Opinion
A114872
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SCOTT VINSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Jeffrey Scott Vinson appeals from the judgment entered following his conviction for first degree residential burglary. He contends the conviction should be reversed due to prosecutorial misconduct during closing argument. We reject his contention and affirm.
PROCEDURAL BACKGROUND
In January 2006, the Contra Costa County District Attorney filed an information charging defendant Vinson and codefendant Joshua Beesley with first degree residential burglary (Pen. Code §§ 459 & 460, subd. (a)). The information alleged that an occupant of the residence was present at the time of the burglary. (§ 667.5, subd. (c)(21).)
Beesleys case was severed before trial.
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty and found true the special allegation. The trial court denied defendants motion for a new trial on the basis of prosecutorial misconduct. The trial court sentenced defendant to two years in state prison.
FACTUAL BACKGROUND
On December 5, 2005, 16-year-old James G. was alone at his home in Antioch. At about 2:00 p.m. he heard the doorbell ring and heard loud knocking and banging. Through a peephole in the front door, he saw two men standing at the door. Both men were white and in their mid-20s. One man had a moustache and goatee and was wearing a red sweater; the other man was wearing a grey-blue sweater. After trying to enter through a rear window, the men forced the front door open. When the men saw James G., they turned and fled.
A neighbor observed the men approach another home and then James G.s home, and saw the men flee and speed off in a white truck. She called 9-1-1 and provided the responding police officer the first part of the trucks license plate. The officer used the information provided by the neighbor to locate a white truck registered to defendant Vinson at an address in Antioch. The officer drove to that address, arriving at 2:39 p.m. He saw the white truck in the driveway; the trucks hood was warm, which suggested that it had recently been driven. Two white men in their mid-20s were standing near the truck; one wore a red shirt and had a moustache and goatee, and the other wore a gray shirt. The man in the red shirt identified himself as Vinson and the other man identified himself as Beesley.
At an in-field identification, the neighbor identified Vinson and Beesley as the persons she observed fleeing James G.s home. She was definite that Beesley was one of the men but took longer to identify Vinson. She was not asked to identify Vinson in court.
Later on the day of the incident, James G. identified two other men as the burglars in a photo lineup. At trial, he testified that he was unable to identify the burglars because he was still upset and because the photographs in the lineup were black and white. He was not asked to identify Vinson in court.
Defendant presented testimony that the police car was parked 175 feet from Vinson during the in-field identification.
DISCUSSION
Defendant contends that the prosecutor committed prejudicial misconduct during closing argument.
"A prosecutors misconduct violates the Fourteenth Amendment to the federal Constitution when it `infects the trial with such unfairness as to make the conviction a denial of due process. " (People v. Harrison (2005) 35 Cal.4th 208, 242.) Misconduct that does not render a criminal trial fundamentally unfair violates California law only if it involves the use of deceptive or reprehensible methods. (Ibid.) When the claim is based on comments made by the prosecutor before the jury, " `the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. " (Id. at p. 244.)
At trial, the critical disputed factual issue was whether defendant was one of the men who broke into the victims home. In his closing argument, defense counsel emphasized that neither eyewitness identified defendant in court and that the only evidence connecting defendant to the burglary was the testimony that his truck was at the scene of the crime. In rebuttal, the prosecutor argued that defendants version of the events was unreasonable. He stated: "Whats [defendants] interpretation? Some dude, some mystery guy matching defendants description, did this with Mr. Beesley, or somebody matching Mr. Beesleys description. . . . And [defendant and Beesley] happened to have the worst luck ever, because they were wearing the same clothes, and Mr. Vinson has a moustache and goatee just like the guy who really did it?[¶] Thats the other version of events. Those are your alternatives. [¶] If you are the defense, you have a couple of options here. You can say: Different dudes, different car.[¶] Well, the car is a dead log. So you have go to go with: Different dude, same car. [¶] Is that reasonable? Have you heard a shred of evidence to say that? [¶] They called the defense witness. The defense doesnt have to put on a case, but they did. And now you have to evaluate their evidence the same as you would evaluate ours. [¶] Where was the . . . No, no, no, no, Mr. Vinson wasnt out there doing that burglary in his car. I was with him. I was with him. Somebody. Somebody to say: I was with him. Somebody to say: I was hanging out with him that day. [¶] They put on a case. Where was that evidence?" The trial court denied defendants objection to this line of argument.
Defendant contends that the prosecutors comments constituted misconduct because the comments suggested that defendant was required to present evidence of an alibi and because they were commentary on his failure to testify. We disagree. As to the first contention, the prosecutor was entitled to comment on the state of the evidence and to criticize the defense theory for lack of evidentiary support. (People v. Cook (2007) 40 Cal.4th 1334, 1359; People v. Bemore (2000) 22 Cal.4th 809, 846.) As in People v. Frye (1998) 18 Cal.4th 894, 973, where the prosecutor commented on the failure of the defendant to call a witness alluded to in opening argument, the remarks in the present case highlighted the lack of evidentiary support for defendants theory of the case and did not suggest that defendant had the burden of proving his innocence. To the contrary, the prosecutor acknowledged that defendant was not required to present any evidence and told the jury that the People had the burden of proof, and the trial court instructed the jury regarding the presumption of innocence and the Peoples burden of proving guilt beyond a reasonable doubt. (Ibid.) We agree that "[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The prosecutors argument in the present case clearly was of a permissible sort.
Defendants contention that the prosecutor commented on defendants failure to testify is also without merit. The prohibition against direct or indirect commentary on the failure of the defendant to testify in his own defense " ` " `does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. " " (People v. Carter (2005) 36 Cal.4th 1215, 1266.) No more than that occurred here. In fact, the prosecutors comments focused on the absence of a witness other than defendant, who could testify that defendant was with him or her at the time of the burglary.
We need not address the Peoples contention that defendant forfeited this claim for failure to object on this ground during the prosecutors argument.
Because there is no reasonable likelihood that the jury " `construed or applied any of the complained-of remarks in an objectionable fashion, " defendants claim of prosecutorial misconduct is without merit. (People v. Harrison, supra, 35 Cal.4th at p. 244.)
DISPOSITION
The judgment is affirmed.
We concur.
JONES, P.J.
NEEDHAM, J.