Opinion
C054685
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. RODERICK BRIAN RANDALL, Defendant and Appellant.
Not to be Published
A jury convicted defendant Roderick Brian Randall of residential first degree burglary and resisting a peace officer; codefendant Jonathan Kao Saephan pleaded no contest to these charges and is not party to this appeal. (Pen. Code, §§ 148, subd. (a)(1), 459.) The trial court sentenced Randall to prison for the upper term of six years for burglary and imposed concurrent jail time for resisting arrest. On appeal, Randall claims the trial court improperly excluded impeachment evidence, the prosecution suppressed exculpatory evidence, the prosecutor vouched for the credibility of a peace officer and the upper term sentence violates his Sixth Amendment rights. We reject all of these claims and shall affirm.
FACTS
A police officer found defendant and Saephan burgling a house. Defendant fled. He was captured while hiding under a nearby bridge. At trial he claimed mistaken identity.
L.L. testified that on March 28, 2006, she left her house at about 1:30 p.m. and returned in response to an alarm, to find the police there, the house in disarray, the backdoor broken and a window open, with the screen on the ground. A screwdriver and blood on the floor had not been there when she left.
Sylvia Barstow testified that about 2:00 p.m. she saw "a young gangster type looking guy" who arrived in an off-white Altima vehicle, and knocked on her neighbors door for several minutes before he returned to his car. The car, which had another person in it, drove down the street and then returned; two men then walked towards the neighbors driveway. A day or so before this, she had called 911 to report several men in the same car. On the day of the burglary, shortly after officers arrived, she saw a man running away towards Power Inn Road; his hat fell off. The Power Inn bridge is a couple of blocks from her house. The man wore a black sweater or shirt and dark blue jeans. When she was shown defendant after he had been captured, she told the police it was the wrong person, that she thought the man was a "Short stubby Asian," whereas in her testimony she described defendant as a skinny but not short African-American. However, when she saw defendant in custody, he had "a dark black sweater on or a black shirt on and ripped up jeans." She testified that her window was about 60 feet from where she saw the man with the hat, but she was not sure about the distance.
The Attorney General states S.B. identified defendant as the man who knocked on L.L.s door, but the record citations supplied do not support this statement, which is inconsistent with the record on appeal.
Sergeant David Risley testified a number of officers were in the area looking for "a male [B]lack wearing a black sweater and blue pants," and that defendant, when found, matched this description; defendant was running along the creek, defying the orders of officers to stop.
Brenda Holloway, a police dispatcher, testified the 911 caller described the person as a male Asian adult, wearing a "black sweater with hood [and] blue jeans."
Officer Tristan Piano responded to the call, and on 43rd Street (between Morrison Creek and Andora Way) he saw two men by a nearby house and asked them if they had seen "a [B]lack male wearing blue pants and a black sweater;" one of the men pointed towards a fence and said the man had gone that way. Officer Piano drove down a side street "that leads to the creek because I knew this creek ran east and west behind these houses." The creek, which is fenced off on both sides, was about two blocks from the burgled house. He jumped the fence and began walking along it and eventually "I located a set of footprints that appeared to be fresh and some mud." The footprints led towards the Power Inn bridge and as he walked that way he saw defendant huddled or crouched under the bridge; defendant then ran through the waist-high creek water, ignored orders to stop, but was eventually captured in a field. When arrested he was wearing "a black jacket and blue pajama type pants[,]" similar to the description from the dispatcher. The pants were torn. The booking sheet described defendants clothing as a black jacket, torn blue trousers and a gray shirt. Defendant told the officer several times that his name was "Conrad Johnson," but eventually admitted his real name. It was about 10 minutes from the first dispatch describing a person leaving the scene until defendants capture.
