Opinion
C081846
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN JARRELL, SR. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 15CR2334001, 15CR2334005, 15CR2334006) OPINION ON REHEARING
Defendants Robert Allen Jarrell, Sr., Henry Ralph Ramirez, Jr., and Shelly Marie Strickland appeal following convictions on various offenses arising from two residential burglaries. They assert an assortment of contentions: erroneous denial of a suppression motion, erroneous grant of a motion to consolidate the burglary trials, errors involving the establishment and instruction of a defense of consent, violation of the "one larceny" rule, and other procedural irregularities.
We reverse certain theft counts under the "one larceny rule," stay sentences for possessing firearms and ammunition, and strike prison priors. In all other respects, we affirm the judgment.
FACTS AND PROCEEDINGS
The two burglaries were consolidated and tried by a single jury against the three appellants. Two other men, Michael Allen Gaunt II and Michael Jay Hix, were charged but accepted plea bargains.
The parties refer to this burglary as the S. burglary.
On the morning of June 2, 2014, Kristie S. left her home in Jackson around 7:45 a.m. to give her friend, defendant Strickland, a ride to an appointment. Kristie's husband, Scott S., locked the home's doors and left for work shortly before 10:00 a.m. Kristie returned home with Strickland around 11:20 a.m. and found the side door to the kitchen wide open.
Kristie jumped out of her car and ran into the house. It was ransacked. Drawers were open, things were strewn about, and a shelf had been torn off the wall. The master bedroom was "thrashed," with drawers ripped out and items thrown on the bed and broken on the floor. Missing items included two safes (a gun safe and an ammunition safe), six guns, a couple of bows, and a camera. One of the stolen firearms was a .30 M1 carbine. The value of the missing items totaled approximately $76,000.
There was no sign of forced entry. A hide-a-key was missing from its place in the backyard. Strickland was one of three people outside the family who knew about the hide-a-key. She and Kristie had used the key the weekend before the burglary to move some mattresses out of Kristie's garage. While Kristie drove the truck that day after dropping off the mattresses, the key was rolling around the truck's console. Strickland said she would throw the key "in the purse" and they would put it away when they got home. Both women's purses were at Strickland's feet. Kristie did not see where Strickland threw the key.
On the day of the burglary, Kristie's neighbor saw a dark Dodge Durango SUV back into Scott and Kristie's carport shortly after Scott left for work. The driver, later identified as defendant Jarrell, got out of the vehicle and was still there when the neighbor left. Detectives from the sheriff's department viewed different neighbors' surveillance videos. They showed a black Durango, which was determined to belong to Jarrell, going through the neighborhood around the time of the burglary.
The day after the burglary, deputies received a 911 call of shots being fired near a Drytown motel. Deputies contacted Jarrell at a residence across from the motel. He initially denied any knowledge of the shooting. He said he was the only person home and had been home for about 10 minutes. Moments later, Jarrell said he had other friends at the house, and he yelled for another person to come out. Nicholas Carreira came to the door. Carreira also denied any knowledge of shots being fired, but then said there had been others on the property who had been shooting.
Deputies conducted an exterior sweep of the residence and found .22-caliber and .30 carbine shell casings. They then entered the home to conduct a protective sweep. Inside, they saw on the floor a green safe and a brown safe matching the descriptions of the safes stolen from Scott and Kristie's home. The black Durango in front of the Drytown residence matched the one seen in surveillance videos outside the burglarized home. In addition to Jarrell and Carreira, deputies found former defendant Michael Gaunt hiding underneath the back side of the house. They also saw Stacy Dalton and another woman at the residence.
Deputies executed a search warrant at the house and found numerous stolen items. Many of the items belonged to Scott and Kristie, including the two safes, hunting equipment, six firearms, and two compound bows. Deputies also found a magnetic hide- a-key holder. The stolen guns were found in a room where deputies also found a DMV renewal form in Jarrell's name.
At trial, Gaunt stated that on the day of the Jackson burglary, Jarrell, Carreira, defendant Ramirez, and former defendant Hix left in the Durango while he stayed home to sleep. The men left wearing black clothing, and they took some bags and tools with them. About two hours after they left, they awoke Gaunt and told him to get out of his room while they brought property into the house. They brought some of the property into Gaunt's room as well as Ramirez's and Carriera's rooms. Gaunt saw the safes brought into his room and heard Jarrell, Ramirez, and Hix banging on them. Eventually, Jarrell asked Gaunt to dig a hole, so they could bury things in it.
Dalton stated at trial that she was at Jarrell's home the day of the burglary. Jarrell woke her up that morning and told her he was leaving for a few hours. Before Jarrell left, Dalton heard him tell one of his friends to remove a license plate from one vehicle and put it onto the black vehicle. Jarrell took the black Durango when he left that morning.
Dalton recalled that Strickland was at Jarrell's residence in the days before the burglary. After Strickland left, Jarrell held up a key and said, " 'It is not breaking and entering if you have a key, and if it's put back in time.' "
Some days after the burglary, Kristie and Strickland were driving past a house in Drytown when Strickland began crying. Strickland said she was sorry and were it not for her, "this never would have happened." Kristie had taken Strickland to that house at least three times before the burglary. She had taken Strickland there the day they had used the hide-a-key and moved mattresses. By this time when Strickland had started crying, Kristie knew that the house had been searched and items taken from her home in the burglary had been found there. Later, when speaking with a detective, Kristie stated Strickland had gone on to tell her in effect that, "I know these people, so I feel responsible."
At times, the parties refer to this burglary as the Diamond View burglary.
At the time of the Jackson burglary, Richard M. lived at Jarrell's home in Drytown with Jarrell, Ramirez, Gaunt, and Carreira. On the day the search warrant was executed on that property, Richard and Ramirez had a fight.
In April 2015, approximately 10 months after the Jackson burglary, Richard lived in a home in Pioneer with a woman named Teresa C. She had been squatting there. He was helping her prepare to move out, and in return, she allowed him to stay there. He stored his belongings in a large shed on the property. He placed a keyed lock on the shed's door. He was the only person with a key. No one had permission to enter the shed.
On April 5, 2015, Richard's neighbor, Kayla Cardwell, heard a truck pull up next door. She heard people yelling for the person living there, followed by banging on walls and breaking glass. She saw men walking around the main house with flashlights. She called the police.
While Cardwell was on the phone with dispatch, she saw a white car pull in and out of her driveway and park down the road. Three men who had been at the main house then went over to a shed, and Cardwell heard more breaking glass.
Once police arrived, the three men split up. One of them appeared to Cardwell to be looking for a place to hide on her property. She yelled at the man, and he came over to her. It was Ramirez. Cardwell told Ramirez to turn around and put his hands on her car, but he refused and walked away. Cardwell yelled Ramirez's description to an officer and followed Ramirez down the driveway to ensure he and the officer made contact.
Upon arriving on the scene, Deputy Ryan Davis saw Jarrell approaching his patrol car. Jarrell said he was there "to collect a debt from a previous tenant." Deputy Davis announced his presence, and then Ramirez and a man later identified as Glen Mohr made their way to him. Mohr said he was there to see Teresa. Ramirez said he was just there with Jarrell. Deputy Davis took Ramirez into custody after learning Ramirez had outstanding warrants.
Jarrell showed Deputy Davis a text message he had received from Teresa. In the message, Teresa stated she was in possession of property belonging to Richard, that Richard was a thief, and the property she possessed was free for the taking. However, none of the messages Jarrell showed Deputy Davis suggested Jarrell had a right to Richard's belongings. Richard later told Deputy Davis that both he and Teresa had property inside a shed at the residence and the two were disputing over some of the property.
Deputy Jeffrey Bellotti and another officer arrived and conducted a protective sweep of the property. Deputy Bellotti saw a storage shed with a broken front window. The shed's locking mechanism was broken and the door was open. Inside the shed, a locked toolbox belonging to Richard had been opened.
