P. v. Chapman

Filed 1/14/10 P. v. Chapman CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

For at least two millennia, it has been a standing reproach to mankind that the poor are always with us. The most distressing urban manifestation of the intractability of this problem is homelessness. Here, a defendant convicted of second degree robbery contends that the inherently prejudicial topic of his status as a homeless person so permeated his trial as to command reversal, because it was (1) misconduct for the prosecutor to mention the topic, and (2) incompetence for his trial counsel not to prevent the topic from becoming known to the jury. We reject these contentions, and affirm.

BACKGROUND

Because this appeal involves but a single issue of contention, the following narrative may be tailored accordingly.

The homelessness issue first arose when the trial court was discussing in limine motions with counsel. With respect to the prosecutions motions, the following occurred:

THE COURT: Okay. Lets take the Peoples in limines first. Im just looking through them. [] Okay. The first one thats raised by the People is the indigency status of the defendant wont be referred to in any of the remarks. []  Any objection to that?

MR. LIPSON [defense counsel]: Well, yes, to the extent that hesMr. Chapman is homeless, its going to come out in the trial. Its part of where he was at the time. Its part ofthe character witnesses are from homeless shelter.

MR. CLARK [the prosecutor]: If theres going to be some homeless issue

THE COURT: There wont be any argument aboutin the sense of appealing to the passions of the jury in that regard; but I think if he [defendant] was in a homeless shelter or he was homeless at the time and its relevant, its obviously admissible.

MR. LIPSON: Yes. It will come out.

Defense counsel referred to the subject of defendants homelessness in his opening statement:

Not being able to read and write makes it hard to find work and keep work sometimes, and hes had other problems. Youll hear hes had some problems with the law,^[[1]] but what youre going to hear about him is hes a nonviolent person and hes an honest person.

Hes been homeless for about five years living in, I dont know if youre familiar with Portsmouth Square Park in Chinatown, . . . and hes lived there for about five years. He sleeps on the bench there and he spends time there.

Hes connected with I think its the North Beach Citizens, which is a group that provides services for homeless people. He goes there and gets coffee, things like that. He does a little work through them. They have a program like cleaning up the neighborhood and they pay you a little money to do that, and so he does that a few hours to make money.

On August 2nd, 2007, last summer, . . . Mr. Chapman was living in Portsmouth Park. He slept there that night. . . . []  . . . He woke up early as usual. If you sleep there,

the police dont bother you when you sleep there at night, but early in the morning either

the police or the Department of Public Works, or someone, comes through and clears everyone out. If youre not out, you get a ticket.

Defense counsel acquainted the jury with what the evidence would show, namely, that on the morning of August 2, 2007, defendant followed his usual routine of washing in a public bathroom and walking towards Columbus Square Park. Walking up Wentworth Alley, defendant observed two young men, either Latino or mixed race, and . . . ones carrying a bag, and chasing them is an older Chinese man. []  And the Chinese man is someone he knows. Its a friend of Mr. Chapmans . . . . []  . . . The guy is yelling in Chinese and pointing, and Mr. Chapman assesses out right away whats going on; and without even really thinking about it, he starts chasing the two guys. After a two-block chase, defendant had a little faceoff with the two men and gets possession of the bag.

Mr. Chapman turns around and starts walking back . . . to give the bag back to his friend, the Chinese man . . . . []  Mr. Chapman goes to give him his bag, and its at that point hes tackled from behind by the police, put down on the ground; and . . . in just like sort of a surrealistic thing of horror for Mr. Chapman, hes looking up, hes like, Ask him. Ask him. I gave him his bag back. []  And . . . the Chinese man doesnt speak English, and at that point he realizes this isnt even his friend. This is someone else . . . . Mr. Chapman had him mixed up. So . . . Mr. Chapman is handcuffed, stuck in a police car and taken away.

