Filed 10/22/26 P. v. Davis CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sierra)
THE PEOPLE, C102762
Plaintiff and Respondent,
(Super. Ct. No. 22CR0025)
v.
PATRICK ADAM DAVIS,
Defendant and Appellant.
A jury found defendant Patrick Adam Davis guilty of burglary and not guilty of
vandalism. On appeal, defendant contends: (1) the record lacks sufficient evidence to
support his burglary conviction; (2) his counsel was ineffective for failing to object to
admission of his prior drug-related conduct; (3) the trial court committed instructional
error by delivering CALCRIM No. 361 concerning the failure to explain or deny; and
(4) the cumulative effects of the errors resulted in prejudice requiring reversal. We
disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant owned vacant property in Sierra County neighboring property owned
by two other individuals and used as an event venue (the Wood property). In late 2021
and early 2022, a neighbor noticed increased traffic and cars driving at night. He saw a
military-style truck driving in the area about 10 to 15 times—once identifying defendant
as the driver while it drove away from the Wood property. The neighbor also saw
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defendant in a skid steer loader going back and forth from the Wood property. The
neighbor checked on the Wood property and noticed skid steer tracks going through the
property. He followed the tracks to where he found the skid steer on the outskirts of the
Wood property. The neighbor recognized the skid steer as the one driven by defendant.
In early February 2022, Sierra County Sheriff Sergeant Kameron Crawford went
to the Wood property. On his way, he saw a military-style truck parked on a service road
appearing to be stuck in the snow. In the back of the truck were car tires and snowshoes,
among other miscellaneous items. Sergeant Crawford saw skid steer tracks going from
the military-style truck to the Wood property. Once on the Wood property, Sergeant
Crawford saw the security fence was open and that the skid steer tracks went inside and
up to an auditorium-style building on the outskirts of the property. The skid steer tracks
circled around the auditorium-style building and went to the main residence. Generators
and inverters, which were located in the battery room and provided power to the main
residence, were missing. The skid steer tracks then led to another structure on the
property, which had solar panels lying next to the building and a truck parked next to it
that was missing its back tires. The doors to the structure had been forcibly removed and
were laying on the ground. A kitchen sink was also missing from the structure.
During a search of defendant’s cell phone, Sergeant Crawford found photographs
of an inverter and a timer from the main residence and solar panels from the other
structure on the Wood property. The search of defendant’s cell phone also revealed he
searched the Internet with a model number of an inverter similar to the inverter taken
from the main residence, as well as how to sell old batteries. None of the stolen items
were found at defendant’s home in Nevada County. Sergeant Crawford, however, found
methamphetamine in the bushes.
Sergeant Crawford interviewed defendant when searching his Nevada County
home. The body-worn camera video of the interview was played for the jury. When
asked if he knew why law enforcement officers were at his home, defendant said he
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assumed it was about Sierra County. Defendant said he had tried to get in contact with an
owner of the Wood property because defendant also had his skid steer and parts from his
truck stolen. Defendant detailed getting his skid steer stuck in the snow overnight and
walking to the Wood property where he took a pair of snowshoes. He then went back
with his military-style truck to get the skid steer, but the military-style truck stopped
working when he attempted to retrieve the skid steer. He had been focusing on
recovering the military-style truck for the last week. Defendant described other items he
believed were stolen from him and damage to his truck, which he said was missing tires.
Sergeant Crawford accused defendant of stealing property from the Wood
property, which defendant denied. Defendant then admitted to having a prior conviction
for possessing psilocybin mushrooms while living in Texas. Crawford then asked
defendant when he last used methamphetamine and whether he was willing to take a
urine test. Defendant denied being under the influence of methamphetamine.
At trial, defendant moved to exclude a 2005 Texas felony conviction for
possession of psilocybin mushrooms for use as impeachment if defendant testified. The
prosecution said it sought to admit a 2013 felony conviction for possession of narcotics,
as indicated in defendant’s rap sheet, which defendant was unaware constituted a felony.
The parties agreed to review the rap sheet and revisit the motion. When the parties
revisited the issue, the prosecutor announced defendant had been convicted in 2005 of a
felony for possession of psilocybin mushrooms and in 2013 for a felony that was later
reduced to a misdemeanor. Defendant argued against admission of the 2005 conviction,
questioning whether the conviction was a felony and pointing to its remoteness. The trial
court excluded the 2005 conviction for use as impeachment, but permitted the
prosecution to introduce the 2013 conviction in the event defendant testified. The parties,
however, acknowledged defendant made statements in his police interview regarding his
psilocybin mushroom possession and the court declined to redact the statement.
