Opinion
No. B164166.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. JESUS IGNACIO LOPEZ SAUCEDA, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
FACTS
On July 31, 2002, a woman living in a housing complex for seniors was awakened at approximately 2:30 a.m. by a loud noise. She realized the noise was coming from a window looking out onto her patio. A man was pushing the window against a stick she kept to stop the window from opening more than 12 inches. She noticed the window screen had been removed. She yelled for the man to go away and he left. No part of the man was inside the window.
Santa Maria Police Officer Penny Diaz responded to a burglary call. She saw Sauceda standing in front of the complex. He matched the description of the suspect and was holding a blue dog leash. When Diaz asked Sauceda whether he lived in the complex, he replied that he did. Diaz knew that was not true because the complex housed only senior citizens. Another police officer arrived and Sauceda ran.
The police apprehended Sauceda in a nearby vacant lot. Diaz smelled alcohol on Saucedas breath, but she saw no symptoms of intoxication. He was belligerent and gave a false name. The victim identified Sauceda at the scene and in court.
When the police booked Sauceda, they found a package of Geronimo cigarettes and a taquito on his person. He ate the taquito in front of the officer. Police also found a blue dog leash near where Sauceda was arrested.
At trial, the prosecution introduced evidence of uncharged crimes to show Sauceda had the intent to steal when he entered the victims house. The morning after Saucedas arrest, other residents of the complex noticed items missing from their porch or patio. Among the items were a blue dog leash, a pack of Geronimo cigarettes and some taquitos.
DISCUSSION
Sauceda contends the prosecutor committed misconduct in his argument to the jury.
Prior to trial, the parties agreed that Sauceda would not challenge the admission of the uncharged crimes evidence. In return, the prosecutor would not amend the complaint to charge those crimes.
During closing argument, defense counsel stated:
"[Defense Counsel]: You know, I think there is something hanging over this case and it begs comment. The People chose to pursue these two charges. They didnt choose to prosecute this young man for petty theft of taquitos . . . or Geronimo cigarettes or a blue dog leash. You dont have that before you.
"[Prosecutor]: Your Honor, Im going to object, improper argument.
"THE COURT: [Defense counsel], where are we going? The objection will be sustained. Proceed.
"[Defense Counsel]: You dont have those charges. My concern, ladies and gentleman, is that you feel he is guilty of some of those things. You dont have that there and so you give them a leg up and maybe make it a lower threshold, what the prosecution has to prove to convict him of what they care about here, which is the residential burglary charge. And Im going to ask you as conscientious jurors not to do that. [¶] . . . [¶]
"[The prosecutor] talked about this blue leash being the strongest evidence in the Peoples case. Well, it is strong evidence of petty theft of a blue leash. It is one thing I would tell you, ladies and gentlemen, it is one thing to go out on a little cement patio outside a persons home and lift some items, and it is another to go into a persons home. All right, and the law recognizes that. And the fact that they may have a nice showing that he is involved in some petty thefts from patio or porches . It is a huge leap there to assume, well, that means he was going to go into [the victims] unit and he was going to steal from her." (Emphasis added.)
In rebuttal, the prosecutor argued:
"[Prosecutor]: The D.A.s office has the discretion on what charges that occurred are charged, and thats why the judge sustained my objection. I could amend right now and add petty thefts. There was an agreement we didnt do that in this case. That is something that was worked out with counsel.
"[Defense Counsel]: Your Honor, I object to that.
"THE COURT: Sustained. [¶] . . . [¶]
"[Prosecutor]: We have the options of charges, what we want to charge in this case. [¶] . . . [¶]
". . . How do we know he wasnt intoxicated to the level he couldnt form intent? Because the defense counsel stipulated he committed all these petty thefts.
"[Defense Counsel]: Your Honor, I didnt so stipulate and I object to that characterization.
"THE COURT: Sustained. . . .
"[Prosecutor]: Your Honor, there was
"THE COURT: Disregard the last comments."
Sauceda contends the prosecution committed misconduct by referring to the agreement between counsel regarding the petty thefts, which was outside the evidence, and by stating that defense counsel stipulated to the petty thefts.
But in referring to the agreement about the petty thefts, the prosecutor was responding to Saucedas argument that the petty thefts were not charged. The prosecutors reference to matters outside the evidence is not misconduct if it is invited by defendants argument. (See People v. McIntyre (1967) 256 Cal.App.2d 894, 901-902 [prosecutors reference to inadmissible police report not misconduct].)
Nor does the prosecutors statement that defense counsel stipulated Sauceda committed the petty thefts constitute misconduct. It is true Saucedas counsel technically did not stipulate. Instead, he conceded that there was "strong evidence" and that the prosecutor made a "nice showing." Any reasonable juror would understand such concessions as tantamount to a stipulation.
In any event, if there was error, it was harmless by any standard. The only question was whether Sauceda intended to steal anything from the victims apartment. The uncontradicted evidence was that Sauceda had stolen other items from people living in the same apartment complex, and he was trying to open the victims window wider than the 12 inches allowed by a stick placed in the frame. The only explanation defense counsel could suggest, other than the intent to steal, was that Sauceda was making noise with the window to wake up the victim so he could talk to her. No reasonable person would find that explanation credible. The evidence of Saucedas guilt was simply overwhelming.
The judgment is affirmed.
We concur: COFFEE, J. & PERREN, J.