Opinion
D040177.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JARED HOURIGAN et al., Defendants and Appellants.
Appellants Jared Hourigan and Brandon Stanphill appeal from their convictions for burglary and four counts of attempted robbery. On appeal, they contend: (1) there was insufficient evidence of the specific intent required for the burglary and attempted robbery convictions; (2) the trial court abused its discretion by refusing to grant a mistrial based on the prosecutors reference in his opening remarks to the statement of an alleged accomplice who had pled guilty, but subsequently refused to testify; (3) the prosecutors reference to the alleged accomplices statement violated appellants Sixth Amendment right to confront and cross-examine the witnesses against them; (4) defense counsels failure to object to the prosecutors opening statement on Sixth Amendment grounds deprived appellants of their right to the effective assistance of counsel; and (5) the cumulative effect of the errors requires reversal. We find no error and affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Jared Hourigan was a college student from Bakersfield. In September 2001, Hourigan was attending Grossmont College, and lived on 52nd Street in San Diego. Hourigan associated with a group of friends from Bakersfield who attended Grossmont College and San Diego State University. Hourigans friends from Bakersfield included Bernard Ansolabehere, Bobby Morris, and Paul Madrugal, who lived together at 5484 55th Street, apartment E (the Ansolabehere apartment). Ansolabehere and Morris both used marijuana on a regular basis.
Curtis Landrian was a college student who attended classes at both San Diego State and Grossmont College. Landrian sold drugs from his second story, three bedroom apartment at 5445 55th Street, across the street from the Ansolabehere apartment. He lived with Edon Berkenstadt and another roommate. Landrian and his friends were acquainted with the occupants of the Ansolabehere apartment. Landrian was also friends with Kyle Murphy, who lived in the same complex as Landrian. According to one witness, the residents of 55th Street all knew each other and "partied" together regularly.
During the week prior to Saturday, September 22, 2001, Hourigan was in Bakersfield visiting his parents. That Saturday, Hourigan drove back to San Diego with three friends, appellant Brandon Stanphill, Juston LaFond, and Bryon Holsonbake. Stanphill, LaFond, and Holsonbake all lived in Bakersfield.
Hourigan and his Bakersfield friends attended a large party at the Ansolabehere apartment on the night of September 22. A number of other people from Bakersfield were present. Marijuana and alcohol were consumed at the party.
The next day, Sunday, September 23, 2001, Kyle Murphy noticed a white Ford Contour, or a similar vehicle, parked in a "no parking" zone at his and Landrians apartment complex. There were five people in the car who were unfamiliar to Murphy. Four white males who looked like college students got out of the car and walked into the complex. The fifth individual stayed in the car, with the engine running. Murphy was suspicious because he had never seen the men before.
Joshua Adams lived in the apartment next to Landrians. There were no apartment numbers on the doors. That Sunday afternoon, Adams returned home to his apartment and saw four unfamiliar men standing outside his front door. He asked the men, "Whats up? Can I help you guys?" One of the men replied, "No. Were just chilling." Adams entered his apartment. He noticed that his door handle had been loosened "as if somebody had been trying to open it without the keys."
That afternoon, Landrian was in his apartment with Murphy, Berkenstadt, and Berkenstadts girlfriend, Alice Marie Smith. According to Murphy, they had all been smoking marijuana. About 20 to 30 minutes after Adams saw the unfamiliar men in front of his apartment, someone knocked on Landrians door or rang the doorbell. Murphy went to answer the door.
Before Murphy got to the door, three men burst into the apartment. One of the intruders had a nylon stocking over his head. Someone pushed Murphy onto the couch, face down. One of the men held a knife to the back of Murphys neck while another held a knife to Smiths face. The men told Landrian and his friends to turn around, turn over onto their stomachs, and not to look at them. They threatened to kill the victims if they did not comply.
Landrian stepped toward one of the men. The man swung a knife at him. Landrian "tripped back." The man kept telling him to turn around.
Landrian noticed a fourth man enter the apartment and run down the hallway toward the bedrooms. The man ran into Landrians bedroom. He was inside the bedroom for 10 to 15 seconds.
