Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 2327340
Richman, J.
For at least two millennia, it has been a standing reproach to mankind that the poor are always with us. The most distressing urban manifestation of the intractability of this problem is homelessness. Here, a defendant convicted of second degree robbery contends that the inherently prejudicial topic of his status as a homeless person so permeated his trial as to command reversal, because it was (1) misconduct for the prosecutor to mention the topic, and (2) incompetence for his trial counsel not to prevent the topic from becoming known to the jury. We reject these contentions, and affirm.
BACKGROUND
Because this appeal involves but a single issue of contention, the following narrative may be tailored accordingly.
The homelessness issue first arose when the trial court was discussing in limine motions with counsel. With respect to the prosecution’s motions, the following occurred:
”THE COURT: Okay. Let’s take the People’s in limines first. I’m just looking through them. [¶] Okay. The first one that’s raised by the People is the indigency status of the defendant won’t be referred to in any of the remarks. [¶] Any objection to that?
“MR. LIPSON [defense counsel]: Well, yes, to the extent that he’s—Mr. Chapman is homeless, it’s going to come out in the trial. It’s part of where he was at the time. It’s part of—the character witnesses are from homeless shelter.”
“MR. CLARK [the prosecutor]: If there’s going to be some homeless issue
“THE COURT: There won’t be any argument about—in the sense of appealing to the passions of the jury in that regard; but I think if he [defendant] was in a homeless shelter or he was homeless at the time and it’s relevant, it’s obviously admissible.
“MR. LIPSON: Yes. It will come out.”
Defense counsel referred to the subject of defendant’s homelessness in his opening statement:
“Not being able to read and write makes it hard to find work and keep work sometimes, and he’s had other problems. You’ll hear he’s had some problems with the law, but what you’re going to hear about him is he’s a nonviolent person and he’s an honest person.
Because he obviously planned to have defendant testify, counsel was preparing the jury to hear that this was not defendant’s first encounter with the criminal justice system. The trial court had earlier ruled that defendant could be impeached with a 1996 conviction for first degree burglary and a 2001 conviction for sale of a controlled substance. The court had prohibited further mention of defendant’s criminal history, which went back to 1971 and included a 1990 burglary conviction, a 1992 conviction for failing to return to a place of confinement (Pen. Code, § 4530, subd. (c)), and a 1994 conviction for grand theft. Defense counsel preemptively raised the issue of defendant’s prior convictions in his direct examination.
“He’s been homeless for about five years living in, I don’t know if you’re familiar with Portsmouth Square Park in Chinatown,... and he’s lived there for about five years. He sleeps on the bench there and he spends time there.
“He’s connected with I think it’s the North Beach Citizens, which is a group that provides services for homeless people. He goes there and gets coffee, things like that. He does a little work through them. They have a program like cleaning up the neighborhood and they pay you a little money to do that, and so he does that a few hours to make money.
“On August 2nd, 2007, last summer,... Mr. Chapman was living in Portsmouth Park. He slept there that night.... [¶]... He woke up early as usual. If you sleep there, the police don’t bother you when you sleep there at night, but early in the morning either the police or the Department of Public Works, or someone, comes through and clears everyone out. If you’re not out, you get a ticket.”
Defense counsel acquainted the jury with what the evidence would show, namely, that on the morning of August 2, 2007, defendant followed his “usual routine” of washing in a public bathroom and walking towards Columbus Square Park. Walking up Wentworth Alley, defendant observed “two young men, either Latino or mixed race, and... one’s carrying a bag, and chasing them is an older Chinese man. [¶] And the Chinese man is someone he knows. It’s a friend of Mr. Chapman’s.... [¶]... The guy is yelling in Chinese and pointing, and Mr. Chapman assesses out right away what’s going on; and without even really thinking about it, he starts chasing the two guys.” After a two-block chase, defendant had “a little face off” with the two men and gets possession of the bag.
