Filed 1/30/18 P. v. Jimenez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Falkenstein Hennick and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

Following a trial, during which defendant Jose Antonio Jimenez testified, a jury found him guilty of petty theft (Pen. Code, §§ 484-488). He appeals from the ensuing judgment sentencing him to 180 days in jail, with credit for time served. Although he did not object below, defendant contends the prosecutor made improper statements about his two past felony convictions for vehicle theft and claims those statements inflamed the passion and prejudice of the jury against him. Understanding we may find he waived the issue based on his failure to object below, he alternatively argues his trial counsel rendered ineffective assistance by failing to object to the prosecutor’s arguments.[1] We find no error and affirm the judgment.

FACTS

A. Prosecution’s Case-In-Chief

A few hours after midnight, Joseph Dorado and Vaughn Lawson exited the Yost Theater in downtown Santa Ana where they both worked as bouncers. They walked to their cars which were parked in an adjacent, small outdoor parking lot. Dorado changed his shoes and walked approximately 50-to-100 feet over to Lawson’s parked car. Although Dorado closed the door to his car, he left it unlocked because the lock was broken.

While Dorado and Lawson sat in Lawson’s car talking, Dorado looked in the side mirror and saw the door to his own car open. He noticed a person’s legs sticking out, so he got out of Lawson’s car and ran towards his own. In the few seconds it took Dorado to reach his car, defendant emerged from the car holding Dorado’s gym bag. Dorado valued the bag and its contents at approximately $60.

As Dorado reached his car, defendant swung his fist at him. Defendant did not make contact. After dodging the swing, Dorado countered with his own, hitting defendant a couple of times. Lawson claimed he witnessed the encounter and saw Dorado swing at defendant only after defendant had already swung at Dorado three or four times.

Even after being hit by Dorado, defendant purportedly tried to run away. Lawson approached to assist Dorado, hitting defendant in the back of the head and tackling him to the ground. While defendant lay pinned to the ground, kicking and resisting, Dorado kicked him a few more times. He also searched defendant’s pockets and took the cell phone and wallet he found in them.

As the sounds of the struggle carried through the air, another person who worked at the Yost Theater, Ian James, heard them and walked toward where Lawson had defendant pinned to the ground. Dorado asked James to call the police. James heard defendant say, in English, he was sorry and asked to be let go. He also observed Lawson continue to hit defendant while defendant lay on the ground; at trial, Lawson denied doing so.

James called 911. While he was on the phone with the police dispatcher, he knelt down on defendant’s legs to keep him from kicking and searched his pockets for identification, but found none. Dorado then switched positions with James, kneeling down on the back of defendant’s legs to assist Lawson in keeping defendant on the ground.

When Santa Ana Police Officers Steven Stuczynski and Jacqueline Duran arrived, defendant was still on the ground with two men on top of him, and a bag lay underneath him. The officers handcuffed defendant and took him to one of their cars. Stuczynski spoke with Dorado, Lawson and James, each of whom relayed their recollection of the preceding events.

Duran, a certified Spanish speaker, read defendant his Miranda[2] rights, which he voluntarily waived, and thereafter interviewed him. She took notes in English as defendant spoke, and she then provided those notes to Stuczynski and verbally summarized to him defendant’s statements. Stuczynski inspected defendant for injuries and observed none.

Stuczynski wrote the sole report concerning the incident. Dorado’s bag was not booked into evidence, and officers did not attempt to look for fingerprints or DNA evidence.

At trial, Dorado provided his recollection of what occurred on the night in question. When asked whether the person who stole his bag was in the courtroom, Dorado first said “no” and asked the prosecutor if he was “hiding somewhere.” After the prosecutor asked the question for a third time while pointing toward defendant, who was seated at the defense table, Dorado confirmed defendant as the person who he saw take the bag from inside his car. Dorado explained his initial failure to recognize defendant due to changes in his physical appearance since the night in question.

