Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09NF2355 John Conley, Judge.
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. .
James M. Crawford, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Tami Falkenstein Hennick, and Scott Taylor Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Michael James Pierce of all five counts with which he was charged: three counts of attempted first degree residential burglary (Pen. Code, §§ 459, 460, 664); one count of possession of burglary tools (§ 466); and one count of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). In a bifurcated proceeding, the trial court found it to be true that defendant suffered prior convictions. The court sentenced defendant to five years and four months in state prison.
All statutory references are to the Penal Code unless otherwise indicated.
In this consolidated appeal and petition for writ of habeas corpus, defendant argues: (1) his trial counsel rendered ineffective assistance of by making representations about the evidence in the opening statement that were not supported during trial; (2) his trial counsel rendered ineffective assistance by failing to object to certain inadmissible and prejudicial testimony; and (3) the court erred by not staying (pursuant to § 654) the execution of defendant’s sentences on counts 2 and 3 (two of the attempted burglary counts). We affirm the judgment and deny defendant’s petition for writ of habeas corpus.
FACTS
The incident leading to defendant’s conviction occurred at approximately 7:45 a.m., on August 14, 2009, inside the Marriott Hotel in Anaheim, California. A hotel security guard observed defendant and two other men walk into the ballroom area where a fitness convention was taking place. After milling around the ballroom and lobby gift shop, defendant and his companions entered an elevator. The guard found the three men on the fifth floor. The guard saw each of the men push on hotel room doors. The guard detained two of the men, including defendant. A police officer searched defendant and found a methamphetamine pipe, a pair of gloves, and a “window punch.” Searching Travis Mock, the other detained man, the police officer found Mock was wearing a black shirt over a white shirt and a pair of pants over a pair of shorts.
Opening Statements
The prosecutor’s opening statement consisted of a brief description of the evidence he would present in the case: testimony by the security guard, video evidence, and testimony by the police officer.
Trial counsel for defendant then provided his opening statement, which defendant points to as a basis for his ineffective assistance claim. “Mr. Pierce didn’t do anything illegal. He walked through a place open to the public. He didn’t have a badge on. He was not a guest in the hotel. He didn’t steal anything. Didn’t destroy anything. He spoke with a few people. But he was in a place lawfully. This wasn’t closed to the public. It was a hotel. And everybody that was in the hotel wasn’t necessarily attending the convention which was taking place.”
“The security guard that we’re referring to... has 24 years of experience. He also has a vivid imagination and a suspicious nature. I guess being a security guard that pretty much comes with the territory.”
“Mr. Pierce was over by Disneyland after picking up a couple of his friends who had called him and asked him for a ride. And they were staying at a friend’s place in Anaheim and needed a ride to Santa Ana. [¶] Mr. Pierce picked up his buddies and [they] were by Disneyland and noticed there were a lot of young attractive people wandering around.”
“Mr. Pierce and his friends had nothing better to do that day, 8:00 in the morning. Mr. Pierce works as a glazer, but there was no work that day, so they thought they would check the place out [to] see what’s going on, look at the girls.”
Before leaving to pick up his friends, defendant accidentally locked himself out of his vehicle. Because he did not have a spare key nearby, defendant “picked up a little metal instrument... and a pair of his wife’s gloves, walked out to the [vehicle], and popped the window.... We will have a gentleman here testifying that he replaced that window not long after Mr. Pierce broke it.”
After entering the hotel, defendant and his friends walked into the gift shop because “one of his friends had a headache. Spoke to a person there who ended up being an undercover security officer. And she recommended Advil. So, they purchased some Advil, asked her where they could get a drink of water for the guy to take the Advil. She directed them. Took a couple pills for his headaches.” They continued to wander through the hotel and look around.
“They went to the fifth floor. While they had been down in the lobby area they spoke with a young lady who indicated to them that she was a guest in the hotel and she was attending the convention. But she didn’t have anything she was going to be doing that morning, because she wasn’t involved in any activities. So, for them to come up and say hello, if they got a chance. [¶] After they wandered around a little bit they said let’s go up and see if the lady is there. They got up, got to the fifth floor, and walked down the hallway.”