Apart from additional testimony, described below, the jury heard evidence that defendant was wearing clothing matching the description of the burglar, was tracked within about 10 minutes from the crime scene to where he was hiding under a bridge two blocks away, fled from officers, crossed a creek in his attempt to escape, disobeyed orders to stop, and gave a false name when arrested. Thus, contrary to repeated claims in appellate counsels brief, despite the neighbors inability to identify defendant as the burglar whom she saw from inside her house, 60 feet away, this was not a "close case," but a compelling case for the People.
Officer Dan Farnsworth testified he had been a peace officer for 18 years and received a call about two Asian males entering a backyard about 2:00 p.m. on March 28, 2006. He entered the house through a broken sliding glass door. He found defendant and Saephan inside the house. Defendant was wearing a black hat. After the officer made eye contact with both men, they ran down a hallway, ignoring his commands to stop. The men ran into a bedroom towards a window; defendant went down on his knees and raised his hands in the air, which led Officer Farnsworth to think he was surrendering to Officer Gonzalez, who was outside that window. Saephan tried to run past Officer Farnsworth, who threw him on a bed, but Saephan bounced off the bed and ran with Officer Farnsworth in pursuit; Saephan was eventually subdued at the front door. When Officer Gonzalez appeared, Officer Farnsworth learned he knew nothing about defendant and Officer Farnsworth called dispatch at 2:07 to say a Black male had run away; he called again about eight minutes later and described the man as wearing a black hooded sweat shirt. Between that time, dispatch had said the reporting party had called back with a description of "black sweater with a hood, blue jeans," but Officer Farnsworth testified he did not hear that information. Within about 15 to 30 minutes, other officers brought defendant back and Officer Farnsworth identified him. Dispatch records show that at 2:15, eight minutes after Officer Farnsworths report of a fleeing suspect, defendant was seen under the Power Inn bridge.
Officer Gilbert Gonzales had been a peace officer for about 24 years. He saw Saephan by the window and pointed a gun at him; he then called out to Officer Farnsworth to find out what was happening, and after a few moments concluded his assistance was needed; he left his position and went into the house by the front door, thus giving defendant an opportunity to escape. He booked the gloves he found in the house as evidence.
Defendant did not testify, but a defense investigator testified that the clothing defendant was wearing at the time of his arrest had not been booked into evidence, only the pair of gloves and a hat, and there was no record that defendant had released his jail property to anyone. On cross-examination he distinguished the two as follows: "Property is not considered of evidentiary value, something they had on their person at the time they were arrested." He conceded that the clothing a person is wearing at the time of arrest is usually placed into property, not booked as evidence. He identified a property inventory sheet which shows that in this case, consistent with most cases, defendants clothing was placed into "property," and not booked into "evidence." On redirect he testified the inventory does not describe the clothing that had been placed into property with sufficient detail to identify it, except that trousers and a black jacket were included. He conceded the "pants section" referred to something blue and torn.
Even this defense witness ultimately corroborated the other testimony to the effect that defendant had on blue pants and a black top described as a "jacket."
DISCUSSION
I. Restriction on Impeachment
Defendant contends:
"The superior court denied appellant the right to confront Off. Farnsworth about his past conduct of poor, deceptive police work. Farnsworths mistakes were so numerous and revealed a pattern of such false, inaccurate, and sloppy warrant affidavits and reports that the City of Sacramento terminated Off. Farnsworth from the police force. Appellant sought to present evidence that Off. Farnsworth, the sole prosecution witness identifying appellant as one of the burglars, was not a credible witness."
This claim is based on the fact that Officer Farnsworth had been fired for falsifying warrant affidavits, but was later reinstated after a trial court determined he had merely been negligent. We conclude the trial court properly excluded this evidence and it would not have made any difference anyway.
On September 27, 2006, defendant moved for judicial notice of the Farnsworth civil matter (Sacto. Super. Ct. No. 02CS01124), to impeach him with evidence of his alleged "`habit of sloppiness in the performance of his duties."
