Filed 9/9/20 P. v. Moore CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 b y 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent

,

v.

ROSCOE CLAR K MOORE,

Defendant and Appellant. B299694

(Los Angeles County Super. Ct. No. BA474130)

APPEAL from a judgment of the Superior Court of
Los Angeles County, Craig E. Veals, Judge. Affirmed. Christopher Muller, un der appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Atto rney General, and R ama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

____________________2 Roscoe Clark Moore challenges his conviction for attempted burglary, saying the prosecutor improperly asked jurors to sympathize with the elderl y victim. We hold that Moore forfeited this point and

, even if he did not, that any error was harmless.
In addition , Moore and the prosecution correctly agree we should strike the jury’s “person present” finding pursuant to Penal Code section 667.5, subd ivision (c)(21). W e strike this finding and otherwise affirm. Statutory references are to the Penal Code.
I
Amanda Dixon lived on the ground floor of a small apartment complex. Her niece, Nedrea Morgan , lived on the
second floor. Dixon’s sister

— Morgan’ s mother

— also lived on the second floor, in her own apartment. Morgan had dated Moore off and on for several years. Moore got to know both Dixon and the small apartment complex where she, Morgan , and Morgan’s mother lived. While dating Morgan , Moore so metimes spent the n ight in Morgan’s second floor apartment and sometimes also got mail there.
The ir dating relationship ended in 2012 or 2013. Afterwards, Moore stayed in touch with Morgan to a degree. On January 6, 2019

, around 7:00 a.m, Dixon was in her ground floor ap artment getting ready for church. She heard someone moving garbage cans outside her apartment and went to her back entrance, which opens onto an alley. This back entrance had an inner wooden door and an outer metal security door.
Dixo n opened the inner door and saw Moore outside, lying on the back steps working a crowbar on the outer door. Dixon was not wearing her glasses and did not recognize Moore. He may have
had motor oil on his face and hands.
Dixon was scared and asked Moore what he was doing.3 Moore replied: “I know your niece. I’m a friend of your
niece.” He said he knew Dixon , thought she was dead, and thought her family was in New Jersey for her funeral. He told
Dixon he had caused the noise with the trash cans whil e looking for an op en window. Morgan and her mother heard a commotion and went downstairs and out the back door of the building. As they approached the back door, Moore dropped the crowbar and ran. Morgan and her mother did not see anyone in the
bac kyard. A parked ca r was there, as it had been the night before, but now its door was open, its hood was up, and the front
driver

- side window was broken.
Dixon’s metal security door was damaged at the top, hinges, and lock. Part of its door frame was mi ssing.
Police cam e swiftly, arriving at about 7:20 a.m. They found Moore behind a closed gate in the backyard. Moore was carrying gloves. A police body camera recorded Moore’s interaction with the officers. We italicize parts of the conversation:
O fficer 1: How you doing? Moore: Not bad and you? Officer 1: I’m good, do you live here?
Moore: I used to. Officer 1: When did you live here? Moore: Uh . . . it’s been like 3 years, 4 years.
Officer 1: So what was going on earlier over here?
Moore: I don’t know, you h ave to ask them.
Officer 1: So why were you trying to go inside the house?
Moore: Because I thought she wanted me to pick something

up.4 Officer 1: You thought she wanted you to pick something up?
Moore: Yeah.

. . . . Officer 1: Okay , is there a way yo u can hop the gate and
come back over here so we can talk? Moore: Yeah, I’m gonna come right now, I’m not gonna hop the gate, but Imma walk around. Or you can tell her to come out here and give you the key? Officer 1: Oh she has a key ?
Moore: Yeah. Im ma wait right here, I’m not going nowhere. You want to cuff me to the thing? Officer 1: Nah, nah, nah, what’s your name?
Moore: Roscoe Moore.

. . . . Officer 1: Were you sleeping in that car back there too?
No? What did you use to try to get inside t he house?
Moore: Uh . . . a

— a crowbar. I lost the keys. Officer 1: Oh, so you used to live there?
Moore: Yeah.

. . . . Moore: She left me a note , I thought she left out of town and left something for me.
Officer 1: What’s her name?
Moore: Nedrea Mor gan. Officer 1: Is that it?
Officer 2: The . . . who’s Nedrea Morgan? Moore: The lady that lives upstairs. The officers found pry marks on Dixon’s back door and a
crowbar at the scene.5 An information charged Moore with attempted f irst degree
residen tial burglary in violation of sections 664 and 459 (count 1 ) and burglary in violation of section 459 (count 2 ). At trial, Morgan testified she had not seen Moore for about a year before the incident. After they stopped dating in 2012 or 2013, Moore wou ld call her “ [ e ] very once in a blue moon.” She last spoke to him about a month earlier, when they talked for a minute over the phone. She did not write a note to Moore to come pick up anything, nor did she ask him to come over. She di d not give Moore pe rmission to enter the building. She did not hear anyone knock on the door that morning.
There was no evidence a note ever existed.
Dixon had nothing of Moore’s in her apartment. The court instructed the jury it must not be influen ced “by pity for or prejudice against the defendant” or “by mere sentiment, conjecture, sympathy, passion, [or] prejudice . . . .” It instructed, “ S tatements made by the attorneys during
the trial are not evidence.” The court also instructed that, to p rove the crime of
b urglary, the prosecution had to prove Moore “entered” a building with the intent to steal and take away “someone else’s property,” intending to deprive the owner permanently of that property. During closing argument, the prosecutor sai d this: “Power poin ts and legal jargon aside, on the morning of the crime, Ms. Dixon was in her safe place. She was in her home. She was waking up and getting ready to go to church, and the defendant crushed that sense of security. He took advantage of