“Mr. Chapman turns around and starts walking back... to give the bag back to his friend, the Chinese man.... [¶] Mr. Chapman goes to give him his bag, and it’s at that point he’s tackled from behind by the police, put down on the ground; and... in just like sort of a surrealistic thing of horror for Mr. Chapman, he’s looking up, he’s like, ‘Ask him. Ask him. I gave him his bag back.’ [¶] And... the Chinese man doesn’t speak English, and at that point he realizes this isn’t even his friend. This is someone else.... Mr. Chapman had him mixed up. So... Mr. Chapman is handcuffed, stuck in a police car and taken away.”
The prosecution’s case against defendant was not complicated. It was summarized by Nathan Wright’s testimony as to what he saw walking to work at about 6:30 a.m. on August 2, 2007: “I heard yelling across the street in an alley. I was on Pacific. It was in the alley between Pacific and Jackson. I heard a guy yelling. There were two people on top of an Asian American guy. They were pulling his bag away. They got his bag and they ran the opposite direction down the alley towards Jackson.” “[I]mmediately after a cop car... come up on Pacific. I stopped the car, started telling the officers what had happened.... [¶] And then as I was talking to them, the gentleman who took the bag and the... victim came up behind us.... I identified them to the police officers. They jumped out of the car, grabbed the guy,” who still “had the bag and the victim was still behind him pointing.” All of these events occurred in less than a minute.
Mr. Wright further testified that the two assailants were “One African American guy, 6 feet, thinner; and... an African American woman, maybe like 5’5”.” After the woman ran down the alley, Mr. Wright did not see her again. During their flight down the alley, Mr. Wright lost sight of the man and woman for a moment. Mr. Wright made a positive identification of defendant as the man he observed take the victim’s bag. Mr. Wright saw no other people in the alley or on the streets.
The victim, Jin Xiao, testified with the aid of an interpreter. He testified that he was carrying a bag, then “suddenly there was someone from behind grabbing me and took my bag and ran away.” Mr. Xiao gave chase but “the police had already got him down.” Mr. Xiao was unable to identify defendant in court as the man who grabbed his bag. However, according to Officer Hoyt Wong, Mr. Xiao made such an identification at the station to which he and defendant were taken immediately after the latter’s arrest.
During a break in his prosecution’s case-in-chief, the prosecutor advised the court “there might be some issues that surface if character witnesses are called, specifically asking them about their familiarity with the criminal background of the defendant; and I want to make sure that everybody’s on notice that that’s an issue that may flare up if character witnesses are called.” The court replied that counsel should comply with the “proper way to frame a question for a character witness.” There followed some discussion about the instructions to be given.
The prosecution’s final witness was Officer Benito Manning, one of the officers Mr. Wright had flagged down. Officer Manning corroborated the essentials of Mr. Wright’s version: Mr. Wright’s demeanor was composed when he first attracted the officers’ attention, reported the robbery of Mr. Xiao in the alley, and pointed out defendant as “ ‘the guy that robbed him.’ ” The officers pursued defendant, apprehended him, and brought him back to Mr. Xaio, who identified him as the robber. Officer Manning further testified that Mr. Xaio also identified the bag found in defendant’s possession as the one taken from him. When first seen by the officers, defendant was walking, not running. Defendant was apprehended “within a matter of seconds” of the officers leaving their vehicle.
Officer Manning was at something of a disadvantage in testifying, because it was his partner, Officer Gallagher, who apprehended defendant, and who wrote the report of the incident, but who was on disability at the time of the trial.
Defendant testified to his exculpatory version of events. A San Francisco native, he grew up and has lived his whole life in the “Chinatown/North Beach area.” On August 2, he lived in Portsmouth Park, as he had for about a year. He had been homeless for about a year, doing odd jobs to support himself. One of those jobs was sweeping the streets for Kristie Fairchild, the director of a “drop-in center” for the North Beach area.
Defendant further testified that on the morning of August 2 he awoke in Portsmouth Square Park between 5:30 and 6:30, washed his face and brushed his teeth. He then began walking to another park. As he was about to cross the street and enter Beckett Alley, defendant observed “a Chinese guy” chasing two “other people.” Defendant described the pair as being males, both approximately 23-24 years of age, and “one was maybe black and the other was maybe Spanish, Filipino, or something.” Because the apparent victim “looked like a friend of mine that worked right across the street from the park that I be in,... I started chasing them.” Defendant “caught up to the two... snatched the bag from one of them; and as I turn around, the Asian guy was right there.” After giving the bag to “the Asian guy,” defendant took three steps when “the next thing I know, I’m being tackled from behind and I’m slammed to the ground.” Although defendant tried to protest that he was merely retrieving the victim’s bag, he did not get the opportunity to communicate this to the officers because they grabbed him with “so much force” that he was “kind of dazed” until “I came to [in the] jail.”