Trial counsel then stated it was impossible for the security guard to observe individuals pushing on the hotel room doors from the alleged vantage point. With regard to Mock’s extra pair of clothes, trial counsel attributed this to the cool morning weather.
“[H]e did have a pipe on him. He knows that’s a crime. So, he is guilty of that. But the... supposed burglary tools were not good for any sort of burglary in the hotel. And there was no attempt. No doors were pushed on. No knobs were turned.”
Lack of Objections to Certain Testimony
Defendant also takes issue with trial counsel’s failure to object to certain testimony by the security guard and the police officer.
The prosecutor asked the security guard, “Now, when you observed the defendant and the other two suspects pushing on these doors, how did they push on the door? Did they stop at each door?” The security guard responded, “No, sir, just walk by and put their hands on, just push to see it’s open.” The court, apparently describing a gesture by the security guard, stated, “Indicating for the record fingers spread, palm flat.” There was no objection or motion to strike by defense counsel during this exchange.
The police officer testified he found it odd that Mock (one of defendant’s friends) was wearing an extra set of clothes. Asked why, the police officer responded: “Well, commonly suspects doing crimes try to change their identity quickly. I thought he might have the outer layer of pants on to take off and shed quickly in case he tried to run from the scene of a crime.”
In response to a question by trial counsel on cross-examination (“If you would just explain the extent to which you participated in the investigation”), the police officer responded: “I initially responded there. Both suspects were detained by security. We contacted them. Conducted a quick pat down search. Found out they were on probation and parole with consent search, and found the objects. Officers Wiggins and Sergeant Smith arrived and spoke with the witnesses and obtained their statements.” (Italics added.) Trial counsel did not move to strike the italicized testimony. Outside the presence of the jury, the court asked the attorneys whether they noticed the officer “blurted out they were on probation and parole?” The court observed, “I don’t know that the jury even picked up on it.” Trial counsel replied, “I don’t know if they did or not.” Trial counsel then added, “I didn’t.” The court observed, “I think you very properly didn’t object because it would have highlighted it. It kind of went there was no stir or anything. I would suggest no admonition or anything, but it’s your call, I think.” Trial counsel replied, “I thought it best to gloss over it.”
The prosecutor objected to this question as calling for a narrative, but the court overruled the objection.
Defense Witness
The only defense witness was Joseph Connaughton, defendant’s friend. Connaughton, in response to a request from defendant’s wife on August 14, 2008, went to defendant’s home and installed a new window in defendant’s vehicle. Connaughton also testified he went to the Marriott hotel and determined an individual could not observe the doorways to rooms on the fifth floor from the stairway. Neither defendant, his wife, Mock, nor anyone else with personal knowledge of defendant’s activities on August 14, 2009, was called to testify.
Closing Arguments
The prosecutor started his closing argument by observing, “There’s a lot of things that were said to you in opening statement as far as evidence that was presented on behalf of the defense, that just wasn’t presented. Nothing.” After discussing the evidence, the prosecutor returned to this point: “Now, you heard a lot of things during the defense’s opening statement, okay. And again, [nothing in an opening statement] is evidence. None of that. The only evidence you’ve heard is the evidence that’s come from witnesses from this chair. Or the photographs or diagrams you’re going to see. That’s evidence. And that must be what your decision is based on. [¶] But [trial counsel] talked about how you’re going to hear that the defendant was on his way to Disneyland, and picked up friends. And stopped at the Marriott. I didn’t hear anybody testify to that. Did you hear any evidence?” The prosecutor then highlighted several of the factual assertions made in trial counsel’s opening statement and stated there was no evidence for the assertions.
Trial counsel began his closing argument with the following clarification: “I never said they were on their way to Disneyland. And nor did I say that he went in and got... anything from his wife. I said he picked up a punch [and] his wife’s gloves.” Trial counsel then utilized the remainder of his closing argument to attack the prosecution’s evidence.
