Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA094289, Allen J. Webster, Judge.
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
Defendant and appellant Jerry Emmitt Flenoury appeals from a judgment entered following a jury trial in which he was convicted of first degree attempted burglary. Flenoury contends (1) the judgment must be reversed because the prosecutor made impermissible indirect references during closing argument to Flenoury’s decision not to testify, (2) the trial court erred by admitting evidence of similar crimes, and (3) the abstract of judgment requires correction. We find Flenoury forfeited his claim of prosecutorial misconduct and that any prosecutorial misconduct committed was harmless, that the trial court did not abuse its discretion by admitting the evidence of uncharged acts, and that the abstract of judgment requires correction.
Factual Background
On December 5, 2007, Adrian Williams and her daughter Paulette were sitting in the living room of their home, when they were startled by a dark flash that looked “like something coming down” in front of a window above their fireplace. Paulette recognized the claw portion of a hammer. Afterwards, Williams heard what sounded like someone prying the iron bars off of a back bedroom window. Williams went outside. As she rounded the house and headed into the backyard she saw a man she had never seen before, whom she later identified as Flenoury. Flenoury, who was about eight feet away, wore a black beanie, dark pants and a black sweatshirt. He wielded a silver hammer with which he appeared to be trying to pry off the frame of the rear security door leading into Williams’s house. Williams stared at Flenoury for five-to-ten seconds, at which point she announced she was calling the police and ran inside. When her mother returned, Paulette called 911, describing the man her mother had seen-a black male, holding a hammer and wearing a dark beanie, dark pants and a dark sweatshirt.
The police responded immediately. L.A.P.D. Officer Chris Zuniga spotted Flenoury, who was carrying a hammer and matched the description he had received of the burglar, walking in an alley 50–150 yards from Williams’s house. As Zuniga stopped the patrol car, and before he could tell Flenoury why he was being detained, Flenoury tossed the hammer into a nearby shopping cart, saying “‘it’s not my hammer.’” Flenoury was taken into custody, and driven by Williams’s house for a field show-up. She immediately identified Flenoury, who was in a car across the street from her house, as the would-be burglar saying, “‘That’s him. That’s him.’” After inspecting her house a few moments later with the police officers, Williams noticed the bars on a back bedroom window had been partially pried off and its screen had been removed, the rear security door had fresh pry marks where it was bolted to the frame, and the screen was missing from the window above the fireplace.
In September 2008, Williams identified Flenoury at a live lineup as the person who tried to burglarize her home, and did so again at trial.
Flenoury did not testify at trial.
Procedural Background
By information, Flenoury was charged with one count of attempted first degree residential burglary, in violation of Penal Code sections 664/459. The information also alleged Flenoury had suffered: (1) four prior “serious or violent” felony convictions within the meaning of the “Three Strikes” law (§§ 1170.12, subd. (a)–(d), and 667, subd. (b)–(i)); (2) five prior “serious” felony convictions (§ 667, subd. (a)(1)); and (3) seven prior prison terms (§ 667.5, subd. (b).) Flenoury pleaded not guilty and denied the allegations.
All undesignated statutory references are to the Penal Code.
A jury found Flenoury guilty as charged and, subsequently, in a bifurcated proceeding, found true two prior “strike” allegations.
Flenoury was sentenced to state prison for 35 years to life, including 25 years to life for count 1 as a third-strike offender and five years each for the two serious prior conviction enhancements under section 667, subdivision (a)(1). Flenoury was awarded presentence custody credits for 458 days, including 382 actual days.
DISCUSSION
Flenoury contends his conviction must be reversed because of prosecutorial misconduct committed in violation of Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] (Griffin), and because the trial court prejudicially abused its discretion by admitting evidence of two prior burglaries. Neither contention has merit.
1. Prosecutorial misconduct
In Griffin, the United States Supreme Court held that it was error to comment on a defendant’s failure to testify. (Griffin, supra, 380 U.S. at p. 615.) “Prosecutorial comment which draws attention to a defendant’s exercise of his constitutional right not to testify, and which implies that the jury should draw inferences against defendant because of his failure to testify, violates defendant’s constitutional rights.” (People v. Murtishaw (1981) 29 Cal.3d 733, 757, disapproved on other grounds in People v. Boyd (1985) 38 Cal.3d 762.)
At trial, the pivotal issues were whether Flenoury was the person Williams saw, and whether he had attempted to break into Williams’s house. Williams was the only percipient witness to identify Flenoury at trial as the man she had seen trying to break into her home.
