Opinion
A153161
06-25-2020
THE PEOPLE , Plaintiff and Respondent, v. DESMOND O'NEIL CAMPBELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Case No. 5-151-51-0)
Defendant argues that his felony conviction for first degree burglary must be reversed because the prosecutor committed misconduct during closing argument. He further argues that this court must remand his case to permit the trial court to exercise its discretion to strike two five-year sentence enhancements under Senate Bill No. 1393 (Reg. Sess. 2017-2018), which became effective after defendant was sentenced. We affirm defendant's conviction but remand for resentencing based on Senate Bill No. 1393 and its amendment to Penal Code section 667, subdivision (a)(1).
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL BACKGROUND
Along with co-defendants Devon Taylor and Niekko Williams, defendant was charged with one count of first degree burglary of the residence of Kimberly E., in violation of sections 459 and 667.5, subdivision (c). The prosecution further alleged that defendant had suffered three prior felony convictions within the meaning of section 667, subdivisions (a)(1), (d), and (e).
At trial, the prosecution offered evidence relating to the Kimberly E. burglary as well as other recent uncharged residential burglaries in the same area, committed using a similar method of entry. Charged Offense
A. Kimberly E. Testimony
At approximately 1:05 p.m. on June 3, 2015, Kimberly E. was alone at her home located on Rustic Place in San Ramon when she heard the doorbell ring. She did not answer, believing it to be a solicitor or a delivery person, but she looked through the peep-hole of her door and saw an African-American woman with blonde hair repeatedly knocking and ringing the doorbell. The woman took a call on her cell phone, then walked toward the driveway.
Kimberly E. went upstairs for a better view. From there, she saw the woman sitting in a silver or light gray sedan in the driveway, still talking on the phone. Concerned that the stranger remained on her property and might be attempting to determine if the home was occupied, Kimberly E. called 911. The woman then stepped out of the car and walked toward the side yard.
Staying on the phone with 911, Kimberly E. then went to a room from which she could look down at her patio. She saw two African-American men standing next to a sliding glass door that led into her home. One man was taller and appeared bald; he was wearing a suit jacket with a collar and no tie. The other man was shorter, but still of average height; he was wearing a black-and-red plaid long-sleeve shirt. In court, Kimberly E. identified the taller man as defendant and the shorter man as co-defendant Taylor. She testified that she could see they were communicating, but she could not hear what they were saying because she was a floor-and-a-half above them. At one point, co-defendant Taylor briefly left the area and came back; defendant stayed close to the glass door. Kimberly E. described them "looking around" and then back at each other.
Kimberly E. was watching the two men from an upstairs window when she started to hear loud, muffled banging noises. The men were right by the sliding glass door when she heard the first bang. After she heard the first noise, she moved away and went to her bedroom, locking the door out of fear. At some point, she went to the front of her house and saw that the car was no longer in her driveway, then went back to her bedroom, entered the master bathroom, and closed the door.
Kimberly E. remained on the phone with 911 during the entire incident, until a police officer arrived. Her 911 call was played for the jury. She told the dispatcher that after the banging noises she could hear the sounds of things being pulled inside the house, and stated, "I can't hear them in the backyard because they probably gained access." Kimberly E. testified that she could hear dragging noises from inside the house, downstairs. She then heard someone coming up the steps because the stairs are noisy and creaky. She remained in her bathroom until the police arrived.
When Kimberly E. went downstairs to meet the police, she saw a handful of pieces of glass at the foot of her staircase. The glass was not there earlier when she had gone up the stairs to observe the movements outside. The sliding glass door was approximately 27 to 29 feet from the location of the glass at the foot of her staircase. After the police arrived, Kimberly E. looked through her house and observed that the stationary side of her sliding glass door was broken and one side of a sofa was pushed out into the room enough so that someone could walk through the sliding glass door and into the room.
Shortly thereafter, the police took her to a location approximately five miles from her home where she identified defendant as the man with the bald head whom she had seen outside the sliding glass door. She also identified co-defendant Taylor and the woman who had been at her front door. She had no doubt that the three individuals the police showed her were the people she had seen at her home approximately an hour earlier. Kimberly E. also identified the person pictured in Exhibit 2 as the woman she had seen at her front door.
The person in Exhibit 2 was later identified as Niekko Williams. Ms. Williams was on bench warrant status during the trial.