On cross-examination, Dorado admitted certain of the information he was testifying to in court was not previously provided to law enforcement, including the police officers he spoke with immediately after the incident. For example, Dorado testified he observed defendant and one other male “jiggling” the door of a different car prior to observing them break into his car. In addition, he testified he observed a “shiny object” in defendant’s hand when defendant first swung at him—an object which Dorado later believed was a metal padlock.

Similarly, when Lawson testified concerning the incident, he included additional details he had never mentioned to law enforcement. He, for example, testified defendant swung at Dorado three to four times before Dorado made any attempt to swing back. Lawson also testified he heard a metal padlock hit the ground after falling from defendant’s hand.

B. Defense Evidence

Defendant testified on his own behalf, with the assistance of a Spanish language interpreter. He stated he left his house early in the morning on the day he was arrested to walk to a restaurant to see if anyone there wanted to hire him to do construction work for the day. He wore black jeans, an undershirt and a long-sleeve shirt with a T-shirt over it. As he crossed the parking lot where the incident in question took place, he saw two men in front of him, one of whom was carrying a bag. When defendant was less than 10 feet away, the man dropped the bag and the two men continued on their way.

According to defendant, he kicked the dropped bag as he walked by it. Then, suddenly, he heard someone approaching him from behind, so he turned around and saw Dorado. Defendant testified that Dorado proceeded to hit him in the head and he momentarily blacked out. When he regained consciousness, defendant saw and felt Lawson and a third male hitting him in his head and ribs.

As he tried to get away from the three men who he believed were attacking him for no reason, defendant said Dorado kicked him and Lawson laid on his back and shoulders. The force of the blows purportedly caused defendant to defecate in his pants. He then saw Dorado take his wallet and cell phone.

Defendant further testified that while he still lay on the ground, Dorado and Lawson threatened him with a box cutter and a knife, respectively. They used profanity and yelled at him not to move. And, when they realized defendant was not carrying any money, they agreed they should call the police so defendant would be deported.

When the police arrived, defendant “felt saved.” Defendant claimed he was in a lot of pain, but did not tell the officers because he “felt that [his] brain was backward” and he “could not speak.” The officers handcuffed him and helped him walk over to their patrol car. Duran returned defendant’s wallet and cell phone to him and spoke with him about what happened.

When asked on cross-examination why he did not tell many of these details to the police on the night he was arrested, including Dorado and Lawson’s supposed use of a box cutter and knife, defendant reiterated “he could not speak” because he was in too much pain and “felt as if [he] was going to faint.”

C. Rebuttal Witness

Duran testified about what transpired when she arrived at the scene of the alleged robbery. Upon arrival, she saw two males pinning defendant on the ground. She handcuffed defendant, led him to her police vehicle and read him his Miranda rights. He stated he understood his rights and proceeded to voluntarily speak with Duran.

Defendant spoke clearly and provided the following details: he was walking through the parking lot when he saw a Hispanic male leaning into Dorado’s car through the front door; the male was stealing property and ran away when he saw defendant; defendant approached a bag on the ground, kicked it and proceeded on his way; and, as he walked, Dorado and Lawson attacked him and pinned him down. Defendant never complained of any injuries, never mentioned that Dorado or Lawson had a knife or box cutter, and never claimed they stole his wallet and cell phone.

Duran took notes during the conversation. She provided them to Stuczynski, who wrote the report concerning the incident, and also orally summarized to him defendant’s statements. Duran testified she reviewed the final report and it was accurate as to her conversation with defendant.

D. Jury Verdict

The jury found defendant not guilty of second degree robbery (Pen. Code, §§ 211, 212.5), but guilty of the lesser included offense of petty theft—a misdemeanor (Pen. Code, §§ 484-488). Defendant was sentenced to 180 days in jail and given credit for time served. He timely appealed.