Flenoury contends the prosecutor committed Griffin error by repeatedly emphasizing during closing argument that the prosecution’s identification evidence was “unrebutted” and “uncontradicted” from the witness stand. Flenoury claims this was an improper attempt to persuade the jury to find him guilty because he chose not to take the stand to deny his involvement in the burglary-he being the only one who could have testified he was not present when the crime occurred. Respondent contends that Flenoury forfeited this claim. For reasons explained below, we agree. First, however, we turn to the statements at issue.
a. Allegations of prosecutorial misconduct
Flenoury points to five comments made during the course of closing arguments to support his claim that the prosecutor committed Griffin error.
First, after noting that, because Williams’s home was inhabited-thus establishing that the crime at issue was attempted first degree burglary-the prosecutor asserted that “what we have, then, is the uncontradicted testimony of [Williams] that... [Flenoury], with a hammer had tried to open the living room window.” Flenoury’s counsel did not object to the prosecutor’s comments as Griffin error (or on another ground), nor did she request that the court admonish the jury that Flenoury had a right not to testify, and that it could not consider his assertion of that right as evidence of his guilt.
But the prosecutor’s comment did not go unnoticed by Flenoury’s attorney. In her closing argument, defense counsel characterized the prosecutor’s comment as a “sneaky way of trying to let the jury believe that somehow that the defense has to put on evidence.”
In rebuttal, in the second comment with which Flenoury takes issue, the prosecutor addressed defense counsel’s characterization of his earlier comment as “sneaky.” Rhetorically, he asked whether the jurors believed that was what he had been “trying to do when [he] said to [them] in [his] argument that that testimony [was] unrebutted, ” and “That’s 100 percent true.” He told jurors the court would instruct them “that [they] may only consider evidence that [they heard] on that witness stand. The testimony of [Williams] is unrebutted.” At this point, Flenoury’s attorney interposed an objection based on “prosecutor misconduct, ” but did not specifically assert Griffin error or request an admonition. The trial court instructed the jury that counsels’ argument was not evidence. Evidence was “that which is either testified to, stipulated or presented as exhibits.”
The third alleged act of misconduct occurred when the prosecutor addressed Flenoury’s accusation that he had engaged in unprofessional conduct. The prosecutor stated, “I have not pulled a fast one on anybody. I have only had evidence on that stand.... I am a prosecutor. [¶] If I tried to do that I would be disbarred and I would lose my job....”
The fourth statement about which Flenoury complains occurred during a portion of the prosecutor’s rebuttal focused on Williams’s testimony regarding the burglar’s identity. Earlier, Flenoury’s counsel implied Williams was not entirely credible because she might have a grudge against Flenoury, whose investigator had been rude to her. The prosecutor addressed the implication that the story Williams told the investigator about the burglar’s identity differed from her testimony at trial. The prosecutor referred to the absence of countervailing evidence, and the fact that Flenoury’s investigator did not testify, stating, “[t]his was no evidence-I’m going to say it again, there was no evidence you heard-and you may only consider the evidence from that witness stand-that she said anything different to [Flenoury’s investigator] because [he] never came in court to testify. You can’t consider that. And there’s no evidence of it.”
The fifth and final alleged act of misconduct occurred when the prosecutor addressed Officer Zuniga’s testimony that he had seen Flenoury throw a hammer into a shopping cart, and then spontaneously announce, “it’s not my hammer.” The prosecutor observed, a “hammer is innocuous, it’s a tool. You’re walking down the street with it, you’re innocent, you see the police, they see you. And if you’re innocent are you going to yell out, ‘That’s [not] my hammer.’ That testimony is unrebutted.” Flenoury’s counsel did not object to this assertion nor did she request an admonition.
Flenoury maintains that the prosecutor’s repeated argument that his evidence was unrebutted and/or uncontradicted from the witness stand is clear Griffin error. He contends these statements constitute an impermissible attempt to persuade the jury that Williams’s identification of Flenoury was airtight, and that Flenoury was guilty because Flenoury-the only person able to testify that he was not present at the crime scene-failed to take the stand to personally deny his involvement in the incident.
b. Flenoury forfeited any claim of Griffin error
Flenoury failed to object to any of the prosecutor’s allegedly improper comments as Griffin error. His attorney objected to one comment, broadly, as “prosecutor misconduct, ” and failed to object to any other comment at all. Flenoury never requested that the court admonish the jury that he had a right not to testify, and that the jury could not infer evidence of guilt from his invocation of that right. Flenoury’s failure to object or request such an admonishment constitutes a forfeiture of his claim of prosecutorial misconduct on appeal. Generally, “‘“a defendant may not complain on appeal of prosecutorial misconduct 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.”’ [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 1001.) This requirement has been applied repeatedly to cases involving claims of Griffin error. (E.g., People v. Turner (2004) 34 Cal.4th 406, 421 [defendant’s failure to object to alleged Griffin error forfeited claim on appeal]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1006–1007.)