Around the property's fence line, Deputy Bellotti found a brown paper bag that contained gloves and paper towels. He also located two surveillance cameras on the ground nearby. Richard told Deputy Bellotti that he had seen the paper bag by the residence's front door earlier that day, but it had been moved to a different location.
Deputy Davis found a lead pipe, approximately four feet in length, leaning against the shed. The pipe had marks on it "consistent with rough contact with a metal or a wooden object." Damage to its threads suggested it was used as a prying or blunt instrument.
Deputy Davis noted that Ramirez had come toward him from the direction in which Deputy Bellotti discovered the bag and the other items. Property in Ramirez's possession, booked after he was arrested, included a flashlight and a metal "T-Bar" wrench with a prying section on one end.
Eleven days after this incident, Teresa informed Deputy Davis she had video evidence of the subjects on her property on the night of the incident. The video, which was played for the jury, showed Mohr walking in front of the camera. After Mohr walked passed the frame, the camera shook aggressively, and then the video feed was cut.
At trial, James Malone testified on behalf of Jarrell. Malone had several convictions and was in custody at the time of trial. He said his father had owned the Pioneer property where the burglary occurred, and Malone now supervised the property as the executor of his father's estate. He said much of the property stored in the shed was his father's.
Malone knew squatters were on the property, so he gave Glen Mohr permission to go onto the property and keep an eye on it. He also knew Mohr would take other people to the property with him, and he had no problem with that. He did not instruct Mohr to go inside any of the buildings on the property, but he had no problem with it.
Malone never gave Richard permission to be on the property. He also never gave anyone permission to change the door on the shed. He could not tell, however, whether the door on the shed had actually been changed.
After the burglary and while Malone was in jail, Mohr and Jarrell, who were also in custody, approached Malone. This was the first time Malone had met Jarrell. Mohr and Jarrell asked Malone to sign a note written by someone else stating that they had his permission to be on the property the day of the burglary. Malone signed the note and dated it the date of the burglary. He did not, however, authorize anyone to take personal property or break into any buildings on the property.
Verdicts and sentencing
The jury found Jarrell guilty of the Jackson first-degree burglary (count 1), felony grand theft of a firearm (count 2), attempting to dissuade a witness (count 3), felony grand theft of personal property (count 4), six counts of possession of a firearm by a felon (counts 6 through 11), possession of ammunition by a felon (count 12), the Pioneer second-degree burglary (count 13), and five counts of misdemeanor grand theft of a firearm (counts 14 through 18). The trial court found defendant guilty of an infraction for possession of a stun gun (count 20). It also found Jarrell had a prior serious felony conviction and a prior strike. It sentenced Jarrell to an aggregate prison term of 31 years eight months.
The jury found Ramirez guilty of the Jackson first-degree burglary (count 1), felony grand theft of a firearm (count 2), grand theft of personal property (count 4), six counts of possession of a firearm by a felon (counts 6 through 11), possession of ammunition by a felon (count 12), the Pioneer burglary (count 13), and five counts of misdemeanor grand theft of a firearm (counts 14 through 18). The trial court found Ramirez had a prior serious felony conviction, a prior strike, and a prior prison term. The court sentenced Ramirez to an aggregate prison term of 28 years eight months.
The jury found Strickland guilty of the Jackson first degree burglary (count 1), felony grand theft of a firearm (count 2), grand theft of personal property (count 4), and five counts of misdemeanor grand theft of a firearm (counts 14 through 18). The trial court found Strickland had a prior prison term. The court sentenced Strickland to an aggregate prison term of seven years.
DISCUSSION
I
Joinder of Arguments
Before proceeding, we address the effect of the three defendants' joining in each other's arguments. While a party "may join in or adopt by reference all or part of a brief in the same or a related appeal" (Cal. Rules of Court, rule 8.200(a)(5)), the party must do more than simply state she joins in the argument.
"Appellate counsel for the party purporting to join some or all of the claims raised by another are obligated to thoughtfully assess whether such joinder is proper as to the specific claims and, if necessary, to provide particularized argument in support of his or her client's ability to seek relief on that ground. If a party's briefs do not provide legal argument and citation to authority on each point raised, ' "the court may treat it as waived, and pass it without consideration. [Citations.]" ' (People v. Stanley (1995) 10 Cal.4th 764, 793.) 'Joinder may be broadly permitted [citation], but each appellant has the burden of demonstrating error and prejudice [citations].' (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.)
In joining their codefendants' arguments, Ramirez and Jarrell met this standard, but Strickland did not. In separate sections of his opening brief, Ramirez joined in Jarrell's arguments that insufficient evidence supported the Pioneer burglary conviction, the trial court erred by not instructing sua sponte on the defense of consent to the Pioneer burglary, counsel rendered ineffective assistance by not requesting the instruction, and the prosecutor committed prosecutorial misconduct during closing argument and counsel was ineffective for not objecting to his argument. Ramirez also joined in Jarrell's and Strickland's arguments that the multiple convictions of larceny violated the single larceny rule. Each section briefly explained why Ramirez sought relief on each ground.
Jarrell in his opening brief did not state which additional arguments he sought to join, but Ramirez had not filed his brief by that time. In his reply brief, Jarrell specified he joined Ramirez's arguments that the trial court erred when it denied his suppression motion and when it consolidated trial on the two burglaries. In this instance, more argument was not needed, as Jarrell's interest in the suppression motion and in consolidation were obvious.
Unlike her codefendants, Strickland did not specify which arguments she joined. In her opening brief and reply brief, she stated only that she joined in the codefendants' arguments that were applicable to her.
"It is not the task of the opposing party or this court to sort out what claims from the scores presented here are nonfrivolous as to the other defendants who did not identify with particularity the specific claims they wished to join. Clearly, neither the Attorney General nor this court is required to divine which aspects of a claim might be adverse to a particular defendant, rendering him unwilling to join the particular claim at issue." (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 363.)
Accordingly, Strickland has forfeited all claims in which she purported to join.
II
Denial of Suppression Motion
The trial court denied a motion by Jarrell to suppress all evidence seized from his Drytown property. (Pen. Code, § 1538.5, undesignated statutory references are to the Penal Code.) On appeal, Ramirez contends the trial court erred in denying Jarrell's motion. Jarrell joins Ramirez's arguments. We disagree with their claims.
A. Ramirez's standing
The People contend Ramirez forfeited this claim by not joining in Jarrell's motion to suppress at the trial court. We disagree.
On Thursday, August 6, 2015, the parties met with the court in a trial readiness conference. The People intended to proceed with a hearing on the suppression motion that day, but some discovery remained outstanding. Jarrell's counsel asked to move the hearing to the first day of trial. The trial court asked if anyone other than "defense counsel" (presumably referring to Jarrell, the moving party) was joining the motion. Ramirez's counsel replied: "Although, there's a ruling in favor of - his [Jarrell's counsel's] client affects my client, but my client will be --."
2015 calendar at https://perma.cc/NQ5A-TPUU, accessed April 15, 2020.
The court then asked, "If no one else is joining in the motion, still contemplated that could be concluded by 5:00 today?" Jarrell's counsel did not think the hearing could be completed that day. The discussion then turned to when the hearing could be held. The court asked the clerk whether there was any time available for Monday, August 10, but Jarrell's counsel could not attend on that day. Learning there was court time available on the next day, Friday, August 7, the court asked if the witnesses would be available that day. While the prosecutor conferred with the witnesses, the clerk asked: "Your Honor, for clarification Ramirez and Jarrell for 1538 only?" The court replied, "I don't know if anyone other then Mr. Jarrell." Ramirez's counsel then said, "Mr. Ramirez would like to be potential party in interest." However, Ramirez's counsel was not available on Friday, August 7 or Monday, August 10, but he was available Tuesday, August 11. The prosecutor then reported that one of his witnesses was not available Friday, and another was not available Monday. The court then set the motion for Tuesday, August 11, the first day of trial.
