Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA077333 John David Lord, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
A jury convicted Maurice Shirley of second degree commercial burglary, attempted grand theft, and receiving stolen property. Shirley appeals from the judgment on the grounds that: (1) there was insufficient evidence to support the convictions; and (2) prosecutorial misconduct violated his constitutional rights. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
On February 6, 2008, around 3:30 a.m., Long Beach police were notified of a potential burglary on San Antonio Drive. Police Officer Joshua Castro was a little over a mile away and responded to the call. Police dispatch indicated that a light, white colored van was backed up to the front of the business that was potentially being burglarized. Castro drove to an intersection just east of the business. While in the intersection, he saw patrol cars approaching him from the west on San Antonio Drive. He did not see any moving cars to the east of the intersection, but he noticed red taillights traveling north in front of him on Orange Avenue. He followed the lights and saw three cars.
When one of the cars abruptly turned right, Officer Castro followed. He came upon a parked white van with its back doors open. The driver’s side door was also open, and there was a chain on the ground. One man stood at the back of the van, and another was moving to the back of the van from the direction of the driver’s side door. At trial, Castro identified Shirley as the man who was heading toward the back of the van when Castro drove up. Shirley was around two or three feet from the driver’s side door and was running or jogging to the rear of the van. The other man was loading the chain into the van. Castro saw Shirley either touch the chain or help with the loading. When Castro got out of his police car and drew his weapon, both men immediately ran away. Castro chased the other man, but lost him after he jumped over a fence. Castro then turned around and saw Shirley running after a passing car. The rear passenger door opened, and Shirley ran to get inside. When Castro gave chase, the car sped up and drove off. When Shirley did not respond to Castro’s orders that he stop, Castro subdued him with a taser and took him into custody. Backup police officers eventually caught the other man.
Officer Castro returned to the van, which was still running. There were no keys in the ignition. The steering column was cracked, the ignition “punched,” and a screwdriver lay on the driver’s seat, all indicia that the van was stolen. Also in the van were a pry bar, a crowbar, bolt cutters, and screwdrivers, as well as the chain. A few chain links recovered from the burglarized shop matched the chain found in the van. At trial, the van’s owner testified that the van was stolen around one month before the burglary.
The burglarized shop was a tax preparation business. After receiving a call from the police about the burglary, the owner arrived to find the front door pried open, papers strewn about, and the business in disarray. An ATM machine kept at the business was partially disassembled, with the top part off, and the front door pulled open. It appeared that someone had attempted to pull the ATM out of the shop using chains.
Two witnesses who lived near the business were interviewed the day of the burglary. Jermaine Williams told police that a loud bang awakened him. He went outside of his apartment and saw a white vehicle parked on San Antonio Drive near the tax preparation business. He then watched as the vehicle drove away, north on Orange Avenue. His wife, Kiana Ellison, told police that she too woke up after hearing a loud bang. She looked out of a bedroom window directly facing the tax preparation business. She saw a white vehicle with someone inside who was pulling a chain into the vehicle from the back doors. Later that day, police took the stolen white van to Williams and Ellison’s apartment. Both identified it as the vehicle they had seen earlier that morning.
At trial, the couple admitted that they did not want to testify. Shortly before the trial, they indicated that they did not want to be involved because they were afraid for themselves and their son. At trial, Williams testified that he heard a loud bang, looked out a window, and saw a light colored car or truck drive down the street. He explained that he was uncomfortable when police officers entered his home to interview him, and uncomfortable when they brought the van back to his apartment. Williams also testified that he told police he could not be sure if the van was the vehicle he had seen, because he had only viewed it from the back.
Ellison testified that she woke up upon hearing a loud bang, looked out of her window, and went into her living room. She then went outside and saw the back of a van driving away. Ellison said she did not remember telling police that she saw a person in the van trying to pull a chain into the van. She further testified she could not positively identify the van later that day because she only saw the tail end of it as it was turning left.
After Shirley was arrested and examined at a hospital, Officer Royce Wexler briefly spoke with him at the police station. Wexler asked where Shirley got the stolen van. Shirley told Wexler that he had never been in the van and did not know it was stolen. Wexler informed Shirley that he was seen coming from the driver’s side of the stolen van and loading chains inside. Shirley said: “I came around the side, but I wasn’t inside the van.” Wexler did not mention that the burglarized office was a tax preparation business.
Officer Jose Yarruhs later interviewed Shirley at the Long Beach Police Department jail. Shirley said he did not know why he had been arrested. He told Yarruhs that he lived in the City of Lynwood, which is not within walking distance of Long Beach. When asked what he was doing near the tax preparation business around 3:30 in the morning, Shirley said that he was visiting a friend named John. However, Shirley claimed he did not know where John lived, his telephone number, or any other contact information.
