealed the same date.
DISCUSSION
1. Trial Counsel’s Failure to Object to the Prosecutor’s Argument Does Not Require Reversal.
Defendant argues his conviction must be reversed due to ineffective assistance of counsel during the prosecutor’s argument. Specifically, defendant claims he was prejudiced by his counsel’s failure to object when the prosecutor (a) vouched for the credibility of witness Dawn, (b) made references to facts not in evidence, (c) commented that defendant’s prior convictions showed a propensity to steal, and (d) misrepresented the burden of proof. Although we agree the prosecutor’s argument was improper, we do not agree that counsel’s failure to object requires reversal because there was no probability a different result would have occurred.
To demonstrate that his right to effective assistance of counsel was violated, defendant must satisfy a two-pronged test: He must show (1) performance below an objective standard of reasonableness by his attorney, and (2) prejudice sufficient to establish a reasonable probability he would have obtained a more favorable result in the absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).)
Unless a defendant establishes the contrary, we presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Tactical decisions are generally not deemed reversible, and counsel’s tactical decisions must be evaluated in the context of all the available facts. (Strickland v. Washington, supra, 466 U.S. at p. 690.) The rule is particularly apt when the asserted deficiency arises from defense counsel’s failure to object. “[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Defendant appears to understand that counsel’s failure to object to any of the prosecutor’s comments during summation forfeited the issue of prosecutorial misconduct for appeal. (People v. Friend (2009) 47 Cal.4th 1, 29.) A defendant whose counsel did not object to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s right to effective assistance of counsel, but the appellate record rarely demonstrates that the failure to object was the result of counsel’s incompetence. (People v. Salcido (2008) 44 Cal.4th 93, 152.) Where the record does not show the reasons for counsel’s failure to object, the conviction must be affirmed unless there could be no satisfactory explanation for the failure. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
A. The Prosecutor’s Comments Were Improper.
Defendant contends the prosecutor committed misconduct during argument.
It is misconduct for the prosecutor to argue facts outside the record (People v. Bolton (1979) 23 Cal.3d 208, 212), to “vouch” for a witness (People v. Williams (1997) 16 Cal.4th 153, 256-257), to misstate the law or the testimony (People v. Seaton (2001) 26 Cal.4th 598, 663), or invite jurors to consider defendant’s prior convictions as propensity evidence. (People v. Bolton, supra, at p. 212.)
In the present case, the prosecutor argued that Dawn was a credible witness because a rap sheet had been run and showed no criminal history. The prosecutor also referred to other theft cases she had prosecuted in arguing that usually a defendant will give her a name (referring to the person who took the car and lent it to defendant), but that here the defendant did not give a name. The prosecutor also volunteered that defendant and his family would have been protected by the witness protection program, a matter not brought out in testimony. The prosecutor also argued, in response to an assertion by the defense that during defendant’s testimony, the deputy suddenly remembered some additional incriminating statements made by defendant that were not included in his report, that the omitted statement had been provided to the defense prior to trial, prompting an admonishment from the court.
Further, the prosecutor commented on defendant’s prior convictions in arguing that the burglary conviction was a theft charge which showed the defendant has the ability to steal things. Finally, in discussing the burden of proof, the prosecutor reminded the jury not to speculate, and then rhetorically asked, “Did he do it? Is the defendant’s story reasonable?” Each of these arguments was objectionable as improper. The next question is whether counsel’s failure to make a timely objection to the improper argument deprived defendant of effective assistance of counsel.
B. Counsel’s Failure to Object to the Improper Argument Does Not Require Reversal.
Respondent acknowledges that the prosecutor made some improper arguments. However, that does not compel a reversal. Because defense counsel failed to object to any instance of improper argument, the defendant has the burden on appeal of demonstrating that the result would have been different but for counsel’s error. (Strickland, supra, 466 U.S. at p. 694.) It is here that defendant’s argument must fail.
