Filed 5/25/23 P. v. Smith CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

TANIEA SMITH,

Defendant and Appellant.

B316407

(Los Angeles County 

Super. Ct. No. SA098098)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Lauren Weis Birnstein, Judge. Affirmed.

Stanley V. Granville, under the appointment by the Court

of Appeal, for Plaintiff and Respondent.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Gary A. Lieberman, 

Deputy Attorneys General, for Plaintiff and Respondent.

___________________________
2

Defendant and appellant Taniea Smith offered to hold her 

friend and neighbor’s electronic apartment key for safekeeping

during a party. Then, while her friend remained at the party, 

defendant entered her friend’s apartment and stole multiple 

pairs of designer shoes and other accessories. Defendant was 

convicted of a single count of first degree burglary (Pen. Code, 

§ 459). On appeal, she raises discovery issues, challenges the 

sufficiency of the evidence, and claims prosecutorial misconduct. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Apartment Complex

Defendant and the victim, Chloe Kahan, lived next door to 

each other in apartments in a complex called Villas at Playa 

Vista, which is owned by the Irvine Company. Their units were 

in the “Sausalito Villa,” and, in fact, next door to each other in 

the same building. They were on the second floor of apartments, 

above a first floor of apartments, which sat above a garage.1

Access to the apartments is controlled by electronic key 

fobs – both for the common areas and specific apartments. Each 

apartment comes with two unique key fobs. Inside the system,

the fobs are labeled “Resident 1” and “Resident 2.” Whenever a 

key fob is used to open a unit, it leaves an electronic time stamp

in the lock itself. Irvine Company employees could pull an “audit 

log” from the lock – via a handheld device they had to physically 

bring to the lock – to learn which fobs accessed the lock at which 

times. If someone other than a resident – such as an Irvine 

Company maintenance person – needed to access a resident’s 

1 There is an elevator that can be taken from the garage 

level. Pedestrians could also bypass the garage level, by means of 

outdoor stairs.
3

unit, that person’s key fob would be programmed for access to the 

unit. It would therefore show in the lock audit as that person’s 

fob, not a resident’s fob. Because the locks were not networked, 

the time of day varied from lock to lock, and would not 

necessarily accurately reflect the actual time of day. 

The burglary in this case occurred while Kahan was 

hosting a birthday party for herself. She had the event in the 

party room of a different villa, the “Malibu Villa,” which was 

located about a five minute walk, or one-and-a-half to two minute

drive, from Sausalito Villa. 

There are numerous security cameras in the complex, 

including in the elevators, in the garage elevator lobby, and in 

the Malibu party room.

2. Defendant and Kahan’s Friendship

Kahan met defendant a couple years before the burglary,

when defendant moved into the apartment next door. They had 

common interests, especially fashion, and became close friends. 

They would talk nearly every day, and visited each other’s 

apartment. 

Kahan’s apartment had a bedroom and a den. Other than 

one corner devoted to a workspace, Kahan’s den was a storage 

space for her bags, shoes, and accessories. Shoeboxes were 

stacked higher than her head, in what was described both as a 

“wall of shoes,” and “organized chaos.” Many of the shoes were 

designer shoes, costing as much as a $1000 per pair. She had 

over ten pairs of Louboutins, which were valued over $500 each. 

She also kept more than ten designer purses in her den. She 

kept some jewelry in her den, and other jewelry in her bedroom, 

in a jewelry box made to look like a book. This included custom 
4

diamond and gemstone pieces valued in the tens of thousands of 

dollars. 

Defendant also had an impressive collection of designer 

shoes and accessories, kept in her own apartment. Kahan and 

defendant had talked about the possibility of sharing each other’s 

shoes, but they could not, because they were not the same size. 

Kahan wore a 37.5 (in European sizes) while defendant wore a 

36. 

3. Kahan’s Party and the Burglary

On the evening of February 24, 2018, Kahan threw herself 

a birthday party in the Malibu Villa party room. The party was 

scheduled from 7:00-10:00 p.m., although it ran over. 

Kahan kept both key fobs for her apartment on a pink 

lanyard. She lived alone and generally kept both fobs with her at 

all times. 