In a ruse to elicit information, Officer Yarruhs told Shirley that the business owner was mainly concerned for the safety of his employees and that all he wanted was an assurance that Shirley would not return to the business. Shirley responded: “No, man, I ain’t going to that tax place.” However, Yarruhs had not told Shirley that the business was a tax preparation office.
Defense Evidence
Shirley did not present any evidence at trial.
Trial and Sentencing
The jury found Shirley guilty of second degree burglary (Pen. Code, § 459), and attempted grand theft of the ATM (§§ 664, 487, subd. (a)). With regard to the van, the jury convicted Shirley of receiving stolen property (§ 496d, subd. (a)), but acquitted him of grand theft auto.
All further statutory references are to the Penal Code unless otherwise noted.
At a subsequent court trial, the court found true that Shirley had suffered two prior convictions for violations of section 211 and section 459. The court subsequently sentenced Shirley to an aggregate term of seven years four months, consisting of the upper term on the burglary count, doubled under the “Three Strikes” law, and one-third of the midterm on the receiving stolen property count, also doubled under the Three Strikes law. Sentence on the attempted grand theft count was imposed and stayed under section 654.
This appeal followed.
DISCUSSION
I. Sufficient Evidence Supported the Convictions
Shirley claims there was insufficient evidence to support the convictions. When such a challenge is made, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We do not reweigh the evidence or resolve evidentiary conflicts. “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (Ibid.)
When the prosecution relies upon circumstantial evidence to make its case, “[w]e ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation.] ‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’ [Citation.] Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. [Citation.]” (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
A. The Burglary and Attempted Grand Theft Counts
Shirley contends there was no evidence that he aided and abetted the burglary or theft. He asserts that there was no evidence that he knew the man with the van and chain, and no evidence that Shirley was anywhere near the tax preparation business or that he was a passenger in the stolen van. We disagree.
A person aids and abets the commission of a crime when he acts with knowledge of the unlawful purpose of the perpetrator and the intent or purpose of encouraging or facilitating the commission of the crime, and his act or advice in some manner aids, promotes, encourages or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) Presence at the scene of a crime alone is not sufficient to establish criminal liability as an aider and abettor. However, the defendant’s presence must be considered along with any other significant evidence in determining whether the defendant aided and abetted the commission of the crime. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) “Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense.” (Ibid.)
There was sufficient circumstantial evidence to allow the jury to reasonably conclude that Shirley acted with the intent of encouraging or facilitating the burglary and attempted theft, and that his actions aided, promoted, or encouraged the crimes. More specifically, on the day of the burglary and attempted theft, Williams and Ellison told police they saw a vehicle parked in front of the tax business and driving away, and they later positively identified the stolen white van as the one they had seen earlier. Officer Castro saw Shirley right next to the same van, near the open driver’s side door. Shirley was half-running to the back of the van, where another man was trying to load a chain into the back. Castro saw Shirley touch the chain or help load it into the van. Shirley fled when he saw Castro, suggesting a consciousness of guilt. (People v. Wallace (2008) 44 Cal.4th 1032, 1074.) From this evidence, the jury could reasonably find that Shirley had knowledge of the van and the chain, and that both were connected to an unlawful purpose.
Although Williams and Ellison denied previously identifying the van at trial, the jury could reasonably have concluded that their trial testimony was less accurate than their previous statements, due to their admitted fear and reluctance to testify in court.
Further, Shirley’s connection to the van and the chain allowed additional inferences that he aided and abetted the crimes. Inside the van were tools such as a crowbar, screwdrivers, and bolt cutters. The front of the burglarized office had been pried open. Chain links found in the burglarized office matched the chain in the van. The contents of the van suggested that it was an integral part of the burglary and attempted theft. The logical inference from Shirley’s apparent exit from the van on Orange Avenue was that he had also been in the van minutes before when it was in front of the burglarized tax preparation business.
In addition, in the early morning hours on the day of the burglary, Shirley was in Long Beach, near the tax preparation business, far from his home in Lynwood. He had no explanation for his presence at the scene of the crime. Though he claimed to have been visiting a friend, “John,” he did not provide an address or contact information for the friend. He later volunteered that he would stay away from the “tax place,” even though no one had told him that was the nature of the business, and he was apprehended a few streets away from the business itself. This evidence was sufficient to allow the jury to reasonably conclude that Shirley aided and abetted the burglary and attempted grand theft.
Shirley argues that there was insufficient evidence to show that he intended to aid and abet burglary and theft before or during the commission of those crimes. He cites People v. Montoya (1994) 7 Cal.4th 1027, for the proposition that an aider and abettor will be liable for burglary if he, “with knowledge of the perpetrator’s unlawful purpose, forms the intent to commit, encourage or facilitate commission of the offense at any time prior to the perpetrator’s final departure from the structure.” (Id. at p. 1046.)