When the men burst into the apartment, Berkenstadt was standing near a sliding glass door that led to the balcony. One of the men came up to Berkenstadt and tried to pull him back into the apartment. Berkenstadt managed to get out onto the balcony and jump off. He yelled for someone to call the police.
As soon as Berkenstadt started yelling, the intruders fled out the front door of the apartment. The fourth man came out of Landrians bedroom and ran out the front door with the other three. Berkenstadt saw the men fleeing and followed them until they disappeared across the street in the direction of the Ansolabehere apartment. Berkenstadt flagged down a police officer. Another witness, Joseph Lipman, saw the men run into the Ansolabehere apartment and directed the police there.
Ansolabehere and Morris were in their apartment drinking beer and smoking marijuana. Suddenly Hourigan, Stanphill, Holsonbake, and LaFond frantically rushed into the apartment through a sliding glass door. One of them said to lock the doors and close the blinds. Morris realized something was wrong and left the apartment. A short time later, Ansolabehere tried to leave the apartment but was stopped by the police. Ansolabehere initially denied that anyone was in the apartment, but then told the police that four people had run into the apartment through the sliding glass door.
The police entered the Ansolabehere apartment after having announced their presence and receiving no response. They found Stanphill, LaFond, and Holsonbake in one of the bedrooms and Hourigan in another. All four were breathing heavily and sweating. The police discovered a knife under the mattress where Stanphill was laying, a second knife in the closet where Holsonbake was hiding, and a third knife under a sofa cushion in the living room. The police found a fourth knife and a pair of pantyhose outside the apartment. Landrian and Murphy identified two of the knives as being identical or similar to the knives used by the intruders.
Adams identified Hourigan and Stanphill as being among the group of four men he saw outside his apartment just before the charged crimes occurred. Smith was "pretty sure" she recognized Stanphill and Holsonbake, from photographs, as two of the intruders. Berkenstadt testified that photographs of Hourigan, Stanphill, and Holsonbake looked very similar to the intruders. Landrian identified a photograph of Holsonbake as the person who had held a knife to his face. Lipman identified photographs of Stanphill and Holsonbake as two of the suspects he saw run into the Ansolabehere apartment.
II.
DISCUSSION
A. Sufficiency of Evidence of Specific Intent
Hourigan and Stanphill both contend that the burglary and attempted robbery convictions must be reversed on the ground that the evidence is insufficient to support their convictions. Specifically, they maintain that the prosecution failed to prove beyond a reasonable doubt the intruders had the specific intent to commit theft or robbery. They also contend that the prosecution failed to establish that all of the occupants of the apartment were victims of an attempted robbery. We reject these claims and find sufficient evidence of the required specific intent to support each of the guilty verdicts.
The only theory of burglary charged in the information, and referred to in the jury instructions, was that the defendants entered Landrians apartment with the specific intent to steal. The trial court properly instructed the jury that attempted robbery requires a specific intent to commit robbery. Contrary to the suggestion in Hourigans opening brief, none of the charged offenses required a finding that the entry into the apartment was for the purpose of committing a robbery. The jury could have found that the perpetrators entered the apartment with the specific intent to steal, then once inside formed a specific intent to rob the occupants.
"A state court conviction that is not supported by sufficient evidence violates the due process clause of the Fourteenth Amendment and is invalid for that reason." (People v. Rowland (1992) 4 Cal.4th 238, 269, 841 P.2d 897, citing Jackson v. Virginia (1979) 443 U.S. 307, 313-324, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) In determining sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia, supra, 443 U.S. at p. 319.) "The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)
We must presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence (People v. Rayford (1994) 9 Cal.4th 1, 23, 884 P.2d 1369), and we must draw all reasonable inferences in support of the judgment. (People v. McCleod (1997) 55 Cal.App.4th 1205, 1221.) The judgment is not subject to reversal simply because the prosecution relied heavily on circumstantial evidence or because conflicting inferences on matters bearing on guilt could be drawn at trial. Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two different interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of guilt beyond a reasonable doubt. This court must affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. (People v. Millwee (1998) 18 Cal.4th 96, 132, 954 P.2d 990.) "Reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal. Rptr. 529, 457 P.2d 321.)
