Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050613000
Siggins, J.
Efrain Rios Sanchez appeals his conviction for second degree commercial burglary. Sanchez argues that evidence of a coperpetrator’s prior arrest for an unrelated crime was improperly used by the prosecution to prove Sanchez’s intent. We conclude it was error for the prosecution to utilize the evidence, but the error was harmless. So, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of September 19, 2006, Richmond Police Detectives Augustine Vegas and Joseph Silva were making a second check that day of a vacant warehouse that had been burglarized before. In his earlier inspection Officer Silva had seen a pair of wire cutters near a pallet leaning against a wall where the building’s siding had been peeled away. Silva testified that the wire cutters were gone when he returned that evening, and he had not noticed the peeled-back siding on his prior visits. When Officer Vegas peered through the hole in the siding during this evening visit, he saw a bicycle inside the warehouse. It had not been there before. He also heard voices coming from inside the building and the sound of “metal clanging together.” Vegas called for assistance and several officers came to the warehouse.
Officer Vegas testified “there was a pair of wire cutters or pliers or something sitting there that was not sitting there” when Vegas had inspected the building on another day.
The officers secured the perimeter of the building and entered with a police dog. The dog ran to the southwest portion of the building, where it confronted and barked at defendant Sanchez and Arturo Navarro, who had both climbed the mast of a forklift to escape the police dog. Detective Vegas saw a third suspect, Carlos Gonzales, run out a door on the south side of the building. Detectives Vegas and Silva apprehended Gonzales outside. This was the second time in several weeks Detective Vegas had arrested Gonzales. Just a few weeks earlier he had arrested him for theft of copper wire “right across the street.”
Navarro later testified that he and Sanchez climbed on some pallets, not a forklift, to avoid the dog.
Silva and Vegas saw defendant Sanchez and Navarro when they entered the building; the two were detained inside and were lying on the floor about 15 feet from an electrical box. Both had safety goggles and Sanchez was wearing gloves. There was a coating of fine black powder throughout the warehouse, and on their clothing. More than one bicycle was found in the building, and tools were on the floor near the opened electrical boxes and inside one of them. Coils of copper wire and copper bars had been removed from the electrical boxes. Some of the copper was on the floor and some was in a box. Loose nuts and bolts, soft drink bottles, another pair of safety glasses, and jackets were also on the floor. None of these items were present when Officer Vegas conducted a security check in the building three days before.
Defendant Sanchez, Navarro, and Gonzales were charged with second degree commercial burglary and a probation violation was alleged as to Sanchez. Sanchez and Navarro were tried jointly by a jury.
Gonzales was also charged with additional counts and allegations.
Gonzales entered a plea before trial and did not testify.
Building owner Pat Hashimoto testified that she noticed copper wiring missing from the warehouse on September 13 and filed a police report concerning the possible theft on September 15. Mark Bailey testified the building was leased by his employer, Calgon Carbon Corporation, and was used for storage. No electrical work was scheduled for the day of the arrest, and the owners and lessees of the building kept no tools there. Bailey visited the building in early September and noticed nothing out of the ordinary. At the time of Bailey’s earlier visits, the electrical panels were closed and there were no electrical components on the floor. The photos taken at the time of defendant Sanchez’s arrest were very different.
On an earlier visit before September 2006 Bailey had seen a broken window in an internal office.
Doug Pepoon also made security visits to the building. During a visit on September 13 Pepoon noticed that the lock on the gate had been cut and the gate opened. The doors to the building were open and wiring had been pulled out of the electrical boxes and conduit. He saw no tools at that time, nor were there copper wires, soda bottles, or other items lying on the ground in front of the electrical boxes. When Pepoon returned on September 15, he noticed additional damage. Pepoon did not visit the building on the day of Sanchez’s arrest, but compared photos taken that day with his earlier observations and testified the earlier damage was “minimal” compared to what was depicted in the photos.
Navarro testified in his own defense. He admitted several previous convictions for theft-related felonies, and testified he committed those offenses to support his methamphetamine habit. Navarro testified he was on his way home from work for a demolition company, still wearing his safety goggles, when he met up with his friends defendant Sanchez and Gonzales, who invited him to smoke methamphetamine. Gonzales said he knew a place they could go to smoke and he led them to the warehouse that he said was abandoned. The trio entered through an open door, sat, and smoked methamphetamine for approximately an hour before the police arrived and arrested them.
