Filed 10/14/14 P. v. Warren CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBIE WARREN,

Defendant and Appellant. G050393

(Supe r. Ct. No. FWV1300054)

O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino County, Jon D. Ferguson, Judge. Affirmed. James M. Crawford, under appoin tment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assi stant Attorney Genera l, Barry Carlton and Warren Williams, Deputy Attorneys Genera l, for Plaintiff and Respondent.

* * *2 A jury found defendant Bobbie Warren gu ilty of one count of petty theft, after which in a bifurcated proceeding defe ndant admitted he had three prior qualifying theft-related convictions. (Pen . Code, § 666, subd. (a) [substa ntive offense is petty theft with three prior convictions].) 1 Defendant also admitted ei ght prior convictions that resulted in prison terms (§ 667.5) and that he was on bail for another crime when he committed the instant offense (§ 12022.1). The trial court sentenced defendant to nine years in prison, comprised of the upper term of three years on the substantive offense, two years for committing a crime while on bail, and four sepa rate one-year enhancements for four of the prior prison term s. We reject defendant’s cont entions of instructional error and prosecutorial misconduct, and therefore affirm the judgment.

FACTS

On the morning of January 13, 2013, a U-Haul general manager found individuals sleeping in a portable storage un it. The manager told them to leave the premises. Another employee fo und a cell phone in the storage unit. Defendant later returned to the facility claiming he lost his cell phone in the storage unit. Someone provided the cell phone to defendant. Meanwhile, a customer was moving furn iture into a storage unit with the assistance of two movers. The customer purch ased a lock for $9.95, which was placed on the bumper of a U-Haul truck by one of her movers. The lock went missing. One of the two movers followed defendant, who was walk ing away from the U-Haul location. The mover approached defendant and asked him to return the lock. Defendant responded that he did not have a lock. Defendant challenged the mover to a fight, but the mover refused. Defendant continued to walk away before pa ssing an item to his female companion, who

1 All statutory references are to the Penal Code.3 subsequently passed the same item to the occupa nts of a red truck. When a police officer found defendant, he was moving away from U-Ha ul at a “[p]retty good walking pace.”

Police did not recover the lock. Video footage played for the jury (but not provided to this court in the appellate record) apparently showed defendan t approach the truck, then reach down and grab something from the sp ecific location where the lock had been placed.

DISCUSSION

Court Did Not Err By Providing Flight Instruction to Jury

The court instructed the jury with CALCRIM No. 372 as follows: “If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defenda nt fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. Ho wever, evidence that the defendant fled or tried to flee cannot prove gu ilt by itself.” (See § 1127c [re quiring such an instruction “[i]n any criminal trial . . . where evidence of flight of a defendant is relied upon as tending to show guilt”].) A flight instruction “‘is proper where the evidence shows that the defendant departed the crime scene under circumst ances suggesting that his movement was motivated by a consciousness of guilt.’” ( People v. Roybal (1998) 19 Cal.4th 481, 517.) As he did at trial, defendant claims this instruction should not have been provided

because the evidence show ed only that defendan t walked away from the U-Haul location. Defendant posits the jury c ould not have reasonably infe rred consciousness of guilt from him simply walking away from the crime scene.4 It is certainly true defendant’s co nduct was ambiguous. Defendant had

earlier been told to leave and once he retrieved his cell phone he had no reason to remain at the location. Maybe it wa s simply a coincidence defenda nt was walking away at the same time the lock disappeared. But the timing of defendant’s departur e, in conjunction with defendant’s

interaction with the mover who asked him to return the lock and the transfer of possession of property between de fendant and his companion, supports an inference that defendant was leaving the area to avoid detection. A flight instruction does not inform the jury that the defendant was fleeing the scene. It instruct s the jury to decide whether defendant fled or tried to flee. The prosecut ion is not required to “prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infe r a consciousness of guilt from the evidence.” ( People v. Bonilla (2007) 41 Cal.4th 313, 328.) “Flight requires neither the ph ysical act of running nor the reaching of a far-a way haven.” ( People v. Cannady (1972) 8 Cal.3d 379, 391 [approving use of flight instruction in circumstances also consistent with defendants intending to report incident to prison guards].) The cour t correctly provided a flight instruction, and doing so did not violate defendant’s right to due process and a fair trial. ( People v. Mendoza (2000) 24 Cal.4th 130, 179-180.)

