Opinion
A117480
6-26-2008
THE PEOPLE, Plaintiff and Respondent, v. MANUEL PEQUENO, Defendant and Appellant.
Not to be Published
Manuel Pequeno (appellant) appeals from a judgment of conviction entered after a jury found him guilty of residential burglary (Pen. Code, § 459 ). He contends: (1) the trial court erred in instructing the jury that it could find him guilty of burglary based on evidence of intent to commit either a theft or a felony related to drug sales; (2) he received ineffective assistance of counsel; (3) there was no substantial evidence supporting the conviction; (4) the trial court erred in not instructing the jury regarding the lesser-related crime of trespass; and (5) the prosecutors misconduct warrants reversal of the conviction. We reject the contentions and affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2006, an information was filed, charging appellant with one count of residential burglary (§ 459). The information also alleged a prior prison term (§ 667.5, subd. (b)) and a prior strike (§ 1170.12, subds. (a)-(d)) and alleged that appellants prior convictions made him presumptively ineligible for probation (§ 1203, subd. (e)(4)).
A jury trial commenced on January 8, 2007. Jose Herrera testified that on June 21, 2006, at approximately 9:20 a.m., he was at his house fixing the curtains on his window when he looked outside and saw a car arrive and park in front of his house. Two men got out of the car and walked towards a house that was occupied by the Mariscal family, including Herreras brother-in-law, Arturo Mariscal, Jr. (Mariscal). A female driver stayed in the car. Herrera had lived in the neighborhood for about eight years and did not recognize any of the three people. Herrera testified that he saw one of the men, whom he identified in court as appellant, walk toward the front door. A few minutes later, the police arrived, and appellant ran inside the house. Herrera went outside and stopped the female driver as she tried to leave, then walked across the street to talk to a police officer.
Victoria Mena, who lived across the street from the Mariscal residence, was in her living room when she heard men yelling her neighbors name out in the street. Through her window, Mena saw two men in front of the Mariscal residence. Mena had known the Mariscal family for 14 years and was dating Mariscals brother at the time. Mena testified that she saw one of the men, whom she identified in court as appellant, go to the door of the Mariscal residence and knock loudly on the door for about one minute. While he was pounding or knocking on the door, appellant told "Arturo" that he knew he was in the house and to come out. Appellant then opened the door, hesitated for a few seconds, and went inside the house. The other man walked around to the side of the house and took a screen off a window on the garage, which had been converted into a residential space. The man set the screen down underneath the window. Mena called 911 because the men "looked really suspicious, and they went in the house." Mena testified that she heard that Mariscal sold drugs, and she had seen "a lot of people coming to and from [the] house." Mena also testified that she knew Arturo owed people money. She never saw people buying drugs from Arturo.
Police officer Brent Potter testified that he responded to the Mariscal residence on the morning of June 21, 2006. As he pulled up to the residence, he saw people running and surmised they were going to run out of the house through the back door. Potter ran around to the rear of the house and saw appellant and another man. Appellant was waiting to scale a fence that the other man had already started climbing. The officer ordered appellant to the ground at gunpoint and broadcast that the other subject was on foot in the neighborhood. Shortly thereafter, Herrera approached him and told him that appellant and the other man had arrived in the neighborhood in a car that was parked in front of Herreras house. Potter contacted the female driver of the car.
Potter further testified that he advised appellant of his Miranda rights while appellant was handcuffed and seated in the rear of the officers patrol car. Appellant told the officer that he had met a person named Arthur who told appellant to stop by if he was in the neighborhood. Appellant explained that after he knocked on the door and no one answered, he went to the backyard because he heard music coming from that area. Appellant was "adamant" that he had not been inside the house. Appellant further said that while he was in the back of the house, he heard someone say that he was going to shoot him, so he ran. Potter testified that he thought "it was kind of odd that [appellant] would have heard someone saying that" because Potter had not said a word until he got to the corner of the house and ordered appellant to the ground. Potter asked appellant why he would feel the need to flee from police if he was just there to see a friend. Appellant did not respond. Potter testified that he later encountered Mariscal inside his house. According to Potter, Mariscal said he did not know appellant but had seen him before. Mariscal also told him that appellant must have found out where he lived by asking someone in the neighborhood. Mariscal did not know why appellant was at his house.