DISCUSSION

Defendant asserts the prosecutor made improper statements during closing argument concerning defendant’s two past felony convictions for vehicle theft. He claims the statements, along with others concerning “the community[,]” inflamed the passion and prejudice of the jury, thereby tainting its verdict. The Attorney General argues defendant waived his right to challenge the prosecutor’s statements by failing to contemporaneously object to them, and, even so, defendant fails to demonstrate prejudicial error. To the extent we might find waiver, defendant urges us to conclude his trial counsel rendered ineffective assistance by failing to object to the prosecutor’s arguments. We agree with the Attorney General.

To begin, defendant’s failure to object to the alleged improper argument at the time it was made waives the issue for appeal. (See People v. Boyette (2002) 29 Cal.4th 381, 432; People v. Clark (1993) 5 Cal.4th 950, 1014.) Although the circumstances might be different if the record showed an objection would have been futile or an admonition ineffective (People v. Jackson (2016) 1 Cal.5th 269, 367), there is no such indication in the record before us. “[A]ny prejudice from improper reference by the prosecutor to defendant’s prior crimes could have been cured by prompt admonition.” (People v. Turner (1990) 50 Cal.3d 668, 708, fn. 23.)

As for defendant’s corresponding claim of ineffective assistance of counsel, we find it lacks merit. Our Supreme Court has long recognized that “a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.” (People v. Ghent (1987) 43 Cal.3d 739, 772.) To prevail, defendant must demonstrate his counsel’s performance was deficient and he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) We will not reverse unless the record “‘affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.) The latter requirement prevents second-guessing counsel. (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)

Here, the prosecutor made multiple references to the two prior felony convictions defendant had affirmatively acknowledged during his direct testimony. Based on an in limine ruling, the prosecutor was allowed to use these convictions to impeach defendant’s credibility. That is what occurred. Each reference to them was made in the context of a rhetorical question to the jury about who’s version of the events they believed—Dorado and Lawson’s, or defendant’s. Such argument was not improper. (Evid. Code, § 788; People v. Chambers (1958) 162 Cal.App.2d 215.)

Nor is it reasonably probable that absent the alleged prosecutorial misconduct, a more favorable result would have occurred. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) The court instructed the jurors they were to reach a verdict based on the evidence, the attorneys’ arguments were not evidence, they alone were to judge the credibility of witnesses, and that evidence of a past felony could only be used for the limited purpose of evaluating a witness’ credibility. We must presume the jury followed these proper instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) And, there was evidence from Dorado, Lawson, and the two responding police officers, that also cast doubt upon the veracity of defendant’s story and provided significant evidence of defendant’s guilt.

Equally significant, it appears defendant’s counsel chose not to object for strategic reasons. Instead of ignoring the prosecutor’s comments, defendant’s counsel embraced them during closing argument. After emphasizing defendant accepted responsibility and pled guilty to the two prior felonies, he urged the jury not to accept the prosecutor’s credibility arguments “hook, line, and sinker.” He argued they were being used to distract from the evidence demonstrating two “21-year-olds . . . beat up a 49-year-old man.” These tactical choices are “within the range of reasonable competence” (People v. Pope (1979) 23 Cal.3d 412, 425), and we must defer to them (People v. Weaver (2001) 26 Cal.4th 876, 925-926).

Finally, defendant argues the references to the prior felony convictions, along with a statement made by the prosecution about the jury’s responsibility to “decide what’s acceptable and what’s permissible in the community,” inflamed the passion and prejudice of the jury. But these statements were properly aimed at conveying the importance of the jurors’ role, and are not misconduct. (People v. Lang (1989) 49 Cal.3d 991, 1041 [not misconduct to argue to jury it was their opportunity to “have a voice in [their] community and an effect upon the law in the community” italics omitted]; People v. Adanandus (2007) 157 Cal.App.4th 496, 511, 513 [not misconduct to argue to jury it had the opportunity to “restore the law” and “restore justice” to the streets].)

DISPOSITION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.