Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF2556, John Conley, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Collette Cavalier and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Walther Flores appeals from a judgment after a jury convicted him of receiving stolen property. Flores argues the trial court erroneously instructed the jury, his defense counsel was ineffective, the court erroneously admitted evidence of his prior convictions, and the prosecutor committed misconduct. None of his contentions have merit, and we affirm the judgment.
FACTS
One August morning, Rickey James Durfee, who lived near California Coach Towing, woke up before 5:00 a.m. When he went outside to walk his dog, he saw two men near the tow yard. The men were stacking items on the tow yard wall. About one hour later, he saw the men drive a tow truck near the wall, load the items, and drive away.
Philip Hernandez arrived at work at California Coach Towing later that morning and saw one truck was missing. Hernandez discovered seven laptop computers had been taken from tow trucks, and several gas and water cans, and tools were missing. A surveillance camera revealed two men had been in the tow yard between 3:30 and 3:45 a.m., and one of the men entered a truck and drove it away.
At approximately 7:00 a.m., Deputy Sheriff James Karr saw a black Honda CRV that was suspected of being involved in a crime. On the hood lay gloves, a motel key, and other items. He watched the car for approximately one and one-half hours before leaving.
About an hour later, Officer Rafael Ward was on patrol when he saw a black Honda CRV at a gas station. There were two men sitting in the front of the car, and a woman sitting in the back of the car. The passenger, later identified as Jason Wizner, took off his shirt and wrapped it around two laptop computers that he subsequently placed on top of a trash can. Ward approached the car and spoke with Flores, who was sitting in the driver’s seat and said the car belonged to his wife. The woman, identified as Wizner’s girlfriend, left.
Police searched the car and found two laptop computers, gas cans, and tools. They also recovered the laptop computers from on top of the trash can. In the dumpster at the motel where Flores was staying, police found tow truck mounting plates, three wireless broadband cards, and a vest similar to ones found at the tow yard. The truck was later found nearby.
Officer Stephen Elfelt interviewed Flores at the Orange Police Station. Flores said he drove to the tow yard to use drugs but decided it was not a good area. Flores claimed he and Wizner had used drugs early that morning, but Wizner left the motel about 5:00 a.m. He stated that when he saw Wizner later that morning, Wizner offered to sell him a laptop computer for less than $100. Flores said he did not buy one because he thought it may have been stolen.
An information charged Flores with seven counts of grand theft (Pen. Code, § 487, subd. (a)) (counts 1 to 7), receiving stolen property (§ 496, subd. (a)) (count 8), and unlawful taking of a vehicle (Veh. Code, § 18051, subd. (a)) (count 9). The information alleged that at the time he committed count 8 he was released from custody on bail (§ 12022.1, subd. (b)). The information also alleged he served two prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, Durfee was unable to identify Flores as one of the men he saw taking items from the tow yard. The parties stipulated the laptop computers found in Flores’s vehicle had been taken from the tow yard.
The prosecutor offered the testimony of Officer David Schweitzer, a civilian investigative officer. Schweitzer testified concerning the three locations he responded to, the tow yard, the gas station, and the motel, and the items he recovered and the photographs he took.
Flores testified on his own behalf. He admitted he was a heavy methamphetamine user who had been convicted of possession with the intent to sell, and he had gotten in trouble because he possessed counterfeit bills. Flores testified at length about a drug fueled odyssey involving Wizner, his girlfriend, and another man-he used methamphetamine at the tow yard. Flores admitted he was with Wizner that night but denied he was with him when Wizner took the items as he was asleep in his car. He denied taking the truck or any laptop computers. He claimed Wizner and his girlfriend were at his motel room when he returned, and Wizner tried to sell him a laptop computer at a price that caused him to believe it was stolen. Flores left the motel room with them, and he knew the laptop computers were in the car.
The jury convicted Flores of count 8 but could not reach verdicts on counts 1 to 7 and 9. The trial court declared a mistrial as to those counts and later on the prosecutor’s motion, dismissed those counts. After the court found true the enhancement allegations at a bench trial, it sentenced Flores to a total term of five years.
DISCUSSION
I. Jury Instruction
Flores argues the trial court erroneously failed to instruct the jury sua sponte with CALCRIM No. 376, and alternatively, his defense counsel was ineffective for failing to request the instruction. Neither claim has merit.
