P. v. Joachim
Filed 4/12/13 P. v. Joachim CA1/5
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opinion has not been certified for publication or ordered published for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
FIVE
and Respondent,
and Appellant.
A135323
(Napa County
Super. Ct. No. CR157106,
CR159624)
Duane
Joachim (Joachim) appeals from a judgment of conviction and sentence after a
jury found him guilty on two counts of receiving
stolen property. (Pen. Code,
§ 496, subd. (a).)
name="_ftnref1" title="">[1] He contends:
the trial court erred in admitting his prior conviction for receiving
stolen property under Evidence Code section 1101, subdivision (b); and (2) the
prosecutor committed misconduct when he asserted in
was driving was “littered with†or full of stolen property, and by suggesting
that Joachim was the one who not only possessed the stolen property, but stole
it. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An
information filed in July 2011 in superior court case number CR157106 charged
Joachim with first degree residential
burglary (§ 459) and receiving stolen property (§ 496, subd.
(a)). The information further alleged
that he served a prior prison term.
(§ 667.5, subd. (b).) The
burglary count was dismissed in October 2011.
An
information filed in December 2011 in superior court case number CR159624
charged Joachim with receiving stolen property (§ 496, subd. (a)). It also alleged that he served a prior prison
term (§ 667.5, subd. (b)).
The
two cases were consolidated for trial.
A. Trial
The
prosecution produced evidence regarding the 2010 and 2011 charged offenses of
receiving stolen property, as well as evidence – over Joachim’s objection – of
his 2006 offense of receiving stolen property.
1. 2010
Offense: Stolen Items in a Truck
On
July 16, 2010, at approximately 2:30 p.m., Napa County Sheriff’s Deputy Aaron
Mosley responded to a call of a “suspicious subject†on Highway 121 at Cuttings
Wharf Road in Napa County. Upon arrival,
Deputy Mosley observed a 1997 Dodge Dakota truck parked in a dirt pullout. Joachim was standing next to the truck’s
passenger side window. In the passenger
seat was Anthony Reynolds (Reynolds).
Deputy
Mosley parked his vehicle behind the truck, and Joachim approached and identified
himself. Mosley conducted a search of
Joachim’s person and the truck. In the
bed of the truck, Mosley found “some power tool items,†including two
chainsaws, two laser levels, a concrete nail gun, and an electric saw. Also in the truck were a wooden toy sailboat,
a jewelry box, and an antique tea set.
Joachim
told Deputy Mosley that the truck belonged to Jose Rochen (Rochen), who had
left to get help because there was a problem with the truck’s
transmission. Joachim explained that
they had taken the truck to go fishing the prior evening at 11:00 or 11:30
p.m., slept in the vehicle after fishing, and then realized the truck had
transmission problems.
Deputy
Mosley did not see any fishing equipment in the truck, however, and Joachim
appeared “nervous†and “fidgety.â€
Although the Department of Motor Vehicles confirmed the truck was
registered to Rochen, Rochen never returned to help move the vehicle. Instead, it was Joachim’s brother who later
appeared with a trailer to tow the truck; Deputy Mosley, however, refused to
release the vehicle.
name="_ftnref2" title="">[2]
Deputy
Mosley later determined that several items in the truck had been stolen in
three burglaries that had taken place on or about that same day. The lasers, concrete nailing gun, and
electric saw had been taken from the side yard of the home of Martin Bida in
Sonoma earlier on July 16, 2010. The
chainsaws had been taken during a burglary from the home of Rudy Doormann on
Milton Road on July 16 as well. And the
toy sailboat, jewelry box, and antique tea set had been stolen from the home of
Billy Hester on Milton Road sometime before July 18, 2010.
Both
Joachim and Reynolds were charged in connection with this incident; while
Joachim went to trial, Reynolds pleaded no contest to a charge of possession of
stolen property.
2. 2011
Offense: Stolen Items in a Van
Burglary of Lewis’s home on Milton Road on May 3
On
May 3, 2011, Roger Lewis received a phone call that someone had broken into his
house on Milton Road. Upon returning
home, Lewis found that his garage window was broken and a number of items had
been taken from his residence, including a digital camera, a brass “Indian
bowl,†a box containing jewelry and an antique watch from his father, and a
vase given to him as a memento of his mother.