Detective Amy Hunter of the Napa Police Department testified that she interviewed appellant at the police station after his arrest on June 21, 2006. Appellant initially told the detective that he had run into Mariscal the preceding day and the two men had talked about "old times." Appellant said he had a new "tricked out" truck and wanted to show it to Mariscal, so Mariscal told him to stop by the next day. When he arrived at the house with several friends, appellant knocked on the door but no one answered. Appellant thought he heard music coming from the backyard so he walked around to the back and knocked on the door of a shed that was in the back. One of his friends then ran by him, yelling, "cops, front." Appellant ran a couple of steps and stopped. His friend was already over the fence. Hunter testified that she told appellant that the story did not match up with the facts. Appellant insisted that he was not inside the house. He stated he did not have permission from Mariscal to be inside the house or anywhere on the property.
Hunter testified that appellant eventually admitted he went inside Mariscals house "to collect on an eight ball." Hunter explained that an "eight ball" means 3.5 grams of methamphetamine, heroin, or cocaine, and is "much more than a useable amount" of contraband. According to Hunter, appellant explained that Mariscal had paid appellant $100 for the drugs the preceding day when he saw him at the laundromat, but that Mariscal still owed him $40. Hunter was under the impression that appellant went to Mariscals house for either the drugs or the money. Appellant also told Hunter that someone named Steve was selling "bad dope" through Mariscal and that Mariscal wanted to handle the matter directly with appellant. Appellant told Hunter that after knocking on the door and receiving no response, he and his friend went inside. They had walked through the bedrooms, kitchen, and the garage area when they heard police arrive. They ran out the back door into the backyard, where appellant was stopped by the police.
The jury found appellant guilty as charged. Appellant waived jury trial on his priors and the trial court found the strike prior to be true. The prosecution withdrew the prison prior allegation. The trial court sentenced appellant to four years in state prison.
DISCUSSION
1. The trial court did not err in instructing the jury regarding the burglary charge.
Appellant contends the trial court erred in instructing the jury that it could find him guilty of burglary based on evidence of intent to commit either a theft or a felony related to drug sales, because there was insufficient evidence to support the instruction on either theory. We disagree.
a. Standard of review
"The general rule is that the trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence, even though not requested to do so . . . ." (People v. Harris (1989) 47 Cal.3d 1047, 1096, disapproved on another ground in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.) "The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jurys understanding of the case. [Citation.] The trial court must give instructions on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendants theory of the case. [Citation.] Evidence is `substantial only if a reasonable jury could find it persuasive. [Citation.] The trial courts determination of whether an instruction should be given must be made without reference to the credibility of the evidence. [Citation.] The trial court need not give instructions based solely on conjecture and speculation. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1200.) In determining whether instructional error has occurred, a reviewing court considers the entire charge and assumes that jurors are intelligent persons capable of understanding and correlating all instructions. (People v. Ayers (2005) 125 Cal.App.4th 988, 997.)
b. Appellant waived the claim.
"[T]he failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Here, defense counsel did not object to CALCRIM 1700 1800 and 2300 regarding the theft and drug sales theories of intent. When discussing what instructions should be given, the court stated: "With respect to 1700 [burglary], Ill given (sic) 1700 as proposed by [the prosecutor] . . . and 2300 [sale of controlled substance], as proposed by [the prosecutor]. 1800 is theft by larceny, and 2300 is sale, transportation of a controlled substance." Defense counsel did not object to the giving of any of the instructions but simply stated: "I just heard [the prosecutor] say something about possession for sale of a controlled substance being a general intent crime. And I just would like clarification if he still — if thats really what he meant to say." After a discussion regarding whether possession for sale is a specific or general intent crime, defense counsel stated: "So if the Courts going to give CALCRIM 2300 as a supplement to 1700, burglary, with an attach that as the crime he entered to commit?" to which the court responded, "Yes. . . ."