This argument fails. Shirley’s actions in half-running to the back of the van, touching or helping to load the chain, and fleeing upon seeing the police, all led to a reasonable inference that he was working in concert with the other man, and he was connected to the van’s contents, all of which pointed to advance planning of the burglary. Moreover, the evidence did not support a conclusion that Shirley formed the requisite intent only after the burglary was completed. Indeed, if Shirley’s defense was to be believed, he was only helping the other man load the chain into the van, but had no knowledge of a burglary or attempted theft whatsoever, not that he did not have the requisite intent to assist the crimes until after the burglary was legally completed. And, in view of the evidence, the jury could reasonably reject Shirley’s characterization of events, which were unsupported by any evidence.
B. The Receiving Stolen Property Count
We also determine that sufficient evidence supported the receipt of stolen property conviction. To “sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and (3) the defendant had possession of the stolen property. [Citations.]” (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).) There must be evidence in addition to mere presence near the stolen property, or access to the location where the stolen property is found to establish possession. (Id. at p. 224.) Shirley concedes that the van was stolen, but asserts that there was insufficient evidence that he knew it was stolen, or that he had possession of the van. We disagree.
There was evidence from which the jury could infer that Shirley knew the van was stolen. Indeed, when Officer Castro pulled up to the van, it was around 3:30 a.m., an unlikely time for Shirley to happen upon the scene by accident. He had no explanation for being in the area, except that he was visiting a friend whose address and contact information he either did not know or refused to provide. He was not close to his own home. Castro spotted Shirley running or jogging to the back of the van from the driver’s side, with the driver’s side door open, while the van was running. If, as it appeared, Shirley had just exited the van, it was reasonable for the jury to infer that he also knew that the van was running without keys, the steering column was cracked, the ignition was “punched,” and a screwdriver was on the front passenger seat. Thus, the jury could reasonably infer that Shirley knew the van was stolen.
To show that a defendant has possession of stolen property, “[i]t is sufficient if the defendant acquires a measure of control or dominion over the stolen property.” (Land, supra, 30 Cal.App.4th at p. 224.) The inference that Shirley was driving the van is a significant indicator of possession. (Id. at p. 223, fn. 2.) Further, the witnesses’ identification of the van, the tools in the van, Shirley’s flight when police arrived, his knowledge that the place burglarized was a tax business, his unlikely presence near the opened driver’s side of the van, and his assistance to the other man loading the chain, all indicated that Shirley and the other man jointly used the van to commit burglary—another measure of control or dominion over the stolen van. (Id. at p. 228 [factors indicating possession included appellant’s relationship to the driver and their use of the car in a joint criminal enterprise].)
There was sufficient evidence for the jury to reasonably conclude that Shirley knew the van was stolen and that he was in possession of the van.
II. There Was No Prejudicial Prosecutorial Misconduct
A. Improper Questioning
Shirley contends that the prosecutor engaged in prejudicial misconduct by attempting to elicit testimony regarding the second suspect. Shirley points to a question in which the prosecutor asked Officer Yarruhs if the unidentified suspect was still facing charges in connection with the case. Defense counsel made a relevance objection, which the trial court sustained. A few questions later, the prosecutor asked Yarruhs if the district attorney had filed a case against the unidentified suspect. Defense counsel again objected on relevance grounds and the court sustained the objection.
The People assert that Shirley forfeited any prosecutorial misconduct claim because he failed to object on that ground in the trial court. Indeed, “ ‘ “[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” ’ [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 298 (Riggs).) Shirley concedes that his counsel did not object on this basis at trial, but argues that an objection would have been futile. However, the futility exception is generally applied only in unusual circumstances which are not present here. (People v. Zambrano (2004) 124 Cal.App.4th 228, 237; People v. Riel (2000) 22 Cal.4th 1153, 1212-1213 (Riel).) On the contrary, we fail to see how Shirley’s objection would have been futile since the trial court sustained defense counsel’s relevance-based objections to the questions at issue. (Cf. Zambrano, supra, 124 Cal.App.4th at p. 237 [trial court overruled counsel’s objections to some improper questioning, thus further objection would have been futile].) There was no reason to believe the trial court would not consider giving a curative admonition. Shirley therefore forfeited any claim of prosecutorial misconduct based on allegedly improper questioning.