A. CALCRIM No. 376
People v. Najera (2008) 43 Cal.4th 1132 (Najera), forecloses Flores’s claim. Najera said of CALJIC No. 2.15, a pattern instruction similar to CALCRIM No. 376 in that both give the jury guidelines in considering evidence of possessing recently stolen property, that “‘CALJIC No. 2.15 did not directly or indirectly address the burden of proof, ’ nor did it affect the prosecution’s ‘burden of establishing guilt beyond a reasonable doubt. [Citation.]” (Najera, supra, 43 Cal.4th at p. 1140 .) The Najera court concluded a trial court has no sua sponte duty to instruct the jury with CALJIC No. 2.15. (Id. at pp. 1139-1141.) We conclude the California Supreme Court would reach the same conclusion with regard to CALCRIM No. 376 when a defendant is charged with receiving stolen property. Accordingly, we are compelled to reject Flores’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Ineffective Assistance of Counsel
“In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel’s performance prejudiced defendant’s case in such a manner that his representation ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] Moreover, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390 (Doolin).)
Here, it is not reasonably probable the result of the proceeding would have been different had defense counsel requested CALCRIM No. 376 because there was overwhelming evidence of his guilt on count 8, receiving stolen property. The parties stipulated the laptop computers found in the car Flores was driving were taken from the tow yard. And there was evidence he knew they were stolen as he refused Wizner’s offer to buy one because the price was too low. Thus, Flores was not prejudiced by the absence of the instruction.
II. Admission of Prior Convictions
Flores contends the trial court erroneously admitted his 2002 possession of methamphetamine with intent to sell and 2007 misdemeanor forgery convictions. Not so.
“The admission of past misconduct involving moral turpitude to impeach a witness in a criminal trial is subject to the trial court’s discretion under Evidence Code section 352. [Citation.] On appeal, the trial court’s decision is reviewed for abuse of discretion. [Citations.] To constitute an abuse of discretion, ‘the resulting injury [must be] sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, ... the court [must] exceed[] the bounds of reason, all of the circumstances being considered.’ [Citation.] In most instances the appellate courts will uphold the exercise of discretion even if another court might have ruled otherwise. [Citation.]” (People v. Feaster (2002) 102 Cal.App.4th 1084, 1091-1092.)
A court must consider four factors before admitting evidence of a prior felony conviction for impeachment: “(1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.] These factors need not be rigidly followed. [Citation.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Before trial, the prosecutor stated he intended to admit a 2002 possession of drugs for sale conviction and a 2007 forgery conviction to impeach Flores if he testified. Defense counsel argued the 2002 conviction was too remote, and its prejudicial effect outweighed any probative value. Defense counsel also argued that with respect to the 2007 misdemeanor forgery, the underlying conduct, but not the fact he was convicted, was admissible. The trial court reasoned the 2002 conviction was not too remote, and it did not tend to invoke an emotional bias against Flores. And the court concluded the prosecutor could inquire of Flores whether he was involved in a 2007 forgery but not whether he was convicted of forgery. The court denied defense counsel’s request to sanitize the 2007 misdemeanor forgery conviction.
At trial, during direct examination, Flores testified that in 2002 he was convicted of felony possession of methamphetamine with the intent to sell. He also admitted he got into trouble for possessing counterfeit bills.
A. 2002 Felony Possession of Methamphetamine with Intent to Sell
Possession of drugs for sale is a crime of moral turpitude and thus this evidence was relevant to Flores’s truthfulness. (People v. Harris (2005) 37 Cal.4th 310, 337.) And we disagree with Flores’s claim a six-year-old felony conviction is too remote. (People v. Green (1995) 34 Cal.App.4th 165, 183 (Green) [20-year-old conviction followed by pattern of criminality was not too remote to admit for impeachment].) The 2002 felony possession of methamphetamine with intent to sell is not similar to the current charges that the jury would convict Flores of the charged offenses based on his prior drug conviction, and the evidence would not tend to invoke an emotional bias against Flores. Finally, admission of the prior conviction did not deter Flores from testifying.
B. 2007 Misdemeanor Forgery
Forgery is a crime of moral turpitude and therefore this evidence was relevant to Flores’s truthfulness. (People v. Parrish (1985) 170 Cal.App.3d 336, 349.) And surely misdemeanor conduct from the previous year is not too remote. Additionally, we disagree with Flores’s assertion the forgery and current offenses were so similar the jury would convict him of the current offenses based on the forgery. Indeed, the jury acquitted him of nearly all the offenses, and forgery is distinct from receiving stolen property and would not invoke an emotional bias against him. (Green, supra, 34 Cal.App.4th at p. 183 [prior convictions for identical offense not automatically excluded as just one factor trial court is to consider].) And again admission of the conduct underlying his forgery conviction did not deter him from testifying.