"An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. [Citations.] In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented." (People v. Scott (1978) 21 Cal.3d 284, 290.)
The record shows the court understood Ramirez was participating in the motion. The court obviously understood it was to decide a motion to suppress. When it expressed its belief that only Jarrell was a party to the motion, counsel for Ramirez stated his client wanted to be a "potential" party of interest. However, counsel could not participate on either Friday or Monday. It appears that because of Ramirez's counsel's calendar and the unavailability of a witness on either day, the court scheduled the hearing for Tuesday when counsel and the witnesses could be present.
This history indicates the trial court understood the issue presented. Despite counsel's ambiguous language, the court came to believe that Ramirez was participating in the motion, and it scheduled the hearing so that his counsel could participate. We thus deem Ramirez's objection preserved. As a result, we do not address his claim of ineffective assistance.
B. Background
In his motion to suppress, Jarrell argued the deputies lacked cause to search his home without a warrant on June 3, 2014, following the 911 call of shots fired. He contended there was no cause to conduct a protective sweep, as the officers were in no danger and merely hearing shots being fired was insufficient justification. There were no exigent circumstances, as the officers entered the home a half-hour after arriving. Jarrell claimed the sweep was a ruse to get into the house because the deputies already suspected him of criminal activity.
The People opposed the motion, arguing the entry was justified to ensure officer safety, either as a protective sweep or for community caretaking or exigent circumstances.
Four deputies testified at the suppression hearing. Around 8:41 p.m. on June 3, 2014, the day after the Jackson burglary, Deputy Smith responded to a 911 call reporting shots fired at the Drytown motel. When he pulled into the motel's parking lot, he heard two "small caliber" gunshots that sounded like they came from the north. He spoke with two persons at the motel who said they heard gunshots before the deputy's arrival and believed the shots came from the residence northwest of the motel.
After other deputies arrived, they went to the residence, which was "maybe 50 yards" from the motel. They checked that no one was inside vehicles parked outside the residence. As they approached the home's front door, one of the deputies saw through the front door screen a woman inside who walked out of view. They knocked and announced their presence, and Jarrell came to the door. They had him step outside and asked if anyone else was in the residence. He said no. They patted him down for weapons and found none. Jarrell said he was not shooting any firearms and had no knowledge of anyone shooting on the property. He confirmed he lived there and denied permission for the deputies to enter to check if anyone was injured.
Jarrell then admitted he had friends over. He yelled for anyone to come out, and Carreira appeared. Carreira stepped outside, and the deputies patted him down. Carreira stated he had not been shooting firearms on the property, but other people were who he did not know. He said he rented a room in the house but did not believe he could give permission for deputies to enter.
Deputies checked around the outside of the house. Two other subjects were located. Deputies found shell casings, both .30 carbine and .22 caliber. One of the deputies believed the casings had been "placed there recently." None of the deputies found a firearm.
Based on Jarrell's false statement that no one was in the house, the shell casings, the nature of the call, and the fact that a deputy saw a woman inside the house, the deputies decided to do a protective sweep of the house's interior. They did this to look for possible victims, injured persons, persons who could carry a firearm, or signs of a struggle. They entered the house "maybe 30 minutes at the most" after they arrived on scene. They placed Jarrell in handcuffs before entering the home.
After the protective sweep, deputies secured a search warrant. All evidence seized from the home was obtained pursuant to the warrant.
In denying the suppression motion, the trial court said, "[T]he general rule is that the Court will not find a warrantless entry inappropriate if the facts available to the officer at the moment would give a - or cause a person of reasonable caution to believe that the action was appropriate, so we need to look at the facts that were in existence at the time that this took place. [¶] I also don't feel that the time element is that relevant at this point. Certainly it's a factor, but the more time they spent, as things unfolded, it gave cause for concern, and the officers' concern was that gunshots are coming from a residence, they find shells there, and the real concerning issue is that when asked about who's in the home, there was hesitation and there was also misrepresentations made as to who was in the home when they [the officers] had seen a female in there. Based—and also, no gun had been recovered as of yet." The court found, based on the totality of circumstances, that the warrantless entry for a protective sweep was supported by a reasonable suspicion.
C. Analysis
Ramirez contends the deputies' warrantless entry into the home did not qualify under any exception to the Fourth Amendment's warrant requirement. He argues the entry was not a protective sweep because the deputies did not enter the home to search incident to an arrest and their motivation to enter was not officer safety. He also claims the entry did not qualify under an exception to render emergency aid, as the officers had no reasonable objective or subjective basis to believe someone inside the home was seriously injured or threatened with injury.
We conclude the entry was justified as a protective sweep.
In ruling on a suppression motion, the trial court finds the historical facts, selects the applicable rule of law, and applies the latter to the former. (People v. Ayala (2000) 23 Cal.4th 225, 255.) We apply substantial evidence review to the trial court's factual findings, and de novo review to the remainder. (Ibid.) We will uphold the trial court's denial of the suppression motion if it was right upon any theory of law applicable to the case. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1580.)
Searches and seizures inside a home without a warrant are presumptively unreasonable and prohibited by the Fourth Amendment. (Brigham City v. Stuart (2006) 547 U.S. 398, 403 (Brigham City).) However, "warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement." (Kentucky v. King (2011) 563 U.S. 452, 462 (King).) "One well-recognized exception applies when ' "the exigencies of the situation" make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.' [Citations.]" (Id. at p. 460.)
The United States Supreme Court "has identified several exigencies that may justify a warrantless search of a home. (See Brigham City, supra, 547 U.S. at [p. ]403.) Under the 'emergency aid' exception, for example, 'officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.' (Ibid.; see also, e.g., [Michigan v.] Fisher [(2009) 558 U.S. 45,] 49 [175 L.Ed.2d 410, 413] (upholding warrantless home entry based on emergency aid exception). Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. (See United States v. Santana (1976) 427 U.S. 38, 42-43 .) And . . . the need 'to prevent the imminent destruction of evidence' has long been recognized as a sufficient justification for a warrantless search. (Brigham City, supra, [at p.] 403; see also Georgia v. Randolph (2006) 547 U.S. 103, 116, n. 6 ; Minnesota v. Olson (1990) 495 U.S. 91, 100 .)" (King, supra, 563 U.S. at p. 460, fn. omitted.) Entry into a home "based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors . . . ." (People v. Celis (2004) 33 Cal.4th 667, 676, italics omitted.)
In addition, police may enter a home without a warrant to conduct a protective sweep where the officer concludes, based on reasonable suspicion, that entry is necessary to preserve officer safety by searching for additional suspects or persons who might pose a security risk to officers in the process of arresting or detaining a suspect. (Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie); People v. Celis, supra, 33 Cal.4th at p. 678; People v. Mack (1980) 27 Cal.3d 145, 150-151.) A protective sweep "is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." (Buie, supra, 494 U.S. at p. 327.)
The deputies here had reasonable suspicion that entry was necessary to ensure their safety as they detained Jarrell. A number of facts gave them reasonable cause to suspect the house harbored an individual posing a danger. The officers arrived at the home in response to a call of shots fired, and one of the deputies heard additional shots. Jarrell told the deputies no one else was home, but one of the deputies saw a woman walking in the house before they knocked on the door. Jarrell later recanted his statement and admitted Carreira was in the house. Both men claimed no one else was present, but deputies found two other persons on the property.
Jarrell denied that any shooting took place at the residence. Carreira said others had been shooting, but he did not know who they were. The deputies found shell casings of multiple calibers on the property that appeared to be recent. Despite the evidence of recent shooting, however, the deputies found no firearm.
Under these circumstances—the misrepresentations by Jarrell, the recent shooting, the lack of a firearm, and the knowledge that another person was inside the home—the deputies could have reasonably suspected that the person inside the home was armed and posed a danger to them. That was a sufficient ground for conducting a protective sweep while they detained Jarrell.
