Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF130916. Patrick F. Magers, Judge.
Daniel Yeager, 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, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P.J.
INTRODUCTION
A jury found defendant guilty of petty theft with a prior conviction for carjacking (Pen. Code, § 215) that resulted in a prison term (§ 666). In a bifurcated proceeding, defendant admitted suffering two prior convictions that resulted in prison terms (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to state prison for a term of six years. Defendant contends (1) the prosecutor committed prosecutorial misconduct during the People’s opening statement when she referenced defendant’s admission concerning his prior bad acts, and (2) he was denied effective assistance of counsel. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
On April 7, 2006, loss prevention investigators at Home Depot stopped defendant after he left the store with a drill, without paying for it.
On October 23, 2006, in a bifurcated proceeding, defendant admitted being convicted and serving prison terms for (1) making criminal threats (§ 422) on November 17, 1997, and (2) carjacking (§ 215) on September 28, 1994. The following day, the court stated that “because of the admission/stipulation to the carjacking crime on September 28th, 1994, the Court would not advise the jury that this is, in essence, petty theft with a prior. The jury would not hear anything about a prior prior, including the carjacking.” The trial court instructed the jury prior to the start of opening statements that the attorneys’ statements during trial were not evidence.
During opening statements the prosecutor said, “When [the loss prevention investigators] took [defendant] back to the interview room to ask him some questions, he was asked if he had ever stolen from Home Depot before. He said, ‘Several times.’” Defendant’s trial counsel did not object to the prosecutor’s statement.
A Home Depot loss prevention investigator testified that defendant “was placed in handcuffs and escorted back to the loss prevention office”; however, no evidence was offered at trial regarding statements made by defendant while in the loss prevention office.
During a discussion regarding jury instructions, defendant’s trial counsel withdrew a request that the jury be instructed with Judicial Council of California Criminal Jury Instructions, CALCRIM No. 359, which addresses the rule that a defendant may not be convicted of a crime based on his out-of-court statements alone. Defendant’s trial counsel stated that she was withdrawing her request because she “was under the assumption that certain statements were going to come in and they did not. Although, they were mentioned in opening, they were not brought into evidence, the admission or statements of [defendant] . . . .” Defendant’s trial counsel also withdrew a request that the jury be instructed with CALCRIM No. 356, which addresses statements that were made without proper Miranda warnings. Counsel withdrew her request “because those statements to the officer did not come in.”
Miranda v. Arizona (1966) 384 U.S. 436.
During closing arguments, defendant’s trial counsel argued the following: “But what was not testified to or brought into evidence, and I want to clarify this because [the prosecutor] is absolute[ly] right, whatever we say is not evidence. And there may have been things alluded to that were not brought up as evidence. And if it was not brought up as evidence, we cannot argue it as such. [¶] But what I want to point out is that you may have heard that [defendant] made admissions like, I’ve done this several times. But there was no testimony as to that. There was no evidence as to that. You can go—and when you deliberate, if you have questions on that, have readback on [the loss prevention investigator’s] testimony or [the police officer’s] testimony. There was no evidence or testimony as to that statement. I want to clarify that, so that does not hang in the back of anybody’s mind.”
After closing arguments, the trial court gave the following instruction: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence.”
DISCUSSION
A. Prosecutorial Misconduct
Defendant contends the prosecutor committed prosecutorial misconduct during opening statements by referencing defendant’s admission that he had stolen from Home Depot “several times.” We disagree.
“The function of an opening statement is not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and more readily discern its materiality, force, and meaning. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 518.) “[R]emarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor ‘was “so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.”’ [Citation.]” (People v. Wrest (1992) 3 Cal.4th 1088, 1108.)
“To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 553.) “Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal unless such an objection would have been futile. [Citation.]” (Ibid.)
Defendant did not object to the prosecutor’s statement regarding the admission he made while in the loss prevention office. Defendant argues an objection would have been futile, in that the trial court would have overruled the objection because it expected the prosecution to elicit testimony regarding defendant’s admission. Defendant supports this argument by pointing to the trial court’s comment during a discussion concerning jury instructions that it “believe[d] on direct it was elicited that [defendant] had stolen before.” Defendant is essentially arguing that an objection would have been futile because there was no basis on which to object because testimony regarding defendant’s admission was expected to be elicited at trial. Defendant is, therefore, impliedly acknowledging that the prosecutor did not commit misconduct because she was informing the jury of the expected evidence. Accordingly, we conclude the prosecutor’s reference to defendant’s admission was proper because testimony concerning defendant’s admission was expected to be presented at trial.
Moreover, there is nothing in the record to indicate that defendant was convicted of any prior thefts at Home Depot. Consequently, it is no argument to say that any comments about defendant’s admission were patently inadmissible because they were excluded as part of the trial court’s ruling precluding mention of defendant’s prior convictions. Moreover, the trial court’s comment that it thought testimony regarding defendant’s admission had been “elicited” during trial would belie any argument that evidence of defendant’s admission had been excluded by the court during pretrial motions.
B. Ineffective Assistance of Counsel
Defendant contends he was denied his constitutional right to effective assistance of counsel because (1) his trial attorney did not object to the prosecutor’s reference to the admissions he made while in the loss prevention office and (2) his trial attorney did not request a curative instruction or move for a mistrial based upon the prosecutor’s reference to the admissions he made regarding prior thefts from Home Depot.
“‘To establish entitlement to relief for ineffectiveness of counsel defendant must show (1) trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.’ [Citations.]” (People v. Wrest, supra, 3 Cal.4th at p. 1114.) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Strickland v. Washington (1984) 466 U.S. 668, 689.) “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Ibid.)
As noted ante, defendant has impliedly acknowledged that there was no basis on which his trial counsel should have objected during opening remarks because it was expected that testimony would be elicited regarding the admissions defendant made while in the loss prevention office. Accordingly, in evaluating defendant’s trial counsel’s conduct from counsel’s perspective at the time, we find her decision not to object was reasonably competent because there was no basis on which to make an objection. Furthermore, because there was no basis on which to make an objection, there was no reason to request a curative instruction or a mistrial during the prosecutor’s opening statement.
To the extent a curative instruction or mistrial should have been requested after the prosecution rested, and because it became apparent testimony regarding defendant’s admission was not elicited, the trial court informed the jury before opening statements and after closing arguments that the attorneys’ statements are not evidence. Defendant’s trial counsel also reminded the jury in her closing argument that statements by the attorneys are not evidence. The instruction given twice by the trial court, and mentioned by defendant’s trial counsel, was sufficient to properly inform the jury that the prosecutor’s reference to defendant’s admission was not evidence; therefore, it was not reasonably necessary to request additional instructions. (See People v. Best (1959) 172 Cal.App.2d 692, 697 [“Repetitious instructions are properly refused”].) Accordingly, we conclude defendant’s trial counsel provided reasonably competent assistance to defendant.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.