“The only exception is for cases in which a timely objection would have been futile or ineffective to cure the harm. [Citation.]” (People v. Mesa, supra, 144 Cal.App.4th at pp. 1006–1007.) On this record, nothing suggests either that a proper objection by Flenoury’s counsel would not have been sustained, and an immediate admonition given to the jury to disregard any improper argument, or that such remedies would not have cured any prejudice. Flenoury was required to assert a timely and specific objection, and his failure to do so constitutes a forfeiture of his claim of prosecutorial misconduct on appeal. (People v. Turner, supra, 34 Cal.4th at p. 421.)
c. If Griffin error occurred, it was harmless
Even if the prosecutor did commit Griffin error, we find that any error was unquestionably harmless under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman). Two elements bear on the determination of whether Griffin error is harmless beyond a reasonable doubt. The first is the seriousness of the error. The second is the impact of the error on the jury’s consideration of the evidence, given the strength of the case against the defendant. (See People v. Vargas, supra, 9 Cal.3d at pp. 478–481.) Griffin error is unquestionably harmless beyond a reasonable doubt “when the evidence of guilt is overwhelming and the constitutional error is minor.” (People v. Guzman (2000) 80 Cal.App.4th 1282, 1290.) An appellate court looks to the “frequency, intensity and purpose” of the prosecutor’s comments to determine if they were harmless beyond a reasonable doubt. (Ibid.) In Guzman, reversible Griffin error was found where the prosecutor alluded to a defendant’s failure to testify four times and then used a demonstrative chart to get that point across. “The combined effect of these techniques was to cast aspersion on [the defendant’s] failure to testify.” (Ibid.) Where the decision as to defendant’s guilt is close, courts have found reversible Griffin error. (See, e.g., People v. Vargas, supra, 9 Cal.3d at p. 479.)
On the other hand, brief, indirect or limited comments on a defendant’s failure to testify are likely harmless. Where the case against defendant is overwhelming and the commentary brief, Griffin error is usually deemed harmless. (People v. Vargas, supra, 9 Cal.3d at pp. 478–481.) Indeed, most indirect Griffin error is harmless. (Id. at p. 478.) “‘A forbidden comment... is less likely to affect the “substantial rights” of a defendant... if that comment merely notes the defendant’s silence and includes no suggestion that, among the various inferences which might be drawn therefrom, those unfavorable to the defendant are the more probable....’ [Citation.]” (Id. at pp. 478–479.)
Here, the prosecutor’s comments were harmless beyond a reasonable doubt. First, the comments challenged did not directly refer to Flenoury’s failure to testify. At most, they raised the issue by implication and, as such, are less prejudicial than comments that directly refer to a defendant’s assertion of the privilege. (See, e.g., People v. Gioviannini (1968) 260 Cal.App.2d 597, 604–605 [Griffin error when prosecutor made several comments inviting the jury to draw inferences from defendant’s failure to testify, including statement, “‘Now, as far as how the bottle was broken... there would be two people, possibly, who could answer that, and one of them, of course, is dead’”]; People v. Northern (1967) 256 Cal.App.2d 28, 30–31 [Griffin error in the prosecutor’s statement that prosecution’s evidence “‘has not been refuted by the Defendant, there is no controverting evidence’”].) The impact of the prosecutor’s statements on the jury was likely insignificant.