During the party, defendant offered to look after Kahan’s 

keys, so that Kahan would not have to worry about them. At 

around 9:15, defendant gave Kahan her lanyard with both key 

fobs on it. She trusted defendant and thought defendant was 

being helpful. 

Shortly thereafter, defendant left the party. The cameras 

in the Malibu Villa party room would show defendant was gone 

for 35 minutes between 9:36 and 10:11, according to the time 

stamps on the video.2 During her absence, defendant went back 

2 Although there were four cameras in the Malibu party 

room, all of the relevant video clips are from the same camera. 

Thus, while the actual times of defendant’s departure and return 

may be subject to debate, the amount of time that passed 

between these events is not. Specifically, the video clips show: 

(1) at 9:16, Kahan gave defendant her lanyard with the key fobs;
5

to the Sausalito Villa building, and burglarized Kahan’s 

apartment – using Kahan’s own key fob to enter her unit, and

bringing stolen items back to her own apartment. Key fob logs 

would show this back-and-forth occurred twice during the 35-

minute window.3

Defendant did not directly return the lanyard to Kahan, 

but gave it to a friend of Kahan’s, who later gave it to Kahan. 

When defendant returned the lanyard, it was missing one of 

Kahan’s key fobs, which defendant apparently gave to an 

unidentified accomplice, who used it to enter Kahan’s apartment 

again that night, after defendant had returned to the party. 

When Kahan went home after the party, she discovered 

that her lanyard had only a single key fob on it, “Resident 2.”

She assumed the other one had fallen off, and, seeing nothing 

amiss in her apartment, was unconcerned. The next morning, 

she called the leasing office and told them she had lost a key fob 

and needed it deactivated. It was not deactivated at this time.

(2) at 9:17, defendant picked up her coat and left; (3) at 9:28, 

defendant returned for her purse; (4) at 9:36, defendant left 

again; (5) at 10:11, defendant returned, having changed her shoes 

into flats; and (6) at 10:12, defendant handed the lanyard to a 

seated woman. In short, defendant was gone, with Kahan’s key 

fobs, from 9:36 to 10:11, a period of 35 minutes. 

3 The key fob logs on the two apartments are not 

synchronized to each other, real time, or the Malibu Villa party 

room, and it is likely the times are not precisely accurate. They 

show four entries to Kahan’s door in a 31-minute period (9:32, 

9:37, 10:01 and 10:03); and two entries to defendant’s apartment

within a similar time period, 27 minutes apart (9:49 and 10:16). 
6

4. Possible Second Burglary

On February 27 – a few days after the party – defendant 

called Kahan; she was upset and needed to talk. Kahan was on 

her way out and could not talk, but told defendant she would let 

her know when she got home. The key fob logs reveal additional 

entries into Kahan’s apartment with her missing “Resident 1”

key fob during the time she had told defendant she would be 

away. 

5. Kahan’s Discovery of the Burglary

On March 1, Kahan wanted to use her Celine Phantom 

purse, and discovered it was not where it should have been. She 

searched the entire apartment and concluded it was missing. 

She then searched for a particular Louis Vuitton purse and could 

not find it either. At this point, she realized she had been 

burglarized, and called the police. 

Kahan also called defendant, thinking that defendant 

might also be in harm’s way. Defendant, at this point, insinuated 

herself into the investigation, accompanying Kahan when she 

first met with Irvine Company representatives and the police. 

6. The Initial Investigation

Jay Vela is Irvine Company’s Service Manager for the 

Sausalito Villa. He arranged a meeting for Kahan with, among 

others, Joseph Alvarez, the head of security. Kahan was very 

upset at the meeting, yelling at everyone. She suspected the 

Irvine Company – possibly maintenance employees – of stealing 

her belongings. Defendant was agreeing with everything Kahan 

said. Alvarez first thought the two women were roommates; 

when he learned defendant was just a friend of Kahan’s, he asked 

her to leave.
7

Alvarez had suggested that Vela run a lock audit to see 

who had been in Kahan’s apartment. Vela ran it that day. It did 

not show any entries from maintenance or other Irvine Company 

employees; but it did reveal the February 24th and 27th entries 

with the “Resident 1” key fob Kahan had thought she lost at the 

party. 