Lagorio’s observations of a man and van on Milton Road on May 3
Also
on May 3, 2011, at 9:00 or 9:30 a.m., Frank Lagorio observed a Ford van that he
did not recognize and two men, one of whom was coming out of the backyard of
Lagorio’s house on Milton Road, about 700 or 800 feet away. Lagorio drove to his house, but the men and
the van had left by the time he got there.
Lagorio later saw the Ford van – described as red and a “fairly late
model†– driven up and down Milton Road two or three times. Lagorio thought this to be strange, because
he knew there had been burglaries in the area.
He wrote down the van’s license plate number, which his son gave to
officers about two days later.
Lagorio
told law enforcement that the men appeared to be in their 30’s, of medium
build, and approximately 5’8†to 5’9â€.
At trial, Lagorio said he did not think Joachim (whom Lagorio agreed
looked in his mid-50’s and about 6’3â€) was the man he saw by the van, but he
also noted that he “wasn’t paying attention.â€
Lagorio passed within five feet of one man, but was 600 or 700 feet away
from the other and “did not get close to him.â€
Willis’ observations of the red van on Milton Road on May 3
About
10:00 a.m. on May 3, 2011, Jeffrey Willis saw two men using spray paint to
touch up a red Ford van in the parking lot of his workplace at the marina on
Milton Road. Willis asked the men why
they were there; one of the men replied it was “nice and sunny.†Willis wrote down the van’s license plate
number and gave it to law enforcement.
When
later shown a photographic lineup and asked to identify the man with whom he
spoke, Willis picked someone other than Joachim. However, Willis told officers he might be
able to recognize the person if he saw him again. At trial, Willis testified that Joachim
“appear[ed] to be the man [he] saw.â€
Joachim’s connection to the red van
At
1:00 a.m. on May 5, 2011, Napa County Deputies Hallman and Ackman conducted
surveillance of Joachim’s home in Martinez.
Deputy Hallman saw Joachim and another person get in and out of a red
van four times before they left in the van, with Joachim in the passenger
seat. Deputy Ackman had seen Joachim
“near and around the driver’s side.â€
Deputy Hallman was unable to determine where the van went or who was
driving it: the van belonged to Carl
Montano, but Deputy Hallman knew Montano and believed that the driver was not
Montano.
On
May 11, 2011, Joachim arrived at Affordable Self Storage in Pacheco and spoke
with manager Leslie Stevens. Stevens
noted that Joachim was driving a red van.
Joachim’s storage space was a large “10 by 24†unit that he used to
store a variety of household goods.
Joachim told Stevens that he sold items at flea markets or yards, or
“wherever he could sell [them] at.†The
storage unit was registered to a “Mr. Crites†and was previously registered to
Reynolds; Joachim and the two other men exchanged registration of the unit
“because of other things that were going on in their lives.†However, they each had access to the unit and
used it, regardless of whose name was on the registration.
On
May 12, 2011, Deputy Hallman asked Contra Costa County Detective Murphy to look
for the red Ford van that was associated with Joachim and linked to burglaries
in the Napa area. After failing to find
the van at Joachim’s home, Detective Murphy went to Joachim’s storage unit and
conducted a probation search. He did not
find anything of note during his investigation.
At
about 4:40 p.m., Detective Murphy spotted Joachim driving the red Ford van at
Blum Road and Pacheco Boulevard. He
noted the van’s license plate number, which matched the number observed by
Willis. Detective Murphy conducted a
traffic stop based on an outstanding warrant for Joachim’s arrest, arrested
Joachim, and impounded the van. The van
did not have windows on the sides, and its back windows had been blacked out,
making it impossible to see what was in the back of the van. But Detective Murphy looked inside and saw
that it was “full of property.†Reynolds
was in the passenger seat.
The
van was towed to a secure facility, and Joachim was taken to jail and booked
pursuant to the warrant. Joachim had
$6,647 in his wallet.
Search of the red van
Detective
Murphy turned the van over to Deputy Hallman the following day. Hallman confirmed that the van was the one he
saw Joachim enter during Hallman’s surveillance on May 5, 2011. The van was “packed,†and it took a few hours
to inventory its contents.
Inside
the pocket on the driver’s door were a pair of rubber gloves that were
“[p]ossibly used in burglaries†to avoid leaving fingerprints. A “window punch†– a device that can be used
to break windows – was in a “pretty obvious place†that could be reached by someone
in the driver’s seat.