Attached were various documents, including a February 28, 2001, administrative decision upholding Officer Farnsworths firing, and a Superior Court writ dated November 22, 2002, overturning that finding and ordering his reinstatement. The writ ordered the board to "adopt a decision consistent with the Courts finding the evidence presented at the administrative hearing only supported a finding of inadvertence, carelessness, and negligence and not dishonesty;" and impose a penalty consistent with that finding "taking into account Petitioners length of employment without a prior record of discipline and . . . good reputation for honesty and efficiency amongst his peers and supervisors[.]"
At the hearing on the impeachment issue in this case, counsel for the City of Sacramento represented to the trial court that the superior court writ was the last litigation step in Officer Farnsworths disciplinary case.
That representation was not accurate. This court issued a thorough opinion, albeit unpublished, upholding the superior court writ, and explaining in detail the facts applicable to the matter. (Farnsworth v. City of Sacramento Civ. Svc. Bd. (Nov. 25, 2003, C043180).) Why the deputy city attorney misadvised the trial court about the final chapter in the civil case is unknown. On appeal defendant requests judicial notice of our records to rectify this problem, and flesh out the facts. But because those records were not tendered to the trial court, we agree with the People that they are not properly considered on appeal. (See People v. Webb (1986) 186 Cal.App.3d 401, 411.) Accordingly, we deny the request for judicial notice.
The trial court stated that the only possible impeachment would be on the ultimate findings, and sought further argument. In the end, because the ultimate decision was that Officer Farnsworth had merely been careless, the trial court ruled the evidence was not admissible: It was not a finding of dishonesty or other moral turpitude, it could not be used as a trait of carelessness, and it did not reflect a habit or custom that was relevant to these facts, which had nothing to do with search warrant affidavits.
The trial court in part relied on the following passage of a learned treatise on California evidence:
"Cross-Examination about Prior Mistakes in Identification and Recollection Offered to Attack Witnesss Capacity to Observe and Remember.
"PO [police officer] testifies to having made a purchase from D in a dimly lit bar. . . . Ds defense is an alibi. On cross-examination of PO, D asks if it is not true that PO had misidentified several sellers during his `buy program, and had made other mistakes in observation and recollection, . . . The prosecutor objects that these questions are irrelevant and improper impeachment cross-examination.
"Should the objection be sustained? Yes. In this illustration, Ds questions to PO on cross-examination are intended to attack POs ability to accurately observe and remember the facts to which he testifies on direct examination. Ds questions, however . . . do not relate to facts operating at the moment of POs observations. Rather, prior mistakes in perception are relevant to prove faulty perception at the time of the transaction only as tending to prove that PO has a character trait for inaccurate perception. Specific acts of conduct relevant only to prove a trait of character . . . are expressly made inadmissible by [Evidence Code section] 787." (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2008) Witnesses, § 27.113, pp. 508-509.)
We agree with the result reached by the trial court, but we do not agree with the reasoning. The treatise relied on Evidence Code section 787, which provides that apart from certain convictions, "evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness." But the California Supreme Court has held this statute cannot be applied in criminal cases, for to do so would run afoul of Proposition 8s command that, with exceptions not here applicable, all relevant evidence is admissible in criminal cases. (Cal. Const., Art. I, § 28, subd. (d); People v. Harris (1989) 47 Cal.3d 1047, 1080-1081.) To the extent the trial court relied on this or similar exclusionary rules, it erred.
But the California Supreme Court has also held that impeachment evidence may be excluded under Evidence Code section 352 (§ 352), which "`empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Ayala (2000) 23 Cal.4th 225, 301 (Ayala); see People v. Lewis (2001) 26 Cal.4th 334, 374-375.) "`[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion." (People v. Cornwell (2005) 37 Cal.4th 50, 81 (Cornwell).)