Under cross-examination, Navarro did not remember the name of the company he worked for, and denied knowing that Gonzales had been arrested near the warehouse for theft a couple of weeks earlier. Navarro denied touching electrical boxes in the warehouse, and claimed the police officers confiscated the methamphetamine when they were arrested, and told the men not to say anything. Navarro said he got black dust on his hands and face when police pushed him down onto the floor. Defendant Sanchez did not testify.
The jury found defendant Sanchez and Navarro guilty as charged. The court sentenced Sanchez to the midterm of two years in state prison, suspended execution of the sentence, and committed him to the California Rehabilitation Center. He timely appealed.
DISCUSSION
Sanchez argues he was denied his constitutional rights to due process and a fair trial when codefendant Navarro’s counsel and the prosecutor elicited testimony from Detective Vegas about a previous arrest of Gonzales for theft of copper wire in the neighborhood of the charged crime just a few weeks earlier. He also argues the prosecutor committed misconduct when he referred to that evidence during closing argument. Sanchez says his counsel should have objected to that testimony and argument, and his failure to do so constituted ineffective assistance of counsel. Finally, Sanchez argues the court was required to instruct the jury sua sponte that the evidence of Gonzales’s prior arrest could not be used as evidence against Sanchez. We agree the evidence of Gonzales’s previous arrest should not have been used against Sanchez in the prosecution’s rebuttal argument, but Sanchez has failed to show the error was prejudicial or that his counsel was ineffective.
A. Admission and Use of the Evidence of Gonzales’s Prior Arrest
During his cross-examination of Detective Vegas, Navarro’s counsel ascertained that Vegas had arrested Gonzales for wire theft a few weeks earlier “right across the street.” On redirect, the prosecutor asked two follow-up questions about this earlier arrest, and Detective Vegas explained that Gonzales had been tampering with copper electrical wires on the streetlights on the Richmond Parkway. Then in his recross examination, Navarro’s counsel elicited general background information about the phenomenon of people stealing copper that they sell as scrap to support their methamphetamine habits. Defendant’s counsel did not object to the questioning of Detective Vegas on these issues.
When codefendant Navarro testified, he admitted to prior theft convictions as a result of stealing to support his methamphetamine habit. But he claimed he entered the warehouse to smoke methamphetamine, not to steal wire. During closing argument, Navarro’s counsel argued his client had no intention to steal when he entered the warehouse and he attributed the evidence of theft at the scene to Gonzales. He implied it was reasonable for the jury to conclude it was Gonzales, not Navarro, who was a thief because Gonzales had recently been arrested nearby for stealing copper from public property.
The jury was instructed to limit consideration of Navarro’s convictions to the issue of his credibility.
Navarro’s counsel argued: “So we have someone [Gonzales] who has the knowledge and the motive. And we know he was in the building. He was the one who said, ‘I know a place.’ And Mr. Navarro and Mr. Sanchez followed him there.” Later, Navarro’s counsel referred again to Gonzales’s previous arrest, and stated, “So I’m not suggesting that a thief wasn’t arrested that night.” Navarro’s counsel concluded: “If while you were watching Mr. Navarro and listening to what he said, you thought, well, this could be a reasonable explanation for his participation. I’m not discussing anybody else. Then, by law, the proper verdict is not guilty.”
In his rebuttal argument, the prosecutor said that defendant Sanchez and Navarro were in the building to steal copper wire, not to smoke methamphetamine. He continued: “Now, with regards to intent, it’s true that one of the individuals, Mr. Gonzales, who’s not on trial today, who—and that reason does not need to play any role in your thoughts. That’s a separate issue that is not in question today. But Mr. Gonzales was arrested previously, a week or two before, for committing copper theft in a close proximity to the location that they were caught in. So he has knowledge of copper theft. And he was there with them. And all the evidence taken as a whole, is it a reasonable inference that maybe that’s why they’re there, they had at least one of the three who’s proven to have knowledge of copper theft. And that shows that maybe they were going with Mr. Gonzales entering that building, not to smoke methamphetamine, but in fact to commit theft as Mr. Gonzales has done prior. It fits all the pieces of the puzzle and it fits in nicely to show that that’s why the defendants were there.” Defendant’s counsel did not object to these arguments.