Ramirez argues both sides in the trial court inaccurately used the term "protective sweep" because the exception for a protective sweep applies only when officers are making an arrest. We disagree. Although the Buie court, when it upheld the protective sweep exception, relied on the fact that the arrest was taking place inside a home, we agree with other courts that have held an arrest is not an indispensable element of an in- home protective sweep. "[A]n arrest or an attempted arrest (with or without an arrest warrant) is not a necessary precondition to a lawful protective sweep. The restriction of the protective sweep doctrine only to circumstances involving arrests would jeopardize the safety of officers in contravention of the pragmatic concept of reasonableness embodied in the Fourth Amendment. Although, an 'arrest may be highly relevant' to the determination of whether officers possess reasonable suspicion of danger [citation], the effectuation of an arrest, regardless of whether pursuant to a warrant, is not the sine qua non of a permissible protective sweep." (United States v. Miller (2nd Cir. 2005) 430 F.3d 93, 100; cf. United States v. Reid (9th Cir. 2000) 226 F.3d 1020, 1027 [Buie applies only in the context of an arrest].) Danger to officers may be established by circumstances other than an arrest. (United States v. Gould (5th Cir. 2004) 364 F.3d 578, 584, abrogated on another ground in King, supra, 563 U.S. at p. 462.)
The trial court thus did not err when it denied Jarrell's suppression motion by holding the search was a protective sweep. Because we uphold the trial court's ruling on this ground, we do not address Jarrell's argument against applying the emergency aid exception.
III
Consolidation of Burglary Trials
Ramirez argues the trial court abused its discretion in granting the prosecution's motion under section 954 to consolidate the Jackson and Pioneer burglary trials. Jarrell joins the contention. We disagree.
A. Background
The prosecution moved for consolidation, arguing both cases involved burglaries, both involved Jarrell and Ramirez, and evidence would be cross-admissible to show their state of mind and intent upon entering the structures. At the hearing on the motion, Strickland's attorney argued consolidation would be prejudicial because the case against her for the Jackson burglary was weak, while the case against Ramirez for the Pioneer burglary was strong. Jarrell's attorney argued the evidence would not be cross-admissible, and consolidating the cases would not foster judicial economy. Ramirez's attorney echoed these arguments and added that consolidation would impede his right to a speedy trial.
The trial court granted consolidation. It reasoned: "Consolidation is favored for judicial economy reasons, having one jury as opposed to two, not hearing the same thing being tried over and over again. [¶] And so, based on the fact that there is -- the charged offenses are of the same class and that the Court does not find prejudice to the defendants involved, it feels appropriate to consolidate the cases. . . . [¶] . . . [W]hile Mr. Jarrell may not agree with this, I, too, agree that he may not have standing, but most importantly, he hasn't shown any prejudice in the whole thing."
B. Analysis
Section 954 states in part: "An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." Ramirez concedes that both burglaries are of the same class of crime.
The issue before us, then, is whether consolidation was unduly prejudicial to the defendants. "When charges are properly joined under section 954, a defendant must make a 'clear showing of prejudice' in order to establish that a trial court's denial of a motion for severance was an abuse of discretion. (People v. Lucas (2014) 60 Cal.4th 153, 214 [] (Lucas).) Because the ' "state's interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence" ' (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221 []), 'a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial' (People v. Arias (1996) 13 Cal.4th 92, 127 []).
"Our framework for analyzing prejudice in this context is well established. 'Cross-admissibility is the crucial factor affecting prejudice. [Citation.] If evidence of one crime would be admissible in a separate trial of the other crime, prejudice is usually dispelled.' (People v. Stitely (2005) 35 Cal.4th 514, 531-532 [].) 'If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider "whether the benefits of joinder were sufficiently substantial to outweigh the possible 'spill-over' effect of the 'other-crimes' evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses." ' (People v. Soper (2009) 45 Cal.4th 759, 775 (Soper).) Three factors are most relevant to this assessment: '(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense . . . .' (Ibid.)" (People v. Jackson (2016) 1 Cal.5th 269, 299, italics omitted.)
In this matter, evidence of each burglary was cross-admissible, and thus consolidation was not an abuse of discretion. Evidence of other crimes is admissible under Evidence Code section 1101, subdivision (b), "when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes." (Lucas, supra, 60 Cal.4th at p. 299.) Here, the evidence was cross-admissible to prove intent.
"[T]here exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: 'The least degree of similarity . . . is required in order to prove intent. . . . In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' [Citations.]" [Citation.]' ([People v. Ewoldt (1994) 7 Cal.4th 380,] 402, italics added.) By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity." (Soper, supra, 45 Cal.4th at p. 776, original italics, fns. omitted.)
The two burglaries were sufficiently similar to be admitted to prove Jarrell's and Ramirez's intent. Both defendants participated in both burglaries. Both took advantage of someone with whom there was a relationship. The S.s were friends of Strickland, and Richard had previously lived in the same house as Jarrell and Ramirez. Defendants knew the S.s were not home when they burgled their home, and they likely inferred from Teresa's text that Richard was not home when they burgled the Pioneer shed.
Ramirez argues the two burglaries were not sufficiently similar to be cross-admitted to establish identity or for any other purpose. The People, however, did not seek to admit the evidence to establish identity. The evidence was cross-admissible because the two crimes were similar enough to be admitted to establish intent.
While establishing cross-admissibility is usually sufficient to end this contention, Ramirez claims the trial court did not consolidate the cases based on cross-admissibility. The court relied solely on the basis of judicial efficiency. In fact, the court did not instruct the jury with CALCRIM No. 375 on other crimes evidence despite the People requesting it to do so. Our review, however, is to determine whether the trial court abused its discretion when it consolidated the cases. We review its decision, not its reasoning. "If right upon any theory of the law applicable to the case, [the decision] must be sustained regardless of the considerations which may have moved the trial court to its conclusion." (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.) Consolidation was not an abuse of discretion because evidence of the burglaries was cross-admissible.
Even if the evidence was not cross-admissible, other factors indicate the court did not abuse its discretion. None of the charges were particularly likely to inflame the jury against one of the defendants. When neither crime, when compared to the other, was likely to unduly inflame a jury against a defendant, the risk of inflaming the jury is not present. (See People v. Cook (2006) 39 Cal.4th 566, 582-583.) All of the charges arose from two burglaries, and neither burglary was particularly brutal or repulsive.
Moreover, both cases were strong. Appellants must show an "extreme disparity between weak and strong cases . . . to demonstrate the potential for prejudicial 'spillover' from one case to the other." (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.) That disparity does not exist here. Strong evidence linked Ramirez and Jarrell to both burglaries and Strickland to the Jackson burglary.
Ramirez asserts that consolidating the claims violated his due process. "[E]ven if the trial court's ruling was proper as a matter of state law, we will reverse the judgment if the defendant shows that joinder of the charges actually resulted in ' " 'gross unfairness' " ' amounting to a denial of due process during the guilt phase. [Citation.]" (People v. Simon (2016) 1 Cal.5th 98, 123.) To establish a violation of due process, Ramirez must show prejudice by "demonstrat[ing] a reasonable probability that the joinder affected the jury's verdicts." (People v. Grant (2003) 113 Cal.App.4th 579, 588.)
No such reasonable probability exists. As already stated, two hypothetical juries trying the defendants separately would have heard the same evidence. Additionally, the evidence overwhelmingly linked Ramirez and Jarrell to both crimes. Joinder in all probability thus had no affect on the jury's verdicts.
IV
Consent Defense to Pioneer Burglary
Jarrell contends he could not be found guilty of burglarizing the Pioneer shed because Mohr and Teresa consented to his entering the shed to take property that was disputed by Richard and Teresa. Based on the consent defense, Jarrell claims we must reverse his conviction for the Pioneer burglary because (1) insufficient evidence established that his entry into the shed was without permission or consent of Mohr or Teresa; (2) the trial court erred when it failed to instruct on the consent defense sua sponte; (3) defense counsel rendered ineffective assistance when he failed to request a jury instruction on the consent defense; and (4) the prosecutor committed misconduct during closing argument by misstating the law of consent and shifting the state's burden of proof to defendant. Ramirez joins these arguments.