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At trial, defendant testified he owned a truck he used for four-wheeling and in
early January it broke down while he was four-wheeling in the snow. The next day,
defendant went back to the truck with his skid steer to get it, but then the skid steer got
stuck in the terrain. It was late in the day, so defendant slept in the skid steer. The next
day defendant walked to the Wood property hoping to use the phone. No one answered
the door when he knocked, but defendant saw a pair of snowshoes on the porch and
borrowed them so he could walk home; defendant always intended to return the
snowshoes. Defendant testified he did not enter the house, but he did take photographs of
the things he saw around the house and through an open door to send to the owners.
Near the end of January, defendant took his military-style truck with his tires in
the back to the Wood property to get his skid steer. On the way, it broke down.
Defendant continued to the Wood property, and when he got there, he saw the skid steer
had been moved and a pair of gloves he did not recognize were in the vehicle. Defendant
also saw random belongings in his truck, like rolling papers, tin foil, and sheets.
Defendant returned to the Wood property a few days later and saw that his skid steer was
gone and the truck had more belongings in and around it. Defendant also noticed that
tools he kept in the wooded area around his and the Wood properties had been taken. In
the truck with random belongings was also a sticker with numbers on it. Defendant
searched the numbers on the Internet, and it returned as an inverter. Defendant separately
searched how to sell batteries because he was researching how to sell old car batteries he
owned. On cross-examination, defendant admitted to being a convicted felon.
During closing argument, the prosecution argued defendant lacked credibility
because he was a convicted felon. It further urged the jury to review defendant’s
demeanor during his police interview to determine his credibility and to consider his
methamphetamine use and possession for that purpose. During defendant’s closing
argument, his counsel argued for the jury to look at all the evidence and discount
Sergeant Crawford’s investigation. In particular, counsel pointed to the circumstances of
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Seargeant Crawford’s interview of defendant and search of his home to show Sergeant
Crawford sought to manipulate the jury by creating circumstances that would necessarily
make defendant look guilty at a future trial.
The jury found defendant guilty of burglary and not guilty of vandalism. The trial
court suspended imposition of sentence and placed defendant on two years of probation.
Defendant appeals.
DISCUSSION
I
Sufficient Evidence Supports Defendant’s Burglary Conviction
Defendant contends the record lacks sufficient evidence to support his burglary
conviction because there is no evidence linking defendant to the property taken from the
Wood property. We disagree.
Defendant was prosecuted under a theory of burglary requiring the jury to find
(1) he entered a building; (2) when he entered the building, he intended to commit grand
theft or any felony; and (3) the value of the property taken exceeded $950. (See Pen.
Code, § 459.)
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Covarrubias
(2016) 1 Cal.5th 838, 890.) Substantial evidence includes circumstantial evidence and
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the reasonable inferences that may be drawn from it, and such evidence is as sufficient as
direct evidence to support a verdict. (People v. Brown (2014) 59 Cal.4th 86, 105-106.)
“Even when there is a significant amount of countervailing evidence, the testimony of a
single witness that satisfies the standard is sufficient to uphold the finding.” (People v.
Barnwell (2007) 41 Cal.4th 1038, 1052.)
While, as defendant argues, there is no direct evidence linking stolen property to
him, there is sufficient circumstantial evidence from which a jury could reasonably infer
defendant took the generators and inverters from the main residence of the Wood
property. The skid steer markings, defendant’s testimony he drove his skid steer on the
Wood property, and the neighbor’s observations of defendant on the skid steer support
the inference that defendant was on the Wood property driving from building to building
on his skid steer during January and the early part of February 2022. According to
defendant, he took photographs in January 2022 of items inside the main residence of the
Wood property. By early February 2022, those items had been removed. The neighbor’s
testimony he saw defendant in the military-style truck and the military-style truck had
frequented the Wood property several times supports the inference defendant had the
means of removing the inverters and generators from the main residence of the Wood
property. Defendant searched the Internet using the model number for an inverter that
was similar to the inverters taken from the main residence. It is a reasonable inference
from this evidence that defendant looked up the model number to discover the item’s
value. Defendant also searched how to sell used batteries, tending to show he took and
wanted to sell the items from the battery room. Accordingly, the record provides
sufficient evidence supporting the reasonable inference defendant entered the main
residence and took the generators and inverters from the battery room.
Defendant disagrees, arguing he provided innocent reasons for being on the
property that were also supported by the evidence. While “ ‘ “it is the jury’s duty to
acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable
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interpretations, one of which suggests guilt and the other innocence” ’ ” (People v.
Manibusan (2013) 58 Cal.4th 40, 87), once the jury has decided that the defendant is
guilty beyond a reasonable doubt, the reviewing court may not reweigh the evidence or
reevaluate the credibility of witnesses (People v. Jacobo (2019) 37 Cal.App.5th 32, 42).