Part of the prosecutor’s cross-examination focused upon the state of defendant’s material possessions when he prepared to depart Portsmouth Square Park:
“Q. So when you were sleeping in the park, what did you have with you?
“A. In the park, let’s see, well, all the stuff I had in the park I just put it in the bushes. I hide it in some bushes, toothpaste and deodorant and soap, stuff like that, that I need for my hygiene and stuff.
“Q. So you left all that stuff in the park before leaving?
“A. Yes.
“Q. Any other items beside toothpaste and deodorant?
“A. Like what?
“Q. Other clothing.
“A. Yeah. I got some other clothing, yes.
“Q. What else?
“A. That’s about it.
“Q. Sleeping bag?
“A. Sleeping bag, yeah.
“Q. Mattress?
“A. Sleeping bag.
“Q. How about a shopping cart or anything like that?
“A. No shopping cart.
“Q. So all that stuff was in the area in the park where you were sleeping?
“A. Well, it’s not in the park. It’s like there’s a dumpster, like a little garbage can that’s in another little small little one-way alley, and the people in the alley let me lock my stuff up in there. So I lock stuff, I lock my sleeping back up in there.
“Q. How do you go about doing that, with a combination lock or a lock and key?
“A. I’ve got a lock with a key.
“Q. So did you take your stuff out of the park and put it in this lockbox?
“A. Yes.
“Q. And then you were going to work?
“A. Right.”
When defendant finished his testimony, his counsel called the two character witnesses discussed before trial. Theresa Andrews testified that she is an employee of the North Beach Citizens Center, which she described as “a drop-in homeless resource center,” which helps the homeless qualify for various forms of governmental assistance. She has known defendant about 20 years. Defendant worked as part of the Center’s “street cleaning crew,” which she clarified as meaning “street beautification.” These volunteers are not paid, but they are given “an incentive gift card” with which they may purchase goods at a supermarket. Defendant was thus occupied in August of 2007.
Ms. Andrews further testified that defendant’s reputation among people at the Center was as a “Very honest,... very very clean and very quiet” person. Asked by defense counsel about defendant’s reputation for violence, Ms. Andrews replied he does not have such a reputation, and “I would have trouble believing that Ralph squashed a bug.” She conceded that some of the Center’s clients have been “colorful... you know, are violent,” but they have been “86[ed]” from the Center.
Kristie Fairchild, the Executive Director of the Center since 2003, testified that its purpose is to identify the homeless “in our district and get those people off the streets and into housing.” Defendant has been a periodic “client” of the Center since 2001: “It fluctuated... he would come in sometimes for... a month.... [S]ometimes I wouldn’t see him for a couple months.” Asked about defendant’s reputation for honesty, Ms. Fairchild testified that the “general feeling” is that he is honest. When defense counsel asked “What about his reputation for violence?” she answered: “He’s totally nonviolent to my knowledge. Completely, that’s my impression.”
On cross-examination, Ms. Fairchild testified that the Center classifies defendant as “chronically homeless.” Ms. Fairchild was aware that defendant had a drug-related conviction, but he has never been caught violating the Center’s prohibition on clients using drugs. She also knew of his burglary conviction. Based upon the classification the Center used for defendant, the prosecutor asked:
“Q.... So, in your experience, if you’ve got a chronically homeless person out on the street, is that when they’re in a position to be doing more desperate things?
“A. No. Everybody’s different, honestly. There’s some people that are chronically homeless that are very kind and would never—don’t do anything like that. So it really depends on the situation and need.
“Q. But you do realize or you did testify that these chronically homeless people, that’s when they get to the point when they’re doing desperate things?
“A. They do.
“Q. And Ralph or Mr. Chapman is here charged with robbing a man. Are you aware of that?