The
center console contained documents pertaining to Joachim: an invoice for tires, dated four or five days
before the search, bearing Joachim’s name and address; a letter dated October
15, 2010, signed by Joachim and addressed to “Carl,†in which Joachim stated that
he had not asked for money until his
Dodge pickup (allegedly associated with the July 2010 stolen property) was
taken by the Napa County Sheriff’s Department; and a statement from Aladdin
Bail Bonds, indicating that Joachim had violated the law by driving with a
revoked driver’s license and without proper registration (at trial, the court
explained to the jury that this evidence was admitted solely to connect
Joachim’s name with the van).
In
the rear of the van, Deputy Hallman found a vast amount of property, at least
some of which had been stolen. Hallman
was unsure of the exact number of stolen items, but the van contained at least
the following: property taken from Lewis’
residence on May 3, 2011, namely the brass bowl from India, a small egg-shaped
ornate vase, a digital camera, and four coins; a cell phone and a statue of an
old man petting a dog, which were determined to be stolen and were returned to
their rightful owner; and a point-of-sale machine that could be used for credit
card transactions, which had been taken during a burglary in Marin, in which
the victim also lost $3,000 to $3,500 in cash; and four coins that had been
stolen from the Lew home. There were
also totes, boxes, and display cases likes the ones used at flea markets, as well
as a lawn mower and “all kinds of tools.â€
A container held watches, necklaces, costume jewelry, Korean currency,
and a pocket knife. Deputy Hallman also
found a “small coin size Ziploc plastic baggy with [a] white crystal
substance,†a Dell laptop computer, a gold test kit, two pairs of binoculars, a
“scanner type radio,†a digital scale, and a CD radio.
3
2006 Prior Conviction: Stolen
Items in Joachim’s Car
About
6:25 p.m. on September 3, 2006, Deputy Ackman stopped Joachim’s car in American
Canyon (Napa County). Joachim gave the
deputy a false name. While searching
Joachim’s vehicle, Ackman found property that was reported missing after a
vehicle burglary at a landscaping business.
There were two irrigation remote controls and a pair of “vice grips†in
Joachim’s trunk, and a Skil saw and air compressor hose on Joachim’s rear
passenger floorboard. Ackman also found
bolt cutters, a hacksaw, $1,600 in cash, and other items.
Joachim
told Deputy Ackman that he had purchased the items at a flea market, but he
offered no receipts or explanation for the purchase. The court informed the jury that it was
taking judicial notice that Joachim had been found guilty of receiving stolen
property in connection with that incident.
B. Jury
Verdict and Sentence
In
March 2012, the jury found Joachim guilty on both counts – receiving stolen
property in 2010 (case number CR157106) and receiving stolen property in 2011
(case number CR159624). Joachim waived
his right to a jury trial on the prior prison term allegation, and the court
found the allegation true.
In
April 2012, the court denied probation and imposed sentence as follows: in case number CR157106, a midterm sentence
of two years; in CR159624, the upper term of three years with a consecutive one-year
term for the prior prison enhancement under section 667.5, subdivision
(b). The court ordered the terms served
in county jail pursuant to section 1170, subdivision (h)(5).
Joachim
filed a notice of appeal in both cases.
II. DISCUSSION
As
mentioned, Joachim contends: the trial
court erred in admitting his prior conviction for receiving stolen property
under Evidence Code section 1101, subdivision (b); and the prosecution
committed misconduct when it asserted in closing argument that the van was full
of stolen property and suggested that Joachim was the one who stole it. We address each contention in turn.
A. Admission
of Prior Conviction
The
prosecutor argued that the evidence relating to Joachim’s 2006 conviction for
receiving stolen property was admissible as evidence of a common scheme or plan
under Evidence Code section 1101, subdivision (b). Over Joachim’s objection, the trial court
agreed. Joachim contends this was error.
As
a general matter, evidence of a defendant’s character or character trait,
including of past acts such as an uncharged criminal offense or prior
conviction, is inadmissible when offered to prove the defendant’s conduct on a
specified occasion. (Evid. Code,
§ 1101, subd. (a).) Such evidence
is not made inadmissible by this provision, however, if it is offered to show
an act by the defendant (such as motive, intent, preparation, plan, or
identity) other than the defendant’s disposition to commit the crime. (Evid. Code, § 1101, subd. (b);
393 (Ewoldt).) The probative value of the uncharged offense
evidence must be substantial, and it must not be largely outweighed by the
probability that its admission would create a serious danger of prejudice,
confusion of the issues, or misleading of the jury under Evidence Code
section 352. (Ewoldt, at p. 393; People v.
