Opinion
F069576
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. KYRAN JALON KATEPA, Defendant and Appellant.
Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF290631)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Kyran Jalon Katepa was convicted by jury of attempted robbery (Pen. Code, §§ 664, 211; count 1), first degree burglary (§ 459; count 2), and felony vandalism (§ 594, subd. (a); count 3). With respect to count 2, the jury also found a nonparticipant was present in the residence during the commission of the burglary. In a bifurcated proceeding, the court found defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to an aggregate term of 13 years in prison.
All undefined statutory citations are to the Penal Code unless otherwise indicated.
Defendant raises the following claims on appeal: (1) the prosecutor misrepresented the evidence during his closing argument; (2) the prosecutor misstated the law during his rebuttal argument; (3) the prosecutor improperly appealed to the passions of the jury; (4) these cumulative errors resulted in denial of a fundamentally fair trial; (5) defendant's trial counsel was ineffective for failing to object to these errors; and (6) the trial court failed to instruct the jury the People had the burden of proving beyond a reasonable doubt that defendant intended to steal food when he entered the apartment. We disagree and affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 19, 2013, at approximately 10:30 p.m., Homero Regalado was locking up his business after the power had gone out throughout the City of Tulare. It was dark outside. Defendant, carrying a golf club, approached Regalado as Regalado was locking the door.
Defendant yelled, "'Give me a cigarette ... or I'm going to shoot you.'" Regalado inferred defendant had a gun. Defendant was aggressive and excited. Regalado told defendant he did not have any cigarettes, but he did have a gun. Regalado moved to pull out his knife. Defendant told Regalado "he was going to shoot everybody that was around." Defendant walked away and Regalado called the police.
Regalado observed defendant walk towards a grocery store and attempt to hit a woman walking by with his golf club. Defendant yelled something at her. The woman yelled and ran away.
Defendant then grabbed a cement ashtray and threw it at the window of the grocery store, shattering the glass. While Regalado was speaking to the 911 operator, he began following defendant. Defendant threw rocks at Regalado and at some cars passing by. Regalado returned to his store and waited for police.
Cesar Flores was in his ground floor apartment living room lying on the floor, dozing off. His fiancée and daughter were in the shower. Flores's front door was halfway open because the power outage and summer heat made the apartment hot. Flores heard someone run through his front door, which was located in the living room of the apartment. The intruder, defendant, ran straight into the kitchen.
Using the light from his cell phone screen to see, Flores went into the kitchen and asked defendant, "What are you doing in my house?" and "What do you want?" Defendant responded, "'the cops are outside and I'm a wanted felon.'" Flores told defendant to get out of his house. Defendant refused.
Flores noticed defendant had started making himself a bagel with cream cheese and began eating it. Flores explained defendant appeared "[j]ust calm and trying to get something to eat." Flores got his fiancée and his daughter out of the apartment. Once outside, Flores alerted police to defendant's location. Police found defendant inside Flores's apartment, crouched down, hiding in a bedroom closet.
Flores estimated approximately seven minutes passed between when he was initially awakened by defendant and when he and his family left the apartment. At trial, Flores testified defendant did not take anything from the apartment, other than the bagel and cream cheese. Flores was unable to positively identify defendant as the intruder.
DISCUSSION
Defendant contends his burglary conviction must be reversed based on the cumulative prejudice of multiple errors, including prosecutorial misconduct, trial counsel's ineffectiveness for failing to object to the alleged misconduct, and the trial court's failure to reinstruct the jury. We are unpersuaded.
I. Prosecutorial Misconduct During Closing Argument
In his first claim on appeal, defendant asserts the prosecutor misrepresented the evidence and invented facts during closing argument to make him appear guilty.
A. Waiver
We initially observe trial counsel lodged no objection to the prosecutor's comments he challenges on appeal. "'"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety."'" (People v. Ayala (2000) 23 Cal.4th 225, 284, italics added.) Our Supreme Court has held when a defendant does not object to remarks in closing argument claimed to be prosecutorial misconduct, the defendant is deemed to have waived the objection and the point cannot be raised on appeal.
"The reason for this rule, of course, is that 'the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.'" (People v. Green (1980) 27 Cal.3d 1, 27, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.) If an objection has not been made, "'the point is reviewable [on appeal] only if an admonition would not have cured the harm caused by the misconduct.'" (People v. Earp (1999) 20 Cal.4th 826, 858, italics added.)