The prosecutions case against defendant was not complicated. It was summarized by Nathan Wrights testimony as to what he saw walking to work at about 6:30 a.m. on August 2, 2007: I heard yelling across the street in an alley. I was on Pacific. It was in the alley between Pacific and Jackson. I heard a guy yelling. There were two people on top of an Asian American guy. They were pulling his bag away. They got his bag and they ran the opposite direction down the alley towards Jackson. [I]mmediately after a cop car . . . come up on Pacific. I stopped the car, started telling the officers what had happened. . . . []  And then as I was talking to them, the gentleman who took the bag and the . . . victim came up behind us . . . . I identified them to the police officers. They jumped out of the car, grabbed the guy, who still had the bag and the victim was still behind him pointing. All of these events occurred in less than a minute.

Mr. Wright further testified that the two assailants were One African American guy, 6 feet, thinner; and . . . an African American woman, maybe like 55. After the woman ran down the alley, Mr. Wright did not see her again. During their flight down the alley, Mr. Wright lost sight of the man and woman for a moment. Mr. Wright made a positive identification of defendant as the man he observed take the victims bag. Mr. Wright saw no other people in the alley or on the streets.

The victim, Jin Xiao, testified with the aid of an interpreter. He testified that he was carrying a bag, then suddenly there was someone from behind grabbing me and took my bag and ran away. Mr. Xiao gave chase but the police had already got him down. Mr. Xiao was unable to identify defendant in court as the man who grabbed his bag. However, according to Officer Hoyt Wong, Mr. Xiao made such an identification at the station to which he and defendant were taken immediately after the latters arrest.

During a break in his prosecutions case-in-chief, the prosecutor advised the court there might be some issues that surface if character witnesses are called, specifically asking them about their familiarity with the criminal background of the defendant; and I want to make sure that everybodys on notice that thats an issue that may flare up if character witnesses are called. The court replied that counsel should comply with the proper way to frame a question for a character witness. There followed some discussion about the instructions to be given.

The prosecutions final witness was Officer Benito Manning, one of the officers Mr. Wright had flagged down. Officer Manning corroborated the essentials of Mr. Wrights version: Mr. Wrights demeanor was composed when he first attracted the officers attention, reported the robbery of Mr. Xiao in the alley, and pointed out defendant as  the guy that robbed him.  The officers pursued defendant, apprehended him, and brought him back to Mr. Xaio, who identified him as the robber. Officer Manning further testified that Mr. Xaio also identified the bag found in defendants possession as the one taken from him. When first seen by the officers, defendant was walking, not running. Defendant was apprehended within a matter of seconds of the officers leaving their vehicle. [2]

Defendant testified to his exculpatory version of events. A San Francisco native, he grew up and has lived his whole life in the Chinatown/North Beach area. On August 2, he lived in Portsmouth Park, as he had for about a year. He had been homeless for about a year, doing odd jobs to support himself. One of those jobs was sweeping the streets for Kristie Fairchild, the director of a drop-in center for the North Beach area.

Defendant further testified that on the morning of August 2 he awoke in Portsmouth Square Park between 5:30 and 6:30, washed his face and brushed his teeth. He then began walking to another park. As he was about to cross the street and enter Beckett Alley, defendant observed a Chinese guy chasing two other people. Defendant described the pair as being males, both approximately 23-24 years of age, and one was maybe black and the other was maybe Spanish, Filipino, or something. Because the apparent victim looked like a friend of mine that worked right across the street from the park that I be in, . . . I started chasing them. Defendant caught up to the two . . . snatched the bag from one of them; and as I turn around, the Asian guy was right there. After giving the bag to the Asian guy, defendant took three steps when the next thing I know, Im being tackled from behind and Im slammed to the ground. Although defendant tried to protest that he was merely retrieving the victims bag, he did not get the opportunity to communicate this to the officers because they grabbed him with so much force that he was kind of dazed until I came to [in the] jail.

Part of the prosecutors cross-examination focused upon the state of defendants material possessions when he prepared to depart Portsmouth Square Park:

Q. So when you were sleeping in the park, what did you have with you?

A. In the park, lets see, well, all the stuff I had in the park I just put it in the bushes. I hide it in some bushes, toothpaste and deodorant and soap, stuff like that, that I need for my hygiene and stuff.