Kipp (1998) 18 Cal.4th 349, 371.) We
review the court’s admission of the evidence for an abuse of discretion. (People
v. Cole (2004) 33 Cal.4th 1158, 1195.)
1
Common Design or Plan Under Evidence Code Section 1101
Evidence
of a prior criminal offense is
admissible to “support[] the inference that defendant committed the charged
offenses pursuant to the same design or plan defendant used to commit the
uncharged misconduct.†(
393.) For the evidence to be admissible
on this basis, there must be “ ‘a concurrence of common features that the
various acts are naturally to be explained as caused by a general plan of which
they are the individual manifestations.’ â€
(Id. at p. 402.) These common features must indicate the
existence of a shared plan, although the plan does not have to be distinctive or unusual. (Id.
at p. 403.) All that is necessary is the
existence of striking similarities in the manner in which the charged and
uncharged crimes were carried out. (
1009, 1020.)
Here,
there was sufficient evidence to suggest a common plan between the 2006 offense
and the charged offenses: Joachim drove
around in a vehicle with stolen tools and other property, while claiming that
the property was associated with transactions at a flea market or yard sale.
In
both the 2006 offense and the charged 2010 and 2011 offenses, Joachim possessed
stolen power tools and other equipment.
In 2006, Joachim was convicted for receiving a stolen compression hose,
hacksaw, and remote controlled sprinkler system used for irrigation. In 2010, officers seized a variety of similar
items from Joachim’s vehicle, including “construction type†lasers, two
chainsaws, an electric saw, and a concrete nail gun. In 2011, officers searching Joachim’s van
found, among other things, “all kinds of tools.â€
In
both the 2006 offense and the charged 2011 offense, Joachim claimed the stolen
property was lawfully obtained and related to the flea market. In 2006, he told officers that he bought the
stolen items in his vehicle from the flea market – without producing any
receipts or explanation for buying them.
In 2011, he told Stevens that he sold property at flea markets and yard
sales. One reasonable inference is that
he sold items – including stolen items he received – at the flea market.
In
both the 2006 offense and the charged 2010 and 2011 offenses, Joachim used a
motor vehicle to transport stolen goods in Napa County. In 2006, Deputy Ackman searched Joachim’s car
in American Canyon and found stolen property in his trunk and on the back
floorboard of his car. In 2010, officers
discovered stolen “power tool items†in the back of his truck along Cuttings
Wharf Road, along with several items taken from homes on Milton Road. In a 2011 search of the van, officers found
stolen property taken from Lewis’ home on Milton Road. The court did not abuse its discretion in
concluding that the evidence of Joachim’s prior offense of receiving stolen
property was of sufficient probative value for admission pursuant to Evidence
Code section 1101, subdivision (b).
2. Evidence
Code Section 352
Joachim
argues it was highly prejudicial to admit the evidence of his prior act of
receiving stolen property, because the evidence on the salient issue in this
case – whether he knew the items in the truck (in 2010) and the van (in 2011)
were stolen – was not strong: he was not
the registered owner of the vehicles; Reynolds had entered a plea to receiving
stolen property in the 2010 case; a large number of items in Joachim’s storage
unit and in the van in 2011 had not been determined to be stolen; and Joachim’s
fingerprints were not found on the stolen property.
The
trial court did not abuse its discretion in deciding that the evidence was not
precluded by Evidence Code section 352.
First, contrary to Joachim’s suggestion, there was substantial evidence indicating that he knew the property in
the truck and in the van was stolen.
Joachim admitted that he had been in the truck and even admitted in his
October 2010 letter that it was his
truck. Multiple items of documentary
evidence in the van linked it to Joachim, and he was seen going in and out of
the van and even driving it. Under these
circumstances, the fact that he was not the actual registered owner of the
vehicles meant little. Although Reynolds
had entered a plea to receiving stolen property in the 2010 case, that did not
mean that Joachim – who was also present – had not received the stolen property
too. And while fingerprints were not
found on the stolen property, police did find rubber gloves inside the pocket
on the driver’s door of the van – right after Joachim had been driving it –
which could have been used to avoid leaving fingerprints.