Alvarez decided to watch the videos recorded from the 

cameras in the Malibu Villa party room for the entirety of the 

party, to see if he could track Kahan’s pink lanyard with the key 

fobs on it. This was a lengthy process as there were multiple 

cameras, and it would take him days to complete.

On March 1, the same day as Kahan’s initial meeting with 

Alvarez, she and defendant also met with Los Angeles Police 

Department officers. During their meeting, defendant told police 

that a number of people had held Kahan’s keys during the party. 

She volunteered, “Like, at one point, I had her keys, but I was 

stationed in the place.” She said she had Kahan’s keys so that 

she could let people in. 

7. Alvarez’s Review of the Videos Points to Defendant

In his search of the videos from the party, Alvarez saw 

Kahan pass her lanyard to defendant, and defendant leave the 

party. He saw her return, wearing different shoes, and pass the 

lanyard to an unidentified woman in a chair. Finally, Alvarez 

saw the seated woman return the lanyard to Kahan, without 

handing it to anyone else or leaving the room in between.
8

At this point, Alvarez checked against videos from the 

Sausalito Villa elevator lobby (on the garage level) and inside the 

elevator itself.4 He spotted defendant there.

In the first pair of videos, defendant enters the elevator 

lobby from the garage, purse (and jacket) in one hand, and 

Kahan’s pink lanyard swinging in the other. She puts on her 

jacket, shoves the lanyard into the coat pocket, and takes the 

elevator up to the third floor. In the second pair of videos, 

showing events 31 minutes later, defendant enters the elevator 

lobby from a different entrance. She has changed her shoes and 

is now wearing flats. She appears to be texting on her phone, 

walks off camera for about 15 seconds, returns, and goes back to 

the elevator and up to the third floor again. Before she gets off 

the elevator, she reaches into her purse and appears to take out a 

lone key fob, unattached to a key ring. Alvarez testified that he 

had watched the intervening elevator footage, and saw nothing 

else depicting defendant, Kahan, or the pink lanyard.

At that point, Alvarez suspected defendant. He requested a 

key lock audit of her apartment. He discovered the entries into 

defendant’s apartment after the suspicious entries into Kahan’s. 

He shared his findings with the Irvine Company, and ultimately 

turned over the video clips, the lock audits, and his notes to the 

investigating officer, Detective Rebecca McIntire. 

4 The timestamps in these videos are approximately seven 

minutes off from each other. That is to say, defendant can be 

seen entering the elevator and pressing a button in videos taken 

from both cameras. From the elevator lobby camera, she hits the 

button at approximately 9:42:46, but from the elevator interior 

camera, she hits it at 9:49:53. It is unknown whether either of 

them are accurate to real time.
9

8. The Search 

Detective McIntire did not simply accept the results of 

Alvarez’s investigation; she conducted her own. Nonetheless, she 

suspected defendant. The videos proved that defendant had lied 

to police when she told them she had held Kahan’s keys but “was 

stationed in the place.” After reviewing all of the evidence, 

Detective McIntire came to the belief that defendant had entered 

Kahan’s apartment. 

As the investigation was progressing, Kahan determined

more and more of her belongings had been stolen. In addition to 

the two purses she initially discovered missing, there were also 

multiple pairs of designer shoes, additional bags, and about a 

dozen pieces of jewelry. 

The friendship between defendant and Kahan soured. 

Detective McIntire had not wanted Kahan to arouse defendant’s 

suspicions for fear defendant would try to get rid of the stolen 

property, but defendant had become aware that her conduct was 

being investigated.

On May 8, 2018, a search warrant was executed at 

defendant’s apartment and in her car. Alvarez accompanied the 

police search team, as an observer. Police found two of Kahan’s 

purses in defendant’s apartment. They also found five pairs of 

Kahan’s Louboutin shoes in defendant’s trunk.5

5 The police took digital photographs of all of the evidence 

they recovered during the search. Detective McIntire testified 

that the memory card with the photos was lost. However, 

Alvarez had also taken photographs of the shoes in defendant’s 

trunk. 
10

9. Defendant’s Interview

Defendant was taken to the station, Mirandized, and 

interviewed by police. Almost immediately, defendant 

volunteered that there is a lot of “history” between her and 

Kahan, and that she (defendant) “paid for a lot of things when it 

came to” Kahan. While she never expressly stated that she had 

engaged in self-help to compensate herself, she claimed that 

Kahan “use[s]” people, and rattled off a litany of expenses she 

had paid for Kahan, as though this was somehow exculpatory. 