CALCRIM 1700, as provided to the jury, states: "The defendant is charged with burglary. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant entered a building; [¶] AND [¶] 2. When he entered a building, he intended to commit [the] Crime of Theft or the Crime of Sale of Controlled Substances. [¶] To decide whether the defendant intended to commit [T]heft or Sale of Controlled Substances, please refer to the separate instructions that I will give you on that crime. [¶] A burglary was committed if the defendant entered with the intent to commit Theft or Sale of Controlled Substances. The defendant does not need to have actually committed [T]heft or Sale of Controlled Substances as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed [T]heft or Sale of Controlled Substances. [¶] The People allege that the defendant intended to commit [T]heft or Sale of Controlled Substances. You may not find the defendant guilty of burglary unless you all agree that he intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes he intended."
CALCRIM 1800, as provided to the jury, states: "The elements of the crime of theft are: [¶] 1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owners consent; [¶] 3. When the defendant took the property he intended to deprive the owner of it permanently or to remove it from the owners possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief. [¶] For petty theft, the property taken can be of any value, no matter how slight."
CALCRIM 2300, as provided to the jury, states: "The elements of Selling Methamphetamine or Heroin, a controlled substance, are: [¶] 1. The defendant sold a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substances nature or character as a controlled substance; [¶] AND [¶] 4. The controlled substance was Methamphetamine or Heroin. [¶] Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value . . . ."
Because defense counsel did not object to the giving of CALCRIM 1700, 1800 and 2300, and because, for the reasons discussed below, the claimed error did not affect the substantial rights of appellant, the issue is waived.
c. The instruction relating to sale of a controlled substance was properly given.
Even assuming there was no waiver, we conclude appellants claim fails on the merits. Appellant contends the trial court should not have instructed the jury that the burglary charge could be based on an intent to commit the crime of sale of a controlled substance because the sale was complete when he entered Mariscals house and thus, he could not have entered the house with the intent to commit that crime.
Appellant is correct in pointing out that the elements of the crime of sale of a controlled substance are met when an exchange of drugs and money occurs. (See CALCRIM 2300 ["Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value"].) However, the fact that, under its technical definition, a crime has begun and liability has attached does not mean the crime has also simultaneously ended.
Criminal liability for burglary, for example, attaches as soon as the defendant enters a building with the intent to commit a felony or a theft. (§§ 459, 460, subd. (a); People v. Montoya (1994) 7 Cal.4th 1027, 1041.) However, a burglary is not considered legally complete for purposes of the felony-murder rule until the defendant has reached a place of temporary safety. (People v. Salas (1972) 7 Cal.3d 812, 821-823.) Thus, in People v. Mason (1960) 54 Cal.2d 164, 169, a killing that occurred 20 hours after entry was held to have taken place during the commission of the burglary because the killing and the burglary were part of a continuous transaction. Similarly, a conspiracy to commit a particular crime concludes no earlier than the legal completion of the intended offense itself. (People v. Smith (1966) 63 Cal.2d 779, 794.)
Further, for purposes of the enhancement for inflicting serious bodily injury, a burglary is not considered "complete" upon entry with intent. People v. Ramirez (1979) 93 Cal.App.3d 714, 725 (Ramirez) explained: "In enacting . . . enhancement provisions, one intent of the Legislature was undoubtedly to provide protection for prospective victims of such crimes by creating what was expected to be a deterrent to the use of unnecessary force and violence . . . ." The defendant in Ramirez argued that his responsibility for infliction of great bodily injury must be determined by the application of a time frame that limited jury consideration to only those acts committed before the underlying crime had been "completed." (Id. at p. 726.) Noting that an "[a]doption of [the defendants] approach would . . . introduce an artificial analysis as to when the underlying [crime] had been `completed and . . . would subvert the legislative intent in enacting the enhancement provisions," the court concluded that the enhancement applied to all crimes defendant committed while inside the house, even though the burglary was technically complete the moment he entered with the requisite intent. (Ibid.)