The evidence should have been excluded under section 352. Officer Farnsworth was found to have been negligent, not dishonest, therefore the trial court correctly found the evidence did not reflect moral turpitude. Writing affidavits and identifying suspects are totally dissimilar and therefore the evidence was not very probative. The trial court made this point when the issue of this evidence was revisited later, stating, "identifying someone in a highly charged atmosphere is a little bit of a different scenario as opposed to going back to the office, preparing affidavits for search warrants, and not basically putting those documents together accurately." Further, the writ discussed Officer Farnsworths long service without prior discipline, and his "good reputation for honesty and efficiency," within the police department, further weakening any probative value this evidence would have for the defense. The evidence was remote, involving mistakes in affidavits over five years old, with no evidence that the mistakes continued. In order for the jury to make sense of this evidence, the jury would have to be instructed on civil service rules, warrant affidavits, and narcotics buy operations, all of which would be extremely confusing, time consuming and tangential to the main issues. Although the trial court relied on the wrong ground, it properly excluded this evidence.
Further, although an in-court identification is probative evidence, and although the neighbor testified defendant was not the right person, apart from Officer Farnsworths testimony there was testimony defendant was tracked from the crime scene to where he was found hiding under a bridge about 10 minutes later, he then ignored police orders, fled across a creek, and lied about his identity when he was captured. Defendant was wearing clothing that matched the neighbors description, apparently having torn his pants during the chase. Thus, evidence that Officer Farnsworth had been a careless affidavit-writer would not reasonably likely have made any difference to the jurys assessment of the case. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 (Fudge).)
Defendant also couches the claim as the denial of the right to confront witnesses, seeking application of the more stringent federal harmless error standard. But not every state-law claim is elevated to a federal claim by changing the label:
"As a general matter, the `[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendants right to present a defense. [Citations.] Although completely excluding evidence of an accuseds defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accuseds due process right to present a defense." (Fudge, supra, 7 Cal.4th at pp. 1102-1103; see Cornwell, supra, 37 Cal.4th at p. 82.)
"As for defendants constitutional claim, we have repeatedly held that `not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." (Ayala, supra, 23 Cal.4th at p. 301.)
Accordingly, we reject defendants claim of federal error. To the extent the trial courts failure to articulate the correct legal basis for exclusion was error, it was harmless, as was any error in excluding this tangential and confusing impeachment evidence. (Fudge, supra, 7 Cal.4th at p. 1103.)
Defendant argues the prosecutor used this impeachment ruling as a way to falsely suggest to the jury that the defense had no evidence to challenge Officer Farnsworths credibility. These are separate claims which appellate counsel failed to properly head, and they largely overlap the claims of prosecutor misconduct raised later in his brief. In any event, we will address them here.
In part, the prosecutor argued:
"Ladies and gentlemen, this case is not some big conspiracy. This isnt a cover-up. This isnt an O.J. Simpson case. This isnt a case of a famous person. This is a case that is not any different from any of the other cases going on in this courthouse and the courthouses across this country. And the defense wants you to believe that these officers came in here, and they lied, or they made stuff up. Why would they risk their careers and reputations for Roderick Randall?
"Who is Roderick Randall? This isnt the biggest case. This isnt a case of the century, ladies and gentleman. Why would Officer Farnsworth risk his reputation and his career on this case? Why would Officer Gonzales do that? Sergeant Risley, Officer Piano. There is no reason for those men to do that. And we know that they didnt do it because we have the dispatch log that shows everything that they were doing at the exact time they were doing it."
At a break, the defense moved to reopen, because:
"[I]f his initial identification was incorrect, and he knows that in the past that he has been incorrect . . . and he has been reprimanded for that, he is going to have to consistently maintain his position throughout the remainder of the trial . . . . [H]e couldnt just say, I made a mistake[,] [w]e got the wrong guy[,] because he was already determined in the past to be sloppy and negligent in the course and scope of his duties."
Ultimately, the trial court refused counsels request and ordered that she make no "comments in relation to the prior discipline of Officer Farnsworth."