Second,
the evidence of the prior offense was not unduly prejudicial. The prior offense evidence was not likely to
inflame the passions of the jury, and it was no more egregious than either of
the charged crimes. Moreover, the jurors
were told by the court that Joachim had been found guilty on the 2006 charge;
evidence of a prior offense is less prejudicial where the uncharged act led to
a criminal conviction because it is less likely the jury might want to punish
the defendant for the prior act. (
1047.)
Joachim
contends “there was little doubt that the jury would consider the prior not for
common scheme or plan, but as improper propensity evidence.†We disagree.
The court instructed the jury pursuant to CALCRIM No. 375, as
follows: “If you decide the defendant
committed the [prior] offense and act [by a preponderance of the evidence], you
may, but are not required to consider the evidence for the limited purpose of deciding whether or not defendant had a plan
or scheme to commit the offenses alleged in this case. In evaluating this evidence, consider the
similarity or lack of similarity between the uncharged offenses and the [act],
and the charged offenses.
purpose. If you conclude the
defendant committed the act, that conclusion is only one factor to consider
along with all the other evidence.
defendant guilty of receiving stolen property. The People must prove each charge beyond a
reasonable doubt.†(Italics added.) We presume jurors understand and follow the
court’s instructions where, as here, there is no evidence to the contrary. (People
v. Sanchez (2001) 26 Cal.4th 834, 852.)
Joachim
has failed to establish that the court abused its discretion in admitting the
evidence of Joachim’s 2006 offense for the limited purpose of showing a common
plan or design under Evidence Code section 1101, subdivision (b).
B. Prosecutorial
Misconduct
Joachim
contends the prosecutor committed misconduct by suggesting (1) the van was full
of stolen property, rather than containing just eight to ten identified stolen
items, and (2) Joachim committed the underlying burglaries. Neither constitutes misconduct based on the
record in this case.
1. Legal
Standard
The
standard for review of alleged prosecutorial misconduct is
well-established. ““A prosecutor’s
conduct violates the Fourteenth Amendment to the federal Constitution when it
infects the trial with such unfairness as to make the conviction a denial of
due process. Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial court or the
jury.†[Citation.] When a claim of misconduct is based on the
prosecutor's comments before the jury, as all of defendant's claims are, “‘the
question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.’†[Citations.]â€
(People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 305; see People v.
Samayoa (1997) 15 Cal.4th 795, 841.)
Prosecutors
may not state facts that are not in evidence or mischaracterize the evidence,
but they have “wide latitude to discuss and draw inferences from the evidence
at trial.†(People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Valdez (2004) 32 Cal.4th 73, 133.) “Even inferences based on faulty reasoning
from the facts in the record are within the bounds of closing argument, for the
jury is the ultimate arbiter of the facts.â€
(People v. Younger (2000) 84
Cal.App.4th 1360, 1384 (Younger).)
2. Prosecutor’s
Characterization of the Van Contents
During
closing argument, the prosecutor stated:
“Now, if the defense tries to say that there’s only eight items that are
stolen in this van, don’t be misled.
This van is littered with stolen
items.†(Italics added.) The defense objected, contending “there’s
absolutely no evidence that any other item in the van was stolen. There’s no evidence.†The prosecutor replied: “It’s
argument, your Honor.†(Italics
added.) The court then told the
prosecutor: “Well, stick to the
facts. I’ll let you finish your
argument.â€
The
prosecutor continued along the same lines:
“This van is littered with evidence, costume jewelry, gold rings, the
defendant is selling all of these items at flea markets. It’s just riddled
with stolen property. These deputies
are conducting a Napa County investigation.
They’re taking fingerprints for Napa County purposes. They are only investigating Napa [County]
crimes. So as a jury we’re only looking
at Napa County cases and what’s happening here.
So I ask you not to speculate as to what’s going on elsewhere. And then even more property within the van. [¶] Now what legal purpose would someone
possess all of these random items when so much of this is stolen property,
this is stolen property?†(Italics
added.)
The
defense again objected: “[Defense
Counsel]: Your Honor, again I
object. There was evidence that eight
out of hundreds of items – [¶] [Court]:
You’ll get a chance. [¶] But
it is a misstatement of the facts and it’s asking the jury to speculate that
the other items were stolen. It’s
improper. [¶] [Court]: All right.
[¶] [Prosecutor]: I’m asking
what legal purpose is there – [Defense Counsel]: And that’s asking to speculate. [¶] [Court]: No. I
think he can do it based on the circumstance.