The analyses set forth in the above cases apply here. Although criminal liability for the crime of sale of a controlled substance attached when appellant and Mariscal exchanged drugs for some money, appellant had not received the full benefit of the bargain at the time he went to Mariscals house. Thus, his act of entering Mariscals house to "collect" the remaining amount he was owed was a continuation of the crime of selling the drug, and an act in furtherance of committing that crime.
Appellant emphasizes that his entry "occurred a day or more after consummation of the drug transaction," and that "there was no joint operation of any drug sale intention with the entry of the home." However, section 459 does not require that an intruder intend to commit the target crime in the vicinity of the place entered, or near or at the time of entry. (People v. Griffin (2001) 90 Cal.App.4th 741, 748-749; People v. Kwok (1998) 63 Cal.App.4th 1236, 1246-1247 (Kwok ); People v. Ortega (1992) 11 Cal.App.4th 691, 694 (Ortega).) In Ortega, a defendant who entered a house to commit extortion was guilty of burglary even though the extortion was not going to be completed until some time in the future and at a location other than where the entry took place. (11 Cal.App.4th at pp. 695-696.) Kwok agreed with Ortega that a burglary may be found if the facts and circumstances of a case permit a reasonable inference that the entry was made in order to facilitate commission of the target crime, even if the entry and the crime "may not share the attributes of proximity in time and place." (63 Cal.App.4th at p. 1247.) Thus, it was unnecessary for the crime of sale of a controlled substance to occur entirely at or near the time and place of entry.
Our conclusion that the drug sale was not complete at the time of entry comports with the purpose of the burglary laws, which are "`" `"based primarily upon a recognition of the dangers to personal safety created by . . . 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."" [Citation.]" (See People v. Villalobos (2006) 145 Cal.App.4th 310, 317.) Harm by an intruder or a violent reaction by an occupant is just as likely, if not more likely, to occur, where an intruder enters a residence with the intent to complete a drug sale, i.e., demand payment for the sale, than if he enters with the intent to initiate a drug sale. Evidence that the drug transaction was not complete at the time appellant entered Mariscals house constituted substantial evidence to support the instruction that the burglary charge could be based on the felony of sale of a controlled substance.
d. The theft instruction was properly given.
Appellant contends the trial court should not have instructed the jury that the burglary charge could be based on an intent to commit a theft because "[t]here was nothing in the record to suggest appellant intended to steal when he walked into the residence." The defense theory was that appellant went to Mariscals house to "collect $40 on a drug deal from the day before." Appellant therefore apparently believed that he could not have intended to commit theft because he entered the house only to "collect" money to which he was entitled.
It is true that a bona fide belief of a right or claim to the property taken, even if mistaken, negates the element of felonious intent necessary to be found guilty of theft. (§§ 511, 490a; People v. Butler (1967) 65 Cal.2d 569, 573, overruled on another ground in People v. Tufunga (1999) 21 Cal.4th 935, 956 (Tufunga).) However, it is well settled that this "claim of right" defense to theft does not apply where the claimed right to the property is rooted in a "notoriously illegal" transaction. (People v. Gates (1987) 43 Cal.3d 1168, 1181-1182.) In Gates, the defense did not apply because the defendants purported "right" to the money taken was based on his participation in a forgery ring, a "clearly illegal endeavor." (Id. at p. 1182.) Similarly, in People v. Hendricks (1988) 44 Cal.3d 635, 642, the defendant claimed he had entered a residence in order to collect money owed him for his services as a prostitute. The defense was not available to him because his "right" to the money was based on prostitution, an illegal activity. Further, in People v. Johnson (1991) 233 Cal.App.3d 425, 457-458, a claim of right instruction was properly refused where the defendant went inside the victims house to collect payment for a drug deal.