Defendant contends trial counsel rendered ineffective assistance of counsel for failing to object to the prosecutor's comments in closing argument. "A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel." (People v. Lopez (2008) 42 Cal.4th 960, 966.) To prove ineffective assistance of counsel, a defendant must show: (1) defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and, (2) the deficient performance resulted in prejudice by depriving the defendant of a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
To determine whether trial counsel's performance fell below an objective standard of reasonableness, we look to the record to see if there is any explanation for the challenged aspects of representation. If the reasons for defense counsel's actions are not readily apparent from the record, we will not assume constitutionally inadequate representation and reverse a conviction unless the record discloses "'"no conceivable tactical purpose"' for counsel's act or omission." (People v. Lewis (2001) 25 Cal.4th 610, 674-675.) "If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
Here, as we explain below, even if we were to conclude trial counsel was incompetent for failing to object to the prosecutor's statements complained of on appeal, defendant has failed to demonstrate prejudice as a result. Defendant's claims are therefore deemed waived.
B. Analysis
1. The Prosecutor's Comments on the Evidence
In his first argument on appeal, defendant contends two statements made by the prosecutor in closing argument were based on facts not in evidence. First, the prosecutor stated "[defendant] ran straight from the front door to the kitchen without stopping. He immediately started stealing food." (Italics added.) Second, the prosecutor stated, "Mr. Flores even stated it looked like [defendant] was just trying to get some food, that's why he went inside my house." (Italics added.) We conclude the first statement was a fair comment based on the evidence. The second statement, however, was error, as Flores never testified it was his impression or belief defendant went inside his apartment for purposes of getting food.
At trial, the following discussion occurred between Flores and the prosecutor:
"Q. So you said you heard someone run in [your apartment]; is that right?
"A. Yes, sir.
"Q. Did that wake you up or did you just hear it?
"A. Yeah, it woke me up.
"Q. What did you see when you heard those sounds?
"A. When I seen somebody run into the kitchen, then I followed as well.
"Q. When you saw the person run, did you see them run from the front door into the kitchen?
"A. Yes, sir.
"Q. Did they go directly or did they kind of—
"A. Directly
"Q. Is the kitchen connected to the living room?
"A. Yes
"Q. So after you saw them run into the kitchen, what did you do?
"A. Began to ask questions, what was he doing.
"Q. Did you go to the kitchen and ask questions?
"A. Yeah.
"Q. What did you see the person doing when you started asking questions?
"A. Trying to get something to eat.
"Q. Can you be a little more specific.
"A. Grabbing the—he went in the cabinet and grabbed a bagel and started making himself a bagel with cream cheese. [¶] ... [¶]
"[Q.] From when you first heard the sound until you saw him making a bagel, how much time passed?
"A. About five minutes.
"Q. So did it take him five minutes to get from the front door to the kitchen?
"A. No.
"Q. So what happened in those five minutes?
"A. I just was asking him what was he doing here, and he was happy, he was telling me— [¶] ... [¶]
"Q. What was [defendant's] demeanor[?] [H]ow was he acting?
"A. Just calm and trying to get something to eat."
(a) "[Defendant] Immediately Started Stealing Food"
Defendant contends the prosecutor misrepresented facts in closing argument when he stated: "[Defendant] ran straight from the front door to the kitchen without stopping. He immediately started stealing food." (Italics added.) We conclude the prosecutor's statement was a fair comment based on the evidence.
Flores testified defendant ran directly into the kitchen, and when Flores confronted defendant to ask him what he was doing, defendant was "making himself a bagel with cream cheese." Flores also testified five minutes elapsed between the moment defendant ran into his apartment, and when defendant began to make himself something to eat. Thus, on one hand, Flores's testimony permitted the jury to infer defendant immediately ran into the kitchen and began preparing food, or alternatively, five minutes passed before defendant began preparing food.
Although these apparently inconsistent statements may be explained by the fact Flores's perception of time was affected by the ensuing events, it is neither necessary nor appropriate for us to speculate in an effort to reconcile Flores's statements. The jury, presented with both statements, was fully capable of deciding whether defendant immediately began preparing food upon entering Flores's kitchen, or whether he did so after five minutes. In finding defendant guilty of first degree burglary, the jury apparently credited Flores's statement that defendant immediately began preparing food because this was strong circumstantial evidence of defendant's intent when he entered Flores's apartment. We conclude trial counsel had no duty to object to the prosecutor's comments because they were based on facts in evidence.