In assessing the sufficiency of evidence to support a criminal conviction, "we need not determine that the evidence was strong, and indeed it may be viewed as not strong." (People v. Hughes (2002) 27 Cal.4th 287, 365.) "Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374, quoting People v. Redmond, supra, 71 Cal.2d at p. 755.)
Applying these general principles, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the perpetrators acted with the specific intent to commit theft and robbery. "There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) "The intent to commit a particular crime is generally manifested by the circumstances connected with the offense (Pen. Code, § 21) and the specific intent to rob may be inferred from the circumstances connected with the robbery." (People v. Johnson (1972) 28 Cal. App. 3d 653, 657, 104 Cal. Rptr. 807.) The same rule applies to proof of the specific intent required for a burglary. (People v. Wolfe (1967) 257 Cal. App. 2d 420, 425, 64 Cal. Rptr. 855.)
Based on the totality of the evidence presented at trial, it was reasonable for the jury to infer that the perpetrators targeted Landrians apartment because he was a drug dealer. The perpetrators were closely associated with marijuana users from Bakersfield who knew Landrian and his friends, and who lived in an apartment on the same street as Landrian. The residents of this street were predominantly college students who knew each other and "partied" together frequently. Although there was no evidence that the perpetrators themselves knew Landrian or had dealt with him, the jury could reasonably have inferred from the evidence presented at trial that the perpetrators knew Landrian was a drug dealer.
Further, the jury could have concluded from the circumstances of the offense that the perpetrators intended to take drugs and/or money from Landrian when they entered the apartment, but that their plan was foiled by Berkenstadts escape. Three of the perpetrators entered the apartment, threatened the victims with knives, ordered them down to the ground, and repeatedly told the victims not to look at them. A fourth perpetrator then entered the apartment and went directly down the hallway to Landrians bedroom. From these facts, the jury could reasonably have inferred that the first three intruders were attempting to gain control over the victims and render them immobile so that the fourth perpetrator could search for drugs and/or money.
The testimony of Joshua Adams also supports an inference of intent to steal. Immediately before the robbery, Adams came home and noticed the four perpetrators immediately outside his own apartment door. Adamss apartment was located next to Landrians apartment, and neither apartment had a number on the door. Adams noticed that his own door handle had been loosened, as if someone had been trying to open it without the keys. From this, the jury could rationally have inferred that the perpetrators had mistakenly attempted to gain entry into the wrong apartment. This inference supports the jurys finding that the perpetrators acted with the specific intent to steal.
Based on the totality of the evidence presented at trial, we conclude there was sufficient evidence of specific intent on the part of the appellants to commit theft and robbery. Although there may have been other inferences the jury could have drawn from these facts, we need not rule out all other possible inferences in order to find that the evidence was sufficient to support the convictions.
We also reject appellants argument that there was insufficient evidence of intent to rob each of the four occupants of Landrians apartment. Relying on People v. Nguyen (2000) 24 Cal.4th 756, appellants claim there was insufficient evidence that any of the victims other than Landrian had actual or constructive possession of property in the apartment. However, Nguyen holds merely that the victim of a completed robbery must have had actual or constructive possession of the property taken. (Id. at pp. 759-765.) By contrast, an attempted robbery conviction requires only that the perpetrators must have attempted to take property from the victims possession by force or fear. A defendant who attempts to commit a robbery cannot avoid a conviction by establishing that the intended victim did not have possession of any property after all.
In this case, the jury could reasonably have inferred that once the perpetrators gained entry into Landrians apartment, they intended to take drugs and/or money by force or fear from the possession of any occupant they found inside. We cannot fault the jury for finding that the perpetrators would not have cared who owned the property they intended to steal. Thus, we find that there was sufficient evidence presented at the trial to support all four attempted robbery convictions, as well as the burglary conviction, as to both appellants.