We find no error. The argument of the prosecutor was correct, there was no evidence in the record showing a motive for Officer Farnsworth to lie. The fact defense counsel thought up a new theory of purported relevance of the disciplinary proceeding evidence did not change the state of the evidence nor did it justify reversal of the impeachment ruling, given the minimal probative value, confusion, remoteness and other problems with that evidence, as we have already discussed.
During closing argument, after discussing defendants alleged "fear" because he was "A [B]lack man sitting and being judged by 12 non-[B]lack people," defense counsel implied he was arrested simply because he was a Black man found nearby. In part the defense also stated:
"Maybe Officer Farnsworth was scared of admitting that he made a mistake. He has been a patrolman for 18 years. Maybe he is close to his retirement. Maybe he has made mistakes before. Maybe he thinks he will get in trouble if he made another mistake. He has been on the force for 18 years, and he is still a patrolman. Sergeant Risley has been on the force for . . . about as many years, but he has moved up the ladder. Is there a reason for that?
"Has Officer Farnsworth made mistakes before? Did he maintain position with regard to this case because he just didnt want to get in trouble? Its certainly very, very possible. He wasnt truthful, Officer Farnsworth, when he told you that he saw somebody for at least ten seconds and got a good look at them."
In closing the prosecutor stated: "For her to say that Office Piano came up here, looked you in the face and lied, for her to say that Officer Farnsworth came in here, looked to you in the face and lied, that is disparaging somebody. She had the opportunity to ask them every single question she wanted, but instead of doing that, she waited." Defense counsel unsuccessfully objected. The prosecutor argued there was no evidence the officers were racists or liars, stating, "She wants to act like she does not have access to the same information that the D.A.s Office does. . . . She does."
This statement about access to evidence was true, the defense had produced no evidence that Officer Farnsworth was a racist or a liar. Nonetheless, after observing that defense counsels argument had come "this close to violating my order," the trial court gave an extemporaneous and somewhat confusing instruction, transcribed as follows:
"There has been some discussions about like, for example, if one of the witnesses was quote a racist, everybody has equal access to that information to present that information, theres nothing one way or the other in the record relating to any of that information. And theres really no way you can draw an inference one way or the other on either abilitys to obtain access to any kind of records relating to any of the witnesses, including the police officers. So, Im going to ask you to completely disregard any of those comments about either side having access to records relating to witnesses, including police officer witnesses."
Whatever else might be said about this instruction, it could not have harmed the defense.
After the jury began deliberations, the defense moved for a mistrial or in the alternative a further instruction "which clearly would specify to the jury that the defense was not in a position to introduce evidence" about the misconduct of the police officers, specifically Officer Farnsworth. The trial court gave a further written instruction:
"You heard a comment during closing argument that the defense had equal access to records relating to prior misconduct by witnesses, including witnesses who are employed as police officers. You are instructed to disregard this comment and should not consider this comment in any way during your deliberations."
The trial court adequately addressed the defense concerns and nothing in the prosecutors closing arguments enhanced the need to introduce the disciplinary evidence, and the state of the evidence did not, as appellate counsel surmises, leave the jury with an unfair understanding of the facts.
II. Destruction of Evidence
Defendant filed a written motion to dismiss for the alleged destruction of evidence, specifically the clothing defendant was wearing when he was arrested that was not booked into evidence. Later defendant filed a written motion for an instruction on destruction of evidence. The trial court denied both motions and we find no error.
The neighbors 911 call described two Asian males wearing black sweaters and blue jeans. She called again after the police arrived to say that one burglar "just took off running towards Power Inn Road," wearing a "black sweater with a hoodie" and blue jeans.
The prosecutor represented that the normal jail policy is to place clothing in "property," that is, the materials that are returned to an arrestee after release, rather than booking it into evidence, and the trial court commented, "Sounds to be the more common scenario." The court indicated that at worst this may have been "sloppy police work, but I dont think failure to book clothing into evidence in this case rises to the level of bad faith." The court wanted clarification whether a search had been made.