Theft is the unlawful taking of the property of another. (§ 484; People v. Creath (1995) 31 Cal.App.4th 312, 318.)
Moreover, a claim of right defense to theft is not appropriate unless the claim is "specifically related" to the property taken. (People v. Barnett (1998) 17 Cal.4th 1044, 1145-1146; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021-1022.) The defense can therefore be applied only to takings intended to recover specific personal property that is owed, and cannot be applied to takings perpetrated to "satisfy, settle or otherwise collect on a debt, liquidated or unliquidated . . . ." (Tufunga, supra, 21 Cal.4th at p. 956.) Tufunga reasoned: " `"It is a general principle that one who is or believes he is injured or deprived of what he is lawfully entitled to must apply to the state for help. Self-help is in conflict with the very idea of social order. It subjects the weaker to risk of the arbitrary will or mistaken belief of the stronger. Hence the law in general forbids it."" (Id. at pp. 952-953, quoting Daluiso v. Boone (1969) 71 Cal.2d 484, 500.) Tufunga cited with approval an out-of-state case that concluded that because the money ($150) taken by the defendant from the debtors pocket was not the "`specific property "of the defendant, "`[t]he efficacy of self-help by force to enforce a bona fide claim for money [did] not negate the intent to commit robbery." (Tufunga, supra, 21 Cal.4th at p. 954.)
Here, there was evidence that appellant entered Mariscals house with the intent to collect money he was owed for the illegal activity of selling drugs. Further, appellant did not go to the house to recover a specific piece of property, but instead to take, either from Mariscal, or from his house, $40 he believed he was owed. Thus, appellants act of "collect[ing] on a drug deal from the day before" would, if successful, have constituted theft, and no claim of right defense would have applied. Although no theft occurred in this case, appellants act of entering the house with the intent to commit that theft would have constituted burglary. (See People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166 [to commit a burglary, the underlying theft or felony need not be committed or attempted].) Based on evidence of the drug money that was owed, and on the facts and circumstances surrounding appellants entry, a jury could reasonably infer that appellant entered the house with the intent to commit theft. There was substantial evidence to support the trial courts decision to instruct the jury that the burglary charge could be based on an intent to commit theft.
Appellant additionally contends that a unanimity instruction should have been given because at least one of the two theories (theft and/or sale of a controlled substance) was legally invalid. In light of our conclusion that both theories were valid, we reject appellants contention that a unanimity instruction should have been given.
2. Appellants claim of ineffective assistance of counsel fails.
Appellant contends that if his trial counsel failed to object to CALCRIM 1700, 1800 and 2300, he is entitled to a reversal on the ground that he received ineffective assistance of counsel. However, in order to prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsels performance was deficient, i.e., fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Having concluded that the instructions were properly given, we also conclude that any objection to the giving of those instructions would have been futile. "Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel. [Citation.]" (People v. Jones (1979) 96 Cal.App.3d 820, 827.) Thus, appellant has not demonstrated that counsels performance fell below an objective standard of reasonableness, and his claim of ineffective assistance of counsel fails.
3. Substantial evidence supports the conviction.
Appellant contends there was "insubstantial evidence" to support the burglary conviction. We disagree.