“A. Yes.
“Q. And taking that person ‘s property. Are you aware of that?
“A. That’s what I heard.
“Q. Does that surprise you?
“THE COURT: I’m going to sustain my own objection to that question. It’s asking for speculation.”
Defense counsel touched upon this subject in his redirect:
“Q. The District Attorney was asking you about homeless people acting desperately or in a desperate manner. You never saw Ralph acting in that state, did you?
“A. No. he’s always been one of the most levelheaded of many of the people that have come through the doors.
“Q. And, as far as you know, his reputation is not for that kind of desperate behavior?
“A. He’s a nice guy probably. I think lots of things, but I don’t know that it’s appropriate.”
After all evidence had been presented, and while the court and counsel were discussing instructions, defendant admitted the allegation that he had a prior felony conviction.
During closing argument, the prosecutor did refer to defendant as “ a homeless man” and someone who was “chronically homeless,” but the references occurred during a discussion of the defense evidence. Defense counsel’s closing argument tried to point out logical gaps in the prosecution’s case, arguing that the police did not conduct an adequate investigation, but simply latched onto the hapless defendant who had tried to help, only to be arrested for his trouble. During the course of counsel’s presenting the following line to the jury, the prosecutor made his sole objection:
“The burden is on the prosecution to prove the elements of the crime beyond a reasonable doubt. As you know, the defense has no obligation whatsoever, but they put a defense on.
The following excerpts convey the tenor of defendant’s argument: “[T]here’s a lot of little things in this case besides what Mr. Chapman told you... that don’t quite make sense. Why is he standing there on the corner? Why is he just standing there if he’s just committed this crime? Why isn’t he running away? Why hasn’t he ditched the bag? Why does he walk away back down towards the Asian man [Mr. Xiao]? Why are there no other witnesses to what happened down here in Chinatown, 6:30, 7:00 in the morning? Why haven’t we heard from anybody else? Why wasn’t there any investigation done?
“I think San Francisco has a good Police Department. I’m not saying that they did something—I mean, I’m not saying that they’re bad. I’m just saying that in this case they just kind of dropped the ball. And we hold the police to a high standard just because of situations like this. I mean, if it was your loved one accused of a crime, would you be satisfied with that kind of an investigation?
“MR. CLARK: Objection.
“THE COURT: Sustained. That’s an appeal to the sympathy [of the jury]. That’s improper.”
Defense counsel resumed his argument, trying to use defendant’s homeless status as positive, i.e., insinuating that is was the explanation for the inadequate police investigation. Counsel concluded by urging that the prosecution was “relying pretty much entirely on... one eyewitness identification,” and the circumstances of the identification were more than sufficiently wobbly to make it a weak reed for conviction.
In his opening statement, defense counsel told the jury: “What the evidence is going to show you is a poor police investigation and a lack of respect for Mr. Chapman.”
In his final argument, the prosecutor told the jury that defense counsel was “[a]ppealing to sympathy,” and that while “the Public Defender’s comments are sympathetic... they don’t change the facts. The fact of the matter is that Mr. Chapman was caught red-handed with the property that he took from Mr. Xiao,... and identified by the person who saw him take it.”
After deliberating for approximately a half hour, the jury sent out several notes described by the trial court as follows: “They want the police report, written statements by Mr. Wright and Mr. Chapman. (reading) [¶] ‘Was there a written statement taken by Mr. Xiao? [¶] We would like that as well.’ [¶] They want the statements they believe were taken down on the day of the incident at the police station. Also: (reading) [¶] ‘We’d like a copy of all transcripts taken during the trial of all the witnesses’ testimony.’ ” The court told counsel, “The jury is going to be told there is no police report in evidence, there’s no written statements by Mr. Wright or Mr. Chapman or Mr. Xiao in evidence, and there are no copies of the transcripts available. Okay?” Defense counsel replied, “Okay.” However, the minutes recite that two hours later “In the jury deliberation room, Court Reporter reads portions of the transcript which addresses the juror’s question.”
The only written statement produced at the trial was the one made by Mr. Wright, which was marked for identification, but not received in evidence.
