Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge, Super. Ct. No. DF007567A
THE COURTKelly Babineau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Kimberlynn Suzanne Russell, of first degree burglary (Pen. Code, § 459). On August 9, 2006, the court sentenced Russell to the middle term of four years. On appeal, Russell contends the prosecutor engaged in misconduct during closing arguments. We will affirm.
FACTS
Katie Watt (Katie) testified that on May 26, 2005, at approximately 1:30 p.m. she returned to her rural home near Glenville where she lived with her father, Gary Watt (Watt), and her brother. As she drove up the driveway, she saw a gold Camry parked there and Joseph Garner and Russell standing by the entrance to the house. Katie also saw Garner, whom she knew because he had previously worked for her father, walk behind the house and come out again.
Katie parked her truck and spoke with Garner. Garner grew increasingly nervous as they spoke and appeared to be trying to leave. After Garner and Russell left, Katie went in the house and initially did not notice anything unusual. However, later that evening she noticed that her father’s bed did not have any pillow cases and on the carpet outside her father’s room she found a boot print that had not been there earlier. The following day Katie searched outside the house and found a rifle in the grass. By the side of the house she found some firearms belonging to her father and brother in pillow cases that came from her father’s bed.
During a subsequent photo lineup Katie identified Russell as the woman she saw with Garner the day of the burglary. She also identified Russell in court.
Watt testified that the night of the burglary he arrived home at approximately 8:00 p.m. Watt immediately noticed that his room had been vandalized and that he was missing rifles, shotguns, pistols, money, clothing belonging to him and his wife, jewelry, and $700 to $800 in coins. Another $300 in coins was missing from his son’s room.
According to Watt, Russell was similar in size to Watt’s wife.
On May 27, 2005, at approximately 5:00 a.m. Kerman Police Officer John Erickson was on patrol when he saw a gold Camry parked in a carport with a trash can placed in front of its license plate. After backup arrived, Erickson approached the car and found Garner sleeping on the driver’s seat with a pistol stolen from the Watt residence on his lap and Russell sleeping in the back seat. When Erickson woke Garner up, Garner pushed the gun on the floorboard and started yelling for the officers to shoot him. The officers found several hypodermic syringes in Russell’s purse. Russell denied knowing that a handgun was in the car. Although she admitted injecting heroin and methamphetamine, she also denied knowing how the syringes got into her purse.
Joseph Garner testified that he entered into a plea bargain which provided that in exchange for his plea to two other burglary counts the district attorney dismissed charges against him arising from the Watt burglary. However, there was no agreement that he would testify against Russell and he was testifying to the truth because he would not perjure himself and subject himself to a three-strikes sentence of 25 years to life.
According to Garner, the day of the burglary he was high on methamphetamine when he went to the Watt residence with Russell and took jewelry, change, and a couple of firearms. Russell was wearing punk rock boots when she went inside the house and returned with a pistol and other items. They discarded the firearms, except the pistol, when they saw someone coming.
As they were driving away from the Watt residence, Russell gave Garner the pistol she took from the residence after it slid down her pants leg. After the burglary they went to Eagle Mountain Casino and eventually to Kerman, where they were arrested.
The defense did not present any evidence.
DISCUSSION
During the closing argument the prosecutor argued as follows:
“And that brings us to Joey Garner. Without Joey Garner we have basically what you would have to describe as an open-and-shut case. We have a case where the victim of a burglary comes home and finds the people coming out of her house; they act in a manner that is suspicious; one of them goes around the house, and when you retrace the route around the house, you find property that was taken in the burglary; gives a story that doesn’t make any sense to the person that’s there because he knows Gary Watt’s at work because he worked with Gary Watt before; they get in the car and they leave. When they get caught by the police, they have property that is stolen from that burglary, and Ms. Russell has drug paraphernalia. And drug paraphernalia doesn’t prove that you’re a thief or a burglar, it’s motive -- and motive is not an element of any criminal offense, but motive is something that you can consider. People that have a drug problem need drugs, and people that need drugs need money to pay for the drugs. And as Mr. Garner told you, the common way to get drug money is to steal to get it.
“But with all of the other evidence we presented, even if we didn’t have Joey Garner, we have basically an open-and-shut case. She’s caught there, caught red-handed as somebody said. But we do have Joey Garner.” (Italics added.)