(b) "Mr. Flores Even Stated it Looked Like He Was Just Trying to Get Some Food, That's Why He Went Inside My House"
During closing argument, the prosecutor also commented: "Mr. Flores even stated it looked like [defendant] was just trying to get some food, that's why he went inside my house." (Italics added.) Although Flores stated defendant appeared "[j]ust calm and trying to get something to eat" when he initially confronted defendant in the kitchen, Flores never suggested defendant went inside his house for purposes of getting something to eat. We agree the prosecutor's comment was erroneous to the extent it suggested Flores believed defendant went inside his home for purposes of getting something to eat. Flores never testified this was his impression or belief.
2. The Prosecutor's Legal Theory
Defendant further contends the prosecutor either misstated the law or presented an erroneous legal theory during his rebuttal argument by telling the jury defendant could be found guilty of burglary if he formed the intent to steal after he entered Flores's apartment, but before he entered the kitchen. Defendant asserts the evidence showed Flores's kitchen was a contiguous, shared living area not separated by a partition from the living room. As such, the kitchen could not be a room within the meaning of the burglary statute.
From the limited record before us, we are unable to determine whether Flores's kitchen could be considered a room under the burglary statute. Nonetheless, even if we were to assume the prosecutor erred in suggesting as much, we find no reasonable probability the jury relied on this theory in rendering its verdict.
During his closing argument, defense counsel made the following comments:
"Ladies and gentlemen, I go into Wal-Mart, I'm buying some stuff, pick up a few items, I like that CD, look around, I steal that CD, I pay for the items that I did want, I pocket the CD, I walk out of the store and get caught. Now, the only reason they can—they can't charge me with felony burglary is because I formed the intent when I was inside the store to steal the CD. So the worst they could get me for was a misdemeanor petty theft.
"Those are the same analogies you have to use to decide whether [defendant committed] a first degree residential burglary. Did [defendant] intend to go inside the apartment to steal a bagel and cream cheese? No, ladies and gentlemen, I don't believe so."
During his rebuttal argument, the prosecutor addressed defense counsel's comments as follows:
"[U]sing [defense counsel's] example with Wal-Mart, if you enter and then you form the intent later, that's not a burglary. However, if you enter a house and then you form an intent to steal and you go into another room, entering another room is burglary.
"For example, if I'm over at my friend's place and he says 'I just won the lottery, there's my winning lotto ticket,' I walk over to his bedroom and steal that winning lotto ticket, that's a burglary. Going from one room to another with intent to steal is a burglary.
"Even if you determine for some reason that [defendant] didn't have the specific intent to steal when he entered Mr. Flores' house, that he just was looking for a place to hide, you have to think what was his intent when he entered the kitchen. We know he wasn't hiding, that he didn't want to go into the kitchen to hide. He was eventually found in a bedroom, which is attached to the living room.
"So the kitchen is by itself and you heard Officer Soriano talk about that. The only reason he entered that kitchen is to get food."
Defendant does not challenge the prosecutor's statements to the extent they suggest a defendant may form the requisite intent to commit a burglary after being invited into a home, but before entering a successive room within the home. He claims the prosecutor misstated the law because based on the evidence presented, Flores's kitchen cannot be considered a "room" for purposes of the burglary statute.
Section 459 provides, in relevant part, "Every person who enters any house, room, [or] apartment, ... with intent to commit grand or petit larceny or any felony is guilty of burglary." "'The intent [to steal the personal property of another] need not be in the mind of the [defendant] at the time of the initial entry into the structure, if [he or she] subsequently forms the intent and enters a room within the structure.'" (People v. McCormack (1991) 234 Cal.App.3d 253, 255.)
A "room" for purposes of burglary is defined as "'a part of the inside of a building, shelter or dwelling usually set off by a partition.'" (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1257.) A room has been interpreted to include a ticket office enclosed by a partition that did not touch the ceiling within a public railway station (People v. Young (1884) 65 Cal. 225), an office space in a lobby of a public building, separated from the lobby by a waist-high counter with a swinging gate (Mackabee, supra, at p. 1258), and even a three and one-half by four-foot-closet inside the foyer of a home (In re M.A. (2012) 209 Cal.App.4th 317, 323). Notably, these "rooms" were spaces enclosed on all four sides.