Defendant denied using Kahan’s key fob to enter her 

apartment. She said the seized bags were her own, but the 

interview ended up focusing on the shoes.

6 When specifically 

asked about the shoes found in her car, defendant first said the 

shoes were hers. Later, she suggested she was being set up by 

Kahan. When told one of the pairs was turquoise in color, she 

said she did not own shoes in that color. Eventually, she said, 

“Then more than likely if they are in my car they not belong to 

me. I don’t keep shoes in my car like that.” Finally, she pleaded, 

“If they’re hers, give them back to her.”

Police did, in fact, return the shoes, and the two bags, to 

Kahan. During defendant’s interview, police repeatedly advised 

her that if she had receipts for the shoes, she could help her case 

by supplying them to the police. She never did.

6 At one point, one of the detectives questioning defendant, 

Detective Salazar, said that maybe the bags were defendant’s and 

maybe they were Kahan’s, but the shoes undeniably belonged to 

Kahan.
11

10. The Charges

On March 25, 2019, defendant was charged by information 

with two counts of burglary – related to February 24 and 

February 28. She entered a plea of not guilty. 

11. Defendant’s Motions to Compel Discovery

Alvarez had given Detective McIntire only the relevant 

video clips he found, not the entirety of the party surveillance 

video from the four cameras in the Malibu room.

At the March 11, 2019 preliminary hearing, in crossexamination by defense counsel, Alvarez said, “All footage was 

turned over. It was transferred to a flash drive.” Counsel, at this 

point, believing there had been two cameras in the room (rather 

than four), asked if Alvarez had turned over footage from both 

cameras for the entirety of the party. Alvarez responded, “I don’t 

believe so.” The following colloquy occurred: 

“Q: Okay. So if there is still footage out there you 

still have it though, correct?

“A: Negative.

“Q: What happened to that footage?

“THE COURT: Counsel?

“Defense Counsel: Okay. Thank you.”

On August 19, 2019, defendant moved to compel discovery

from the prosecution, seeking the entirety of the footage. 

Defendant relied on Alvarez’s preliminary hearing testimony that 

he had turned over all of the footage, overlooking Alvarez’s

subsequent statement that he did not believe he had. Defendant 

asked that the court “order the prosecution to turn over the full, 

unedited version of the surveillance footage, in the same 

condition that it was initially turned over.”
12

At the hearing on the motion, the court asked Detective 

McIntire if she had the full surveillance and added, “if you do, the 

court is ordering you to turn it over to the defense.” The detective 

replied she had turned over every video she had, but agreed to 

check again. The court added that defense counsel had his own 

investigator who had access to Alvarez and could ask him what 

he did or did not provide to the detective.

Defendant then filed a motion in limine, asking to hold a 

foundational hearing on whether the Malibu room footage was 

provided to Detective McIntire in clips or “in one giant chunk.”

This was followed by a second motion to compel discovery, which

sought, “[f]ull, un-edited, unclipped, video surveillance footage 

from 02/24/2018 and 02/27/2018, or, in the alternative, the 

original flash drive provided to Law Enforcement by Joseph 

Alvarez containing the surveillance footage as it was provided on 

the date it came into possession of law enforcement.” (Emphasis

omitted.) Finally, at an April 23, 2021 hearing, defense counsel 

represented that he had spoken with the prosecutor, who had 

spoken to the detective, and counsel was satisfied that “there’s 

nothing more that . . . the prosecuting team can do to get the 

discovery that is – either no longer exists or is outstanding 

because it’s – they don’t have access to it or it just no longer 

exists.”