B. Harleen B. Testimony
Harleen B. testified that she was driving to her home near Rustic Place in San Ramon at around 1:00 p.m. on June 3, 2015 when she saw a police car with no lights or sirens go past her very quickly on Old Ranch Road. The police car turned into the housing development and she continued home. While she was in her driveway, she saw two men—one in the neighbor's side yard about to jump over the fence and one who had just jumped over the fence and was walking by. The man inside the side yard was African-American; he was of average build and wearing a plaid shirt. The man who was walking was also African-American; he had a slightly stocky build and was wearing a dark coat, like a men's suit coat. The men were on Old Ranch Estates Drive, heading toward Old Ranch Road, which was the main road. After she saw them, she went inside and called 911. The 911 call was played for the jury; in the call, Harleen B. told the dispatcher that the man who had been inside the neighbor's fence was running.
Exhibits introduced during her testimony showed that Harleen B.'s home is off of Old Ranch Estates Drive and Old Ranch Road.
The police took Harleen B. to a location where she identified the individuals in their custody as the two men she had seen. At trial, she identified defendant as the man she had seen in the dark suit jacket and co-defendant Taylor as the man with the plaid shirt inside the fence.
C. Jarred Pereira Testimony
San Ramon police officer Jarred Pereira testified that he responded to a call for service relating to suspicious subjects in Kimberly E.'s backyard on Rustic Place in San Ramon at approximately 1:10 p.m. on June 3, 2015. As he drove to that location, he turned left onto Old Ranch Estates Drive, which provides the only way to enter and exit the neighborhood including Rustic Place. As he approached Rustic Place, he saw to his left a silver BMW with paper plates on the corner of Old Ranch Estates Drive and Rustic Place, facing the neighborhood's only exit. He saw this vehicle approximately 90 seconds to two minutes after hearing the dispatch call for service to Rustic Place. The car caught his attention for several reasons—first, because the person who reported the suspicious people in her backyard mentioned a silver vehicle parked in her driveway; second, because it was "kind of rare" for a car to be parked in that location on Old Ranch Estates Drive; and third, because the car was facing the only exit out of the neighborhood.
Pereira did not stop to investigate the car because he wanted to get to Rustic Place in case the homeowner was in danger. However, he slowed to under 5 MPH and took a "really good hard look at" the silver BMW, seeing an African American female driver with a blue top and "really light hair, like bleached hair." As he neared the car and turned right onto Rustic Place, he saw that the woman abruptly lifted a white cell phone toward her face and was either engaging in conversation on a speaker phone or text messaging.
Pereira continued to Kimberly E.'s address on Rustic Place, arriving less than 30 seconds after he saw the woman in the silver BMW. He noticed that the silver car that had been reported in the driveway was no longer there, so he broadcasted over his radio that there was a silver BMW " 'staged' " at the corner of Old Ranch Estates Drive and Rustic Place. He went to the side yard area toward the backyard and saw that the rear sliding door had been smashed, with glass scattered "everywhere," all throughout the backyard. Alone at the house and believing that the woman in the silver BMW may have been involved with and communicating to the suspected burglars, Pereira ran to the front of the home. When he got to the front of the house, he saw the silver BMW take off from the scene. He again used his radio to advise all units to be on the lookout for a silver BMW with paper plates.
At trial, Pereira identified the driver of the silver BMW as the same person Kimberly E. had seen at her front door, Niekko Williams. Using the dispatch log, he testified that he arrived on the scene at 1:15 p.m., with the caller reporting a person on her stairs at 1:16 p.m., and his broadcast about the silver BMW with paper plates approximately 20 seconds thereafter. He also testified that when he later processed co-defendant Taylor at the station, he removed Taylor's shoe and observed a piece of glass fall out. He did not find any contraband or glass on defendant.
D. Cary Goldberg Testimony
Lieutenant Cary Goldberg of the San Ramon Police Department testified that he heard the dispatch regarding the silver BMW with paper plates and stopped the car approximately two and a half miles from Rustic Place, on a road one-half mile from a freeway entrance. He stated that the female driver was wearing a blue top, and he identified defendant as the person in the front passenger seat and co-defendant Taylor as the person in the rear passenger seat. Defendant gave Goldberg a false name during the stop. Uncharged Crimes
Sarah E., who lives in Old Ranch Estates in San Ramon, testified that at approximately 10:45 am on May 13, 2015, she returned home from a visit to her daughters' school. When she went inside, she heard the sound of glass breaking and found that the glass patio door to her backyard had been smashed. Sarah E. ran to her neighbors' home, and someone called 911. When she later did an inventory of her home, she found that a bracelet, a Swiss Army knife, and three or four of her husband's watches (including Next, Timex, and TAG Heuer brands), had been stolen.