We disagree with each contention except one. The prosecutor misstated the People's burden of proof, but Jarrell and Ramirez were not prejudiced by it.
A. Substantial evidence
Jarrell contends there is not substantial evidence in the record to support the Pioneer burglary conviction and its element of entry because he submitted enough evidence to establish consent and raise a reasonable doubt. We, however, do not review judgments for evidence supporting reasonable doubt. We review for substantial evidence supporting the judgment. Jarrell's real argument is whether substantial evidence supports the element of entry for the Pioneer burglary. We conclude substantial evidence supports that element.
"According to statute, a person is guilty of burglary if he or she enters a building or other structure listed in the statute with intent to commit grand or petit larceny or any felony. (§ 459.) Based on common law precedent, our Supreme Court has clarified the statutory element of 'entry' by explaining that the crime of burglary involves 'entry that invades a possessory right in a building, and must be committed by someone who has no right to be in the building.' (People v. Frye (1998) 18 Cal.4th 894, 954; see also People v. Gauze (1975) 15 Cal.3d 709, [713,] 714 (Gauze) ['section 459, while substantially changing common law burglary, has retained two important aspects of that crime. A burglary remains an entry which invades a possessory right in a building. And it still must be committed by a person [for illegal purposes] who has no right to be in the building.']" (People v. Sherow (2011) 196 Cal.App.4th 1296, 1308, fn. omitted (Sherow).)
" '[A] possessory right is the right to exert control over property to the exclusion of others . . . .' (People v. Salemme [(1992)] 2 Cal.App.4th [775,] 779, citing [Gauze, supra,] 15 Cal.3d [at p.] 713 [].) 'A person has a right to be in a structure when he or she has an unconditional possessory right to enter . . . or where the person has expressly or impliedly been invited to enter and does so for a lawful reason.' (Salemme, at p. 779.)" (People v. Garcia (2017) 17 Cal.App.5th 211, 223.)
There is no doubt substantial evidence supports the Pioneer burglary conviction against Jarrell and Ramirez. Both entered the property with the intent to commit larceny. Neither of them had a possessory right to Richard's toolbox, and the acts of breaking the lock on the shed door and opening Richard's locked tool box support the jury's finding that they entered the property with an intent to commit a felony.
Jarrell's argument of consent raises a defense. The trial court, however, did not instruct the jury on consent. We thus turn to Jarrell's other arguments attacking the omission of instructions on the defense.
B. Jury instructions
Jarrell argues the court erred by not instructing the jury sua sponte on consent. To the extent Jarrell sought to show consent in an attempt to raise a reasonable doubt on the element of entry, which his previous argument suggests, the burden fell on him to request a pinpoint instruction. (See People v. San Nicolas (2004) 34 Cal.4th 614, 6 69.) He did not request one.
Jarrell also contends consent was an affirmative defense and the trial court had a duty to instruct on it sua sponte. We disagree.
A trial court must instruct sua sponte on a defense " 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 157, original italics.)
Consent can be a defense to burglary. "On the premise that the type of entry involved in burglary is the invasion of a possessory right by someone who has no right to be in the building for illegal purposes, case law has developed the consent defense to burglary. ([People v.] Felix [(1994)] 23 Cal.App.4th [1385,] 1398 [(Felix)] [relying on requirement of an invasion of a possessory right in formulating the consent defense to burglary]; People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 1485 [relying on the principle that 'burglary law is designed to protect a possessory right in property against intrusion and the risk of harm' in determining that burglary is not committed by a defendant selling stolen property in an undercover officer's apartment at the officer's invitation].)" (Sherow, supra, 196 Cal.App.4th at p. 1308.)
The consent defense to burglary "is available 'when the owner actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee. [Citation.] But the invitation by the owner to enter must be express and clear; merely standing by or passively permitting the entry will not do. [Citation.] . . . [T]he owner-possessor must know the felonious intention of the invitee. There must be evidence "of informed consent to enter coupled with the 'visitor's' knowledge the occupant is aware of the felonious purpose and does not challenge it." ' [(Felix, supra,] 23 Cal.App.4th [at pp.] 1397-1398, third italics added [].) . . . The burden of proof regarding the consent defense is on the defendant, because the exonerating facts establishing the consent defense are particularly within the knowledge of the defendant. (Sherow, at pp. 1304-1305.) But the defendant's burden is simply to raise a reasonable doubt as to the facts underlying the consent defense: (1) whether an owner/possessor invited defendant to enter; (2) whether the owner/possessor knew of defendant's felonious intention; and (3) whether defendant knew the owner/possessor knew of defendant's felonious intent. (Id. at pp. 1305-1309.) As the Felix court explained, the invitation to enter must be express and clear. (Felix, at p. 1398 [implied consent of defendant's sister to enter her home and take her property was insufficient to establish a consent defense to burglary].)" (People v. Sigur (2015) 238 Cal.App.4th 656, 667-668, original italics.)
Jarrell did not establish substantial evidence to support a defense of consent, and thus the court had no duty to instruct on it. Mohr apparently had authority from Malone to take people onto the site, but there is no evidence he had the authority to consent to others burgling the shed to take property belonging to Richard. Malone testified that he gave no one authority to go onto the site to take personal property or break into buildings on the property. In his brief, Jarrell asserts that Mohr gave him permission to open the shed. However, he points to no facts in the record that support this assertion.
Moreover, there is no evidence that Mohr knew Jarrell intended to burgle the shed. Mohr told Deputy Davis he was on the site to see Teresa. Jarrell said he was there to collect a debt from a previous tenant, and Ramirez said he was just there with Jarrell. We have no other evidence of Mohr's knowledge, and we indulge all intendments and presumptions to support the judgment on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Evidence regarding Teresa also is not sufficient to establish consent. Jarrell showed Deputy Davis a text message he purportedly received from Teresa stating that she was in possession of property belonging to Richard, Richard was a thief, and the property she possessed was free for the taking. There is no evidence in this note or elsewhere that Teresa had authority to give away Richard's property. Nor did this message authorize Jarrell to burgle the shed and open Richard's locked tool box.
Jarrell contends in his brief he had consent because Teresa invited him to come onto the site to take property which was the subject of a dispute between she and Richard. Teresa's invitation is not sufficient to establish a defense of consent. Where one of two persons with a joint right to possess the same premises gives consent to a third person to enter to commit a felony upon the other person, there is no defense of consent if the victim does not know of or endorse the third person's intent. (People v. Clayton (1998) 65 Cal.App.4th 418, 423-424 [burglary conviction upheld where victim's husband authorized the defendant to come onto the property to kill the victim who did not know of or endorse the defendant's intent].) Teresa's message mentioned only Richard's property, and there is no evidence that Richard gave anyone authority to open the locked shed or his locked tool box, nor that he knew Teresa had invited Jarrell onto the site and he knew or endorsed Jarrell's intent to take his property. Without that evidence, there was no basis for the trial court to instruct on the defense of consent sua sponte.
C. Ineffective assistance of counsel
Jarrell argues in the alternative that his trial counsel rendered ineffective assistance by not requesting a jury instruction on consent. Counsel did not.
To establish ineffective assistance, a defendant must demonstrate that counsel's performance was deficient when measured against the standard of a reasonably competent attorney, and that counsel's deficient performance prejudiced the defendant; that is, there is a reasonable probability that but for counsel's deficient performance, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 686-689, 691, 694-696 .)
Counsel's performance was not deficient. He did not violate any standard of competence by not requesting an instruction on the consent defense because, as just shown, substantial evidence did not support the defense. Counsel's decision not "to make a futile or unmeritorious motion or request is not ineffective assistance." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836, disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.)
Because Jarrell cannot establish deficient performance, we need not address whether he was prejudiced.