Q. So you left all that stuff in the park before leaving?

A. Yes.

Q. Any other items beside toothpaste and deodorant?

A. Like what?

Q. Other clothing.

A. Yeah. I got some other clothing, yes.

Q. What else?

A. Thats about it.

Q. Sleeping bag?

A. Sleeping bag, yeah.

Q. Mattress?

A. Sleeping bag.

Q. How about a shopping cart or anything like that?

A. No shopping cart.

Q. So all that stuff was in the area in the park where you were sleeping?

A. Well, its not in the park. Its like theres a dumpster, like a little garbage can thats in another little small little one-way alley, and the people in the alley let me lock my stuff up in there. So I lock stuff, I lock my sleeping back up in there.

Q. How do you go about doing that, with a combination lock or a lock and key?

A. Ive got a lock with a key.

Q. So did you take your stuff out of the park and put it in this lockbox?

A. Yes.

Q. And then you were going to work?

A. Right.

When defendant finished his testimony, his counsel called the two character witnesses discussed before trial. Theresa Andrews testified that she is an employee of the North Beach Citizens Center, which she described as a drop-in homeless resource center, which helps the homeless qualify for various forms of governmental assistance. She has known defendant about 20 years. Defendant worked as part of the Centers street cleaning crew, which she clarified as meaning street beautification. These volunteers are not paid, but they are given an incentive gift card with which they may purchase goods at a supermarket. Defendant was thus occupied in August of 2007.

Ms. Andrews further testified that defendants reputation among people at the Center was as a Very honest, . . . very very clean and very quiet person. Asked by defense counsel about defendants reputation for violence, Ms. Andrews replied he does not have such a reputation, and I would have trouble believing that Ralph squashed a bug. She conceded that some of the Centers clients have been colorful . . . you know, are violent, but they have been 86[ed] from the Center.

Kristie Fairchild, the Executive Director of the Center since 2003, testified that its purpose is to identify the homeless in our district and get those people off the streets and into housing. Defendant has been a periodic client of the Center since 2001: It fluctuated . . . he would come in sometimes for . . . a month. . . . [S]ometimes I wouldnt see him for a couple months. Asked about defendants reputation for honesty, Ms. Fairchild testified that the general feeling is that he is honest. When defense counsel asked What about his reputation for violence? she answered: Hes totally nonviolent to my knowledge. Completely, thats my impression.

On cross-examination, Ms. Fairchild testified that the Center classifies defendant as chronically homeless. Ms. Fairchild was aware that defendant had a drug-related conviction, but he has never been caught violating the Centers prohibition on clients using drugs. She also knew of his burglary conviction. Based upon the classification the Center used for defendant, the prosecutor asked:

Q. . . . So, in your experience, if youve got a chronically homeless person out on the street, is that when theyre in a position to be doing more desperate things?

A. No. Everybodys different, honestly. Theres some people that are chronically homeless that are very kind and would neverdont do anything like that. So it really depends on the situation and need.

Q. But you do realize or you did testify that these chronically homeless people, thats when they get to the point when theyre doing desperate things?

A. They do.

Q. And Ralph or Mr. Chapman is here charged with robbing a man. Are you aware of that?

A. Yes.

Q. And taking that person s property. Are you aware of that?

A. Thats what I heard.

Q. Does that surprise you?

THE COURT: Im going to sustain my own objection to that question. Its asking for speculation.

Defense counsel touched upon this subject in his redirect:

Q. The District Attorney was asking you about homeless people acting desperately or in a desperate manner. You never saw Ralph acting in that state, did you?

A. No. hes always been one of the most levelheaded of many of the people that have come through the doors.

Q. And, as far as you know, his reputation is not for that kind of desperate behavior?

A. Hes a nice guy probably. I think lots of things, but I dont know that its appropriate.

After all evidence had been presented, and while the court and counsel were discussing instructions, defendant admitted the allegation that he had a prior felony conviction.