7

7 In her opening brief on appeal, defendant states that the 

prosecution was ordered to turn over the requested discovery but 

“never fully complied.” To the contrary, the record indicates 

defense counsel conceded the prosecution satisfied its obligation. 
13

12. The Trial

The matter proceeded to jury trial. The prosecution 

introduced defendant’s statement to police about having Kahan’s 

keys but being stationed in place; the video clips that undermined 

that statement; the key logs showing unauthorized entries into 

Kahan’s unit; the results of the search; and Kahan’s detailed 

testimony, supported by photographs and receipts, demonstrating 

ownership of the seized shoes and bags. 

Defendant called no witnesses and offered no evidence of 

her ownership of the seized items.

13. The Verdict, Sentence, and Appeal

The jury found defendant guilty of the February 24 count of 

first degree burglary, and not guilty of the February 27 count. 

The trial court suspended imposition of sentence and ordered 

defendant to complete two years of formal probation with 25 

actual days in jail and 60 days of community labor. She was to 

pay restitution in an amount to be determined. She filed a timely 

notice of appeal. 

DISCUSSION

On appeal, defendant argues: (1) she was denied due 

process by the failure of the prosecution to turn over the complete 

videos in the possession of the Irvine Company; (2) she was 

denied due process by the prosecution having allowed the Irvine 

Company to destroy the exculpatory evidence of the remaining 

videos; (3) the evidence was insufficient to support the verdict; 

and (4) the prosecutor committed misconduct in argument to the 

jury.
14

1. The Prosecution Had No Duty to Turn Over Video It 

Never Possessed

Defendant first contends that the missing video evidence 

was exculpatory and that, therefore, the prosecution’s failure to 

turn it over violated its obligations under Brady v. Maryland

(1963) 373 U.S. 83, 87 (Brady). Brady provides, “the suppression 

by the prosecution of evidence favorable to an accused upon 

request violates due process where the evidence is material either 

to guilt or to punishment, irrespective of the good faith or bad 

faith of the prosecution.” (Id. at p. 87.) 

When a Brady claim is based on the failure to disclose 

evidence the defendant knew about at trial, the defendant’s 

“failure to make proper objections, request appropriate sanctions, 

or seek any continuance on the matter is fatal to his contentions 

on appeal.” (People v. Morrison (2004) 34 Cal.4th 698, 714.) 

Here, once defense counsel was satisfied Alvarez had never given 

the full video to Detective McIntire, he conceded that the 

prosecution had satisfied its disclosure obligations.8 The 

contention is therefore waived.

In any event, it is meritless. The prosecution has a duty to 

search for and disclose exculpatory evidence if it is possessed by a 

person or agency that was used by the prosecutor or investigating 

agency to assist the prosecution or investigating agency in its 

work. (IAR Systems Software, Inc. v. Superior Court (2017) 

8 In her appellate brief, defendant references a motion for 

sanctions for the failure to turn over evidence. But that motion 

related to the stolen shoes and purses the police had returned to 

Kahan, and the loss of the police photographs of those items, not 

the complete videos Alvarez reviewed. Defendant makes no 

argument on appeal regarding the court’s ruling on her motion 

for sanctions.
15

12 Cal.App.5th 503, 514 (IAR Systems).) On appeal, defendant 

argues that “when the [LAPD] enlisted The Irvine Co.’s 

employees, they became an extension of the investigation and of 

the LAPD.” Case authority provides for a totality of the 

circumstances inquiry to determine whether “the prosecution has 

exercised such a degree of control over the nongovernmental 

actor or witness that the actor or witness’s actions should be 

deemed to be those of the prosecution for purposes of Brady

compliance.” (IAR Systems, at pp. 517-518.) Defendant does not 

attempt this analysis on appeal, nor did she pursue the argument 

before the trial court. To the contrary, when discussing other 

evidence in Alvarez’s possession (the photographs he had taken of 

the search), defense counsel conceded that it was “outside the 

prosecuting team’s realm of possession.” This was clearly correct; 

Alvarez conducted his own investigation and shared the results 

with Detective McIntire; he was not part of the police’s inquiry.

2. The Prosecution Had No Duty to Preserve Evidence It 

Never Possessed

Defendant next argues that the prosecution violated her 

due process rights by failing to immediately seize all of the video 

in the Irvine Company’s possession, as the Irvine Company was 

itself a suspect in the theft.