Second, the evidence that Flenoury attempted to commit burglary was strong. Williams testified that she had eye-to-eye contact with Flenoury for five-to-ten seconds after she encountered him in her backyard trying to pry open her door with a hammer. Within minutes, the police apprehended Flenoury about 100 yards from Williams’s house. Flenoury matched perfectly the physical description Williams and her daughter gave to the police. He was carrying a single tool-a hammer, the very tool Williams and her daughter claimed was used to attempt entry to their home. Once he saw the police, Flenoury immediately disposed of and spontaneously disclaimed ownership of the seemingly innocuous tool. These facts alone suggest that Flenoury was the person who tried to break in. Finally, jurors were instructed that a defendant in a criminal trial has a constitutional right not to testify, and admonished more than once to consider only the evidence, which did not include counsels’ argument or suggestive questions, and told not to draw any inference from the fact that a defendant does not testify. (CALCRIM Nos. 355, 222.) We assume the jury followed instructions. (See People v. Avila (2006)38 Cal.4th 491, 574.) Further, “brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44 Cal.3d 543, 572; People v. Bradford, supra, 15 Cal.4th at pp. 1339–1340.)
2. Admission of other crimes evidence
Flenoury argues the trial court abused its discretion under Evidence Code sections 352 and 1101, subdivision (b), and violated his right to a fair trial by allowing the prosecution to present testimony from victims of two prior burglaries Flenoury committed.
a. Admission of evidence was not an abuse of discretion
Evidence of other uncharged offenses or misconduct is not admissible to prove bad character or criminal propensity, but such evidence may be admitted to prove matters such as motive, intent, identity, etc., (Evid. Code § 1101, subds. (a), (b); People v. Avila, supra, 38 Cal.4th at p. 586; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) The lowest threshold of similarity between the uncharged act and the charges at issue is required in order to prove intent. (Ewoldt, supra, at p. 402.) Still, the uncharged act “must be sufficiently similar to [the charged offense] to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.”’ [Citations.]” (Ibid.) To establish identity, there must be “common features that are sufficiently distinctive so as to support the inference that the same person committed both acts, ” and the “‘pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’” (Id. at p. 403.) The trial court’s ruling on this issue, as on rulings made under Evidence Code section 352, is reviewed for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Before trial, the prosecutor notified counsel and the court that he intended to offer witnesses to testify regarding Flenoury’s convictions for a 1992 attempted burglary and a 2002 residential burglary, as evidence relevant to the issues of identity and intent. Flenoury’s counsel objected under Evidence Code sections 352 and 1101. She argued the incidents were too remote, there was no issue of identity, that intent could be easily inferred without such testimony, and that such evidence would be much more prejudicial than probative. The trial court permitted presentation of the evidence. The court agreed such evidence was “obviously prejudicial, ” but also found it was “highly relevant” both as to “intent and identity.” The prosecution offered brief testimony by one witness who, in 1992, saw an African-American man enter the garage of an aunt with whom the witness lived in Los Angeles. Police were summoned, and Flenoury was eventually charged with and pleaded guilty to attempted burglary.
Two women testified about a burglary at their home in December 2002. Both lived at the same address on West 83rd Street in Los Angeles. One woman, the daughter, lived in a house in front; her mother occupied a converted garage in the rear. Late one night the daughter was awakened by her mother’s screaming. Her mother ran towards the front house, pointing down the street saying, “that man was in my house.” The daughter ran after the African-American man and confronted him, asking him questions until the police arrived. The daughter did not identify Flenoury as that person at the time of the instant trial. However, in 2002 she identified the intruder in a street show-up and in court after the incident. The mother also testified. She said that, early on the morning in question, she got out of bed to use the bathroom. As she returned to bed she heard a noise and turned on a light. When she did so, she saw an African-American man rummaging through her dresser, and shouted for someone to call the police as the man fled. She identified Flenoury as the intruder in court after that incident, and again at the instant trial. It was stipulated that Flenoury pleaded no contest in both the 1992 attempted second degree burglary case, and in the 2002 first degree residential burglary incident. The jury was instructed to limit its consideration of the evidence of the prior incidents to the issue of intent.
Flenoury’s counsel asserts that this evidence was not relevant because identity was the only element of the charged offense at issue. The record does not support this assertion. The prosecution bore the burden to prove each element of the charge of attempted burglary, one of which was intent. (Cf., People v. Mayo (2006) 140 Cal.App.4th 535, 538–539.) Trial proceeded on the theory that Flenoury contested each element of the charged offense. It was not until after trial and the completion of Flenoury’s closing argument, when he conceded his defense was focused on identity, that the prosecution ceased focusing on and no longer anticipated a defense as to the element of intent.