D. Prosecutorial misconduct
Jarrell argues the prosecutor committed misconduct during closing argument by misstating the law about the consent defense and shifting the burden of proof to the defense. Defense counsel, however, did not object to the prosecutor's statements or request the jury be admonished, and Jarrell does not argue why an objection or an admonishment would have been futile. As a result, these contentions are forfeited. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Alternatively, Jarrell contends he was denied ineffective assistance when counsel did not object to the prosecutor's statements.
1. Background
The prosecutor made the following statements during his closing argument which Jarrell challenges here: "Another thing that's not necessary is a victim's right to be there. There was a lot of defense cross-examination and even witnesses about, oh, well, I gave - I gave Glen Mohr permission, he was allowed to bring Robert Jarrell, they could all be at my place, and the victim was a squatter and he wasn't allowed to be there. None of that is relevant to burglary. The only thing that's relevant to burglary is entry into a building with intent to commit theft."
Later in his argument, the prosecutor stated: "What's not relevant is who owns that building. What's not relevant is that [Richard] may have been squatting there, maybe not paying legitimate rent to that landlord, or any improvements or damage that [Richard] or [Teresa] or Mr. [C.] or anybody else there was doing. [¶] What is relevant is Mr. [Richard] owned that toolbox. [Richard] still had a right to that toolbox even if his being there was illegal, and Mr. Ramirez and Mr. Jarrell were there to take it."
The prosecutor also discussed the standard of reasonable doubt. He said: "Beyond a reasonable doubt. That's the standard of proof that we have. And it's found in 220 of the CALCRIM. It's much more than just that paragraph, but that is the definition of 'proof beyond a reasonable doubt:' Proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.
"It is not beyond a shadow of a doubt. It is not beyond all possible doubt. [¶] One way to look at reasonable doubt is to ask yourself, is the defense version of the case i.e., I didn't do it, I was somewhere else, I had a good reason to do what I did - is the defense version, the interpretation of the evidence that's been presented to you, is it reasonable? Is it reasonable the defendant is not guilty because of that version of the case? If it's not reasonable, then we have proof beyond a reasonable doubt. The doubt is not reasonable."
Later in the argument the prosecutor stated: "By the way, every charge has elements that need to be proved beyond a reasonable doubt. And what that means is sometimes there's one element, sometimes there's four, but every element of a crime needs to be proved, and those elements are spelled out in the instructions that you're given, and they're numbered."
2. Analysis
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. (See People v. Mendoza (2007) 42 Cal.4th 686, 702 (Mendoza).) However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' (People v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall); accord, People v. Hill[, supra,] 17 Cal.4th [at p.] 829 [].) To establish such error, bad faith on the prosecutor's part is not required. (Hill, at pp. 822-823.) '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' (Id. at p. 823, fn. 1.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' (Marshall, supra, 13 Cal.4th at p. 831), there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' (People v. Frye[, supra, 18 Cal.4th [at p. ]970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)" (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).)
Jarrell contends he suffered ineffective assistance when his trial counsel did not object to these statements by the prosecutor. He asserts the prosecutor's statements were "obvious examples of prosecutorial misconduct." By his comments, the prosecutor misrepresented to the jury the nonexistence of a consent defense to the Pioneer burglary, and counsel was ineffective for not objecting to the prosecutor's statements for the same reasons he was ineffective for not requesting a jury instruction on the consent defense. Jarrell also claims the prosecutor's comment that proof beyond a reasonable doubt existed if the jury found defendant's theory was not reasonable improperly placed on him the burden to present affirmative evidence of innocence.
We disagree with Jarrell's first argument. The prosecutor did not misrepresent the nonexistence of a consent defense. He argued that the facts Jarrell had tried to establish did not demonstrate consent. The prosecutor made that point explicitly when he argued the relevant issue was whether Richard owned the tool box, not whether Mohr had permission to be on the site and Teresa and Richard did not. This was a fair comment on the evidence and a proper statement of the law, not a misrepresentation.
We agree, however, with Jarrell's second argument, that the prosecutor misstated and shifted the People's burden of proof. "The case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard. (See People v. Johnson (2004) 119 Cal.App.4th 976, 985-986; People v. Garcia (1975) 54 Cal.App.3d 61, 63.) We have recognized the 'difficulty and peril inherent in such a task,' and have discouraged such ' "experiments" ' by courts and prosecutors. ([People v.] Medina [(1995)] 11 Cal.4th 694,] 745.) We have stopped short, however, of categorically disapproving the use of reasonable doubt analogies or diagrams in argument. Rather, we assess each claim of error on a case-by-case basis." (Centeno, supra, 60 Cal.4th at p. 667.)
The prosecutor argued that one way to look at reasonable doubt was to ask whether the defendant's version of the case was reasonable. The prosecutor stated that if under the defense's interpretation of the facts it was not reasonable to conclude defendant was innocent, then the People had established proof beyond a reasonable doubt. This argument is not correct. Just because the defense theory may be unreasonable does not necessarily mean the People have established proof beyond a reasonable doubt.
"It is, and remains, the prosecutor's burden to prove the case. If the defense chooses to produce evidence, the jury must, of course, consider it as part of the complete record before it. To that end, the prosecution can surely point out that interpretations proffered by the defense are neither reasonable nor credible. Nevertheless, even if the jury rejects the defense evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden. The prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own. In [People v.] Ellison [(2011) 196 Cal.App.4th 1342], for example, the prosecutor made several arguments to the effect that ' "you have to look at whether or not it's reasonable or unreasonable for the defendant to be innocent," ' and to vote not guilty if ' "it's reasonable that the defendant is innocent." ' (Ellison, at p. 1351.) The appellate court concluded that 'the prosecutor improperly attempted to lessen the People's burden of proof by arguing to the jury that the beyond-a-reasonable-doubt standard required the jury to determine whether defendant's innocence was reasonable.' (Id. at p. 1353.)" (Centeno, supra, 60 Cal.4th at p. 673.)
The prosecutor's argument here makes a similar mistake. By asking the jury to find proof beyond a reasonable doubt if the defendant's interpretation of the case is not reasonable, the People relieved themselves of having to prove each element beyond a reasonable doubt by implying that deficiencies in the defense made up for whatever shortcomings may have existed in the People's case.
Despite this, we conclude Jarrell and Ramirez did not suffer ineffective assistance when trial counsel did not object to the prosecutor's statement. This is because counsel's omission did not result in prejudice. To establish ineffective assistance, the defendant must show his attorney's defective performance resulted in a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
It is not reasonably probable that Jarrell and Ramirez would have obtained a more favorable verdict had the prosecutor not explained reasonable doubt based on the reasonableness of defendant's theory. The trial court correctly instructed on reasonable doubt, using CALCRIM No. 220. In addition, arguments of counsel " 'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.' (Boyde v. California (1990) 494 U.S. 370, 384 ; accord Mendoza, supra, 42 Cal.4th at p. 703; People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, superseded by statute on another ground, as stated in In re Steele (2004) 32 Cal.4th 682, 691.) 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." [Citation.]' (People v. Osband (1996) 13 Cal.4th 622, 717.)" (Centeno, supra, 60 Cal.4th at p. 676.)
The attorneys representing the three defendants also argued the correct standard of reasonable doubt. Strickland's counsel stated the prosecutor had to convince the jurors "beyond any reasonable doubt" that she was guilty. Counsel stated the jurors did not need to believe she was innocent. "You don't need to believe that she is innocent. It is only necessary that you have a reasonable doubt as to her guilt."
Counsel for Ramirez argued that if the prosecutor had not proven each element of each crime beyond a reasonable doubt, "and a reasonable doubt exists, there's no abiding conviction, as a matter of law . . . . If reasonable doubt exists, you must, as a matter of law, find the charge not guilty."
Jarrell's counsel repeated the court's instruction on reasonable doubt, saying it was "the highest standard there is."