The People contend that defendant Sanchez’s failure to object to the evidence or argument relating to Gonzales’s arrest waived his ability to challenge any issues arising from them on appeal, but we will consider his arguments on the merits in view of the additional claim of ineffectiveness of counsel.
The thrust of closing argument by Sanchez’s counsel was that the evidence there had been prior break-ins at the warehouse created reasonable doubt as to whether Sanchez and Navarro were engaged in a burglary when they were arrested or had intended to steal when they entered the building. Counsel also contended the lack of fingerprint evidence created a reasonable doubt as to Sanchez’s guilt. Sanchez now argues the evidence of Gonzales’s prior arrest for theft of copper wire invited an improper inference that Sanchez was guilty by association.
The People argue that there was no error, in part, because the evidence of Gonzales’s arrest was first introduced by codefendant Navarro and not the People. Whether it was the People or a codefendant who introduced the evidence of a separate crime committed by a third party is not important. “[C]onduct of counsel for a codefendant can violate a defendant’s constitutional rights. [Citation.] . . . .” (People v. Estrada (1998) 63 Cal.App.4th 1090, 1095.) The analysis employed in those cases that conclude a defendant’s Fifth Amendment right against self-incrimination is violated by a codefendant’s comment upon the defendant’s refusal to testify persuades us that it is the use of offending evidence, not its source that may deny the defendant a fair trial. (See People v. Haldeen (1968) 267 Cal.App.2d 478, 481.)
While Sanchez argues the introduction of the evidence of Gonzales’s prior arrest was error, we disagree. Here, Navarro had a legitimate reason to offer the evidence of Gonzales’s prior arrest. He attempted to persuade the jury that he was guilty of smoking methamphetamine, not theft, and that Gonzales alone was involved in stealing wire. In this respect, Navarro offered a defense that could have equally benefited Sanchez, and in this light the evidence is not inconsistent with or antagonistic to Sanchez’s innocence. (See People v. Turner (1984) 37 Cal.3d 302, 313; citing People v. Simms (1970) 10 Cal.App.3d 299, 308-309 and People v. Terry (1970) 2 Cal.3d 362, 390.) But the prosecution’s use of the evidence of Gonzales’s prior arrest in rebuttal argument is another matter.
Evidence of another person’s unrelated crimes is not generally admissible to prove a defendant’s intent to commit the charged offense. (See People v. Leonard (1983) 34 Cal.3d 183, 187-188 [prosecution improperly permitted to introduce co-arrestee’s guilty plea when defendant objected under Evid. Code § 352 and court failed to weigh probative value of evidence against its prejudicial effect]; People v. Martinez (1992) 10 Cal.App.4th 1001, 1005-1008 [prosecution erroneously allowed to introduce expert opinion evidence regarding operation of auto theft rings, over defense objection, in case where issue of defendant’s knowledge and intent presented close questions]; People v. Long (1970) 7 Cal.App.3d 586, 591-592 [prosecution improperly introduced evidence of separate crimes not connected to defendant]; People v. Jackson (1967) 254 Cal.App.2d 655, 657, 659-660 [prosecution’s evidence of codefendant’s other crimes improperly admitted against defendant]; People v. Chambers (1964) 231 Cal.App.2d 23, 28-29 [consolidated trial “heavily weighted with evidence of [codefendant’s] brutality” resulted in conviction improperly based on guilt by association].)
It was improper for the prosecution to argue that Gonzales’s presence in the warehouse at the time of Sanchez and Navarro’s arrest made it more likely Sanchez entered the warehouse intending to commit burglary. This is an argument for guilt by association. (See People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071-1072; People v. Galloway (1979) 100 Cal.App.3d 551, 563.) The evidence of Gonzales’s previous arrest could not properly be considered as evidence of Sanchez’s guilt. Even though we conclude it was error for the prosecution to make this argument, we cannot conclude that the error was prejudicial.