After further deliberations, the jury found defendant guilty as charged. By reason of his prior robbery conviction, defendant’s mid-term sentence of three years was doubled, to six years in the state prison.
DISCUSSION
Appointed counsel for defendant has marshaled a quartet of academic articles from the 1990’s, and a smattering of judicial comments, to support counsel’s claim that defendant was the victim of society’s insidious prejudice against the homeless. They are “Today’s pariahs,” an “urban blight,” given to “colonizing public spaces,” thereby provoking municipal “crusade[s] to evict” them. (Citing e.g., Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, and quoting Justice Mosk’s dis. opn. at p. 1124.) This is especially true of people in defendant’s position: “Homeless people sleeping in parks are especially resented and reviled.” This is the springboard for counsel’s contention that the prosecutor committed misconduct—in his “line of questioning devoted to defendant’s homeless lifestyle,” and by pressing Kristie Fairchild to testify that “the homeless are prone to steal,” that defendant “had a propensity to commit robbery” and thus was “likely to steal because he was homeless.” Such conduct, the argument runs, portrayed defendant to the jury as an unemployed parasite and a “repulsive nuisance.”
Paisner, Compassion, Politics, and the Problems Lying on Our Sidewalks (1994) 67 Temp. L.Rev. 1259; Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public Space Zoning (1996) 105 Yale L.J. 1165; Daniels, “Derelicts,” Recurring Misfortune, Economic Hard Times and Lifestyle Choices, Judicial Images of Homeless Litigants and Implications for Legal Advocates (1997) 45 Buffalo L.Rev. 687; Teir, Restoring Order in Urban Spaces (1998) 2 Tex. Rev. Law & Pol. 256.
Regarding Ms. Fairchild’s testimony, defendant states the following in his opening brief: “The ‘expert testimony’ that the homeless are prone to steal, was the worst sort of propensity evidence imaginable, particularly because the jury also learned of Mr. Chapman’s 1993 burglary conviction.” We make several observations. First, Ms. Fairchild was never identified or qualified as an expert witness. Second, the jury already knew of defendant’s felony convictions because he had admitted them in own testimony, which preceded Ms. Fairchild’s. Third, a fair reading of Ms. Fairchild’s testimony, as shown above, is that she was at pains to establish that the mere fact that a person is homeless is not synonymous with a propensity to steal.
So, as counsel sees it, “the prosecutor intimated that the San Francisco public would benefit from Mr. Chapman’s conviction regardless of whether Mr. Chapman robbed Mr. Xiao or not. Regardless of whether Chapman was guilty, there would be one fewer homeless person living in the park, with all his belongings and no means of support, if Chapman was shipped off to prison.... The City would be a little bit cleaner and less crowded, and have one fewer person to provide with social services. The cost of Mr. Chapman’s maintenance could be shifted to taxpayers throughout the state.” The testimony the prosecutor was attempting to elicit was “patently inadmissible and grossly prejudicial.” And insofar as his trial attorney failed to object—and, indeed, even “made his client’s homeless condition known to the jury”—these acts and omissions only furnish the additional dimension of constitutionally ineffective assistance of counsel as a ground for reversal.
In the colorful phrasing that is typical of defendant’s appointed appellate counsel, when the prosecutor was finished, the jury had “had its nose rubbed in the distasteful details of Mr. Chapman’s homeless lifestyle.”
Homelessness may be proving intractable as a social problem, but it has not proved beyond the capacity of the legal system to absorb, specifically, the administration of the criminal law. Most judicial consideration of homelessness has occurred in connection with the difficulty a homeless person may encounter in complying with a sex-offender registration statute, which presumes a fixed abode. (E.g., People v. Annin (2004) 117 Cal.App.4th 591; People v. North (2003) 112 Cal.App.4th 621; State v. Winer (Conn.App. 2009) 963 A.2d 89; Com. v. Scipione (Mass.App. 2007) 870 N.E.2d 108; State v. Ohmer (Ohio App. 2005) 832 N.E.2d 1243; State v. McKinnon (Wash.App. 2001) 38 P.3d 1015.)