In People v. Sparks (2002) 28 Cal.4th 71 (Sparks), our Supreme Court provided further guidance on what may constitute a room for purposes of burglary. In Sparks, the court held entry into an unsecured bedroom within a single-family residence with the requisite burglarious intent was sufficient to support a burglary conviction, even if that intent was formed after the defendant's entry into the home with the permission of the homeowner. (Id. at p. 73.) The defendant argued the term "'any ... room'" as the phrase is used within the burglary statute was intended to encompass only certain types of rooms, such as locked rooms within a single-family home, or a separate dwelling within a boarding house. (Id. at p. 76.) The court rejected this view, explaining the defendant's interpretation focused on the nature of the room entered and "whether an occupant's reasonable expectation of protection from intrusion into that room from the other rooms is comparable to the expectation of protection from intrusion into a house from outside the house." (Id. at p. 77.)
This standard, adopted by the Model Penal Code and most jurisdictions, is not in accord with California's interpretation of the burglary statute. (Sparks, supra, 28 Cal.4th at p. 78.) California courts have upheld burglary convictions based on the defendant's entry into a variety of rooms, including a multi-unit lodging facility (People v. O'Keefe (1990) 222 Cal.App.3d 517), entry from the garage of a single-family home into a locked kitchen (People v. Thomas (1991) 235 Cal.App.3d 899), and entry from the inside of a home into a rented and locked bedroom inside the home (People v. Wilson (1989) 208 Cal.App.3d 611).
The Sparks court also considered the purpose of the burglary statute. (Sparks, supra, 28 Cal.4th at pp. 81-87.) The burglary statute was primarily designed to address "'the level of risk that the burglar will come into contact with the home's occupants with the resultant threat of violence and harm.'" (Id. at p. 87.) The court explained, "'Just as the initial entry into a home carries with it a certain degree of danger [to personal safety], subsequent entries into successive rooms of the home raise the level of risk that the burglar will come into contact with the home's occupants with the resultant threat of violence and harm.'" (Id. at p. 82.) In affirming the defendant's burglary conviction, the court concluded the victim could reasonably expect significant additional privacy and security when she retreated into her own bedroom where she was attacked. (Id. at p. 87.)
Even with the guidance provided under Sparks, it is not clear to us whether Flores's kitchen may be considered a room for purposes of the burglary statute. The record supports the conclusion Flores's kitchen was separated from the living room by a partial partition. Officer Soriano testified "the northwest part of the apartment is the kitchen, which is attached basically to the living room." When the prosecutor asked Soriano how the kitchen was attached, he stated, "I believe it is separated by carpet from the living room. It goes from carpet to linoleum." He also stated, "There's a partial wall that does separate the living room and the kitchen." The prosecutor clarified, "Is that one of those walls that has the door frame but no door that separates them?" Soriano responded affirmatively.
From the record, it appears Flores's kitchen is enclosed by a wall and a door frame, but the kitchen is not separated from the living room by a door. Thus, while the kitchen is partially partitioned from the living room, it is not completely enclosed. This explains how Flores initially could see defendant in the kitchen, but why he went into the kitchen to confront defendant. This conclusion is further supported by Officer Soriano's testimony that when police searched for defendant, "[they] entered the living room, cleared the living room, went into the kitchen, cleared the kitchen, [and] went down—back into the living room." Because police had to enter the kitchen to clear it, we infer the kitchen and living room were not open spaces.
The Attorney General argues this partial partition is sufficient to conclude Flores's kitchen is a room under the burglary statute. In our view, this is a close issue given the limited record before us. We therefore turn to the policies underlying the burglary statute.
The burglary statute is intended to protect against "'the risk that the burglar will come into contact with the home's occupants with the resultant threat of violence and harm.'" (Sparks, supra, 28 Cal.4th at p. 87.) In In re M.A., supra, 209 Cal.App.4th at page 322, the Court of Appeal explained "'"'[b]urglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.'"'"
Here, Flores's kitchen and living room are not contiguous open spaces, rather, they are separated by at least a partial partition. We infer the view from the living room into the kitchen is not unobstructed. Because the kitchen and living room are substantially partitioned by a wall, if an intruder or a home occupant were to enter the kitchen from the living room, there is a risk one may unexpectedly encounter the other. The danger associated from such an encounter is only heightened by the fact that kitchens ordinarily contain sharp instruments, such as knives, which could be used as a weapon by either the intruder or the home occupant, acting in panic or anger.