The duty to retain, rather than to disclose, potentially 

exculpatory evidence is governed not by Brady, but by California 

v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Ariz. v. 

Youngblood (1988) 488 U.S. 51 (Youngblood).

Trombetta held that the duty to preserve evidence in police 

possession applies only if the evidence possesses an exculpatory 

value that was apparent before it was destroyed, and if it is of 

such a nature that the defendant would be unable to obtain 
16

comparable evidence by other reasonably available means. 

(Trombetta, supra, 467 U.S. at pp. 488-489.) Youngblood held 

that if the evidence the police failed to preserve was merely 

potentially exculpatory, there is no denial of due process unless 

the defendant can establish bad faith on the part of the police. 

(Youngblood, supra, 488 U.S. at p. 58.)

Defendant attempts to fit this case under Trombetta, by 

arguing the missing Malibu room surveillance tapes were 

apparently exculpatory, as they would establish precisely how 

incorrect the time stamps were on the inculpatory clips. There is 

no factual support for this argument. As to the single camera in 

the Malibu room from which all of the relevant clips were taken, 

the prosecution established at trial that the camera was less than 

one minute off.9 More importantly, the actual time of events in 

the Malibu room was largely irrelevant; what matters was the 

correspondence of those events to defendant being back in the 

Sausalito building with Kahan’s key fobs, and the key lock 

audits. Additional Malibu room video would have made no

difference on this point. Indeed, prosecution witnesses admitted 

at trial than none of the time stamps on any of the videos or lock 

audits were accurate. Further evidence of inaccuracy did not 

have apparent exculpatory value.

Trombetta therefore does not apply. At best, this is a case 

of potentially exculpatory evidence, bringing this case under 

9 At one point in the party, someone used Kahan’s phone to 

take a posed picture of Kahan and defendant. Comparing the 

time stamp on the photo on Kahan’s phone with the time stamp 

on the Malibu surveillance video of when the photo was taken 

revealed a discrepancy of about 15 seconds. 
17

Youngblood, and requiring defendant to establish bad faith. She 

did not attempt to do so before the trial court, and provides no 

legal basis for the suggestion that she can raise this inherently 

factual inquiry for the first time on appeal.10 In any event, 

defendant’s bad faith argument is based on the premise that the 

police left the video “in the exclusive hands of a suspect.” This, in 

turn, is based on Kahan’s initial belief that perhaps a 

maintenance person had entered her apartment. But the key 

lock audits, performed the same day Kahan first contacted police, 

established that the unauthorized entry was from her own, 

missing, “Resident 1” key fob, not the fob of an Irvine Company 

employee.

11 On these facts, defendant cannot establish bad faith.

3. The Evidence of Guilt is Sufficient

“ ‘In reviewing a claim for sufficiency of the evidence, we 

must determine whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime . . . beyond a 

reasonable doubt. We review the entire record in the light most 

favorable to the judgment below to determine whether it discloses 

sufficient evidence—that is, evidence that is reasonable, credible, 

and of solid value—supporting the decision, and not whether the 

evidence proves guilt beyond a reasonable doubt. [Citation.] We 

neither reweigh the evidence nor reevaluate the credibility of 

witnesses. [Citation.] We presume in support of the judgment 

10 We review a trial court’s decision on a Youngblood motion 

for substantial evidence. (People v. Alvarez (2014) 

229 Cal.App.4th 761, 744.)

11 Moreover, Alvarez, who had possession of the videos, was 

not an Irvine Company employee. He worked for Allied 

Universal, a hired vendor for the complex. 
18

the existence of every fact the jury reasonably could deduce from 

the evidence. [Citation.] If the circumstances reasonably justify 

the findings made by the trier of fact, reversal of the judgment is 

not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding.’ ” (People v. 

Mohamed (2011) 201 Cal.App.4th 515, 521.)