In addition to the correct instructions and defense counsels' arguments, the jury had before it overwhelming evidence of Jarrell and Ramirez's guilt in both burglaries. The evidence showed that Jarrell and Ramirez participated in the Jackson burglary, using Jarrell's black SUV to move the property back to Jarrell's home. Both unloaded and moved the property into the house. The evidence also showed that Jarrell and Ramirez participated in the Pioneer burglary. Both were on the site when the sheriff arrived, and Ramirez walked from the direction of a brown paper bag and gloves on the ground after trying to hide near a neighbor's property. Officers found in Ramirez's possession a flashlight and a metal "T-Bar" wrench with a prying section on one end. Under all of these circumstances, it is not probable Jarrell and Ramirez would have received a more favorable verdict had the prosecution not stated that the unreasonableness of the defendants' theories showed that the People had satisfied the reasonable doubt standard.
V
Single Larceny Doctrine
The jury found each defendant guilty of felony grand theft of a firearm (count 2), felony grand theft of personal property (count 4), and five counts of misdemeanor grand theft of firearms (counts 14 through 18), all arising from the Jackson burglary. The three defendants contend all but one of the felony theft counts must be reversed because under the rule of People v. Bailey (1961) 55 Cal.2d 514, 518-519 (Bailey), theft of multiple items of personal property on a single occasion, including firearms, constitutes a single offense. We agree.
The Bailey court held that a defendant "may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Bailey, supra, 55 Cal.2d. at p. 519.) As a result of this holding, " '[w]hen a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals.' " (People v. Ortega (1998) 19 Cal.4th 686, 699, quoting People v. Brito (1991) 232 Cal.App.3d 316, 326, fn. 8; see also Bailey, supra, 55 Cal.2d at p. 519.)
Here, there is no evidence the defendants took the personal property and firearms in the Jackson burglary in anything other than a single, indivisible course of conduct pursuant to the same impulse, intent, plan, or scheme. All of the theft charges were based on items taken in the burglary from Kristie and Scott's home on one occasion. Kristie and Scott's neighbor saw the black SUV at the property only once. Neighborhood surveillance video showed the black SUV drive to and from the property only once. All of Scott's firearms and much of the other stolen items were recovered from Jarrell's residence. There was no testimony from which the jury could infer the items were taken in separate transactions based on separate plans or schemes.
The People do not dispute this point. Rather, they contend the language of the grand theft statute—theft of "[a] firearm" (§ 487, subd. (d)(2))—indicates each firearm theft should be treated as a separate offense. They urge us to follow the Florida Supreme Court's decision in Grappin v. State (Fla. 1984) 450 So.2d 480, and the Wisconsin Supreme Court's decision in State v. Trawitzki (Wisc. 2001) 628 N.W.2d 801. Those courts found their legislatures' use of the phrase "a firearm" in the Florida statute and "firearm" in the Wisconsin statute showed a legislative intent to make each theft of a firearm a separate charge.
We decline to follow either case. In California, the Penal Code specifies that throughout the code, "the singular number includes the plural, and the plural the singular." (§ 7.) Therefore, the Legislature's use of the singular pronoun "a" when referring to grand theft of a firearm is not indicative of an intent to treat each firearm theft as a separate offense.
The People raise policy arguments against applying Bailey to grand theft of a firearm, but they cannot carry the day. We are bound to follow Bailey until the California Supreme Court or the Legislature instruct us otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The California Supreme Court revisited Bailey in People v. Whitmer (2014) 59 Cal.4th 733. It held that a defendant "may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme." (Id. at p. 741.) However, this ruling was prospective only, effective as of the opinion's release date of July 24, 2014. (Id. at p. 742.) Defendants committed the Jackson burglary on June 2, 2014. Because Whitmer cannot apply here, we do not address whether its ruling affects how we apply Bailey to the facts before us. We will reverse the theft convictions except count 2.
VI
Section 654Ramirez argues, and Jarrell joins, that section 654 bars imposition of punishment on counts 6 through 11, felon in possession of a firearm (§ 29800, subd. (a)(1)), and count 12, felon in possession of ammunition (§ 30305, subd. (a)(1)), because the factual bases for these convictions were part of the same, indivisible course and objective of the Jackson burglary conviction in count 1.
Jarrell argues, and Ramirez alternatively joins, that section 654 bars imposition of punishment on one of counts 6 through 11 and count 12 for the same reason. We agree with Ramirez that section 654 bars punishment on counts 6 through 12.
A. Background
The trial court sentenced Jarrell on counts 6 through 11, felon in possession of a firearm, to 16 months on each count, to run consecutive to the base term. Each sentence was one-third the mid term, doubled under the three strikes law. The court explained its decision: "Now, the court tossed around the idea of running some of the sentences of the possession of firearm counts concurrently, but the Court dispelled the thought in light of the case of People versus Correa cited by the prosecution and the probation office. It's 54 Cal.4th., 331, June 2012 case. Also, after concluding that the defendant stole and possessed enough firearms and ammunition to arm an entire household full of drug addicted felons." The court also sentenced Jarrell on count 12, possession of ammunition by a felon, noting that it was "not stayed for the same reasons."
The trial court imposed the same sentences on Ramirez for counts 6 through 11. It stated, "[T]he Court feels that the Supreme Court in People versus Correa governs in this case. The Court already explained its feelings about this defendant and this codefendant stealing and possessing this many firearms and bringing them to . . . this drug house. That's what it was full of drug addicted felons." The court also sentenced Ramirez on count 12 to 16 months.
B. Analysis
"Whether section 654 applies to the facts in a given case is one of fact for the trial court to decide, and such findings will be upheld on appeal if there is any substantial evidence to support them. (People v. Akins (1997) 56 Cal.App.4th 331, 339, citing People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) We review the trial court's findings ' "in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence." ' (People v. Green (1996) 50 Cal.App.4th 1076, 1085, quoting People v. Holly (1976) 62 Cal.App.3d 797, 803.)" (People v. Atencio (2012) 208 Cal.App.4th 1239, 1242-1243 (Atencio).)
Under section 654, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) "The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment. [Citation.] The 'act' necessary to invoke section 654 need not be an act in the ordinary sense of a separate, identifiable, physical incident, but may instead be a 'course of conduct' or series of acts violating more than one statute and comprising an indivisible transaction punishable under more than one statute." (People v. Liu, supra, 46 Cal.App.4th at p. 1135, fn. omitted.)
Because few crimes are the result of a single act, "the relevant question is typically whether a defendant's ' "course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." ' ([Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal)], quoting People v. Brown (1958) 49 Cal.2d 577, 591.) To resolve this question, the Neal court announced the following test: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Neal, at p. 19.)" (People v. Correa (2012) 54 Cal.4th 331, 335-336 (Correa).) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted.)
The trial court's reliance on Correa does not address the issue before us. In Correa, the California Supreme Court held that section 654 does not prohibit multiple punishments for multiple violations of the same criminal statute. (Correa, supra, 54 Cal.4th at p. 334.) While that holding was a limitation on the scope of Neal, it did not affect Neal's primary holding which governs when the indivisible course of conduct has one objective but violates more than one statute: "If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal, supra, 55 Cal.2d at p. 19, italics added.)"
California courts have held that larceny committed during a burglary is a continuing course of conduct for purposes of section 654. (People v. Bernal (1994) 22 Cal.App.4th 1455, 1459.) And a panel of this court held that larceny of a firearm and possession of that same firearm the following day, without more, constituted a continuous course of conduct that could be punished only once. (Atencio, supra, 208 Cal.App.4th at pp. 1244-1245.)