Finally, the trial court instructed the jury with CALCRIM No. 316, which explained to the jury that it could consider this evidence only in evaluating Flores’s credibility. Therefore, the trial court properly admitted Flores’s 2002 felony drug conviction and conduct underlying his 2007 forgery conviction.
III. CALCRIM No. 306
Flores claims the trial court erroneously failed to instruct the jury with CALCRIM No. 306 because the prosecutor untimely disclosed an investigator’s report. We disagree.
“Under the due process clause of the United States Constitution the prosecution must disclose to the defense any evidence that is ‘favorable to an accused’ and is ‘material’ on either guilt or punishment. [Citation.] Failure to do so violates the accused’s constitutional right to due process. [Citation.] ‘Evidence is material under the Brady [v. Maryland (1963)] 373 U.S. 83 (Brady), standard “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” [Citation.]’ [Citation.] Evidence that is material to defendant’s guilt, innocence or punishment and that impeaches a prosecution witness must be disclosed. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 587.) A trial court has broad discretion in determining the appropriate sanction for discovery abuses. (People v. Jenkins (2000) 22 Cal.4th 900, 951 (Jenkins).)
No Brady violation occurs if the evidence is disclosed in time for the defendant to make effective use of it at trial, even though the defendant would have preferred to receive the disclosures at an earlier time. (See United States v. Anderson (9th Cir. 2004) 371 F.3d 606, 610.) A defendant complaining of untimely disclosure must show prejudice from the delay. (Jenkins, supra, 22 Cal.4th at p. 950.)
CALCRIM No. 306 provides in relevant part: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
During trial, defense counsel informed the trial court that during jury selection, counsel realized Officer David Schweitzer, a civilian investigative officer, had prepared a police report and the report was available. Defense counsel explained that earlier that day the prosecutor showed copies of eight photographs Schweitzer had taken at the crime scenes. Defense counsel told the court the prosecutor intended to call Schweitzer as a witness later that day. Defense counsel objected to Schweitzer testifying and admission of the photographs because of the late discovery disclosure. Although defense counsel did not believe the prosecutor acted in bad faith, counsel requested the court instruct the jury with CALCRIM No. 306. After reviewing the police report and photographs, the court excluded from evidence one of the eight photographs and described them as cumulative to other evidence. The court stated it was not applauding the prosecutor’s untimely disclosure of the report and photographs but declined defense counsel’s request to prohibit Schweitzer from testifying. The court also declined defense counsel’s request to instruct the jury with CALCRIM No. 306 because the instruction would not be helpful.
The trial court properly allowed Schweitzer to testify, and properly refused Flores’s request to instruct the jury with CALCRIM No. 306. The court excluded one of the photographs and characterized the other photographs as cumulative. Defense counsel received the police report and photographs during trial allowing Flores to effectively use the evidence at trial. Defense counsel thoroughly cross-examined Schweitzer concerning his investigation. After reviewing the evidence, the court refused Flores’s request to instruct the jury with CALCRIM No. 306 because the court opined the instruction would only serve to confuse the jury. Finally, Flores’s attempt to demonstrate prejudice is unavailing as he does not explain how the evidence was favorable or material. We discern no prejudice from the late disclosure of the police report and photographs.
IV. CALCRIM Nos. 103, 220, & 222
Flores claims CALCRIM Nos. 103, 220, and 222 violated his due process right to proof beyond a reasonable doubt. His claims have been repeatedly raised and rejected. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1118; People v. Stone (2008) 160 Cal.App.4th 323, 330; People v. Campos (2007) 156 Cal.App.4th 1228, 1239 (Campos); People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) He offers no compelling reasons to depart from these well-reasoned opinions, and we find nor error.
V. CALCRIM No. 226
Relying on well-seasoned and inapplicable authority from 1920 and 1896 (Campos, supra, 156 Cal.App.4th at p. 1240 [distinguishing cases Flores relies on]), Flores asserts the trial court erroneously instructed the jury with CALCRIM No. 226 because it invites jurors to consider matters outside the record-their common sense and experience. Does appellate counsel expect this court to contravene well-established authority by requiring jurors to check their common sense and experience at the courthouse door? (People v. Pride (1992) 3 Cal.4th 195, 268 [we expect jurors to bring their individual backgrounds and experiences to bear on the deliberative process].) We note appellate counsel unsuccessfully raised the same issue in Campos, supra, 156 Cal.App.4th 1228.