B. The Prosecutors Opening Statement
Both appellants claim error arising from the prosecutors reference in his opening statement to evidence he did not present at the trial — the statement Holsonbake made to his probation officer after he pled guilty to each of the charged crimes. Appellants contend: (1) the trial court abused its discretion by denying their motion for a mistrial after Holsonbake and LaFond both refused to testify; (2) the prosecutors reference to Holsonbakes statement deprived appellants of their Sixth Amendment right to confront and cross-examine the witnesses against them; and (3) defense counsel provided ineffective assistance of counsel by failing to make a confrontation clause objection on this ground. Because these issues are interrelated, we shall consider them together.
The relevant facts are as follows. During pretrial proceedings, the prosecutor indicated that he intended to call Holsonbake and LaFond as witnesses in his case-in-chief. The prosecutor informed the court that Holsonbake and LaFond had "pled to the sheet" and had been sentenced to three years and five years, respectively. Defense counsel asserted that "they may not be very cooperative witnesses for the prosecution" and asked for a hearing outside the presence of the jury to determine whether Holsonbake and LaFond would assert their Fifth Amendment rights and refuse to testify. The trial court agreed to hold a hearing, but subsequently ruled that Holsonbake no longer had a Fifth Amendment right not to testify because the 60-day period within which he would have had to appeal his conviction had already expired.
Before opening statements, the trial court instructed the jury that "statements of counsel are not evidence, not to be considered by you as evidence . . . ." The court told the jury "you must, of course, base your findings concerning the facts solely on the evidence." The court defined the evidence as the testimony and the exhibits admitted at trial. The court also advised the jury not to discuss or consider why others involved in the crimes were not being prosecuted in the same proceeding "or whether they have been so prosecuted or whether they will be so prosecuted."
Immediately before the prosecutor gave his opening statement, the trial court told the jury: "When we return you11 have the benefit of counsels outline or overview of what they expect the evidence will be. Again, with the thought that it may help you to put the evidence and the testimony of the various witnesses, better put that evidence in context. And I then expect you11 have a chance to get into the evidence itself through the testimony of some witnesses before we take our lunch break."
During his opening statement, the prosecutor devoted most of his time to a discussion of the evidence that was ultimately produced at trial. However, near the end of his opening statement the prosecutor told the jury:
"Now, two of the defendants are not here on trial. Initially they were charged. All four of these individuals were charged with five different crimes; residential burglary, entering the apartment on 55th Street and four counts of attempted robbery with knives for each of the victims that were inside the apartment. . . . [P] . . .
"So the other two individuals, they were all charged together, but back at a preliminary hearing earlier, or a few months ago, Mr. Holsonbake and Mr. LaFond pled guilty. They pled guilty to what they did, each and every count, five separate counts. And there was no deals given by my office, by the District Attorneys office. They pled straight up to what they did and theyve been sentenced already to prison.
"Now, I will be calling Mr. Holsonbake as a witness. And initially he denied to the police what happened. He said he was just sleeping there and nothing happened. And mind you, hes not going to be happy to be called as a witness in this case. But when he was interviewed by the probation department he told the probation officer what happened. He said it was a stupid thing I did. I was — and he would not implicate his co-defendants, the two that are on trial. He made that perfectly clear to the probation officer. He admitted he participated in the crime and was armed with a knife during the commission of the crime. He said that he and his friend, Justin, Mr. LaFond, had information that these people had marijuana in their apartment and they were going down to steal it. They were gonna make some money. They were gonna steal their marijuana and they were gonna sell it. And they came down to San Diego from Bakersfield with these other two defendants who are also from Bakersfield, and they came down and they went into the house. They stormed in with knives and they tried to steal their money but they were unable to because one of the victims escaped. Then they ran down to their other friends house and tried to hide from the police. And Mr. Holsonbake, as he told the probation officer, hid in the closet cause he heard the dogs. He was caught, and the knife that he used was found right next to where he was."