By finding defendant guilty, the jury necessarily rejected his testimony as not credible,
and we must do the same. “ ‘Where the circumstances reasonably justify the trier of
fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably
be reconciled with a contrary finding does not warrant the judgment’s reversal.’ ”
(Manibusan, at p. 87.) As demonstrated, the evidence reasonably justified the jury’s
finding of guilt.
Defendant also argues the prosecution failed to establish when the burglary
occurred, making the inference defendant committed the burglary unsupported. Not so.
According to defendant, he took pictures of the items in the main residence in early
January 2022 and continued to go onto the Wood property into February 2022 when the
items were missing. It is reasonable to infer from this evidence that the burglary occurred
sometime between January and February when defendant regularly accessed the Wood
property. Accordingly, sufficient evidence supports the judgment.
II
There Was No Ineffective Assistance Of Counsel
Defendant argues his attorney provided ineffective assistance of counsel twice:
(1) His trial counsel should have objected to the admission of his 2013 drug possession
conviction; and (2) his counsel should have objected to the admission of evidence that
methamphetamine was found during the search of his home and to portions of
defendant’s police interview discussing his purported methamphetamine use. We
conclude there was no reversible error.
The Sixth Amendment guarantees “ ‘the right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 686.) “A defendant who
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claims to have been denied effective assistance must show both that counsel performed
deficiently and that counsel’s deficient performance caused [the defendant] prejudice.”
(Buck v. Davis (2017) 580 U.S. 100, 118; see also People v. Johnsen (2021) 10 Cal.5th
1116, 1165.)
A
Defendant Was Not Prejudiced By The Admission Of His 2013 Drug Conviction
The People do not dispute that, if counsel had objected, the trial court would have
excluded defendant’s 2013 drug conviction from evidence. Instead, the People argue
defendant was not prejudiced by his counsel’s failure to object. We agree.
To prove a defendant was prejudiced by counsel’s errors, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland v.
Washington, supra, 466 U.S. at p. 694.) “It is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the proceeding,” as “[v]irtually
every act or omission of counsel would meet that test.” (Id. at p. 693.) Rather, the
defendant must show “counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” (Id. at p. 687.)
There was no prejudice here. The details of defendant’s felony were not described
to the jury. Instead, defendant answered a single question posed by the prosecution
admitting he was a convicted felon and the prosecution referred to him as such during
closing argument to undermine his credibility. While this was a circumstantial case
where credibility was a factor, the circumstantial evidence related to the circumstances of
the crime served to undermine defendant’s credibility notwithstanding his credibility as a
witness. Indeed, the evidence included the skid steer tire markings, the presence of
several of defendant’s vehicles on the Wood property, defendant’s possession of
photographs of items in the main residence that later went missing, defendant’s Internet
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searches discovering the value and ways to sell the missing items, and defendant’s
admissions to being on the Wood property and taking the snowshoes. Given this
evidence, it is not reasonably probable that, had the jury not known defendant was a
convicted felon, it would have returned a more favorable verdict for defendant.
B
The Record Reflects A Tactical Reason For Counsel’s
Failure To Object To Defendant’s Drug Possession And Usage
Defendant contends his trial counsel should have objected to evidence that
methamphetamine was found during the search of his home and portions of his police
interview discussing defendant’s purported methamphetamine usage. We disagree
because the record reflects a tactical reason for counsel’s failure to object.
A deficient performance is one in which counsel “ ‘fell below an objective
standard of reasonableness under prevailing professional norms.’ ” (People v. Arredondo
(2019) 8 Cal.5th 694, 711.) There is a “ ‘strong presumption’ that counsel ‘made all
significant decisions in the exercise of reasonable professional judgment.’ ” (Cullen v.
Pinholster (2011) 563 U.S. 170, 196.) “When examining an ineffective assistance claim,
a reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional assistance. It
is particularly difficult to prevail on an appellate claim of ineffective assistance. On
direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective assistance are
more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)
57 Cal.4th 986, 1009, italics omitted.)
During closing argument, defense counsel sought to undermine Sergeant
Crawford’s credibility and thereby the integrity of his investigation. Counsel pointed to
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the circumstances of Sergeant Crawford’s search of defendant’s home, which included a
police interview during which Sergeant Crawford lied to defendant about the evidence
against him and accused him repeatedly of using methamphetamine. Counsel argued the
circumstances of the interview and Sergeant Crawford’s accusations were designed to
skew the investigation and the jury’s perception of defendant. While counsel did not cite
to the discovery of methamphetamine on defendant’s property during his closing
argument, it is a rational tactical decision not to object to that piece of evidence to further
demonstrate Seargeant Crawford’s attempt to skew the jury’s perception of defendant.
