Opinion
A101038.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD VICTOR TAYAG, Defendant and Appellant.
A jury convicted appellant Edward Victor Tayag of first degree residential burglary. (Pen. Code, §§ 459, 460, subd. (a).) Appellant asserts that he was wrongly denied a trial continuance, and that the prosecutor engaged in prejudicial misconduct by offering appellants police statement into evidence despite a contrary pretrial position, and in making impermissible comments when arguing to the jury. Appellant also challenges the trial courts sentencing decision not to strike a prior serious felony conviction finding. We reject appellants contentions, and affirm the judgment.
FACTS
Raymond Techaira was at home in a residential area of Livermore around 11 a.m. on January 21, 2002. The house has an attached garage, separated by a laundry room. The garages double bay door was up because Techairas wife had recently driven away. When Techaira walked from inside the house to the garage, he found a stranger inside the garage who was later identified as appellant. Appellant was holding Techairas tool pouch, containing a level, and also holding the keys to Techairas motor home, which bore a tag labeled "motor home." Techaira stores the tool pouch and keys in the garage.
Techaira was shocked to find appellant in his garage, and asked him: "What are you doing here?" Appellant replied: "Im here to work for Joe." Techaira said: "No Joe lives here," and told appellant that "[t]hose are my things in your hand." Appellant replied: "Well, thats why Im not, you know, running." Techaira told appellant: "Well, you need to give those back," and reached for the items. Appellant gave Techaira the items and Techaira set them on the garage bench. Techaira told appellant: "You need to leave." Techaira walked appellant out of the garage and watched him walk away from the house.
Techaira went to his motor home that was parked around the corner, and drove it to the front of his house to park it there. As Techaira parked the motor home, he saw that appellant was just a block away and walking back in the direction of Techairas house. Techaira thought appellant was "up to no good," so he went inside and telephoned the police. Techaira told the police that he had caught a man in the garage, and provided a physical description.
The police located appellant walking in the neighborhood and detained him. Officer Mike Trudeau told appellant that he was investigating a possible burglary and asked appellant for identification. Appellant produced an identification card, and the officer asked him what he was doing in the area. Appellant said his car was broken down at a nearby Chevron station and he was looking for the auto parts store. The closest auto parts store is a two-hour walk from where appellant was found, and a Wal-Mart store, which carries auto parts, is 45 minutes away. Officer Trudeau told appellant that there was no auto parts store in the area and again asked appellant why he was in the area. Appellant "kind of changed directions and said he was looking for his friend Joe." The officer asked appellant "where Joe lived, if he knew the address, and what Joes last name was." Appellant replied that "he didnt know Joe that well and he didnt know where he lived or what his last name was. And he couldnt describe the house, either." The officer handcuffed appellant, and Techaira was brought to the scene and identified appellant as the man who entered his garage.
Appellant was arrested, and a search of his person revealed a wallet with $42 in cash and a set of Dodge car keys. Another police officer went to the Chevron station identified by appellant and located appellants car there. Appellants keys fit the cars ignition, but the car would not start. Meanwhile, appellant was transported to jail and interrogated there after being advised of his constitutional rights.