During trial, the court granted the prosecutions petition to grant use immunity to LaFond pursuant to section 1324. Outside the presence of the jury, the court ordered LaFond to testify and threatened to hold him in contempt if he refused to do so. LaFond refused to testify and the court held him in contempt. During the same hearing outside the presence of the jury, Holsonbake also refused to testify and the trial court held him in contempt, as well.
Defense counsel promptly made a motion for a mistrial based on the prosecutors reference in opening statement to Holsonbakes statement to his probation officer. Defense counsel argued that this reference was "prejudicial" to the defense because the prosecutor had stated that Holsonbake made "some type of admission" regarding the involvement of Hourigan and Stanphill. Alternatively, defense counsel asked the trial court to give a limiting instruction to the jury to disregard this portion of the prosecutors opening statement. The trial court denied the motion for a mistrial. The court also questioned "the wisdom of reminding [the jurors] of something that is not evidence, that theyve probably forgotten about by now, and that nobodys going to say anything further about, as far as I can see." However, the court left it up to defense counsel whether such a limiting instruction should in fact be given. Defense counsel did not pursue the request for a limiting instruction.
Later in the trial, the court denied the prosecutors request to introduce in evidence the guilty pleas of Holsonbake and LaFond and Holsonbakes statement to the probation officer.
Holsonbake and LaFond were never called to testify in front of the jury. At the conclusion of the trial, the prosecutor had Holsonbake and LaFond stand silently in front of the jury and do quarter-turns, along with Hourigan and Stanphill.
In the final instructions to the jury, the trial court again instructed that statements of counsel are not evidence, that the jury must decide all questions of fact based solely on the evidence received during the trial and not from any other source, that the evidence consisted only of the testimony of the witnesses and the exhibits received in evidence, and that the jury was not to discuss or give any consideration to why any other accomplices in the crime were not being prosecuted as part of the same trial.
Appellants now contend that the trial court abused its discretion in denying the motion for a mistrial. A motion for mistrial is directed to the sound discretion of the trial court. A mistrial should be granted if the court is apprised of prejudice it deems incurable by admonition or instruction. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Jenkins (2000) 22 Cal.4th 900, 985-986, 997 P.2d 1044.) We review the denial of a mistrial motion under the deferential abuse of discretion standard. (People v. Silva (2001) 25 Cal.4th 345, 372.)
We find no abuse of discretion. "Unquestionably, the prosecution may in its opening statement refer to evidence which it believes will be produced." (People v. Barajas (1983) 145 Cal. App. 3d 804, 809, 193 Cal. Rptr. 750.) Thus, remarks 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." (People v. Wrest (1992) 3 Cal.4th 1088, 1108, 839 P.2d 1020, citing People v. Martinez (1989) 207 Cal. App. 3d 1204, 1255, fn. 5, 255 Cal. Rptr. 691; see also People v. Rhinehart (1973) 9 Cal.3d 139, 154, 107 Cal. Rptr. 34, 507 P.2d 642, overruled on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213-214, 152 Cal. Rptr. 141, 589 P.2d 396; People v. Faught (1981) 124 Cal. App. 3d 848, 858-859, 177 Cal. Rptr. 637.)
There was no prosecutorial misconduct here. The record establishes that the prosecutor intended to call Holsonbake and LaFond as witnesses at trial. Before trial, the prosecutor informed the court and defense counsel of his intention to call both of these witnesses. The prosecutor obtained a ruling from the court that Holsonbake no longer had any Fifth Amendment right to refuse to testify, and he also obtained a court order compelling LaFond to testify, under a grant of immunity. Appellants do not dispute the factual accuracy of the prosecutors opening statement, nor do they contend that the prosecutor made reference to any evidence that would have been inadmissible if Holsonbake had testified. Thus, the evidence the prosecutor outlined in his opening statement was not so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted. (Wrest, supra, 3 Cal.4th at p. 1108.)
