Opinion
C041507.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. RICKY GRANT, Defendant and Appellant.
A jury convicted defendant Ricky Grant of two counts of robbery: an Albertsons grocery store on May 26, 2001, and a Winco Foods on July 4, 2001. On appeal, defendant contends the prosecutor committed misconduct by asking whether defendant thought the prosecutions witnesses were lying. We affirm.
FACTS
On May 26, 2001, defendant was seen exiting an Albertsons grocery store with a shopping cart full of alcohol for which he had not paid. When confronted, defendant claimed to be crazy and warned people to stay away from him if they did not want to get hurt. When defendant reached his car he retrieved a gun from his trunk and waved it around asking, "All right, now who wants some?" Defendant then finished loading the alcohol, got into his car, and drove off. Joaquin Jauregui, a clerk at Albertsons, Kelley Houk, the manager, and Brandi Rogers-Bohn all testified concerning these events.
At approximately 12:45 a.m. on July 4, 2001, defendant was seen walking out the door of Winco Foods with a basket full of groceries and alcohol for which he had not paid. Freight manager Bernard Cortez stopped defendant outside. When confronted, defendant became violent, striking Cortez twice on his face. Eventually, Cortez and store manager Jon Lackey were able to handcuff defendant and detain him until the police arrived. Both Cortez and Lackey testified regarding the incident.
Defendant testified on his own behalf. Defendant admitted to being at the Albertsons on May 26, 2001. He further admitted to stealing a bottle of brandy. However, defendant denied having a shopping cart during the robbery, denied having a gun, and denied making threats to anyone. Defendant also admitted to being at the Winco store on July 4, 2001. However, he claimed that he waited in the car while his friend went into the store. His friend came out with a basket of groceries that he asked defendant to hold. Cortez then came out of the store and confronted defendant. Defendant claims he offered to return the groceries but was detained forcibly anyway.
During cross-examination, the prosecutor asked defendant about the discrepancies between his testimony and the testimony of the prosecutions witnesses. The prosecutor specifically asked the defendant if Houk, Jauregui, and Rogers-Bohn were lying when they testified about the Albertsons robbery. The prosecutor also asked defendant if Cortez and Lackey were lying about the struggle that occurred during the Winco robbery.
DISCUSSION
I
Prosecutorial Misconduct
Defendant argues that the prosecutor committed prejudicial misconduct by repeatedly asking defendant whether other witnesses testified truthfully. Defendant has waived this argument.
The record demonstrates that defense counsel did not object when the prosecutor questioned defendant about other witnesses testimony. "Therefore, `[w]e need not address [defendants contention] on the merits because defense counsels failure to object to the prosecutors [questions] waives the issue on appeal." (People v. Foster (2003) 111 Cal.App.4th 379, 383, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.)
Defendant next argues that defense counsels failure to object constitutes ineffective assistance of counsel. (AOB 15) This argument fails.
In Foster, a jury convicted the defendant of burglary and grand theft. The defendant testified at trial. During the prosecutors cross-examination of the defendant, the prosecutor asked whether several prosecution witnesses, who gave testimony different from defendant, were lying. (8 Cal.4th at pp. 382-383.) The defendant argued the questions constituted prosecutorial misconduct and that defense counsels failure to object was ineffective assistance of counsel. (Id. at p. 380.)
After deciding defendants failure to object waived the prosecutorial misconduct claims, the court discussed the defendants argument that defense counsels failure to object was ineffective assistance of counsel. The court first noted that "[t]he issue of whether it is misconduct for a prosecutor to ask a defendant on cross-examination whether another witness was lying has not been addressed in a published decision by any California court." (Id. at p. 383.) The court then discussed three differing lines of precedent on this issue before concluding: "We need not decide for the purposes of this appeal, which, if any, of these lines of cases should apply in California because regardless of the propriety of the prosecutors questions, defendant failed to establish either component necessary for a reversal based on ineffective assistance of counsel under People v. Rodrigues, supra, 8 Cal.4th at page 1126. Given that there is no California authority establishing whether or not the questions were proper, defendant cannot establish that counsels failure to object to the prosecutors questions in this case `fell below an objective standard of reasonableness. [Citations.] Moreover, it is not reasonably probable that `a determination more favorable to defendant would have resulted if the questions had not been asked. [Citation.]" (People v. Foster, supra, 111 Cal.App.4th at p. 385.)
Defendant, here, admitted to being at both robberies and to stealing a bottle of brandy. Several witnesses, each providing similar accounts, testified defendant was an active participant in each crime. As in Foster, (1) we cannot say the failure to object fell below an objective standard of reasonableness and (2) even if counsel should have objected, it would not have produced a result more favorable to defendant.
II
Fines
In his opening brief, defendant also raised the issue of whether fines imposed by the trial court pursuant to Penal Code sections 1464 and 76000 were authorized. After receiving respondents brief, however, defendant requested this court to deem the argument withdrawn. We therefore do not consider the contention.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J. and ROBIE, J.