While the confrontation between Flores and defendant remained calm, a violent confrontation was just as likely to occur. Indeed, Flores testified he removed his family from the apartment because "[defendant] could have done anything." In our view, treating defendant's entry into Flores's kitchen as an entry into a room for purposes of the burglary statute is fully consistent with the personal safety concerns underlying the statute.
In addition to protecting against the increased risk to personal safety, the burglary statute is also intended "to prevent the invasion of an owner's or occupant's possessory interest in a space against 'a person who has no right to be in the building.'" (People v. Garcia (2016) 62 Cal.4th 1116, 1125; see People v. Gauze (1975) 15 Cal.3d 709, 714-715; In re M.A., supra, 209 Cal.App.4th at p. 322 ["another policy behind the burglary statute is to prevent intrusion into an area of the home in which the occupants 'reasonably could expect significant additional privacy and security'"].)
This factor does not compel us to find Flores's kitchen was a room. In our view, an ostensible or actual house guest would not necessarily assume the kitchen, unenclosed by a door, would be beyond the scope of the home occupant's invitation into the living areas of the home. Unlike a closet (In re M.A., supra, 209 Cal.App.4th at p. 322), or a bedroom (Sparks, supra, 28 Cal.4th at p. 87), a kitchen without a door does not necessarily say "keep out." Thus, it is unclear whether occupants of a home could reasonably expect additional privacy and security for the contents of their kitchen, specifically items in plain view, regardless of whether they have invited the defendant into the home.
The evidence is inconclusive as to whether Flores's kitchen could be considered a room for purposes of burglary. Nonetheless, assuming the prosecutor erred in suggesting as much, we conclude there is no reasonable probability the jury relied on the prosecutor's theory in rendering its verdict.
The prosecutor's theory was neither emphasized in his closing argument, nor was it embraced by the written or verbal jury instructions given by the trial court. Pursuant to CALCRIM No. 1700, the jury was instructed that in order to prove defendant committed a burglary, the People must prove: "The defendant entered a building," and "When he entered a building, he intended to commit theft." Although the trial court briefly remarked, "A burglary was committed if the defendant entered with intent to commit theft," the jury would have understood the entry the court was referring to was an entry into a building. Nowhere in the jury instructions was the word "room" or "kitchen" mentioned. Rather, the jury instructions solely encompassed the burglary of a building. (Cf. Sparks, supra, 28 Cal.4th at pp. 74-75 [trial court instructed jury "'Every person who enters a building or any room within a building with the specific intent to commit rape, a felony, is guilty of the crime of burglary in violation of ... section 459'"].)
Because the jury was instructed to follow the law as the trial court explained it, even if "the attorneys' comments on the law conflict with [the court's] instructions," and there is no evidence in the record to show the jury actually relied on the theory suggested by the prosecutor in closing argument, we find no prejudice. There is no evidence the jury was unable to follow the trial court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940 ["jurors are presumed to be intelligent and capable of understanding and applying the court's instructions"].) Thus, even if we were to assume the prosecutor erred in stating Flores's kitchen was a room for purposes of burglary, defendant has failed to show a reasonable probability the jury relied on this theory.
Defendant acknowledges the jury instructions embraced only the theory defendant committed a burglary by entering a building with the intent to commit theft. However, he contends the jury understood the prosecutor's comments to mean that a kitchen could be a building. The prosecutor never stated as much, nor are we persuaded a reasonable juror would interpret the prosecutor's comments in such a manner.
Defendant further contends "non-partitioned, contiguous, and shared areas of a home do not have separate privacy or security interests." He claims, "Without impediments preventing someone from moving between the areas, seeing from one area into the other, or from being totally aware of what is happening in the contiguous, shared space, there are no separately protected interests for the purposes of the burglary statute."
Defendant mistakenly assumes separately protected privacy or security interests must be shown under the facts of this case. A separate possessory interest or a heightened degree of protection against intrusion is required under circumstances where multiple counts of burglary are charged based on the defendant's entry into one building, but successive entry into a room or rooms within the building. (People v. O'Keefe, supra, 222 Cal.App.3d at p. 521 [defendant convicted of five counts of burglary based on intrusions into multiple student dormitory rooms within interconnected buildings]; People v. Church (1989) 215 Cal.App.3d 1151, 1159 [defendant convicted of burglarizing four separately leased and locked offices in one building].)