Appellants have never argued that there was anything improper about the prosecutors reference to the guilty pleas of Holsonbake and LaFond. Defense counsels motion for mistrial was based solely on the prosecutors reference to Holsonbakes statement to his probation officer. Similarly, the confrontation clause argument raised on appeal pertains only to the "statements made by Holsonbake to his probation officer implicating appellants in the commission of the offenses." Thus, we need not decide any issue regarding the prosecutors reference to the guilty pleas.
We also reject appellants argument that the prosecutors opening statement violated their Sixth Amendment rights. Appellants argue that the prosecutors reference to Holsonbakes statement to his probation officer deprived them of their right to confront and cross-examine the witnesses against them, under Douglas v. Alabama (1965) 380 U.S. 415, 13 L. Ed. 2d 934, 85 S. Ct. 1074 (Douglas), and Bruton v. United States (1968) 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (Bruton). In Douglas, the Supreme Court found a confrontation clause violation where the prosecutor, during his questioning of an accomplice who repeatedly exercised his Fifth Amendment privilege against self-incrimination, read aloud in front of the jury portions of the accomplices confession in which the accomplice implicated the defendant. (Douglas, supra, 380 U.S. at pp. 419-420.) In Bruton, the Court found a confrontation clause violation where the court admitted in evidence the confession of a nontestifying codefendant in a joint trial, and instructed the jury to consider the confession against only the declarant, and not the codefendant. (Bruton, supra, 391 U.S. at pp. 126-137.)
However, this case is not governed by Douglas and Bruton. The parties have failed to cite dispositive Supreme Court authority directly on point. In Frazier v. Cupp (1969) 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (Frazier), the defendant was indicted jointly with his cousin Rawls, who pled guilty before trial. In his opening statement, the prosecutor summarized the testimony he expected from Rawls. The summary was not emphasized by the prosecutor and took "only a few minutes to recite." (Id. at p. 733.) At one point during the summary, the prosecutor referred to a paper he was holding, in order to refresh his recollection. The jury "might fairly have believed that the prosecutor was referring to Rawls statement . . . ." when he referred to the paper in his hand. At trial, Rawls asserted his privilege against self-incrimination in front of the jury when called to the stand to testify. (Id. at p. 734.)
In a unanimous opinion by Justice Marshall, the Supreme Court found no Sixth Amendment violation under Douglas, supra, 380 U.S. 415 and Bruton, supra, 391 U.S. 123. The court noted that unlike Douglas, the codefendants statement was placed before the jury "not during the trial, while the person making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening statement should not be considered as evidence." Further, the court observed that "unlike the situation in Bruton, the jury was not being asked to perform the mental gymnastics of considering an incriminating statement against only one of two defendants in a joint trial." The court also noted that "unlike the situation in either Douglas or Bruton, Rawls statement was not a vitally important part of the prosecutions case." (Frazier, supra, 394 U.S. at p. 735.) The Frazier court concluded:
"We believe that in these circumstances the limiting instructions given were sufficient to protect petitioners constitutional rights . . . . It may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable. But here we have no more than an objective summary of evidence which the prosecutor reasonably expected to produce. Many things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance. Certainly not every variance between the advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given . . . . It does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial. As least where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecutions case, it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not apprise the evidence objectively and dispassionately." (Id . at pp. 735-736.)
State and federal courts following Frazier, supra, 394 U.S. 731, have almost uniformly found no confrontation clause violation in circumstances where the prosecutor was unable to prove facts recited in good faith during opening statement, and where the jury was properly instructed that the statements of counsel are not evidence. (See, e.g., People v. Hernandez (1970) 11 Cal. App. 3d 481, 488-491, 89 Cal. Rptr. 766; United States v. Campbell (6th Cir. 2003) 317 F.3d 597, 606-607; United States v. Akin (7th Cir. 1977) 562 F.2d 459, 464-466.)