We review challenges to the sufficiency of the evidence "under the usual standard of the substantial evidence rule, resolving all conflicts in evidence and questions of credibility in favor of the verdict [or jurys findings], and indulging every reasonable inference the jury could draw from the evidence." [Citation.]" (People v. Autry (1995) 37 Cal.App.4th 351, 358.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Green (1997) 51 Cal.App.4th 1433, 1437.) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of facts verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
Substantial evidence supports the burglary conviction. There was undisputed evidence from eyewitnesses that appellant entered Mariscals house. One witness testified that she saw appellant look around and walk inside, and that she saw appellants friend go around to the side of the house and take the screen off the garage window. When police arrived, appellant and his friend fled to the backyard where Officer Potter ordered appellant to the ground at gunpoint as appellant waited his turn to scale the fence. Appellants female friend, who had been waiting in the car across the street, also tried to leave when police arrived. Appellant initially denied being inside the house and said he was there to visit a friend, but was unable to respond when Potter asked him why he ran from police if he was just visiting a friend. Appellant then admitted he was inside and acknowledged he did not have permission to be inside or anywhere on the property. He also referred to a drug transaction that had begun the preceding day and admitted to Detective Hunter that he entered Mariscals house with the intent to "collect on an eight ball." There was ample evidence from which the jury could reasonably infer that appellant had entered the house with the intent to commit a theft or to complete a drug transaction.
4. Appellant was not entitled to a lesser-related offense instruction.
Appellant asserts the trial court erred in refusing to instruct on the crime of trespass as a lesser-related crime of burglary. We disagree.
A court must instruct the jury regarding a lesser-included crime sua sponte if substantial evidence would support a guilty verdict of that lesser-included crime rather than the charged crime. (People v. Barton (1995) 12 Cal.4th 186, 194-198.) Instructions regarding lesser-related offenses are not to be given absent the mutual assent of the parties. (People v. Birks (1998) 19 Cal.4th 108, 112-113.)
People v. Birks, supra, 19 Cal.4th at pp. 112-113, 123, 136, overruled an earlier case that required courts to instruct on lesser-related crimes on a defendants request when consistent with the defendants trial theory and supported by the evidence. Birks held that courts may instruct on lesser-related crimes only if both parties agree or one party fails to object, explaining that to hold otherwise would infringe on the prosecutions sole authority to decide what charges to file and would violate the separation of powers. (Ibid.)
Trespass is a lesser-related, and not a lesser-included, crime of burglary. (Birks, supra, 19 Cal.4th at p. 118, fn. 8.) Further, the prosecutor in this case questioned the giving of a trespass instruction. We are bound by Birks. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the prosecution did not agree to give the jury a trespass instruction, and trespass is a lesser-related crime of burglary, the trial court properly refused appellants request.
Appellant concedes that trespass is a lesser-related crime and states that "in general, the trial court is not obliged to instruct on a lesser-related crime if the prosecution objects." However, he attempts to carve out an exception to Birks by referring to a portion of the Birks opinion in which the court expressed concern that instructing the jury regarding a lesser-related crime would be unfair to the prosecution because the prosecution chooses the charges based on evidence available before trial, and "[o]ften[,] evidence suggesting that the true crime, if any, is other than the charged or necessarily included offenses come to light only in the course of trial, when the complete defense case is first revealed." (Birks, supra, 19 Cal.4th at p. 129.) Appellant argues the instruction should have been given because there was no such concern for unfairness in this case, as trespass "was at the core of his defense and was supported by the evidence," and the prosecution knew or should have known "[f]rom the outset" that it would be one of the defenses theories at trial.
Appellants argument fails because Birks provides no exception to its holding that a lesser-related instruction may not be given absent mutual assent of the parties. Although the possibility of unfairness to the prosecution was one concern expressed in Birks, there is nothing in the opinion, or in any other case cited by appellants, suggesting that a court must give a lesser-related instruction over the prosecutors objection where there is no danger of unfairness to the prosecution. Even without the possibility of unfairness to the prosecution, it still remains that requiring a court to instruct on a lesser-related crime over the prosecutors objection undermines the prosecutors traditional authority to determine the charges and violates the separation of powers. (Birks, supra, 19 Cal.4th at pp. 112-113, 123, 136.) Regardless of how appellant chooses to couch his argument here, it is in direct conflict with Birks. Appellant was not entitled to a trespass instruction.
5. There was no prosecutorial misconduct.
Appellant contends the judgment must be reversed because the prosecutor committed misconduct by commenting on appellants decision not to testify. We reject the contention for the following reasons.