Our Supreme Court made this distinction clear in People v. Garcia, supra, 62 Cal.4th 1116. In Garcia, the defendant was convicted of one count of first degree burglary for his initial entry into a store where he committed a robbery, and one count of first degree burglary for his successive entry into a bathroom inside of the store, where he sexually assaulted a store employee. (Id. at p. 1119.) The issue was whether the defendant's multiple burglary convictions could be sustained because "section 459's statutory provisions suggest that a 'room' may be 'subsumed' into a larger structure when it is not different in nature from the enclosing structure—that is, when it provides no incremental security, privacy, or possessory right, as compared to the enclosing building." (Id. at pp. 1124-1125.) Here, because multiple burglary convictions are not at issue, separate privacy or security interests need not be shown.
Although it is not clear whether Flores's kitchen may be considered a room for purposes of the burglary statute, we conclude there is no reasonable likelihood the jury relied on this theory in convicting defendant of burglary. The jury instructions permitted the jury to convict defendant of burglary only by defendant's entry into a building, and a reasonable juror would not interpret a kitchen within an apartment, to be a building.
II. The Prosecutor's Appeals to the Passions of the Jury
Defendant challenges the prosecutor's line of questioning eliciting testimony as to the following facts: (1) Flores lived at the apartment with his fiancée and daughter; (2) the age of Flores's daughter; (3) Flores's fiancée and his daughter were in the shower when the crime occurred; (4) Flores was afraid for his family's safety; and (5) Flores's daughter was traumatized by the incident. He contends Flores's testimony as to these facts, as well as comments made by the prosecutor in his rebuttal argument, improperly appealed to the sympathy or passions of the jury. Defendant's claims are without merit.
A. Background
Defendant claims the prosecutor appealed to the passions of the jury by emphasizing the fear Flores's family felt during the incident. To support his claim, defendant directs us to the following line of questioning by the prosecutor during Flores's direct examination:
"Q. Why did you want to take your family outside of the house?
"A. [Defendant] could have done anything.
"Q. Were you concerned for their safety?
"A. Yes. [¶] ... [¶]
"Q. How did [your fiancée] take all of this? Was she scared?
"A. Yeah, she was scared.
"Q. Is she still scared.
"A. A little bit.
"Q. How about your daughter?
"A. My daughter was traumatized.
"Q. Is she still a little scared?
"A. Yeah."
Defendant contends the prosecutor then capitalized on the sympathy of the jurors by later urging the jury in closing argument to convict defendant regardless of his intent when he entered Flores's home:
"We live in a society of laws. We all know what's right and wrong. The judge told you at the beginning not to check your common sense at the door.
"Each and every one of you knows that what the defendant did on the night of the blackout was a violent, scary, petrifying situation, and he committed a series of crimes that night.
"This isn't a simple trespass. You cannot go into somebody's house in the nighttime, during the blackout, with a weapon, while they're asleep, with the family inside of the house. You cannot do that. That's against the law. Each and every one of you realizes that's a crime."
B. Analysis
With respect to the prosecutor's line of questioning, we note most of the testimony pertaining to details about Flores's fiancée and his daughter is relevant to the enhancement alleging a nonparticipant was present in the residence during the commission of the burglary. Because the prosecutor was not constrained to showing only that Flores was present to prove the special allegation, testimony as to the names of Flores's fiancée and daughter, as well as the fact they were home during the burglary, was relevant information.
As to the testimony relating to the fear Flores's family felt as well as the age of Flores's daughter, we agree this testimony was not directly relevant to any of the charged offenses. Nonetheless, we are unable to say trial counsel's failure to object was not a tactical decision within the reasonable range of effective representation. Counsel may well have assumed an objection or request for admonition would simply draw the jury's attention to the prosecutor's fleeting line of questioning. Although defendant does not contend this line of questioning was prejudicial in and of itself, we do not find any of this testimony to be so improper or inflammatory as to be prejudicial.
Finally, with respect to the prosecutor's comments in closing argument, although we are troubled by some of the comments, we do not view any of these fleeting remarks as an improper appeal to the sympathy of the jurors. One comment could arguably be construed as inviting the jurors to put themselves in the victim's position, which is an improper appeal for the jury's sympathy for the victims. (People v. Vance (2010) 188 Cal.App.4th 1182, 1188.) During closing argument, the prosecutor commented: "Each and every one of you knows that what the defendant did on the night of the blackout was a violent, scary, petrifying situation, and he committed a series of crimes that night."