Debra M., who lives in the Bent Creek neighborhood of San Ramon, testified that she received a call that her home had been broken into on the afternoon of May 14, 2015. She returned to her home from work, found the back sliding-glass door had been shattered, with glass all over the floor. The home had been ransacked, and she eventually determined that a "lifetime of jewelry" that she had collected had been stolen. Three watches (Seiko, Vivani, and Lasalle brands) were returned to her by the San Ramon police roughly one month after the burglary. Search Warrant
The morning after Kimberly E.'s home was burglarized, San Ramon Corporal Robert Ransom executed a search warrant at the home of Niekko Williams He found indicia that Williams lived there, along with Seiko, Vivani, and Lasalle watches that Debra M. later identified as the ones stolen from her home. He also found a photo of defendant. Cell phone evidence
San Ramon Detective David Roach testified that he did a forensic search of a Samsung Galaxy phone found on defendant and a white HTC phone found on co-defendant Taylor. He also searched a Samsung cell phone found on the dash of the silver BMW, which he believed was Niekko Williams' phone. He found a 12-minute call between Ms. Williams' phone and defendant's phone beginning at 1:08 p.m. on June 3, 2015. He also found a 13-and-a-half minute call between those two phones beginning at 10:33 a.m. on May 13, 2015, as well as numerous calls between the two phones between 11:15 and 11:50 a.m. on May 14, 2015.
Detective Roach also testified that at 10:56 am on May 13, 2015, defendant's Samsung phone did an internet search for Next brand watches. Defendant's phone also did a search for TAG Heuer brand watches later in the day on May 13, 2015, and a search for Vivani brand watches at 3:19 p.m. on May 14, 2015. Closing Arguments
The prosecutor summarized the evidence as to defendant and co-defendant Taylor, including the observations of Kimberly E. and Harleen B., the stop of the car, the cell phone data, and the execution of the search warrant. In addition to arguing that both men were inside the house when Niekko Williams alerted defendant that an officer was on the way to the house, the prosecutor argued that defendant and co-defendant Taylor could both be convicted of burglary even if only one of them went inside the house while the other remained in the side yard, via theories of aiding and abetting or conspiracy to commit burglary.
Defendant's counsel argued that Kimberly E.'s memory was faulty, and that the jury should not speculate what defendant was doing while co-defendant Taylor—who had glass in his shoe—was inside the house. He further argued that defendant had left the scene when the glass door was broken by co-defendant Taylor, and that defendant was not helping or acting as a lookout for Taylor.
Co-defendant Taylor's counsel argued that defendant was the person who went into the house, and that there was no evidence that Taylor was aiding and abetting or conspiring to engage in the plan executed by defendant and Niekko Williams. He argued that co-defendant Taylor was "just there," and that his presence in the side yard of Kimberly E.'s house "at the wrong place at the wrong time" was not enough to "make a guilty verdict."
In his rebuttal argument, the prosecutor pointed out that co-defendant Taylor had glass in his shoe, and that Kimberly E. saw defendant at the glass door while communicating with co-defendant Taylor, who was moving and looking around to ensure that no one was going to come and surprise them. Addressing co-defendant Taylor's argument, the prosecutor told the jury that "[t]here's no such thing as mere presence in this case," and that the evidence and common sense proved that "there [was] a plan in this case" executed by defendant, Niekko Williams, and co-defendant Taylor. He continued: "You don't just walk into somebody's—through someone's gate into their backyard and [sic] just so happens to have a glass slider smashed out with glass in your shoe after you've been walking around and communicating and having your head on a swivel. It just doesn't happen." The prosecutor asked the jury to rely on their common sense and argued: "Devon Taylor is not—he's running with [defendant]. [Defendant] is the one on the phone with Niekko Williams. If they're not on the phone together, the police catch them inside the house, simple as that. I think both these guys went into the house. No doubt in my mind about that." Taylor's counsel objected that the prosecutor was vouching, and the judge sustained the objection. Defendant's counsel neither joined the objection nor objected on his own. Neither counsel asked the judge to admonish the jury to disregard the prosecutor's statement regarding his belief that both defendants went into the house, so the jury was not so instructed.