an 86 year old woma n. He took advantage of his knowledge of that property and that premises. He knew his way around. What is easier than that? He knew that she was 86 years old,6

that she lived alone, and she was on that bottom floor. Who was
more vuln erable than that? Who was an easier target for the defendant’s burglary than that? “He grabbed his gloves, and he grabbed his crowbar, and he went into the backyard, not the front. He broke the window of the car before moving on to find a secluded point of entry. First
th e windows, then the door. He took advantage of an 86 year old woman, and I’m going to ask you to use your common sense. There’s only one reasonable interpretation of the facts that you heard yesterday. I’m going to ask you to hold the defendant responsi ble for his actions, to find him guilty of first degree
residential burglary with Ms. Amanda Dixon present. Thank you.” Moore’s counsel did not object to this statement. Rather he seized upon and sought to generalize the concept of f airness.
Moore’s c ounsel, named Mr. Schneider, argued to the jury. The
italics are ours. “Now you’re thinking, well, you know, Mr. Schneider, you know, look what happened to this lady. She’s 87 years old. She was so nice, so sweet. She had her door da maged. She was

sca red half to death. I mean how

-- how can

-- how can we let this go? How can we let this go? How can the law be such?

“ Well, look, what happened to her was not fair at all. I’ll be
the first to admit it’s not fair at all. And what Mr. Moore did that day, he’s definitely guilty of some crimes, trespass, vandalism of the door, attempted breaking and entering. All of those can be felonies. But he’s not charged with those crimes here. The District Attorney’s Office chose to charge hi m with one of the

m ost serious crimes they could, which is a specific intent crime.7 “ Trespass, vandalism, attempted breaking and entering, those aren’t specific intent crimes. You just have to be on someone’s property. You just have to do the bad act. You just
have to b reak something. Right? They chose to charge him with one of the most serious crimes that they could. In my opinion I believe it’s overcharged. They can’t prove the specific intent here. And just like it’s not fair what happened to M s. Dixon , it’s not fair
at all

-- it’s also not fair to convict Mr. Moore of something that he didn’t do, of a crime that the People can’t prove beyond a
reasonable doubt. ” Moore’s counsel thus argued the jury should not convict Moore of burglary because Moore had an actua l belief he was entering to retrieve his own property, which negated the prosecution’s theory that, beyond a reasonable doubt, Moore was entering with the intent to steal someone else’s property. The second defense theory was Moore had not “entered”
Dixo n’s building. Counsel argued Moore never got to the inner wooden door, and that attempting to pry open the outer metal security door was not “entering.” “You have to penetrate inside the building,” counsel argued, and he said Moore nev er did. The jury accepted this second line of defense, rejected the charge of burglary, and convicted Moore only of attempted burglary. The jury also found a person who was not an accomplice was present on the premises during the commission of
the crime . (§ 667.5, subd. (c)(21).) The court sentenced Moore to the upper term of three years

on count 1 , awarded 326 days of presentence custody credit, and ordered him to pay fines and fees. It did not enhance Moore’s sentence based on the jury’s “person pr esent” finding.8 Moore appeals, contending the prosecutor committed reversible misconduct by improperly appealing to sympathy for the victim in the closing argument, as we have excerpted.
II Moore forfeited his complaint by failing to object at trial. Making a timely an d specific objection at trial, and a request the jury be admonished, are necessary prerequisites to preserve a claim of prosecutorial misconduct for appeal. ( People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ( Seumanu ).) Powerful logic prop els this requiremen t of a timely and specific objection. An objection alerts the trial court to someone’s perception of a problem and allows for instant evaluation, in the full context of the atmosphere in the room at that moment. O bjection s and request s for admonition s lik ewise enable a court to administer a swift remedy: a curative instruction to the jury, targeted, on the spot, and without delay. A lot goes on during closing argument that never appears in a transcript. Counsel and court are keenly a ttuned to cues
from jurors. Are they bored? Riveted? Rolling their eyes? Nodding in agreement, or looking away and squirming in discomfort? Which arguments are resonating and which are belly flops ?
A n a stute attorney calculates second