We are unable to distinguish this case from Frazier, supra, 394 U.S. 731. As in Frazier, the prosecutors opening statement was no more than an objective summary of the evidence he reasonably expected to produce at trial. This summary did not take place during the actual presentation of evidence; it occurred before any witness was sworn. Holsonbake and LaFond were never called to testify in front of the jury and their refusal to testify took place outside the presence of the jury. The prosecutors references to Holsonbake and LaFond in his opening statement were not emphasized nor touted to the jury as a crucial part of the prosecutions case; they were merely one portion of the prosecutors summary of the evidence he expected to introduce. Moreover, the trial court repeatedly instructed the jury that the statements of counsel were not evidence, that the jury had to decide the facts based solely on the evidence, and that the evidence was limited solely to the testimony of the witnesses and the exhibits received.
As in Frazier, we find that the prosecutors recitation of Holsonbakes statement "was not a vitally important part of the prosecutions case." (Frazier, supra, 394 U.S. at p. 735.) As discussed earlier, the evidence was sufficient to support the convictions, without Holsonbakes statement or testimony. The parties made no reference to Holsonbakes statement to his probation officer, either during the actual presentation of evidence or during closing arguments. Further, the prosecutors description of Holsonbakes statement was itself ambiguous. The prosecutor told the jury that Holsonbake had refused to implicate Hourigan and Stanphill, but then went on to describe Holsonbakes statement in a manner that could have been interpreted by the jury as implicating Hourigan and Stanphill. Thus, the jury would not necessarily have known what to make of the prosecutors reference to Holsonbakes statement.
In these circumstances, we see no reason to depart from the usual assumption "that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial." (Frazier, supra, 394 U.S. at p. 736.) The trial court indicated that it was willing to give a more specific limiting instruction, but the defense apparently agreed with the trial courts observation that the jury might well have forgotten what the prosecutor had said in his opening statement, and decided against reminding them by having the court give a limiting instruction. (See id. at p. 735 ["A more specific limiting instruction might have been desirable, but none was requested"].) Under the holding and reasoning of Frazier, we find no Sixth Amendment violation and no incurable prejudice arising from the prosecutors opening statement.
In light of our finding that there was no Sixth Amendment violation, we necessarily reject appellants argument that defense counsel provided ineffective assistance of counsel by failing to make a Sixth Amendment objection. We also reject appellants argument that the trial courts ruling on the motion for a mistrial was an abuse of discretion because the courts assessment of prejudice was based on an incomplete and inaccurate recollection of the prosecutors comments during opening statements. In applying the abuse of discretion standard on appeal, we must review the correctness of the trial courts ruling, not the reasons underlying it. (People v. Koontz (2002) 27 Cal.4th 1041, 1075-1076, fn. 4.) For the reasons we have discussed, we conclude that the trial courts denial of the motion for a mistrial was not an abuse of discretion because there was no incurable prejudice arising from the prosecutors opening statement. Having found no individual errors, we also find no cumulative error.
At the same time, however, we emphasize that in giving an opening statement, a prosecutor "should be scrupulous to avoid any utterance that cannot be supported later with [competent and admissible] evidence." (ABA Standards for Criminal Justice (1980) Commentary to Standard 3-5.5, p. 3-81; accord United States v. Thomas (D.C. Cir. 1997) 324 U.S. App. D.C. 374, 114 F.3d 228, 248; see also ABA Model Rules of Professional Conduct (1983) Rule 3.4(e), p. 22.) Although we have found no Sixth Amendment violation and no incurable prejudice on the facts of this case, the prosecutor would have been better advised not to mention the anticipated testimony of Holsonbake and LaFond in his opening statement. By doing so without any concrete assurance that these obviously reluctant witnesses would in fact testify at trial, the prosecutor unnecessarily jeopardized his own case and the defendants right to a fair trial.
III.
CONCLUSION
Considering the totality of the evidence presented at trial, there was sufficient evidence of specific intent to commit theft and robbery to support the burglary and attempted robbery convictions. The trial court did not abuse its discretion by denying the motion for a mistrial, because there was no incurable prejudice and no Sixth Amendment violation arising from the prosecutors opening statement. It necessarily follows that defense counsel did not provide ineffective assistance of counsel by failing to make a Sixth Amendment objection. Having found no individual errors, we conclude there was no cumulative error.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J. and McCONNELL, J.