During closing argument, the prosecutor did refer to defendant as a homeless man and someone who was chronically homeless, but the references occurred during a discussion of the defense evidence.[3] Defense counsels closing argument tried to point out logical gaps in the prosecutions case, arguing that the police did not conduct an adequate investigation, but simply latched onto the hapless defendant who had tried to help, only to be arrested for his trouble.[4] During the course of counsels presenting the following line to the jury, the prosecutor made his sole objection:

I think San Francisco has a good Police Department. Im not saying that they did somethingI mean, Im not saying that theyre bad. Im just saying that in this case they just kind of dropped the ball. And we hold the police to a high standard just because of situations like this. I mean, if it was your loved one accused of a crime, would you be satisfied with that kind of an investigation?

MR. CLARK: Objection.

THE COURT: Sustained. Thats an appeal to the sympathy [of the jury]. Thats improper.

Defense counsel resumed his argument, trying to use defendants homeless status as positive, i.e., insinuating that is was the explanation for the inadequate police investigation.[5] Counsel concluded by urging that the prosecution was relying pretty much entirely on . . . one eyewitness identification, and the circumstances of the identification were more than sufficiently wobbly to make it a weak reed for conviction.

In his final argument, the prosecutor told the jury that defense counsel was [a]ppealing to sympathy, and that while the Public Defenders comments are sympathetic . . . they dont change the facts. The fact of the matter is that Mr. Chapman was caught red-handed with the property that he took from Mr. Xiao, . . . and identified by the person who saw him take it.

After deliberating for approximately a half hour, the jury sent out several notes described by the trial court as follows: They want the police report, written statements by Mr. Wright and Mr. Chapman. (reading) [] Was there a written statement taken by Mr. Xiao? [] We would like that as well. [] They want the statements they believe were taken down on the day of the incident at the police station. Also: (reading) [] Wed like a copy of all transcripts taken during the trial of all the witnesses testimony. The court told counsel, The jury is going to be told there is no police report in evidence, theres no written statements by Mr. Wright or Mr. Chapman or Mr. Xiao in evidence,^[[6]] and there are no copies of the transcripts available. Okay? Defense counsel replied, Okay. However, the minutes recite that two hours later In the jury deliberation room, Court Reporter reads portions of the transcript which addresses the jurors question.

After further deliberations, the jury found defendant guilty as charged. By reason of his prior robbery conviction, defendants mid-term sentence of three years was doubled, to six years in the state prison.

DISCUSSION

Appointed counsel for defendant has marshaled a quartet of academic articles from the 1990s,[7] and a smattering of judicial comments, to support counsels claim that defendant was the victim of societys insidious prejudice against the homeless. They are Todays pariahs, an urban blight, given to colonizing public spaces, thereby provoking municipal crusade[s] to evict them. (Citing e.g., Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, and quoting Justice Mosks dis. opn. at p. 1124.) This is especially true of people in defendants position: Homeless people sleeping in parks are especially resented and reviled. This is the springboard for counsels contention that the prosecutor committed misconductin his line of questioning devoted to defendants homeless lifestyle, and by pressing Kristie Fairchild to testify that the homeless are prone to steal, that defendant had a propensity to commit robbery and thus was likely to steal because he was homeless. Such conduct, the argument runs, portrayed defendant to the jury as an unemployed parasite and a repulsive nuisance.[8]

So, as counsel sees it, the prosecutor intimated that the San Francisco public would benefit from Mr. Chapmans conviction regardless of whether Mr. Chapman robbed Mr. Xiao or not. Regardless of whether Chapman was guilty, there would be one fewer homeless person living in the park, with all his belongings and no means of support, if Chapman was shipped off to prison . . . . The City would be a little bit cleaner and less crowded, and have one fewer person to provide with social services. The cost of Mr. Chapmans maintenance could be shifted to taxpayers throughout the state. The testimony the prosecutor was attempting to elicit was patently inadmissible and grossly prejudicial.[9] And insofar as his trial attorney failed to objectand, indeed, even made his clients homeless condition known to the jurythese acts and omissions only furnish the additional dimension of constitutionally ineffective assistance of counsel as a ground for reversal.