During rebuttal argument the following colloquy occurred:
“[PROSECUTOR]: My first job as a lawyer was as a public defender, and my sister-in-law gave me a little sign that I put up in my office that showed a big picture of Joey Brown, he was the comedian with a great big mouth, and he had a big grin on his face, and the caption said, [‘]If you can’t dazzle them with brilliance, baffle them with [’]- - and it’s the stuff that comes out of the south end of a northbound pool.”
“[DEFENSE COUNSEL]: I’ll object to that, Your Honor.
“THE COURT: Let’s move on to closing argument. There’s some latitude, but let’s move on.
“[PROSECUTOR]: What you’ve been presented with is -- I guess the word I’m looking for is obfuscation. My wife hates it when I use words like that. Muddying up the waters; picking little parts of the evidence and ignoring most of it; fogging up the lenses, so to speak. I guess a lens would be the best analogy to use, because we have this nice, little sign here where you can see presumed not guilty. I can even read that without my glasses, but even with my glasses, I can’t see guilty beyond a reasonable doubt. I know its there because I could see it when I was sitting there.
“So, you know, I don’t have any fancy chart so I made some stuff up. See if we can find it here.
“First of all, let’s get a little bit of lens cleaner here and a cleaning cloth and let’s get rid of some of that stuff. The lens cleaner I’m going to call evidence and reason. Let’s clean those lenses with the evidence in this case and apply reason. Spray on evidence and clean that lens with a little bit of reason here.” (Italics added.)
Russell cites to the italicized portions of the above arguments to contend that the prosecutor engaged in prosecutorial misconduct that violated her Sixth Amendment right to confrontation and counsel under the United States Constitution. According to Russell: 1) through the first italicized portion of the above arguments the prosecutor improperly expressed his personal belief in his case when he stated that it was an “open-and-shut” case; and 2) through the second italicized portion the prosecutor implicitly argued that he knew that Russell’s defense was a sham because he used to be a defense counsel and he expressed his personal belief that Garner was truthful and trustworthy. Russell further contends that because the prosecutorial misconduct involves constitutional error, it is subject to harmless error analysis under the Chapman standard. We will reject Russell’s claim of error. Alternatively, we will conclude that any error was harmless.
Chapman v. California (1967) 386 U.S. 18.
“A prosecutor may make ‘assurances regarding the apparent honesty or reliability of’ a witness ‘based on the “facts of [the] record and the inferences reasonably drawn therefrom.”’ [Citation.] But a ‘prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 432-433.) “[Further,] [t]he unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct. [Citations.]” (People v. Bain (1971) 5 Cal.3d 839, 847.)
“[However,] [a] defendant waives error if he fails to object to prosecutorial misconduct at trial or to request an admonition, and such an issue may be raised on appeal only if the trial court could not have cured the harm by a prompt admonition to the jury. [Citation.]” (People v. Boyd (1990) 222 Cal.App.3d 541, 571.)
“[Moreover,] [u]nder traditional application of this state’s harmless error rule, the test of prejudice is whether it is ‘reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant. [Citations.]’ [Citation.] However, if federal constitutional error is involved, then the burden shifts to the state ‘to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.]” (People v. Bolton (1979) 23 Cal.3d 208, 214.)
Here, defense counsel did not object to the prosecutor’s comments that even without Garner’s testimony the prosecution had an open and shut case. Thus, Russell waived any error in these comments by the prosecutor.
However, even if this contention were properly before us we would reject it. As the unitalicized portion of the first quote indicates, in stating that the prosecution had an open and shut case the prosecutor went through a detailed recitation of the evidence that supported his opinion. Accordingly, we conclude that the comments at issue did not constitute misconduct because they would have been understood by the jury simply as an invitation to draw the desired inference, that the prosecution presented a strong case that Russell was guilty. (Cf. People v. Johnson (1992) 3 Cal.4th 1183, 1226.)