First, although improper, the arguments of counsel generally carry less weight with a jury than do instructions from the court. (People v. Mendoza (2007) 42 Cal.4th 686, 706.) The court instructed the jury that if the attorneys’ comments on the law conflict with the instructions, they must follow the instructions and that nothing the attorneys say is evidence. (People v. Avila (2009) 46 Cal.4th 680, 719, citing People v. Ledesma (2006) 39 Cal.4th 641, 684.)
Second, because the decision to object or not is an inherently tactical decision, and while requesting an admonition was one tactical option, counsel could also have decided that objecting would focus the jury’s attention on the improper matters in ways that would not aid the defense. (People v. Harris (2008) 43 Cal.4th 1269, 1290.)
Third, the court, on its own, interrupted the prosecutor’s argument to admonish her of the impropriety of arguing facts not in evidence. No further objectionable comments were made, suggesting that a timely objection and admonishment would have been effective in preventing misconduct. In any event, the improper arguments cannot be viewed as prejudicial given the weight of the evidence.
While defendant describes the case as a “he said-she said” type of trial where the relative credibility of Dawn tipped the balance in favor of the prosecution, he ignores the fact that he testified in his own defense, admitted driving the vehicle, and conceded he thought it weird that his roommate did not drive him. The lack of the owner’s consent was established by the victim’s testimony. Thus the elements of the crime were established wholly independent of Dawn’s testimony. This means that no amount of improper vouching for Dawn’s credibility could have “tipped the scales” in favor of conviction.
Once the unlawful taking of the vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction of Vehicle Code section 10851. (People v. Clifton (1985) 171 Cal.App.3d 195, 199-200.) Because a timely objection at the first instance of improper argument would have prevented further misconduct, and because the jury was instructed that arguments of counsel were not evidence, the improper arguments of the prosecutor were not prejudicial because he would not have obtained a more favorable result in the absence of counsel’s error.
Under these circumstances, defendant has not satisfied the Strickland test. Defendant was not deprived of effective assistance of counsel.
2. The Trial Court Properly Instructed the Jury How to Consider Defendant’s Testimony.
Defendant argues that the trial court erred in reading CALCRIM No. 361, regarding the inferences permissible from a defendant’s failure to explain or deny the evidence against him, because he had explained or denied all the evidence against him. We disagree.
A claim of instructional error is subject to independent review on appeal. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.) CALCRIM No. 361, as read to the jury, provides: “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
Defendant argues the instruction was not warranted because the defendant did explain or deny all the evidence against him, citing People v. Saddler (1979) 24 Cal.3d 671, 682. Specifically, he claims that his refusal to name his roommate was not a failure to explain. We disagree.
In order for the instruction to be properly given, there must be facts or evidence in the prosecution’s case within the defendant’s knowledge which he did not explain or deny. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) A contradiction between the defendant’s testimony and other witnesses’ testimony does not constitute a failure to deny which justifies the giving of the instruction. (People v. Saddler, supra, 24 Cal.3d at p. 682.) It is error to give the instruction in the absence of evidence in the People’s case which is within the defendant’s particular knowledge to explain and to which no explanation is offered. (People v. Marsh (1985) 175 Cal.App.3d 987, 994.)
In People v. Sadler, supra, the Supreme Court found the instruction to be inappropriate because there were no facts or evidence in the prosecution’s case within Saddler’s knowledge which he did not explain or deny: “There is no indication that he failed to disclose any facts within his knowledge that would have shed further light on the robbery.” (People v. Saddler, supra, 24 Cal.3d at p. 682.) In the present case, the defendant refused to name the roommate who lent him the stolen truck. In addition, he admitted that during his post-arrest interrogation he declined to tell the police that he obtained the car from his roommate. The fact he was afraid the roommate would retaliate if defendant provided his name to police does not explain why he did give the explanation to the jury, while withholding the name. It was for the jury to determine the importance of the defendant’s failure to name the person. (CALCRIM No. 361.) After all, the public (including roommates) can attend a criminal trial, but not an investigative interview.
Additionally, defendant failed to explain how Dawn’s alleged possession of methamphetamine motivated her to lie to the police about what defendant may or may not have told her to tell them about the circumstances of the car parked in front of her house. There was no instructional error.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., King, J.