"[T]he privilege against self-incrimination of the Fifth Amendment prohibits any comment by the prosecution on a defendants failure to testify at trial that invites or allows the jury to infer guilt therefrom." (People v. Roybal (1998) 19 Cal.4th 481, 514, citing Griffin v. California (1965) 380 U.S. 609, 615 (Griffin).) This rule applies both to direct and indirect comments on a defendants failure to take the witness stand. (People v. Mincey (1992) 2 Cal.4th 408, 446.)
The following exchange took place after defense counsels closing argument and at the beginning of the prosecutors rebuttal argument:
"[Prosecutor]: Frankly, I listened to defense counsels arguments, and I dont know what to say about them. They all — a lot of it boils down to all these bad people that testify except his client. There is
"[Defense]: Im going to object. My client has a right not to testify.
"[Prosecutor]: Well, Im not
"[Court]: Mr. Rossi [prosecutor], please make no reference
"[Prosecutor]: I didnt mean whether he testified. That everybody else is bad is what I meant."
The prosecutor went on to describe how defense counsel failed in his attempts to attack the prosecutions witnesses as liars or bad people and portray appellant as an innocent man.
The phrase in question-"a lot of it boils down to all these bad people that testify except [appellant]"-can be interpreted to mean that everyone except appellant testified or that everyone except appellant is a bad person. In determining whether a phrase constituted an improper comment regarding appellants failure to testify, courts must look at the context in which the challenged statement was made. (People v. Mincey, supra, 2 Cal.4th at p. 446.) In Mincey, the Supreme Court addressed a challenge to a prosecutors statement that, on its face, appeared to constitute Griffin error, namely, "`[Defendant] was not a witness anyway." (People v. Mincey, supra, 2 Cal.4th at p. 446 & fn. 9.) After examining the context in which the statement was made — which included argument concerning what the defendant had told the police and the contention that the account of events that he gave to the police should be given no credence (ibid.) — the court concluded that the statement "would not have been understood by the jury as referring to defendants failure to testify." (Id. at p. 446.)
Here, a review of the prosecutors comment in the context of closing arguments in their entirety shows the prosecutor was not referring to appellants decision not to testify, but instead to defense counsels argument that everyone except appellant was a "bad pe[rson]." The prosecutor made this comment after defense counsel spent a significant portion of his closing argument stating why the jury was to discredit the testimony of most of the prosecutions witnesses. Defense counsel argued that Herrera was evasive and that Officer Potters statements were unreasonable. He suggested that Detective Hunter was biased because she provided "all the information she felt would help convict" appellant, but played "tug of war" with defense counsel by "f[ighting] [him] on words, usage," and tried to avoid answering his questions. He warned the jury not to "just listen to police officers [who] give great testimony for the prosecutors, [and] not answer any questions for the defense . . . ." He argued for appellants innocence by stating that appellant did not have the appearance of a drug dealer, or of someone trying to commit a crime.
In response to the above argument by defense counsel, it was reasonable for the prosecutor on rebuttal to point out the weaknesses in counsels argument that everyone except appellant was a "bad pe[rson]." The prosecutors statement regarding the "bad people that testify except [appellant]," in the context of all other comments made during closing, was not likely to mislead the jury. (See People v. Roybal, supra, 19 Cal.4th at p. 514 [in determining whether Griffin error occurred, courts must ask "whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question"].) We conclude there was no prosecutorial misconduct.
"In any event, `indirect, brief and mild references to a defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citations.] [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Thus, even if the prosecutors comment can be interpreted as referring to appellants decision not to testify, we conclude any error was harmless because the reference to the failure to testify was "`brief and mild," (People v. Bradford, supra, 15 Cal.4th at p. 1340) and no further mention was made regarding the matter.
In light of our conclusion that none of appellants claims have merit, and that any error was harmless, we reject appellants contention that the cumulative effect of any errors requires reversal.
DISPOSITION
The judgment is affirmed.
We concur:
Siggins, J.
Jenkins, J.