Homelessness may be proving intractable as a social problem, but it has not proved beyond the capacity of the legal system to absorb, specifically, the administration of the criminal law. Most judicial consideration of homelessness has occurred in connection with the difficulty a homeless person may encounter in complying with a sex-offender registration statute, which presumes a fixed abode. (E.g., People v. Annin (2004) 117 Cal.App.4th 591; People v. North (2003) 112 Cal.App.4th 621; State v. Winer (Conn.App. 2009) 963 A.2d 89; Com. v. Scipione (Mass.App. 2007) 870 N.E.2d 108; State v. Ohmer (Ohio App. 2005) 832 N.E.2d 1243; State v. McKinnon (Wash.App. 2001) 38 P.3d 1015.)

Notwithstanding the parade of pejoratives employed in defendants brief, society and the criminal law does not ignore the homeless when they are the victims of crime (e.g., People v. Soper (2009) 45 Cal.4th 759; People v. Engelman (2002) 28 Cal.4th 436; [the homeless prey on other homeless]; e.g., People v. Prettyman (1996) 14 Cal.4th 248 [murder]; People v. Williams (1992) 4 Cal.4th 354 [rape], People v. Thomas (1992) 2 Cal.4th 489 [murder]). Homelessness can even serve a positive andfrom the defendants perspectivebenign function, such as being a relevant consideration to the decision whether to impose a capital sentence. (E.g., In re Lucas (2004) 33 Cal.4th 682, 733, citing Wiggins v. Smith (2003) 539 U.S. 510, 535.)

This is not to say that the issue of homelessness has been neutered of all potential prejudice. When used by a prosecutor to demonize an accused, as it was in People v. Herring (1993) 20 Cal.App.4th 1066, it can qualify as misconduct.[10] But that is not what happened here. As previously shown, it was the prosecutor who first wanted to limit references to defendants indigency. This is hardly the attitude or approach one would expect from a prosecutor out to scapegoat a defendant for lack of economic resources.

It was defense counsel, and the trial court, both of whom recognized the unalterable reality of how and why the fact of defendants homelessness was inescapably relevant. When defense counsel stated its going to come out in the trial, he recognized that it was necessary for the jury to understand why defendant was up and about at the crack of dawn in Portsmouth Square Park. This was a clear basis of relevancy, and is recognized by courts throughout the nation. (See, e.g., People v. Thomas (1992) 2 Cal.4th 489, 522-523; State v. Glidden (N.H. 1983) 459 A.2d 1136, 1140; State v. Williams (N.C. 2002) 565 S.E.2d 609, 642; cf. People v. Salcido (2008) 44 Cal.4th 93, 147 [The concept of relevance is very broad [citation], encompassing evidence . . . bearing on the defendants account of events].) Moreover, as defense counsel noted, defendants homeless status was integral to the testimony of his character witnesses. Thus, the trial court was entirely correct in stating that evidence defendant was homeless was relevant and obviously admissible, while at the same time admonishing both counsel that there should be no appealing to the passions of the jury in that regard.[11] And, as is clear from the excerpts quoted above, both counsel kept within the spirit of the courts directive.

Of course, once the issue of defendants homelessness was before the jury, it was a proper subject for the prosecutors extensive latitude for cross-examination. (See People v. Chatman (2006) 38 Cal.4th 344, 382.) Although defendant now claims the details of his homeless existence undermined the presumption of innocence and lightened the prosecutors burden of proof by portraying him to the jury as a parasite and a repulsive nuisance, and by intimating that pretty much everybody would benefit by putting defendant in prison, none of this is discernible from the transcript of the trial or the prosecutors closing arguments. Indeed, as to the latter, the prosecutor specifically reminded the jury of his burden of proving defendants guilt beyond a reasonable doubt, and that the issue of defendants homelessness shouldnt affect your determination. (See fn. 3, ante, p. 9.)