- by

- second and

sentence

- by

- sentenc e about whether to object. A decision to avoid objecting often is a tactical judgment based on factors the transcript never records. Then the moment passes, and the visual cues are gone forever. An appellate court can never recapture the full tenor of t he moment.9 It thus can be unfair as well as inefficient to allow a party to make a strategic call, to refrain from objecting, to see how the jury decides, and then

— if one dislikes the result

— to complain only on appeal.
Moore’s lack of ob jection here had a tactical aspect. As soon as the prosecutor finished, Moore’s counsel took the prosecutor’s
theme of Dixon’s age and vulnerability and tried to turn it to defense advantage. Moore’s actions and words meant his attorney had to select fro m an inventory of u nattractive options.
We do not second

- guess this attorney’s decisionmaking at this
stressful moment in the arena. But counsel’s decision carried
with it the consequence of forfeiture. Nothing suggests that, if Moore had objected duri ng trial, his objec tions would have been futile, or that an admonition would have failed to cure some alleged harm. (See People v. Hill (1998) 17 Cal.4th 800, 820.)
III Under any standard of review, the overwhelming evidence of Moore’s guilt means any mis conduct by the pros ecutor was harmless. ( See Chapman v. California (1967) 386 U.S. 18 , 24 ; People v. Watson (1956) 46 Cal.2d 818 , 836

. ) We will assume, strictly for purposes of analysis, there was error. One might interpret the prosecution’s comments a s an explanation of Moore’s motive: Moore picked Dixon’s place because it was an easy target. But assuming the argument was error, it was harmless.
The harmless error test from the Seumanu decision shows
the California Supreme Court asking three question s. Did the
court i nstruct the jury it must not be influenced by sympathy? Was there an instruction that the argument of counsel was not10

evidence? And was the evidence of guilt strong? ( Seumanu

, supra , 61 Cal.4th at p. 1345.) The answers here are yes, yes, and

yes. We ne ed not linger on the first two points, which we have
addressed in Section I. As to the third point, the proof of guilt was strong. The case was simple, and the evidence was lopsided. There was no claim the police investigation was inac curate or incomplet e. Police had Moore on video. Moore did not challenge the video’s accuracy. There was no identity issue. Police found Moore at the scene, where Moore admitted he had been trying to get into the apartment with a crowbar. The only issu e was his intent. Moore said he was trying to get his own things out of Dixon’s place. But this was obviously just a clumsy and false improvisation. We review the proof Moore created against himself through
his words and actions.
Moore started the whol e thing wrong. He told police he used to live there three or four years ago, and the police asked him, “So what was going on earlier over here?” Moore answered,

“ I don’t know, you have to ask them .” But, if you asked them, all
Dixon and Morgan knew was Moore, unannounced, was trying to

come in through the back at 7:00 a.m. on a Sunday using gloves
and a crowbar to pry open the metal security door. Moore then claimed he was there because he thought “ she ” wanted him to pick “something” up, with her consent . Moore never expl ained what the “something” was, or why Dixon might
have it: Moore had dated Morgan , not her elderly a unt Dixon

. Nor did Moore knock or shout or phone ahead for friends to let11

him in. Rather he went to the windows, and when they were
l ocked he went to th e back door. This is not how you pick up something from a friend. Nor did Moore give his I

- am

- here

- to

- pick

- something

- up explanation when Dixon surprised him as he tried to break into her home with his crowbar. Nor did he give the expl anation to Morgan w hen she approached with her mother

. Instead, Moore

ran. Running speaks louder than words. Then Moore claimed a note gave him permission to enter
Dixon’s home. This backfired when there was no note.
A tale this tall convicts the tel ler. If there was error in the closing argument, it did not affect the result.
IV Moore and the prosecution correctly agree the jury’s “person present” finding pursuant to section 667.5, subdivision (c)(21) must be stricken. Section 667.5, subdivision (a) authorizes a se ntence enhancement where a prior felony conviction and the new offense are violent felonies specified in subdivision (c). ( People v. Bedolla (2018) 28 Cal.App.5th 535, 541 ( Bedolla ).) Section 667.5, subdivision (c)(21) lists first degr ee burglary with a person present in the residence as a “ violent felony. ” However, attempted first degree burglary is not on the list. On its verdict form, the jury found true the allegation that “a person who was not an accomplice to the crime was prese nt on the premises during the commission of the crime within the meaning of Penal Code § 667.5, subd. (c).” The court did not enhance Moore’s sentence based on this finding.12 Nonetheless, section 667.5, subdivision (c) does not apply to attempt crimes. ( Bedolla

, supra , 28 Cal.App.5th at p. 541.) We accordingly strike the jury’s finding a person was present

. DISPOSITION We strike the jury’s finding pursuant to section 667.5, subdivision (c)(21) and affirm the judgment.

WILEY, J.

We concur:

BIGELOW, P. J.

GRIMES, J.