In Atencio, the defendant, a felon, stole a pistol and was apprehended the next day possessing the gun while trying to sell some jewelry. (Atencio, supra, 208 Cal.App.4th at pp. 1241-1242.) This court affirmed the sentence for grand theft but stayed the sentence for unlawful possession under section 654, finding that both offenses were incident to one objective. We stated: "To say that defendant's objective on the first day was to take the gun, while his objective on the next day was to possess it is cutting the point too fine. The only point in taking the gun was to gain possession of it, so that he could then do with it what he pleased, whether 'possess[ing] [it] while selling jewelry' or something else. The fact that defendant kept possession of the gun for a period of 24 hours did not, without more, alter his intent and objective such that his course of criminal conduct can be deemed to consist of more than one act for purposes of section 654." (Atencio, supra, 208 Cal.App.4th at p. 1244, original italics.)
Here, Jarrell and Ramirez burgled the Jackson property and stole firearms and ammunition, and one day later were found possessing the firearms and ammunition at Jarrell's house. Defendants contend their possession of the firearms and ammunition was only incidental to their theft and indivisible from the burglary.
The People, however, contend Jarrell and Ramirez harbored different criminal objectives. At the time the defendants stole the guns and ammunition, they intended only to possess the guns. But that intent changed prior to the call to police the next day of shots being fired. By then, the People claim, defendants possessed the guns with the intent of providing them to other members of the household, as evidenced by Gaunt's testimony that Hix had possession of the guns and ammunition and was shooting them on the property. The People argue this transfer of the firearms and ammunition comprised a separate transaction undertaken with an intent distinct from merely possessing the stolen items.
We are not persuaded in this instance. Hix was not just an innocent third person. He participated in the Jackson burglary. Gaunt testified that Hix accompanied Jarrell and Ramirez on the morning of the burglary, returned to Jarrell's house with them, and helped unload and store the stolen goods. Thus, both Hix and Jarrell had at least constructive possession of the firearms and ammunition. We cannot see how the culprits' sharing possession and firing the guns created a transaction separate and distinct from the burglary and larceny with a new criminal intent. As was the case in Atencio, the only point in taking the guns and ammunition was to gain possession of them so that they could do with them as they pleased, including continuing to possess them. Shooting the guns the next day, without more, is insufficient to establish a separate and distinct transaction from the burglary and larceny in this instance. We thus will stay the sentences on Jarrell's and Ramirez's convictions under counts 6 through 12.
VII
Sufficiency of Evidence for Prior Convictions and Prison Term
All three appellants in their opening briefs complained the record did not contain evidence supporting the enhancements and strikes for prior convictions and prison terms. But, as noted by the People and undisputed in defendants' reply briefs, augmentation of the record during the appeal renders the matter moot.
VIII
Strike Ramirez's Prior Prison Term Enhancement
Ramirez argues the trial court erred in using a single felony conviction to impose a five-year enhancement for a prior conviction (§ 667, subd. (a)) and a one-year enhancement for a prior prison term (§ 667.5, subd. (b)). The People concede the point. We accept the concession and will order the one-year prison term enhancement to be stricken. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1150.)
IX
Senate Bill No. 1393
In supplemental briefing, Jarrell contends we should remand the case for the trial court to consider dismissing the five-year enhancement it imposed under section 667, subdivision (a) for a prior serious felony conviction. At the time of sentencing, the trial court had no discretion but to impose the enhancement. (See former § 1385, subd. (b) [Stats. 2014, ch. 137, § 1].) While this appeal was pending, however, the Governor signed into law Senate Bill No. 1393 (SB 1393), which granted trial courts the discretion not to impose the enhancement. (Stats. 2018, ch. 1013, §§ 1, 2, amending §§ 667, subd. (a) and 1385.) The act was effective January 1, 2019.
There is no dispute SB 1393 applies retroactively to Jarrell. (People v. Jones (2019) 32 Cal.App.5th 267, 272.) But remand is not automatic. Remand is not required where " 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion. [Citation.] [¶] The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been." (Ibid.)
Reviewing the record, we conclude the trial court clearly indicated it would not have stricken the enhancement if it had the discretion to do so. It so indicated when it denied Jarrell's motion to strike his prior strike and when it sentenced him. When the court denied Jarrell's motion to strike, it stated: "Just looking at the current crimes is enough for this Court to deny this motion. Just looking at the current crimes of which he was found guilty of is enough to deny this motion, plus being sent to prison five times. . . . He just doesn't fall outside the spirit of the Three Strikes Law. So the Court will deny the motion."
At sentencing, the court imposed the upper term sentence on count 1 and consecutive terms on nine additional counts. It explained its reasons thus: "Number one, the defendant armed himself with stolen guns and ammunition at the time of the burglary. Number two, the victims were particularly vulnerable, lured away from their home by the defendant's accomplice. Number three, defendant induced others to participate in the commission of the crime and occupied a position of leadership and dominance of other participants in this commission. . . . Number four, defendant intimidated witnesses. Number five, the manner in which this crime was committed or carried out indicated planning, sophistication an[d] professionalism. Number six, the crime involved taking of great monetary value, to wit, $76,000.00 and as victim Kristie [S.] testified and I quote pretty much everything that mattered was taken. Number, seven, defendant's accomplice took advantage of a position of trust and confidence of which the defendant was aware. Number eight, the defendant's prior convictions as an adult are numerous, to wit, fourteen of them. Number nine, defendant served prior prison terms. Number ten, defendant's prior performance on probation or parole was unsatisfactory. To that I'm going to add the comments of the probation office some of which I have already stated. The defendant and his accomplice conspired to commit the crime days prior and lured the victims away from their house and utilized the victim's own hide-a-key to gain access. The defendant utilized the accomplice's relationship with the victims to lure them away from the house. The defendant has a significant prior record with a defined pattern of property crimes, drug offenses and firearm activities, while he has a recent period absent of criminal convictions, the present offense does not appear out of character. The defendant suffered a prior parole violation. During his interview [with] undersigned the defendant denied committing the offense. He has been committing similar crimes for the past twenty-five years and he poses a clear risk to public safety. The defendant has served five prior prison terms. There are no circumstances in mitigation relating to the crime or to the defendant. None whatsoever."
By finding Jarrell well within the spirit of the Three Strikes Law, imposing the upper term, and finding no mitigating circumstances "whatsoever," the record clearly indicates the trial court would not have dismissed the prior serious felony enhancement if it had discretion to do so. Remand for resentencing is not warranted.
X
Senate Bill No. 136
In supplemental briefing, Strickland claims she no longer qualifies for the one-year enhancement under section 667.5, subdivision (b). She contends Senate Bill No. 136 (SB 136), enacted this year to amend section 667.5, requires us to strike the enhancement. Ramirez joins her argument, although we have already decided to strike his one-year enhancement under section 667.5, subdivision (b). The Attorney General agrees with Strickland, as do we.
When Strickland was sentenced, section 667.5, subdivision (b) provided for a one-year enhancement for each prior prison term served for "any felony," with an exception not applicable here. SB 136 significantly limits the circumstances under which this enhancement may be imposed. Under the new law, a trial court may impose the one-year enhancement only when the prior prison term was served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) Strickland has not served a prior prison term for a sexually violent offense.
SB 136 became effective January 1, 2020. (Cal.Const., art. IV, § 8, subd. (c)(2).) The defendants' convictions will not be final by that date. Because the new law mitigates punishment and there is no saving clause, it will operate retroactively. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1956) 63 Cal.2d 740, 748.) Further, a remand for resentencing is unnecessary as the trial court already imposed the maximum sentence available. (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
We thus strike the enhancement imposed on Strickland under section 667.5, subdivision (b).
DISPOSITION
The convictions against each defendant under count 4, felony grand theft of personal property, and counts 14 through 18, misdemeanor grand theft of a firearm, are reversed. The sentences against Jarrell and Ramirez under counts 6 through 11, felon in possession of a firearm, and count 12, felon in possession of ammunition, are stayed pursuant to section 654. The one-year prior prison term enhancements (§ 667.5, subd. (b)) imposed on Strickland and Ramirez are stricken. In all other respects, the judgments against each defendant are affirmed. The trial court shall prepare an amended abstract of judgment and transmit it to the Department of Corrections and Rehabilitation.
/s/_________
HULL, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
MAURO, J.