Appellant provided the following statement to the police: "`On January 21, 2002, at about 10:00 a.m., a friend of a friend gave me a ride to Livermore from Stockton. I think the guys name was Tom or something like that. [¶] Tom dropped me off at the Chevron station on Vasco Road because my car had broken down there on January 18th, 2002. I was going to the Chevron station to attempt to fix the car. [¶] I tried to start the car, so I was going to the Kragen auto parts store in Livermore. I needed to get a new starter for my car. [& para;] It was a long walk, so I decided to look for a ride. I knew a guy named Joe who lived in the area, so I went looking for his house. I dont know Joes last name or exactly where he lived, but I started looking for his house. [¶] As I was walking, I saw a house that I thought was Joes house, and the garage door was open, so I walked into the garage. [& para;] . . . [¶] I went inside the garage and knocked on the garage door. Nobody answered when I knocked on the garage door. [¶] I saw a tool belt hanging on a rack, so I grabbed it and put it over my shoulder. Sometimes I work for Joe, and I know he would have given me a ride to Kragen if I did some work with him for a while. [¶] I stood in the garage and waited for Joe to come out of the house. I waited for about 10 minutes. A guy came out of the house, and it was not Joe. I figured I had the wrong house, so I apologized to the guy and handed him back his tool belt. The guy said it was okay and walked me out of the garage. [¶] I wanted to find Joes house, so I continued to check the neighborhood for Joes house. That was when the police stopped me. [¶]To clarify, I did not knock on the front door to the house that I thought was Joes house. " The parties stipulated that appellant is the person Techaira found inside his garage, and arrested by Officer Trudeau. The defense rested on the state of the evidence.
DISCUSSION
Denial of Trial Continuance
The prosecution presented three witnesses whose testimony concluded in a single day. On the morning of the second day of jury trial, defense counsel told the court that the defense was not presenting evidence, but intended to simply argue on the state of the evidence, "subject to me talking to my client again this morning." Defense counsel expressly stated that she was not "asking for any continuances."
However, defense counsel did request a continuance after conferring with appellant. Defense counsel asked for a continuance to locate witnesses and to prepare appellant to testify. The court denied the request. Appellant does not challenge the courts ruling denying a continuance to locate witnesses, but does complain that the courts ruling denying a continuance to prepare for testifying deprived him of his right to testify.
The trial courts denial of the requested continuance was not an abuse of discretion, and did not deny appellant his constitutional rights. Continuances shall be granted only upon a showing of good cause. (Pen. Code, § 1050, subd. (e).) "[T]he trial court has broad discretion to grant or deny the request." (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) Relevant considerations are the circumstances of the case, the reasons presented for the request, and whether a continuance would be useful. (Id. at p. 1013.) Appellants case was not complicated. The prosecution presented only three witnesses and their combined testimony lasted less than a day. There were no surprises during the trial that affected the question of whether appellant should testify. That question was posed long before trial commenced, giving defense counsel ample time to prepare appellant to testify. The only reason given for the requested continuance was appellants last minute change of tactics. Tactical revisions do not constitute good cause for a continuance. Moreover, appellant has failed to establish the usefulness of his testimony. Appellants explanation for entering the garage was provided by his police statements, and his testimony would thus have been largely cumulative. By testifying, appellant also would have exposed himself to impeachment with his prior felony convictions, which would have swamped any advantage in testifying. (Evid. Code, § 788.) The trial court did not abuse its discretion in refusing a continuance.
Nor did the trial court deny appellant his constitutional right to testify in his defense. Rock v. Arkansas (1987) 483 U.S. 44, 52, 56, upon which appellant relies, invalidated a per se rule prohibiting the admission at trial of any defendants hypnotically refreshed testimony. The per se exclusion of a defendants testimony presents a far different situation from the denial of a continuance to prepare to testify, which is the issue here. Rock itself noted that "the right to present relevant testimony is not without limitation." (Id. at p. 55.) One of those limitations is that trials proceed expeditiously, and that any requests for continuances be supported by good cause.
Prosecutorial Misconduct
The prosecutor had indicated pretrial that he did not intend to introduce appellants postarrest statement into evidence. After the jury was impaneled, the prosecutor advised the court that he "changed [his] mind," and decided to introduce the statement. Defense counsel moved to exclude the statement and the court denied the motion. Appellant renews on appeal his objection to the prosecutors change of tactics, contending that the prosecutor acted to gain an unfair tactical advantage sanctionable by the exclusion of evidence. Appellant has failed to support his allegation of misconduct. Decisions whether to introduce particular pieces of evidence are commonly changed during the course of trial. Such tactical adjustments are not analogous to the suppression of exculpatory evidence, as appellant maintains, and do not warrant evidentiary sanctions.