Notwithstanding the parade of pejoratives employed in defendant’s brief, society and the criminal law does not ignore the homeless when they are the victims of crime (e.g., People v. Soper (2009) 45 Cal.4th 759; People v. Engelman (2002) 28 Cal.4th 436; [the homeless prey on other homeless]; e.g., People v. Prettyman (1996) 14 Cal.4th 248 [murder]; People v. Williams (1992) 4 Cal.4th 354 [rape], People v. Thomas (1992) 2 Cal.4th 489 [murder]). Homelessness can even serve a positive and—from the defendant’s perspective—benign function, such as being a relevant consideration to the decision whether to impose a capital sentence. (E.g., In re Lucas (2004) 33 Cal.4th 682, 733, citing Wiggins v. Smith (2003) 539 U.S. 510, 535.)
This is not to say that the issue of homelessness has been neutered of all potential prejudice. When used by a prosecutor to demonize an accused, as it was in People v. Herring (1993) 20 Cal.App.4th 1066, it can qualify as misconduct. But that is not what happened here. As previously shown, it was the prosecutor who first wanted to limit references to defendant’s “indigency.” This is hardly the attitude or approach one would expect from a prosecutor out to scapegoat a defendant for lack of economic resources.
Actually, the word “homeless” was never used in the Herring opinion. However, the defendant there was characterized by the prosecutor as “a parasite [who] never works,” which the Court of Appeal treated as clear misconduct because these remarks “had nothing to do with the crimes alleged and inferred that people who do not work... are bad people and more likely to do criminal acts. This argument directed at appellant’s character invited the jury to decide the case based upon its own value judgment and not on the law.” (People v. Herring, supra, 20 Cal.App.4th 1066, 1074-1075.) Nevertheless, it requires no great leap of imagination to discern how this argument could easily be adjusted to explicitly refer to a defendant who is homeless.
It was defense counsel, and the trial court, both of whom recognized the unalterable reality of how and why the fact of defendant’s homelessness was inescapably relevant. When defense counsel stated “it’s going to come out in the trial,” he recognized that it was necessary for the jury to understand why defendant was up and about at the crack of dawn in Portsmouth Square Park. This was a clear basis of relevancy, and is recognized by courts throughout the nation. (See, e.g., People v. Thomas (1992) 2 Cal.4th 489, 522-523; State v. Glidden (N.H. 1983) 459 A.2d 1136, 1140; State v. Williams ( N.C. 2002) 565 S.E.2d 609, 642; cf. People v. Salcido (2008) 44 Cal.4th 93, 147 [“The concept of relevance is very broad [citation], encompassing evidence... bearing on the defendant’s account of events”].) Moreover, as defense counsel noted, defendant’s homeless status was integral to the testimony of his character witnesses. Thus, the trial court was entirely correct in stating that evidence defendant was homeless was “relevant” and “obviously admissible,” while at the same time admonishing both counsel that there should be no “appealing to the passions of the jury in that regard.” And, as is clear from the excerpts quoted above, both counsel kept within the spirit of the court’s directive.
Defendant’s counsel asserts that “even in liberal San Francisco” “homeless people sleeping in parks are stigmatized and resented,” and counsel assumes this attitude was held by the jury. There is nothing in the record to support this sort of speculation. Our own speculation is that the experienced trial court and both counsel, already sensitive to the issue of homelessness and what the court termed “the passions of the jury in that regard,” would almost certainly have explored the subject during voir dire of prospective jurors. (See State v. Garvin (N.M. 2005) 117 P.3d 970, 979 [“it was not improper for the prosecutor to explore the biases of the jury panel with regard to the homeless”].) However, as there is no transcript of the jury selection proceedings, our speculation cannot be confirmed.
Of course, once the issue of defendant’s homelessness was before the jury, it was a proper subject for the prosecutor’s extensive latitude for cross-examination. (See People v. Chatman (2006) 38 Cal.4th 344, 382.) Although defendant now claims the details of his homeless existence “undermined the presumption of innocence and lightened the prosecutor’s burden of proof” by portraying him to the jury as a “parasite” and a “repulsive nuisance,” and by intimating that pretty much everybody would benefit by putting defendant in prison, none of this is discernible from the transcript of the trial or the prosecutor’s closing arguments. Indeed, as to the latter, the prosecutor specifically reminded the jury of his burden of proving defendant’s guilt beyond a reasonable doubt, and that the issue of defendant’s homelessness “shouldn’t affect your determination.” (See fn. 3, ante, p. 9.)