However, appellate court cases that have considered improper so-called "Golden Rule" arguments persuade us the prosecutor's comment here does not amount to such an argument. In People v. Vance, supra, 188 Cal.App.4th at page 1199, the prosecutor expressly told jurors to imagine themselves in the shoes of the murder victim: "'[Y]ou have to walk in [the victim]'s shoes. You have to literally relive in your mind's eye and in your feelings what [the victim] experienced the night he was murdered. You have to do that. You have to do that in order to get a sense of what he went through.'" Here, the prosecutor's comments we have identified bear no resemblance to the comments in Vance.
Nor do we agree with defendant's assertion the prosecutor's comments, considered in light of his whole argument, suggest the prosecutor asked the jury to convict defendant of burglary on moral grounds, regardless of his intent. To the contrary, the prosecutor made clear during his closing argument his burden of proof with respect to defendant's burglarious intent:
"Let's talk a little bit about specific intent to steal when it comes to the burglary. It's going to be up to you to decide what [defendant] was thinking when he entered the house. Was he thinking I just want to get away from the police, or was he also thinking I'm hungry I want to take a bagel. I just have to prove that he—when he entered the house, he was thinking I'm going to take something to eat."
We are not persuaded the prosecutor's comments amount to an improper appeal to the jurors' sympathies. In any event, the foregoing instances of prosecutorial arguments, either singly or in the aggregate, were not so damaging or prejudicial to defendant's case as to require a finding of incompetence of trial counsel.
III. Cumulative Prejudice
A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects "'the trial with unfairness as to make the resulting conviction a denial of due process.'" (Darden v. Wainwright (1986) 477 U.S. 168, 181.) As discussed, none of the prosecutor's challenged comments, considered individually or as a whole, show defendant received an unfair trial. We agree one comment was error to the extent it was based on facts not in evidence: "Mr. Flores even stated it looked like [defendant] was just trying to get some food, that's why he went inside my house." (Italics added.) However, this comment alone was not so unfair as to result in a denial of due process.
In urging us to conclude otherwise, defendant directs us to People v. Centeno (2014) 60 Cal.4th 659 (Centeno), contending the jury likely followed the prosecutor's misstatements of law and fact, and reversal is necessitated because the evidence of defendant's intent to steal food was otherwise weak. Although evidence of the fact defendant entered Flores's apartment with the intent to steal food was not overwhelming, we are not persuaded reversal is required based on the errors identified. In Centeno, the court set forth the burden a defendant must meet to show prejudicial misconduct by the prosecutor:
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was '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.]' [Citations.]" (Centeno, supra, at p. 667.)
There, reversal was required in a "very close case" where the prosecutor's comments unduly risked misleading the jury by urging it to convict the defendant based on a "reasonable" view of the evidence, diluting the prosecutor's burden of proof beyond a reasonable doubt. (Centeno, supra, 60 Cal.4th at pp. 676-677.) Here, in contrast, the challenged comments, considered in the entire context of his whole argument and the jury instructions, do not persuade us a reasonable probability exists that one or more jurors applied the prosecutor's comments in an improper or erroneous manner. (Id. at p. 667.)
"[D]efendants are entitled to 'fair trials' but not 'perfect ones.'" (People v. Hill (1998) 17 Cal.4th 800, 844.) This case presents no exception to the rule. Although defendant's trial was far from perfect, we are not persuaded it was so unfair as to result in a denial of due process.
IV. Trial Court's Duty to Re-instruct the Jury
In his final claim on appeal, defendant contends the trial court had the duty to reinstruct the jury as to the elements of burglary. According to defendant, there existed a reasonable possibility members of the jury may have convicted him of burglary even if they did not believe, beyond a reasonable doubt, defendant entered Flores's apartment with the intent to steal food. We disagree.
Defendant's argument is based on an erroneous interpretation of the evidence adduced at trial and his view the jury likely relied on the prosecutor's theory defendant could be convicted of burglary if the jury found he formed the intent to steal food while in Flores's living room. As discussed, Flores gave seemingly inconsistent statements as to how much time passed between the point at which defendant entered the apartment and when he began preparing food. In convicting defendant, the jury apparently credited Flores's testimony defendant was preparing food when Flores initially confronted him.
Although we are unable to conclusively determine from the record provided whether Flores's kitchen could constitute a room under the burglary statute, the jury instructions did not embrace this theory. Accordingly, we find no reasonable probability the jury relied on this theory in rendering its guilty verdict, and no obligation by the trial court to reinstruct the jury as to the elements of burglary on this basis.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.