Appellate counsel unsuccessfully raised this issue in the following unpublished decisions: People v. Avelar (Mar. 25, 2010, B217469) from the Second District, Division Five; People v. Salazar (Feb. 9, 2010, G042244), People v. Vega (Oct. 20, 2008, G039032), and People v. Kidd (May 30, 2008, G038653) from this court; People v. Lewis (Feb. 3, 2010, B210399) and People v. Bogan (Feb. 11, 2009, B204652) from the Second District, Division Seven; People v. Garcia (Jan. 25, 2010, B212567) and People v. Jones (May 15, 2008, B191254, B192451, and B193068) from the Second District, Division Eight; People v. Jackson (Dec. 24, 2009, E047273) and People v. McKinney (Oct. 20, 2008, E041254) from the Fourth District, Division Two; People v. Pineda (Aug. 27, 2009, B207103), People v. Rivera (Apr. 22, 2009, B207809), People v. Casey (Dec. 10, 2008, B201371), and People v. Medrano (Aug. 25, 2008, B199694) from the Second District, Division Two; and People v. McAdams (Jan. 27, 2009, D052565) from the Fourth District, Division One. We hope appellate counsel has now learned on his 17th attempt this claim is meritless. (People v. Hearon (1999) 72 Cal.App.4th 1285, 1287 [issue conclusively settled adverse to appellant’s position and time for appellate attorneys to take frivolous contention off menu].)
VI. Prosecutorial Misconduct
Flores argues the prosecutor committed misconduct during rebuttal when he minimized the reasonable doubt standard and effectively shifted the burden of proof to prove his innocence. We disagree.
“A prosecutor’s misconduct violates the Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally unfair’ violates California law ‘only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 242.)
“Regarding the scope of permissible prosecutorial argument, ‘“‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets....”’” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951-952.)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in Doolin, supra, 45 Cal.4th 390.)
During rebuttal, the prosecutor argued: “Enough on stolen property. It shouldn’t matter because you shouldn’t have to get to that point. Why are you hearing all these things from the defense? Why have you had all these different ideas thrown out by the defense? Because not only is [defense counsel] doing his job and doing an admirable one, but [Flores] knows that it’s only going to take one of you to prevent a guilty verdict. [Flores] knows that I can stand up here, I can talk, I can get the head nods, I can get the smiles, I can have most of you on board --[.]” The trial court overruled defense counsel’s improper argument objection.
The prosecutor continued: “But if one person, one person goes back there and isn’t convinced, if one person buys into the story [Flores] is trying to sell and says hey, maybe that was reasonable, it’s not going to be a guilty verdict. And that’s what he is counting on. He knows it sounds ridiculous. But he only has to go one out of 12.” (Italics added.)
Relying on the above language, Flores claims the prosecutor “eviscerated the presumption of innocence and shifted the burden of proof to [him].” Not so. The prosecutor did not argue that the only way the jury could acquit Flores of the charges was if they concluded his story was reasonable. When read in their entirety, the prosecutor’s statements compel the conclusion he argued the jury was required to reach a unanimous verdict, and if one juror believed his story, the jury would be unable to reach a verdict. The prosecutor, during the complained of portion of his rebuttal argument, did not misstate the law and shift the burden of proof to Flores to prove his innocence.
Although we conclude the prosecutor did not commit misconduct, we do not condone statements that attack our criminal justice system. The California Constitution’s requirement of jury unanimity in criminal cases is well established, and we caution the prosecutor in making statements that minimize this constitutional protection.
Further, it was not likely the jury understood or applied the complained-of comments in an improper or erroneous manner. The trial court instructed the jury on reasonable doubt (CALCRIM No. 220), that the jury must follow the law as the court explained it to the jury (CALCRIM No. 200), and that what the attorneys say is not evidence (CALCRIM No. 222). “‘We presume that jurors understand and follow the court’s instructions’ [citations]....” (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) Finally, the cases Flores relies on to support his contention are inapplicable. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36 [prosecutor compared burden of proof standard to decision to change lanes and that people apply standard every day]; People v. Mendoza (1974) 37 Cal.App.3d 717, 726-727 [prosecutor stated charge required very little evidence].) Therefore, the prosecutor did not commit misconduct.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.