In sum, the prosecutors cross-examinations of defendant and Ms. Fairchild did not constitute misconduct. It naturally follows that defense counsel cannot be faulted for failing to object to what was entirely proper. (See People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Cudjo (1993) 6 Cal.4th 585, 623; People v. Jackson (1989) 49 Cal.3d 1170, 1189.) Moreover, trial counsel made the rational tactical choice to confront defendants homelessness head on, admit it, and yet try to turn it to advantage by trying to portray him as the victim of inadequate police investigation.

Defendant has two other contentions that warrant only brief treatment. He argues he was prejudiced when the trial court sustained the prosecutors objection that defense counsel was appealing to the jurys sympathy by arguing if it was your loved one accused of a crime, would you be satisfied with that kind of investigation? The objection was properly made and correctly sustained. (See People v. Jackson (2009) 45 Cal.4th 662, 691 and decisions cited.) Nor is defendant on sound ground in arguing that the trial court erred by failing to remind the jury it was entitled to a readback, upon receiving the jury note requesting transcripts of testimony. The court correctly turned aside the jurys omnibus request for a copy of all transcripts taken during the trial of all the witnesses testimony. (Italics added.) Clearly, this request could not be granted because the reporters notes of the trial had not yet been reduced to the form of transcripts. As already mentioned, when the jury made a specific request for a readback of testimony, the trial court provided it.

We close with two final observations. First, none of the alleged errors drew a defense objection in the trial court, which ordinarily causes them to be treated as forfeited or waived, yetwith the partial exception of the ineffective assistance approachpresent counsel makes no effort to convince us that these claims are presently reviewable. Second, given the near-overwhelming evidence against defendant, the alleged errorseither individually or collectivelywould not compel reversal under any standard for prejudice.

DISPOSITION

The judgment of conviction is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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A122393, People v. Chapman

[1] Because he obviously planned to have defendant testify, counsel was preparing the jury to hear that this was not defendants first encounter with the criminal justice system. The trial court had earlier ruled that defendant could be impeached with a 1996 conviction for first degree burglary and a 2001 conviction for sale of a controlled substance. The court had prohibited further mention of defendants criminal history, which went back to 1971 and included a 1990 burglary conviction, a 1992 conviction for failing to return to a place of confinement (Pen. Code,  4530, subd. (c)), and a 1994 conviction for grand theft. Defense counsel preemptively raised the issue of defendants prior convictions in his direct examination.

[2] Officer Manning was at something of a disadvantage in testifying, because it was his partner, Officer Gallagher, who apprehended defendant, and who wrote the report of the incident, but who was on disability at the time of the trial.

[3] The burden is on the prosecution to prove the elements of the crime beyond a reasonable doubt. As you know, the defense has no obligation whatsoever, but they put a defense on.

First Mr. Chapman testified that he woke up. Hes a homeless man. He woke up in the park and he was getting ready to move on when he saw somebody run by and he gave chase. And, so, his testimony is that as the perpetrators are running away, he intercepted them, got the bag and was returning it to the victim when the police grabbed him. Is that reasonable? No, thats not reasonable because the eyewitness says hes running with the bag and the Chinese guy is pointing at him.

Then two other witnesses, one a friend of Mr. Chapman, Ms. Theresa Andrews, has known Mr. Chapman for 20 years, works at the homeless shelter facility in the North Beach area and has known him for a long time. Hes a nice guy, honest. Did you know he was convicted of a robberyexcuse me, of burglary and transportation and sale of drugs? I knew he had some problems, but I still think hes honest. I bet she does. She wasnt there that morning. Theres not a beef with her about what she has to say.

Ms. Fairchild, her supervisor, also came in. We have a facility in North Beach and we do what we can to help homeless people, and theyre doing a great job. You heard theyre handling 430 plus people in 18 months trying to get them soup and on their feet. According to Ms. Fairchild, Mr. Chapman is chronically homeless.

Those issues shouldnt affect your determination of the facts of the application of the law, determining the facts and applying the law. Did Mr. Chapman take that property from Mr. Xiao? Was he pointed out by the eyewitness as having done it? Did he have the property with him? Yes. Mr. Chapman is guilty of robbery.