Even had Shirley preserved this claim for appeal, we would conclude the questions did not constitute prosecutorial misconduct warranting reversal. It is improper for the prosecutor to intentionally elicit inadmissible testimony. (People v. Smithey (1999) 20 Cal.4th 936, 960.) But even assuming that the prosecutor’s questions here were improper, any misconduct was harmless. The trial court sustained objections to the questions, thus the jury never heard whether the other suspect had been or was still facing charges. Moreover, the jury was instructed with CALCRIM No. 373, which prohibited the jurors from speculating about whether the other person involved in the crimes had been or would be prosecuted. The jury was also instructed that the attorneys’ questions were not evidence, and not to assume that something was true just because an attorney asked a question that suggested it was true. Finally, the jurors were told that if the court sustained an objection to a question, the jury was to ignore it. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [presumption that the jury understands and follows instructions given].)
The prosecutor’s questioning about the other suspect was extremely brief, the court sustained objections to both questions and prevented Officer Yarruhs from answering, and the jury was properly instructed to avoid any speculation about the other suspect. We cannot conclude that it is reasonably probable that Shirley would have received a more favorable result at trial absent the prosecutor’s questions. (Riggs, supra,44 Cal.4th at p. 298.)
B. Prosecutor Comments During Closing Argument
Shirley further contends that the prosecutor’s comments during his rebuttal closing argument constituted misconduct. After the defense closing argument, the prosecutor told the jury: “Ladies and gentleman, it’s the People’s point of view that you should, frankly, be insulted with that argument the defense attorney just put in front of you. You should be insulted that he expects you to believe his argument about his client, the defendant’s, innocence. Now, I could say more about that, but as a representative of the People I’m held to a little bit of a higher standard in terms of my modicum in court, and what I say and do in front of you.” Shirley argues these comments denigrated defense counsel and “amounted to an attack on the presumption of innocence and the right to proof beyond a reasonable doubt.” We disagree.
As an initial matter, Shirley failed to preserve this claim by failing to object in the trial court. There were no circumstances to indicate that an objection would have been futile. But even had Shirley preserved the claim, we would conclude that the comments were not misconduct.
As explained in People v. Cash (2002) 28 Cal.4th 703, 732-733, “[w]hen the prosecution denigrates defense counsel, there is a risk the jury will shift its attention from the evidence to the alleged defense improprieties. [Citations.] ‘It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense....’ [Citation.] For defendant’s claim to prevail on the merits we ask ‘ “whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ [Citations.] [¶] Prosecutorial comment is reversible as misconduct under the federal Constitution when it ‘ “so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.] Under state law, however, prosecutorial comment that falls short of rendering the trial fundamentally unfair is misconduct when it involves ‘ “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ [Citation.]”
Here, the prosecutor’s comments were not misconduct requiring reversal. It is not misconduct for the prosecutor to state, in a summary fashion, that it is the People’s opinion that the defendant is guilty, or even obviously guilty. That was the clear meaning of the prosecutor’s comment at issue in this case. Moreover, the contested remarks were two sentences on a theme that went undeveloped. As the prosecutor continued his closing, he argued that defense counsel was asking the jury to speculate because there was no evidence to support the contention that Shirley was just helping the other man load the chain in the van, but was otherwise not involved. This was permissible commentary based on the evidence.
People v. Stitely (2005) 35 Cal.4th 514, is instructive. In Stitely, the prosecutor told jurors “to avoid ‘fall[ing]’ for counsel’s statement in favor of a second degree murder verdict, to view counsel’s argument as a ‘ridiculous’ attempt to allow defendant to ‘walk’ free, to view counsel’s argument as an ‘outrageous’ attempt to demean the victim and treat her as a ‘Jane Doe,’ and to view counsel’s argument as a ‘legal smoke screen.’ ” (Id. at p. 559.) Our Supreme Court concluded that these comments were not misconduct and were aimed at defense counsel’s closing argument, rather than the attorney personally. (Id. at p. 560.) In the case at bar, Shirley complains of far less aggressive comments than those in Stitely. The “insulted” comment is more accurately described as “colorful language to permissibly criticize counsel’s tactical approach,” rather than a personal attack on defense counsel’s integrity. (Ibid.) It is not reasonably likely that the challenged comments risked causing the jury to shift its attention away from the evidence. There was no misconduct.
C. Ineffective Assistance of Counsel
Shirley argues that should this court conclude that he forfeited his claims of prosecutorial misconduct because of his counsel’s failure to object at trial, we should find that his counsel was ineffective for failing to object. We have determined, however, that the prosecutor’s statements either were not misconduct, or were harmless. Defense counsel successfully objected to the prosecutor’s questioning about the other suspect and prevented the testimony from being given. The prosecutor’s statements during closing argument were not misconduct requiring objection. We find no ineffective assistance of counsel based on the failure to object to alleged prosecutorial misconduct. (Riel, supra, 22 Cal.4th at p. 1213.)
DISPOSITION
The trial court’s judgment is affirmed.
We concur: RUBIN, Acting P. J. BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.