(Cullen v. Pinholster, supra, 563 U.S. at p. 196 [there is a strong presumption counsel
used professional judgment].) Indeed, the methamphetamine’s discovery could also
arguably represent collateral evidence Sergeant Crawford used to bolster his conclusion
defendant committed the burglary instead of investigating other possibilities.
Accordingly, the record reflects defense counsel made a rational tactical decision not to
object to evidence of defendant’s purported methamphetamine use.
III
Defendant Was Not Prejudiced By The Court’s Giving Of CALCRIM No. 361
Over defendant’s objection, the jury was instructed with CALCRIM No. 361 as
follows: “If the defendant failed in [his] testimony to explain or deny evidence against
[him] and if [he] could reasonably be expected to have done so based on what [he] knew,
you may consider [his] failure to explain or deny in evaluating that evidence. Any such
failure is not enough by itself to prove guilt. The [prosecution] must still prove the
defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or
deny, it is up to you to decide the meaning and importance of that failure.”
Defendant contends, and the People concede, the trial court improperly instructed
the jury with this instruction because defendant did not fail to explain or deny evidence
during his testimony. Instead, the parties dispute whether the giving of the instruction
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resulted in prejudice. We conclude defendant was not prejudiced by the giving of
CALCRIM No. 361.
To obtain a reversal, defendant must show a reasonable probability he would have
obtained a more favorable result at trial if the instruction had not been given. (See
People v. Watson (1956) 46 Cal.2d 818, 836; People v. Saddler (1979) 24 Cal.3d 671,
682-684 [assessing the harmlessness of an instruction under CALJIC No. 2.62, the
precursor to CALCRIM No. 361].)
CALCRIM No. 361 is a conditional instruction, leaving it to the jury to determine,
based on the jury’s view of the evidence, whether the instruction applies. In particular,
the instruction informed the jury that if defendant failed to explain or deny evidence
against him, and if he could reasonably be expected to have done so based on what he
knew, then the jury could—but need not—consider his failure to explain or deny such
evidence in evaluating its weight. In addition, the trial court instructed the jury, pursuant
to CALCRIM No. 200, that “[s]ome of these instructions may not apply, depending on
your findings about the facts of the case,” the jury should “not assume just because [the
court gave] a particular instruction that [the court was] suggesting anything about the
facts,” and after deciding the facts the jury was to “follow the instructions that do apply
to the facts as [it] find[s] them.” We presume the jury followed CALCRIM No. 200.
(People v. Cain (1995) 10 Cal.4th 1, 34.)
Thus, if CALCRIM No. 361 was given erroneously because defendant had not
failed to deny or explain adverse evidence within his knowledge, we must assume the
jury would have disregarded the instruction; any error in giving it was therefore harmless.
(People v. Saddler, supra, 24 Cal.3d at pp. 683-684; People v. Vega (2015)
236 Cal.App.4th 484, 503 [CALCRIM No. 200 mitigated any prejudice from giving
CALCRIM No. 361].)
And if the jury erroneously found CALCRIM No. 361 applied, the instruction
makes clear defendant’s failure to explain or deny evidence “is not enough by itself to
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prove guilt” and that the prosecution “must still prove the defendant guilty beyond a
reasonable doubt.” Rather than requiring the jury to draw an adverse inference, the
instruction allows the jury to “decide the meaning and importance” of any failure to
explain or deny, also mitigating the prejudicial impact of the instruction. (CALCRIM
No. 361; see People v. Ballard (1991) 1 Cal.App.4th 752, 756-757; People v. Vega,
supra, 236 Cal.App.4th at pp. 502-503.) Accordingly, defendant was not prejudiced by
the giving of CALCRIM No. 361.
IV
There Was No Cumulative Error
Defendant contends the cumulative effect of the various errors throughout his trial
resulted in prejudice. The premise behind the cumulative error doctrine is that, while a
number of errors may be harmless when taken individually, their cumulative effect
requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237, disapproved on
another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) A defendant is “entitled
to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926,
1009.) Defendant was not deprived of a fair trial. As discussed, the prejudice resulting
from the giving of CALCRIM No. 361 was mitigated by the instruction’s conditional
language and the prejudice resulting from counsel’s failure to object to defendant’s 2013
felony conviction was minimal given the weight of the objective evidence. We discern
no likelihood the result would have changed had the errors not occurred. Accordingly,
there was no cumulative prejudice requiring reversal.
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DISPOSITION
The judgment is affirmed.
../s/………
ROBIE, Acting P. J.
We concur:
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KRAUSE, J.
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FEINBERG, J.
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