Further, we find unavailing Russell’s reliance on U.S. v. McKoy (9th Cir. 1985) 771 F.2d 1207 to argue a contrary conclusion. McKoy involved a prosecution of several defendants for transporting stolen goods across state lines in which, as in this case, the prosecution relied, in part, on the testimony of an accomplice, James Greenamyer. In McKoy the prosecutor who was formerly in charge of prosecuting the defendant was called as a witness and testified, in pertinent part, that he felt “the case was an extremely strong case against all defendants.” (Id. at p. 1210.) In finding that the quoted comment amounted to prosecutorial misconduct, the McKoy court stated,
“In the context of this trial, the jury reasonably could have understood the former prosecutor’s testimony as an expression of his belief that the government witness, Greenamyer, was telling the truth and the defendant, McKoy, was lying. The government’s entire case against McKoy rested on the testimony of Greenamyer and Mecham. Except for the telephone records, no other evidence linked McKoy to the stolen toys. The prosecutor’s statement that the case was ‘extremely strong’ necessarily implied that its strength lay in the co-conspirators’ testimony.” (U.S. v. McKoy, supra, 771 F.2d at p. 1211.)
McKoy is easily distinguishable because, unlike the instant case, the prosecutor’s comments there could have been viewed as vouching for the credibility of the accomplice who testified for the government and whose testimony was the main evidence linking the defendant to the stolen toys. In contrast, here, the first italicized portion of the prosecutor’s argument did not vouch for the accomplice’s (Garner’s) testimony. Instead, read in context, it is clear that through this portion of his argument the prosecutor argued that he had a very strong case even without the accomplice’s testimony. Further, unlike the prosecutor in McKoy, the prosecutor here cited the evidence that he felt supported this conclusion, implicitly asking the jury to make the same inference from the evidence cited, i.e., that the prosecutor presented a strong case of Russell’s guilt, which he was permitted to do under People v. Johnson, supra, 3 Cal.4th 1183. Additionally, unlike McKoy, the prosecution here presented substantial evidence of Russell’s guilt other than an accomplice’s testimony.
We also reject Russell’s contention that the prosecutor engaged in misconduct through his comments regarding the picture of Joey Brown. Preliminarily we note that, although defense counsel objected to the prosecutor’s statement regarding the caption in the picture of Brown, he did not state the basis of his objection.
Evidence Code section 353 in pertinent part provides,
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; . . .” (Italics added.)
Thus, by failing to specify the basis for his objection, defense counsel waived this issue on appeal. However, even if the issue were properly before us we would reject it. The prosecutor’s comments were ambiguous and did not directly implicate public defenders or defense counsel in particular. If anything, they reflected badly on the prosecutor to the extent they implied that he adhered to the motto inscribed on the photograph. Further, in the context of the prosecutor’s ensuing comments they appear to be simply an inartful part of his argument that the defense was trying to obscure the facts showing Russell’s guilt by focusing on some parts of the evidence and ignoring others. In view of these circumstances we conclude that the prosecutor’s comments did not rise to the level of misconduct.
Russell contends that this case is similar to People v. Bain, supra, 5 Cal.3d 839 (Bain). We find Bain inapposite. There the prosecutor made several comments indicating the he personally believed in the defendant’s guilt and also stated that he understood Black defendants because he was a Black man. In finding that this was misconduct the Bain court said that, “the prosecutor, in effect, asked the jury to give credence to his belief in defendant’s guilt from the inception of the case, because he, as a [B]lack man, ‘understood’ [B]lack defendants. This tactic was a way of persuading the jury that the defendant's story was a sham that could not convince any other [B]lack person.” (Bain, supra, 5 Cal.3d at pp. 848-849, fn. Omitted.)
Here, through neither of the italicized portions of his arguments did the prosecutor express his personal belief in the defendant’s guilt. Further, the prosecutor’s comments about public defenders do not suggest that he was familiar with defense counsel tactics or that he knew Russell’s defense was a sham because he was once a public defender. Instead, as noted above, the comments appear to be an inartful prelude to his argument that the defense was trying to obscure the evidence that pointed to Russell’s guilt by emphasizing the portion of the evidence favorable to the defense and ignoring the rest.
In any case, any prosecutorial misconduct that may have occurred through the above quoted comments was harmless. There was no dispute that the Watt residence was burglarized by Garner just before Katie arrived at the house or that Russell was the woman whom Katie saw with Garner at that time. Further, Garner implicated Russell in the burglary; Russell was outside the car when Katie arrived at the house; women’s clothing that could have fit Russell was taken during the burglary; on the day of the burglary Russell was wearing boots and a boot print was found outside Gary Watt’s bedroom; and the jury could reasonably have found that Russell lied when she said that she did not know how the syringes got into her purse. In view of all these circumstances, we find that if any prosecutorial misconduct occurred, it was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.