We reject Flenoury’s reliance on People v. Felix (1993) 14 Cal.App.4th 997 as misplaced. In Felix, the question was the admissibility of evidence of prior incidents to prove identity. (Id. at pp. 1005–1007.) Here, the evidence of the prior incidents was initially introduced to prove both intent and identity, but the jury was later instructed to consider it solely for the purpose of intent. In any event, if and to the extent any error may have been committed by admission of the uncharged incidents, that error was harmless in light of the overwhelming evidence of Flenoury’s guilt in this action.
Nor do we agree that the prior convictions were too remote to be relevant. As the trial court noted, Flenoury’s probation report demonstrates he has “been in and out of penal institutions basically his entire life, ” often for the commission of burglary or other property-related crimes. Evidence of just two of the offenses Flenoury has committed was admitted, each of which was for an attempted or completed burglary at a victim’s home or residential garage. We cannot agree this evidence, offered over the course of a few moments’ testimony of three witnesses, was inflammatory, confusing or unduly consumptive of trial time. Accordingly, we find the trial court did not abuse its discretion by admitting evidence of prior uncharged acts.
b. No prejudice
Even if the trial court had erred by admitting evidence of the prior uncharged incidents, the error would be harmless. “[T]he erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations.]” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018–1019.) In assessing whether a miscarriage of justice has occurred, the long-standing harmless error rule of People v. Watson (1956) 46 Cal.2d 818 governs. (See People v. Cunningham (2001) 25 Cal.4th 926, 999.)
Evidence of Flenoury’s guilt is overwhelming. An occupant of the home observed Flenoury for several seconds, and saw him use a hammer to try to pry open her door. She told her daughter what the man looked like, and within minutes, the police had detained Flenoury in a nearby alley. His physical description and clothing matched perfectly the description given to the 911 operator. Flenoury was carrying a hammer, but no other tool. As soon as he saw the police officers, he immediately tossed away the hammer and disclaimed ownership of it, even though no officer had yet said a word about the tool, or had even told Flenoury why he had been stopped. When Flenoury was driven by Williams’s house, she immediately and without hesitation identified him as the would-be burglar, and did so a few months later at a live lineup and at trial.
In addition, the jury was instructed, pursuant to CALCRIM No. 375, that it was permitted to consider evidence of the uncharged offenses only if it first found the prosecution had first proved beyond a reasonable doubt, that Flenoury committed the charge at issue. Even then, the jury was free, but not required, to consider evidence of the uncharged acts solely for the limited purpose of determining whether Flenoury had the necessary intent. Accordingly, even if the evidence of the prior crimes was improperly admitted, the overwhelming evidence presented against Flenoury, coupled with the court’s cautionary instruction, cures any prejudice that may have attached to admission of such evidence. We presume the jury understood and followed the court's instructions. (People v. Avila, supra, 38 Cal.4th at p. 574.)
3. Correction of abstract of judgment
For reasons recited in Flenoury’s brief, with which we and respondent agree and which need not be repeated here, the abstract of judgment requires correction. At sentencing, Flenoury received credit for 382 days of actual presentence custody. The trial court limited the amount of conduct credit awarded to Flenoury to 20 percent or 76 days, mistakenly concluding the case fell under section 2933.1, subdivision (c). However, Flenoury’s conduct credits should have been calculated under section 4019, because the crime of attempted first degree burglary, while considered a “serious crime, ” is not considered a “violent felony” as defined by section 667.5 for purposes of the calculation of conduct credits. (See § 1192.7, subd. (c)(18); see also People v. Thomas (1999) 21 Cal.4th 1122, 1129–1130; People v. Henson (1997) 57 Cal.App.4th 1380, 1384–1390.)
The incorrect calculation of custody credits creates an unauthorized sentence which may be corrected at any time. (People v. Duran (1998) 67 Cal.App.4th 267, 270.) Under section 4019, Flenoury’s presentence custody credit is calculated by dividing the number of days of actual custody by four, discounting any remainder, and multiplying the whole number quotient by two. (People v. Culp (2002) 100 Cal.App.4th 1278, 1282–1283.) Those credits are added to the number of actual presentence custody days for the total number of presentence custody credits. (Ibid.) Thus, for Flenoury, 382 actual days divided by four, is 95.5. The.5 remainder is discounted, and 95 is multiplied by two, for 190 days of conduct credit (not the 76 he was awarded), or a total credit for time served of 572 days, not 458.
DISPOSITION
The judgment is affirmed. The abstract of judgment shall be corrected to reflect 382 actual days credit, 190 days of conduct credit, for a total credit for time served of 572 days. The trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: MALLANO, P. J., CHANEY, J.