In sum, the prosecutor’s cross-examinations of defendant and Ms. Fairchild did not constitute misconduct. It naturally follows that defense counsel cannot be faulted for failing to object to what was entirely proper. (See People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Cudjo (1993) 6 Cal.4th 585, 623; People v. Jackson (1989) 49 Cal.3d 1170, 1189.) Moreover, trial counsel made the rational tactical choice to confront defendant’s homelessness head on, admit it, and yet try to turn it to advantage by trying to portray him as the victim of inadequate police investigation.
Defendant has two other contentions that warrant only brief treatment. He argues he was prejudiced when the trial court sustained the prosecutor’s objection that defense counsel was appealing to the jury’s sympathy by arguing “if it was your loved one accused of a crime, would you be satisfied with that kind of investigation?” The objection was properly made and correctly sustained. (See People v. Jackson (2009) 45 Cal.4th 662, 691 and decisions cited.) Nor is defendant on sound ground in arguing that the trial court “erred by failing to remind the jury it was entitled to a readback, upon receiving the jury note requesting transcripts of testimony.” The court correctly turned aside the jury’s omnibus request for “a copy of all transcripts taken during the trial of all the witnesses’ testimony.” (Italics added.) Clearly, this request could not be granted because the reporter’s notes of the trial had not yet been reduced to the form of transcripts. As already mentioned, when the jury made a specific request for a readback of testimony, the trial court provided it.
We close with two final observations. First, none of the alleged errors drew a defense objection in the trial court, which ordinarily causes them to be treated as forfeited or waived, yet—with the partial exception of the ineffective assistance approach—present counsel makes no effort to convince us that these claims are presently reviewable. Second, given the near-overwhelming evidence against defendant, the alleged errors—either individually or collectively—would not compel reversal under any standard for prejudice.
DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline P.J., Lambden J.
“First Mr. Chapman testified that he woke up. He’s a homeless man. He woke up in the park and he was getting ready to move on when he saw somebody run by and he gave chase. And, so, his testimony is that as the perpetrators are running away, he intercepted them, got the bag and was returning it to the victim when the police grabbed him. Is that reasonable? No, that’s not reasonable because the eyewitness says he’s running with the bag and the Chinese guy is pointing at him.
“Then two other witnesses, one a friend of Mr. Chapman, Ms. Theresa Andrews, has known Mr. Chapman for 20 years, works at the homeless shelter facility in the North Beach area and has known him for a long time. He’s a nice guy, honest. ‘Did you know he was convicted of a robbery—excuse me, of burglary and transportation and sale of drugs?’ ‘I knew he had some problems, but I still think he’s honest.’ I bet she does. She wasn’t there that morning. There’s not a beef with her about what she has to say.
“Ms. Fairchild, her supervisor, also came in. We have a facility in North Beach and we do what we can to help homeless people, and they’re doing a great job. You heard they’re handling 430 plus people in 18 months trying to get them soup and on their feet. According to Ms. Fairchild, Mr. Chapman is chronically homeless.
“Those issues shouldn’t affect your determination of the facts of the application of the law, determining the facts and applying the law. Did Mr. Chapman take that property from Mr. Xiao? Was he pointed out by the eyewitness as having done it? Did he have the property with him? Yes. Mr. Chapman is guilty of robbery.”
[¶] “Let’s talk about the investigation for a minute.... Officer Manning said, ‘I didn’t have to do anything.’ And that’s exactly what they did. They did nothing. [¶] I mean, how hard would it have been to get in the car and drive around the block and see if this woman is around?... [¶]... [W]hat upsets me the most and should upset you the most and would make this whole thing so much easier, how about if they just walked around the corner to Jackson Street and talked to any one of these store owners, these storekeepers there, and said, ‘Hey, did you see a black man chasing two other men down the street or did you see a black man and a woman run down this street and go opposite ways?’ ”