Evidence showed that Sanchez was apprehended wearing gloves and protective safety goggles in a warehouse where there was extensive evidence of a theft of copper wire in progress. Several witnesses testified there was evidence of theft at the scene that was far more substantial than on their previous visits to the site shortly before Sanchez, Navarro and Gonzales were arrested. Police heard the sound of “metal clanging together” before they entered the building, and tools were found on the floor and inside one of the building’s electrical boxes.
The prosecutor also argued in rebuttal that Sanchez and Navarro tried to hide when police arrived, showing consciousness of guilt, and there was no evidence of methamphetamine or paraphernalia to support Navarro’s testimony that he and Sanchez went to the warehouse to smoke methamphetamine, even though Navarro claimed the police had confiscated it.
In addition to the considerable evidence of theft, the prosecutor reminded the jury in his argument that the jury was the finder of fact. The court also instructed the jury that arguments by counsel are not evidence, that the jury was not to speculate on why Gonzales was not before them and that it was their duty to decide whether the prosecution proved each defendant’s guilt beyond a reasonable doubt. In the circumstances, we conclude that the error in rebuttal argument arising from the prosecution’s passing reference to Gonzales’s prior arrest was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
Sanchez also attempts to argue that Detective Vegas’s testimony regarding Gonzales’s prior arrest relied upon hearsay that implicated Sanchez’s right to confront and cross-examine witnesses against him. But the hearsay statements in Detective Vegas’s testimony are devoid of any facts that imply Sanchez’s guilt.
B. The Court’s Sua Sponte Duty to Instruct
Sanchez argues that even in the absence of a request by defense counsel, the trial court had a sua sponte duty to instruct the jury that the evidence of Gonzales’s prior arrest could not be used against Sanchez. He says the evidence in question was not admissible on any issue, and the prosecutor’s rebuttal argument was especially prejudicial because it was fresh in the jury’s mind when it retired to deliberate. But as we stated in part A, ante, of this discussion, the evidence was relevant to Navarro’s defense. It was also only a small part of the evidence pointing to Sanchez’s guilt.
“There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence. But . . . in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct” (People v. Collie (1981) 30 Cal.3d 43, 64; see also People v. Rogers (2006) 39 Cal.4th 826, 854 [describing Collie as providing “a narrow exception to the general rule not requiring sua sponte instruction” concerning the admissibility of evidence of other crimes].) Sanchez has not shown that an exception to the general rule should be applied in this case.
C. Whether Sanchez’s Counsel Was Ineffective
Sanchez says he was denied effective assistance of counsel because his lawyer failed to object to evidence of Gonzales’s prior arrest or the prosecutor’s reference to it in argument and failed to request a limiting instruction, Although Sanchez acknowledges that failure to object is generally a matter of trial tactics (see People v. Lanphear (1980) 26 Cal.3d 814, 828-829 [court will not exercise judicial hindsight to second-guess trial counsel]), here he says that “[t]here was no possible benefit to be gained from evidence that Gonzales, an apparent friend and associate of appellant, was a copper thief.” But the record belies this assertion.
Navarro’s counsel clearly thought the evidence of Gonzales’s arrest could benefit Navarro and elicited that evidence in support of Navarro’s claim that he and Sanchez went with Gonzales to smoke methamphetamine, not to steal copper wire. Had the jury accepted Navarro’s argument, it would likely have worked to Sanchez’s benefit as well and he would have been exonerated. As we said in part A, ante, of our discussion, the evidence was admissible and relevant for this purpose. Its relevance also demonstrates a possible tactical reason why Sanchez’s counsel did not object. (See People v. Fosselman (1983) 33 Cal.3d 572, 581-582 [record must “affirmatively disclose[] that counsel had no rational tactical purpose for his act or omission”]; accord, People v. Ray (1996) 13 Cal.4th 313, 349.)
Sanchez argues in his reply brief that even if there were a tactical reason for his lawyer’s failure to object, tactical decisions must be reasonable. But he fails to overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, . . . the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 689; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [ineffective assistance of counsel claim must be rejected on appeal if record sheds no light on why counsel acted in the manner challenged, “ ‘ “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation” ’ ”].)
“An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540; accord, People v. Gurule (2002) 28 Cal.4th 557, 609-610.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.