Nor did the prosecutor act impermissibly in his closing, rebuttal argument to the jury in which he argued that "Joe," whom appellant said he was looking for when he entered the garage, did not exist. In making that argument, the prosecutor recalled Officer Trudeaus testimony about his interrogation of appellant, in which appellant was unable to provide any identifying information about "Joe." Appellant argues that the prosecutor "exaggerated" that testimony and implied that the prosecutor knew undisclosed information. The prosecutor told the jury: "Officer Trudeau asked the defendant, hey, give me some more information about these guys. Tell me where the house is. Tell me what the house looks like. Tell me what he looks like, what kind of work, anything." The prosecutors characterization of the evidence is not precisely accurate, but it is very close. In fact, the officer testified that he asked appellant "where Joe lived, if he knew the address, and what Joes last name was." Appellant replied that "he didnt know Joe that well and he didnt know where he lived or what his last name was. And he couldnt describe the house, either." While the prosecutor did not unerringly recite the officers testimony verbatim, the substance of the testimony was properly characterized.
Appellant also asserts that the prosecutor improperly impugned the integrity of defense counsel in arguing that the defense was "trying to throw a lot of things out to the jurors, hoping that somebody will buy or bite some of this stuff." The prosecutors remarks were in response to defense counsels examination of the police officer in which she asked the officer about a construction site in the neighborhood. The prosecutor argued that the defense was apparently trying to suggest that appellant had legitimate work in the area, and criticized the line of questioning as "throw[ing] a lot of things out to the jurors." Such criticisms do not constitute prosecutorial misconduct. While personal attacks upon the integrity of opposing counsel are improper, the prosecutors comments here were directed to the evidence elicited by defense counsel and the theories she was presenting. (People v. Bell (1989) 49 Cal.3d 502, 538.) Where the focus of prosecutorial comments is on the evidence adduced at trial, rather than on the integrity of defense counsel, it is proper. (People v. Frye, supra, 18 Cal.4th 894 at p. 978.) It has thus been held fair comment for a prosecutor to characterize defense counsels challenge to the credibility of a prosecution witness as " `ludicrous "and a " `smoke screen. " (Ibid.) The prosecutors comments here were proper argument to the jury.
Finally, appellant claims that the prosecutor wrongly vouched for the credibility of a prosecution witness, Officer Trudeau. The prosecutor accused defense counsel of suggesting that Officer Trudeau was lying, and dismissed the accusation as "absurd" because the officer would be "violating his duties" and "risking his career" over a burglary. Our Supreme Court has questioned the propriety of prosecutorial comments that an officer would not put his or her career at risk by lying. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) However, like our high court in Padilla, we find no reasonable probability that appellant was prejudiced by the prosecutors argument.
Prior Strike Used in Sentencing
The trial court sentenced appellant to 13 years in prison as follows: the middle term of four years for burglary, doubled for one prior felony conviction strike, plus five years for a prior serious felony conviction. (Pen. Code, §§ 459, 460, subd. (a), 461, subd. 1, 667, subd. (a)(1), 1170.12, subd. (c)(1).) The trial court expressly acknowledged that it had discretion to strike the prior serious felony conviction finding for sentencing purposes under Penal Code section 1385, and declined to do so.
Appellant argues that the court abused its discretion because it did not properly weigh mitigating circumstances of the burglary and his favorable character and prospects. In determining whether to strike a prior conviction finding, a court must consider the nature and circumstances of the current and prior offenses, and the defendants background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) The court did not abuse its discretion here. Appellant was 26 years old at the time of the offense and already had prior convictions for receiving stolen property, making a criminal threat, and drug possession. (Pen. Code, §§ 422, 496, subd. (a); Health & Saf. Code, § 11377, subd. (a).) He was on parole when he committed the current offense, and has a history of parole revocations. The court properly found that this case did not warrant a departure from the three strikes sentencing scheme.
CONCLUSION
The judgment is affirmed.
We concur: Kay, P.J. and Rivera, J.