The prosecutor later brought a copy of the "Correctional Services Property and Clothing Record" from defendants booking. It listed keys, a "disk," a cell phone and "trousers, blue, torn. Jacket, black. And shirt, gray."
Defense counsel reiterated her motion, claiming this showed the authorities had the clothing and should have preserved it "because the officers clearly were looking for somebody who was wearing a black sweater with blue jeans. Now, we have gray T-shirt, black jacket. None of those items have been preserved." She also claimed the tear in the trousers could have been tested to see if it was caused by jumping over a fence during the pursuit or from some other, innocent, cause.
The trial court confirmed its tentative view that no bad faith was shown and denied the motion to dismiss. The trial court agreed to consider giving a jury instruction on the subject once all the evidence was considered, and invited defense counsel to submit one later.
As stated, at trial the defense investigator confirmed the difference between "evidence" and "property" and even testified that normally clothing would be considered "property." Accordingly, the trial court refused to give any instruction:
"The instruction from my perspective should be given if theres information [about] willfully losing or destroying property. I dont feel theres enough in the record for me to give that instruction in this particular case. Everything Ive heard indicates that the clothing was booked with the Sheriffs Department in their property. What happened from there, we dont know. So I dont feel theres a basis for me to give that instruction in this case."
Defense counsel reiterated that she was "not asking for a sanction," but only an instruction, but the court adhered to its ruling, because "I dont see anything willful at this point. So, Im not going to give that instruction."
Under current law:
"The state has a duty to preserve evidence that both possesses `an exculpatory value that was apparent before the evidence was destroyed, and is of `such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. [Citation.] Moreover, a constitutional violation is not established unless the authorities acted in bad faith in failing to preserve potentially useful evidence." (People v. Schmeck (2005) 37 Cal.4th 240, 283.)
Here, there was no bad faith and there was no reason to think the clothing would have an exculpatory value.
Defendant argues the intentional suppression of exculpatory evidence violates due process, and we agree. But defendant fails to give appropriate deference to the trial courts ability to determine, factually, whether that is what happened. Defendant was seen in the burgled house and chased, albeit with gaps in the chase, to where he was found hiding under a bridge. We fail to see anything obviously exculpatory about his clothing. Indeed, the description of the clothing in what records did exist (that is, the booking sheet and the testimony of the officers and the neighbor who saw defendant after his arrest) all generally matched the description given by the neighbor in her 911 call, that is, a dark top and blue pants, although admittedly there were small differences, such as "jacket" instead of "sweater with hood," as the trial court noted. Even defendants investigator confirmed that clothing is not usually considered evidence.
Defendants claim that the evidence was destroyed in bad faith ignores the facts in the record. Because the loss of evidence was not "willful," the incident had little relevance to the case and no instruction was required. The authority cited by defendant upheld the giving of a conditional instruction, allowing the jury to draw certain inferences if it found the destruction was willful. (People v. Sassounian (1986) 182 Cal.App.3d 361, 394-396.) But in this case, there was no substantial basis in the evidence for the jury to draw such a conclusion. In any event, the same authority confirms the trial courts broad discretion in such matters (ibid.) and we find no abuse in this case.
III. Vouching
Defendant contends the prosecutor twice improperly vouched for Officer Farnsworths veracity during closing argument. We find the first instance harmless, if error, and the second instance not to constitute error.
The vouching rules are as follows:
"It is improper for a prosecutor to offer assurances that a witness is credible or to suggest that evidence available to the government but not before the jury corroborates the testimony of a witness." (People v. Cook (2006) 39 Cal.4th 566, 593.)
"However, so long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the `facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, [the] comments cannot be characterized as improper vouching." (People v. Frye (1998) 18 Cal.4th 894, 971.)
As we described in part I, ante, the prosecutor at one point argued that the officers had no motive to lie and risk their careers in this case.