After the objection, the prosecutor continued with his argument, reminding the jury of the multiple "paths to guilt" based on the clear and overwhelming evidence of planning. Verdict and Sentencing
The jury found defendant guilty of first degree burglary. After a bench trial on the prior convictions, the court found that defendant had suffered all the priors alleged by the prosecution.
On a prosecution motion, the court subsequently dismissed one of the prior strike convictions.
At sentencing, the court imposed a state prison sentence of 35 years to life, as follows: As to the first degree burglary conviction, the court imposed an indeterminate sentence of 25 years to life based on the prior strike convictions and pursuant to section 667, subdivision (e)(2)(A)(ii). The court then added two consecutive five-year terms pursuant to section 667, subdivision (a)(1).
DISCUSSION
I. Prosecutorial Misconduct
Defendant's claim of prosecutorial misconduct fails for several reasons. First, "[a]s a general rule a defendant may not complain of prosecutorial misconduct on appeal 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." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Because defendant's counsel failed both to object to the prosecutor's comments and to request the court to instruct the jury to disregard the allegedly improper argument, he has forfeited this contention on appeal. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1329.)
Even if defendant's counsel had objected, we are not persuaded that the prosecutor's brief comment—"I think both these guys went into the house. No doubt in my mind about that"—constitutes improper vouching. A prosecutor may not "vouch[] for the credibility of witnesses or otherwise bolster[] the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," her comments cannot be characterized as improper vouching.' [Citations.] Misconduct arises only if, in arguing the veracity of a witness, the prosecutor implies she has evidence about which the jury is unaware.]" (People v. Fernandez (2013) 216 Cal.App.4th 540, 561, italics added.) In responding to defendant's and co-defendant Taylor's arguments, the prosecutor in this case did not refer to evidence outside the record to shore up a witness's testimony, nor did he try to bolster his case by "offering the impression that [he] had taken steps to assure a witness's truthfulness." (Ibid.; see also People v. Medina (1995) 11 Cal.4th 694, 757 ["Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper 'vouching,' which usually involves an attempt to bolster a witness by references to facts outside the record"].) While we do not recommend that prosecutors offer their personal views as to the state of the evidence during closing argument, we do not believe the prosecutor's isolated comment in this case constituted improper vouching.
Finally, even assuming the prosecutor had engaged in vouching, his brief statement was not prejudicial. " 'A defendant's conviction will not be reversed for prosecutorial misconduct' that violates state law, however, 'unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' " (People v. Wallace (2008) 44 Cal.4th 1032, 1071.) In light of all the evidence connecting defendant to the charged burglary—including Kimberly E.'s and Harleen B.'s testimony as to their observations on the date of the incident, his arrest two and a half miles from Kimberly E.'s home, the cell phone records showing calls between himself and Williams during the charged and uncharged burglaries, his internet searches after the recent uncharged burglaries in the same geographical area, and the in-court identifications by Kimberly E. and Harleen B.—there is no reasonable likelihood that the jury would have returned a more favorable verdict in absence of the prosecutor's comment.
In light of our determinations that the prosecutor did not engage in vouching and that there was in any event no prejudice from the challenged comment, we also reject defendant's argument that his attorney provided ineffective assistance of counsel by failing to object. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 [defendant must show both deficient performance and prejudice resulting therefrom].)
II. Senate Bill No. 1393
Defendant also argues that this case must be remanded to permit the trial court to consider exercising its discretion to strike the two five-year sentence enhancements in light of the recent passage of Senate Bill No. 1393 (Reg. Sess. 2017-2018). The People concede that remand is appropriate, and we accept the concession.
On September 30, 2018, then-Governor Brown signed Senate Bill No. 1393 (Reg. Sess. 2017-2018) which, effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction in furtherance of justice. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) As an ameliorative amendment, we may reasonably infer that the Legislature intended Senate Bill No. 1393 to apply to all cases not yet final when the law became effective. (Id. at p. 973.)
We will therefore remand the case pursuant to section 667, subdivision (a)(1), to allow the sentencing court to consider whether to exercise its discretion to strike the five-year enhancements.
DISPOSITION
Defendant's conviction is affirmed. We remand for resentencing to permit the court to exercise its discretion under section 667, subdivision (a)(1) and Senate Bill No. 1393 (Reg. Sess. 2017-2018).
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.