Trial Counsel Declaration
Trial counsel signed a declaration in support of defendant’s petition for writ of habeas corpus. We summarize this declaration in relevant part. “While preparing for trial, I determined there were no viable witnesses available to testify on behalf of Mr. Pierce, with the exception of Joseph Connaughton....” Defendant and his wife refused to testify. Trial counsel was paid only $700 of the agreed $3, 500 flat fee for his services. “I had no funding for investigation and conducted my own investigation into this matter. I did not believe an investigator would have been of any utility in this case.” “There were no witnesses lined up to testify or real evidence to support [several of the] points in my opening statement.” “Based on my interview with Mr. Pierce, he was given the room number of the woman who they had met in the lobby and that is the only door he and his friends knocked on. There was no response.” “Based on my investigation, Mr. Mock was wearing an extra set of clothes due to the cool weather.” “I had no strategic reason for not objecting to” the police officer’s testimony pertaining to defendant being on probation or parole. “In chambers, Judge Conley suggested that I acted properly by not objecting because this would have highlighted this fact to the jury. I adopted Judge Conley’s justification for my oversight.”
DISCUSSION
Ineffective Assistance With Regard to Opening Statement
“The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorney’s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] ‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’”’” (People v. Stanley (2006) 39 Cal.4th 913, 954 (Stanley).)
Defendant claims trial counsel provided ineffective assistance of counsel by “promising” to deliver evidence of an alternative explanation for defendant’s conduct. Depending on the particular factual circumstances of the case, the “failure to produce a promised witness” can “amount[] to ineffective assistance of counsel.” (Stanley, supra, 39 Cal.4th at p. 955; see also People v. Burnett (2003) 110 Cal.App.4th 868, 885 [“Making promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se”].)
Here, trial counsel did not make any explicit promises to the jury that he would call witnesses to confirm the version of events presented in his opening statement or otherwise produce evidence of the defense theory of the case. The only defense witness trial counsel referenced (not by name, but by his expected testimony) was Connaughton, who did testify. Trial counsel did not promise the jury that defendant or anyone else would testify. The factual claims in trial counsel’s opening statement amounted to an alternative explanation for why defendant was on the fifth floor of the Marriott Hotel at 7:45 a.m. In essence, trial counsel managed to get defendant’s story in front of the jury without calling defendant to testify.
One might question whether it was ethical for trial counsel to utilize an opening statement referencing facts he knew would not be introduced into evidence during the trial. It is also easy in retrospect to question trial counsel’s tactics. It can be argued defendant would have been better off without any opening statement (or an opening statement focused solely on whether the prosecutor had sufficient evidence to establish defendant’s guilt) so the prosecutor could not have pointed during closing argument to the lack of evidence supporting trial counsel’s explanation for defendant’s conduct. But trial counsel’s tactical decision is defensible. Trial counsel could have reasonably thought the jury would not acquit his client if they did not receive an explanation for his client’s presence on the fifth floor of the hotel with a burglary tool in his pocket.
“The function of an opening statement is not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and more readily discern its materiality, force, and meaning.” (People v. Dennis (1998) 17 Cal.4th 468, 518.)
Even if we were to conclude trial counsel had no tactical justification for his opening statement, we would find the error nonprejudicial. The jury still would have been presented with the same evidence of defendant’s guilt. “There is no reason to assume the jury... based its guilty verdicts on the failure of the defense to produce [evidence]... contrary to the instructions they were sworn to follow.” (Stanley, supra, 39 Cal.4th at p. 955.) We also note there is no claim by defendant that trial counsel could have obtained evidence vindicating defendant had trial counsel been more diligent.
Ineffective Assistance With Regard to Failure to Object
Defendant also points to trial counsel’s failure to object and/or move to strike certain testimony during the course of the trial: (1) the security guard’s description of defendant’s group touching the hotel room doors (they “just push to see it’s open”); (2) the police officer’s observation with regard to Mock’s clothes (“Well, commonly suspects doing crimes try to change their identity quickly. I thought he might have the outer layer of pants on to take off and shed quickly in case he tried to run from the scene of a crime.”); and (3) the police officer’s comment with regard to defendant and Mock (he “[f]ound out they were on probation and parole with consent search”). As to the testimony concerning probation and parole, trial counsel’s declaration explains he did not have a tactical reason for failing to object but later adopted the court’s justification for his “oversight.” Trial counsel’s declaration is silent with regard to the other testimony.
“Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.’ [Citation.] And, even when there was a basis for objection, ‘“[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.”’” (People v. Majors (1998) 18 Cal.4th 385, 403; see also People v. Kelly (1992) 1 Cal.4th 495, 520.) The decision whether to move to strike objectionable testimony is particularly difficult from a tactical perspective, as doing so highlights for the jury the objectionable testimony. (See People v. Catlin (2001) 26 Cal.4th 81, 165.)
Here, there was a sound legal basis for moving to strike the pertinent testimony, although the court might have allowed the security guard’s statement into evidence as a lay opinion. (See Evid. Code, § 800.) But trial counsel’s performance did not fall below an objective standard of reasonableness. The questions asked of the witnesses did not necessarily call for opinion testimony (by the security guard and the police officer) or mention of probation/parole (by the police officer). Thus, trial counsel did not perform unreasonably by failing to object to the first two questions (or by failing to withdraw the third question). All trial counsel could do was move to strike the witnesses’ responses and, if the court granted the motion, request the court to instruct the jury to ignore the stricken testimony. As the court recognized with regard to the probation/parole testimony, this procedure would have called the jury’s attention to material unhelpful to defendant. Although trial counsel did not initially make a tactical decision when the police officer mentioned probation and parole, trial counsel subsequently adopted the court’s tactical justification as his own in not pursuing a motion to strike and special admonition to the jury.
Multiple Attempted Burglary Convictions and Punishments
Finally, defendant claims the court erred by punishing him for each of his three separate attempted burglary convictions. Defendant apparently concedes it was proper to separate his conduct into three separate attempted burglary counts. (See People v. Elsey (2000) 81 Cal.App.4th 948, 950-951; People v. Washington (1996) 50 Cal.App.4th 568, 578-579.) But according to defendant, section 654 precludes separate punishment for each of the three attempted burglary counts because defendant’s (and his friends’) efforts to push open three separate hotel room doors were all part of the same indivisible course of conduct and committed with the same intent and objective.
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The statute “‘literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the “same act or omission.” [Citation.] However, ... its protection has been extended to cases in which there are several offenses committed during “a course of conduct deemed to be indivisible in time.”’” (People v. Hicks (1993) 6 Cal.4th 784, 789.) “‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
“[S]everal cases have held that the statutory prohibition against multiple punishment is inapplicable to situations where multiple burglaries are committed at the same time and in the same building.” (People v. Williams (1992) 9 Cal.App.4th 1465, 1474; see People v. James (1977) 19 Cal.3d 99, 119 [separate punishment for three burglaries of three office suites during same course of conduct]; People v. O’Keefe (1990) 222 Cal.App.3d 517, 522 [separate punishment for multiple burglaries of individual rooms in college dormitory]; People v. Bowman (1989) 210 Cal.App.3d 443, 445-446, 448-449 [separate punishment for eight burglaries of buildings and vehicles in a single car dealership property during a single night]; In re William S. (1989) 208 Cal.App.3d 313, 318-319 [separate punishment for returning to house to burglarize it a second time hours after the initial burglary].) People v. James, at page 119, rejected the “incongruous result” of a burglar claiming “immunity” for all but one offense after breaking into “every store in a shopping center under one roof, or every apartment in an apartment building, or every room or suite in a hotel....”
There are distinctions to be made in the instant case. First, defendant attempted to burglarize three hotel rooms, but did not gain entry into any of the hotel rooms. Second, in part because his efforts to gain entry failed, the time between defendant’s first attempt and third attempt was extremely short. Of course, more than a single act occurred; defendant and his companions made three separate efforts to open three separate rooms. But defendant undoubtedly completed his course of conduct more quickly than the cases cited above.
These are distinctions without a legal difference. Whether defendant had multiple criminal objectives is a factual question and its resolution will be upheld on appeal if supported by substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Although the court might also have concluded defendant had the single intent and objective of burglarizing only one hotel room (the first one that would open), there is substantial evidence supporting the trial court’s implied conclusion that defendant had separate intents and objectives to burglarize each of the three hotel rooms.
DISPOSITION
The judgment is affirmed. Defendant’s petition for writ of habeas corpus is denied.
WE CONCUR: BEDSWORTH, ACTING P. J.MOORE, J.