Defendant relies on a line of Ninth Circuit cases that hold or imply that it is improper to argue an officer would not risk losing his or her pension or ruining his or her career in order to obtain a conviction. (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1146-1147; United States v. Coombs (9th Cir. 2004) 379 F.3d 564, 574-576.) The Attorney General fails to cite or discuss these cases, but does argue defendants failure to object forfeits the claim of error.
Putting aside the forfeiture claim, even assuming these cases are correct, this was not a close case, as defendant asserts on appeal, and the brief, mild and commonsensical comment by the prosecutor, even if error, was harmless. The jury was instructed that the arguments of counsel were not evidence and we presume they followed that admonition. (People v. Wash (1993) 6 Cal.4th 215, 263.)
"Moreover, we presume that the jury relied on the instructions, not the arguments, in convicting defendant. `[I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel. [Citation.] Though we have focused on the prosecutors closing arguments, we do not do so at the expense of our presumption that `the jury treated the courts instructions as statements of law, and the prosecutors comments as words spoken by an advocate in an attempt to persuade. [Citation.] The trial court emphasized this rule when, as stated, it instructed the jury to follow its instructions and to exalt them over the parties arguments and statements." ( People v. Morales (2001) 25 Cal.4th 34, 47.)
Thus, assuming the Ninth Circuit cases are correct, any error was harmless in this case.
During closing argument the defense pressed the theory that the officers lied. In rebuttal, the prosecutor said in part:
"The clothing. She made a big deal about the clothing, brought it out, had all these different examples, put it up in front of you, and said, what about this? What about that? And the People, we acknowledge, it would have been great for you to have seen the clothing that Mr. Randall was wearing. It would have been fantastic. It was lost. But . . . Officer Piano had nothing to do with the clothing being lost. . . . [¶] . . . [¶]
"So, we should have the clothing, but its not like you are in a position where you have no idea what kind of clothing this man had on. You heard the testimony of several witnesses who explained the clothing that he had on. And while we dont have the clothing, we know what this man had on. And if you want to find the defendant not guilty simply because the clothing was lost, and it wasnt any of the investigating officer[s] fault, then that is the decision that you have to make. But just know, I know for sure that five people at least told me the kind of clothing that this defendant had on on March 28th, 2006." (Italics added.)
In the abstract the italicized sentence can be read to refer to the prosecutors personal knowledge based on facts outside the record, but in context it was based on evidence before the jury, and was a rhetorical call for the jury to accept as true that evidence. The prosecutor prefaced the comment with a discussion of the missing clothing, stated that because of "the testimony of several witnesses" "we know what this man had on[,]" and then said "I know for sure that five people at least told me the kind of clothing that this defendant had on on March 28th, 2006." In fact, five witnesses at trial testified about the clothing defendant wore that day and they were consistent with each other; Farnsworth, Barstow, Risley, Piano and Holloway. Thus, when viewed in light of the record and the rest of the argument, this comment was not improper vouching, it was an argument for the jury to draw a conclusion from the consistent testimony of witnesses at trial.
IV. Sixth Amendment
Defendant contends his upper term sentence for burglary was improperly based on facts not submitted to the jury, in violation of the Sixth Amendment.
Defendant did not object to the probation report, therefore we presume it accurately states his criminal history. (See People v. Evans (1983) 141 Cal.App.3d 1019, 1021.) Defendant was born in July 1982. At age 12, he committed an attempted robbery and misdemeanor battery in one case and forcible oral copulation in another; at 16, he possessed cocaine; at 20, he coerced minor girls into prostitution and was sent to prison for pimping.
The trial court in part relied on defendants adult and juvenile criminal record to impose the upper term. Defendant concedes this circumstance undermines his claim of a Sixth Amendment violation under precedent we, as an intermediate appellate court, are bound to follow (People v. Black (2007) 41 Cal.4th 799), but he seeks to preserve his claim for federal review. Accordingly, we reject his claim.
DISPOSITION
The judgment is affirmed.
We concur:
DAVIS, Acting P.J.
CANTIL-SAKAUYE, J.