Defendant argues the prosecution’s “case was based on the 

speculation that the defendant was not seen on the [Malibu room] 

video at the time the apartment door was opened,” and relies on 

the conceded inaccuracy of the time stamps on the surveillance 

cameras and lock audits. This is an understatement of the 

evidence against defendant. It was not simply that she was 

absent from the party at the time of the entries into Kahan’s 

apartment. The evidence established that defendant left the 

party with Kahan’s keys. With Kahan’s lanyard indisputably in 

her hand, she returned to Sausalito Villa and went up to the 

third floor.12 Unauthorized entries were made with a key fob 

that defendant had in her pocket. Five pairs of Kahan’s shoes 

were subsequently discovered in defendant’s car. This evidence 

justifies the verdict.

4. Defendant’s Assertion of Prosecutorial Misconduct 

Fails

Finally, defendant claims the prosecutor committed 

misconduct during argument, by characterizing defendant as a 

“liar” and “backstabber” who “trampled” Kahan’s friendship. The 

12 In passing on appeal, defendant argues that there is no 

evidence that she drove, rather than walked, from Malibu Villa to 

Sausalito Villa, greatly limiting her time to commit the burglary. 

We disagree. The video shows defendant entered the elevator 

lobby on the garage level from the garage. 
19

prosecutor did, in fact, make those, and similar, statements 

during argument. Indeed, that defendant betrayed Kahan’s trust 

had been the theme of the prosecutor’s opening statement from 

the beginning of the case. Defendant challenges these 

statements as improper epithets and attacks on her character. 

There are at least two reasons why this argument fails. 

First, defendant failed to object and request the jury be 

admonished. “It is well settled that making a timely and specific 

objection at trial, and requesting the jury be admonished (if jury 

is not waived), is a necessary prerequisite to preserve a claim of 

prosecutorial misconduct for appeal.” (People v. Seumanu (2015) 

61 Cal.4th 1293, 1328 (Seumanu).)

Second, a criminal prosecutor has “much latitude” in 

closing argument, and may make a “strongly worded and 

vigorous” argument as long as it “fairly comments on the 

evidence” or “asks the jury to draw reasonable inferences” from 

that evidence. (Seumanu, supra, 61 Cal.4th at p. 1331.) “The 

prosecution may properly refer to a defendant as a ‘liar’ if it is a 

‘reasonable inference based on the evidence.’ ” (People v. Wilson

(2005) 36 Cal.4th 309, 338.) Here, the characterizations were 

supported by the evidence. Kahan and Detective McIntire both 

testified to their opinions that defendant had been untruthful.

13

13 Anticipating that the prosecution would argue defendant 

waived prosecutorial misconduct by failing to object, defendant 

suggests that his trial counsel rendered ineffective assistance by 

not objecting. Although we conclude there was no misconduct, we 

reject the ineffective assistance argument for a second reason: 

the existence of a deliberate tactical reason for the failure to 

object. (Seumanu, supra, 61 Cal.4th at p. 1331.) The trial court 

observed that when Detective McIntire testified that she believed 
20

Detective McIntire also testified that, during her interview with 

defendant, defendant was “deflecting blame to the victim.” In 

addition, “trampl[ing]” a friendship is certainly a reasonable 

characterization of the facts here, where defendant relied on 

Kahan’s trust and friendship to take her keys, only to 

surreptitiously enter her apartment and steal her belongings.

DISPOSITION

The judgment is affirmed.

MOOR, J.

WE CONCUR:

RUBIN, P. J. KIM, J.

defendant was untruthful in the interview, “there was no 

objection by the defense. I was waiting for one.” Defense counsel 

replied, “Your Honor, just quickly, for the record, just generally, 

the objection wasn’t levied because – purposefully. And I’ll just 

leave it at that just for later on down the road, if it gets to the 

Court of Appeals.” The trial court stated, “So you had your 

motivation for not objecting.” Counsel confirmed, “Yes.” In 

defense counsel’s closing argument, he suggested that everyone 

was calling defendant a liar by focusing on every little 

inconsistency in her statements, but ignoring the inconsistencies 

in Kahan’s statements. Counsel appears to have made the 

tactical decision to allow defendant to be characterized as a liar, 

so that he could point out the unfairness of the characterization 

when compared to Kahan’s inconsistencies. This tactical reason 

for the failure to object to Detective McIntire’s testimony applies 

equally to the failure to object to the prosecutor’s argument.