Prosecutor Did Not Engage in Misco nduct in Rebuttal Closing Argument In her closing argument, defense counsel zealously advocated for an acquittal. Defense counsel suggested defend ant wrongly came under suspicion for the theft because of unfair assumptions made about him by witnesses and the police. According to defense counsel, the video evid ence did not show precisely what defendant grasped. Certainly, the lock was not found on defendant when he was arrested. Defense counsel pointed to credibility issues with various witnesse s and alleged failures in the5 police investigation of the incident. In sum, defense counsel claime d the prosecution had not met their burden to prove th e case beyond a reasonable doubt. The prosecutor began his rebuttal w ith the following statement, “You know, ladies and gentlemen, [defense counsel] is a very talented attorney. She’s great in trial, and I mean that. It’s a sincere compliment. And the bottom line w ith this case is that we have a defendant caught on video, st ealing a lock. I’m going to let you in on a little secret, okay. Defense a ttorneys don’t get up in closing arguments and [say the] prosecutor is right, the evidence is overwhelmi ng, you have to convict my client. He’s guilty. Guilty as hell. They don’t do that. [¶] It’s not th e job of the defense. The job of the defense is to make do [with] what they have.” After an objection (and an off-the-reco rd discussion), the court admonished the jury that the burden of proof was on th e prosecutor and that the defense was not required to do anything. After talking about specific pieces of evidence (and specific conjectures about the evidence made by defense counsel in her argument), the pr osecutor returned to the same general theme, “And so ladies a nd gentlemen, what I’m reminded of when I hear [defense counsel’s] closing argument is an old lawyer joke. . . . [¶] You know, if the facts aren’t on your side, well, then you argue the law. If the law isn’t on your side, well, then you argue the facts. And if neither the facts nor the law are on your side, what do you do then? Well, you just argue.” Defense counsel again objected, but the court overruled the objection. The prosecutor continued, “Ladies and gentlemen, that’s exactly what the defense has done in this case because [neither ] the facts nor the law are on their side.” After discussing specific arguments made by defense counsel about the evidence and witnesses, the prosecutor added, “And, of co urse, the defense argues that there is not enough evidence. Ladies and gentlemen, I s ubmit to you that I could have DNA, I could have . . . 360 degree 3-D imaging of this incide nt, I could have six nuns come in here and6 testify that they saw the defe ndant steal that lock. And y ou know what, . . . the defense attorney would get up here and say, oh, well, there’s not enough evidence.” Defense counsel again objected and the court overruled the objection. The prosecutor added in the same ve in, “[I]t wouldn’t matter how much

evidence we had. The defens e attorney would still . . . ge t up here and say, you know what, there is not enough evidence.” After the close of argument, defense counsel renewed her objection to the statements made by the prosec utor. The prosecutor stated he was not making negative comments about defense counsel, but only about her arguments. The court agreed with the prosecutor. On appeal, defendant reiterates his cl aim that the prosecutor’s comments served only to attack the in tegrity of defense counsel and the adversary process. (See People v. Espinoza (1992) 3 Cal.4th 806, 820 [“In cluded within th e deceptive or reprehensible methods we have held to cons titute prosecutorial misconduct are personal attacks on the integrity of opposing counsel”].) “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecuto r’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects

the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that doe s not render a criminal trial fundamentally unfair is prosecutorial misconduct under stat e law only if it involves “‘“the use of deceptive or reprehensible methods to attemp t to persuade either the court or the jury.”’”’” ( People v. Smithey (1999) 20 Cal.4th 936, 960.) When a claim of prosecutorial misconduct focuses on comments ma de by the prosecutor to the jury, “‘the question is whether there is a reasonable likelihood that the ju ry construed or applied any of the complained-of re marks in an objectio nable fashion.’” ( People v. Ochoa (1998) 19 Cal.4th 353, 427.) “A pros ecutor engages in misconduct by misstating facts or referring7 to facts not in evidence, but he or she enjoys wide latitude in commenting on the evidence, including urging th e jury to make reasonable inferences and deductions therefrom.” ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95.)

Defendant’s briefs fail to address the holdings of case law rejecting similar claims to those made here. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1002 [no reasonable likelihood jury improp erly influenced by prosecutor claiming defense counsel’s job was to “‘create straw men’” and “‘to put up smoke, red herrings,’”

and that defense counsel had don e a “‘heck of a good job’”]; People v. Breaux (1991) 1 Cal.4th 281, 305 [not misconduct to liken defense argument to “law school trial tactics,” i.e., “‘if you don’t have the law on your side, argue the facts. If you don’t have the facts on your side, argue the law. If you don’t have e ither one of those things on your side, try to create some sort of a confusion with rega rd to the case’”].) The argument made by the prosecutor was “improper only if it could be understood as suggesting that counsel was obligated or permitted to presen t a defense dishonestly.” ( Breaux , at p. 306.) Like our Supreme Court in the cases cited above, “[ w]e are persuaded that, in context, the prosecutor could only have been understood as cautioning the jury to rely on the evidence

introduced at trial and not as impugning the integrity of defense counsel.” ( Ibid .)8 DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.