[4] The following excerpts convey the tenor of defendants argument: [T]heres a lot of little things in this case besides what Mr. Chapman told you . . . that dont quite make sense. Why is he standing there on the corner? Why is he just standing there if hes just committed this crime? Why isnt he running away? Why hasnt he ditched the bag? Why does he walk away back down towards the Asian man [Mr. Xiao]? Why are there no other witnesses to what happened down here in Chinatown, 6:30, 7:00 in the morning? Why havent we heard from anybody else? Why wasnt there any investigation done?

[] Lets talk about the investigation for a minute. . . . Officer Manning said, I didnt have to do anything. And thats exactly what they did. They did nothing. []  I mean, how hard would it have been to get in the car and drive around the block and see if this woman is around? . . . [] . . . [W]hat upsets me the most and should upset you the most and would make this whole thing so much easier, how about if they just walked around the corner to Jackson Street and talked to any one of these store owners, these storekeepers there, and said, Hey, did you see a black man chasing two other men down the street or did you see a black man and a woman run down this street and go opposite ways?

[5] In his opening statement, defense counsel told the jury: What the evidence is going to show you is a poor police investigation and a lack of respect for Mr. Chapman.

[6] The only written statement produced at the trial was the one made by Mr. Wright, which was marked for identification, but not received in evidence.

[7] Paisner, Compassion, Politics, and the Problems Lying on Our Sidewalks (1994) 67 Temp. L.Rev. 1259; Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public Space Zoning (1996) 105 Yale L.J. 1165; Daniels, Derelicts, Recurring Misfortune, Economic Hard Times and Lifestyle Choices, Judicial Images of Homeless Litigants and Implications for Legal Advocates (1997) 45 Buffalo L.Rev. 687; Teir, Restoring Order in Urban Spaces (1998) 2 Tex. Rev. Law & Pol. 256.

[8] Regarding Ms. Fairchilds testimony, defendant states the following in his opening brief: The expert testimony that the homeless are prone to steal, was the worst sort of propensity evidence imaginable, particularly because the jury also learned of Mr. Chapmans 1993 burglary conviction. We make several observations. First, Ms. Fairchild was never identified or qualified as an expert witness. Second, the jury already knew of defendants felony convictions because he had admitted them in own testimony, which preceded Ms. Fairchilds. Third, a fair reading of Ms. Fairchilds testimony, as shown above, is that she was at pains to establish that the mere fact that a person is homeless is not synonymous with a propensity to steal.

[9] In the colorful phrasing that is typical of defendants appointed appellate counsel, when the prosecutor was finished, the jury had had its nose rubbed in the distasteful details of Mr. Chapmans homeless lifestyle.

[10] Actually, the word homeless was never used in the Herring opinion. However, the defendant there was characterized by the prosecutor as a parasite [who] never works, which the Court of Appeal treated as clear misconduct because these remarks had nothing to do with the crimes alleged and inferred that people who do not work . . . are bad people and more likely to do criminal acts. This argument directed at appellants character invited the jury to decide the case based upon its own value judgment and not on the law. (People v. Herring, supra, 20 Cal.App.4th 1066, 1074-1075.) Nevertheless, it requires no great leap of imagination to discern how this argument could easily be adjusted to explicitly refer to a defendant who is homeless.

[11] Defendants counsel asserts that even in liberal San Francisco homeless people sleeping in parks are stigmatized and resented, and counsel assumes this attitude was held by the jury. There is nothing in the record to support this sort of speculation. Our own speculation is that the experienced trial court and both counsel, already sensitive to the issue of homelessness and what the court termed the passions of the jury in that regard, would almost certainly have explored the subject during voir dire of prospective jurors. (See State v. Garvin (N.M. 2005) 117 P.3d 970, 979 [it was not improper for the prosecutor to explore the biases of the jury panel with regard to the homeless].) However, as there is no transcript of the jury selection proceedings, our speculation cannot be confirmed.