I’ll allow the argument.â€
The
prosecutor continued with the assertion that the van was full of stolen
property (this time adding the suggestion that Joachim was the one who stole it
– a theme we address post): “There’s no coincidence that the defendant
happens to be at the same locations as the burglaries, as they happen, and then
found to be in a van full of this stolen
property. . . . [¶] We have photographs of this van, you can
just see – you can’t really see it, but in the pictures you can see it’s
littered with property in the front seat.
There’s the window punch and a watch and it looks like a hand held radio
of some sort. Just a various box of items,
I suggest they’re stolen. [¶] Here’s the defendant with watches,
cell phones, a knife, random jewelry.
[¶] Now, you can see from the picture from the back of this van
that it’s literally piled to the roof with stuff. The defendant says he sells this stuff at the
flea market, and I suggest to you the evidence shows strongly that he gets it
from people’s houses that he doesn’t have permission to get the items
from. Milton Road seems to be a pretty
common place.†(Italics added.)
Joachim
now argues that “[t]he prosecution in this case committed misconduct by
asserting, under the guise of argument, facts not in evidence,†and that the
evidence was actually that, despite taking hours to inventory the contents of
the van, the police identified only eight stolen items.
The
prosecutor did not commit misconduct. In
context, stating that the van was “full of†or “littered with†stolen property
was just an attempt by the prosecutor to get the jury to draw a certain
inference from the evidence. It was, in
effect, the prosecutor’s characterization of the number of stolen items in the
van. If the jury concluded from the
evidence – as the defense repeatedly urged it to do – that there were only
eight stolen items in the van, the jury was free to reject the prosecutor’s
characterization as an exaggeration.
Alternatively, the jury could conclude that eight stolen items was
indeed enough for the van to be “littered with†stolen property, or it could
infer from the presence of those eight stolen items – and all the rest of the
evidence – that some or all of the other property was stolen too. But this is not a situation where, in the
absence of any evidence admitted at trial as to whether any of the property was
stolen, the prosecutor ventured outside
the record and stated as a fact that the property was stolen; the
prosecutor here merely “suggest[ed]†and “argu[ed]†that the property was
stolen, asking the jury to draw such an inference from the evidence that
Furthermore,
the defense had ample opportunity to discredit the prosecution’s theory that
the van was full of stolen property and to argue a contrary inference. Indeed, defense counsel got his point across
to the jury during the prosecutor’s
closing argument by making speaking objections after the prosecutor’s
statements. Defense counsel then in his
own closing argument further told the jury there were no witnesses who could
testify that the items were stolen and no evidence that the goods were
wrongfully taken. In short, the jurors
were presented with two competing inferences that the attorneys were asking
them to draw from the evidence as the jury found it. Joachim fails to establish prosecutorial
misconduct.
3. Prosecutor’s
Suggestion That Joachim Stole the Property
Several
times during his closing argument, the prosecutor suggested that Joachim did
not just possess stolen property, but knew the property was stolen because he
was the one who had committed the underlying burglaries. At various points the prosecutor argued: “And No. 2, when he concealed or withheld the
property, he knew it was stolen. Well,
on the side of the road as he’s heading back out to Martinez
knows these items are stolen because he just, it appears that he just burglarized Mr. Lewis’s property, and the
back of this van is piled high to the ceiling with stolen items, stolen items
all over the car.†“Martin Bida over in
Sonoma. On July 16th, the day that
these pieces of property were found, he lives over in Sonoma. Two PLS lasers, Simpson nail gun were
stolen. He doesn’t know defendant. The
defendant didn’t have permission to be on his property or in his yard.†“Rudy Doorman lives at [] Milton Road. Same, right on that street that the defendant knows that he hits…†“Now, not all of it was recovered. He had some time to get rid of them, turn it
into some cash, which is what he does.
them at flea markets.†“The defendant
says he sells this stuff at the flea market, and I suggest to you the evidence shows strongly that he gets it from
people’s houses that he doesn’t have permission to get the items from. Milton Road seems to be a pretty common
place.†“The defendant concealed or
withheld the property, because he’s not getting it back, he’s going to sell it. He knew that the property had been
stolen. Well, I suggest that he actually stole the property.†“Well, in the Dodge Dakota it’s right in the
back, it’s an open pickup. It’s hard to
miss. He’s lying about its presence,
he’s concealing his knowledge of it. But
he knows it’s there because he had just
taken it. It happened the same
day. This
guy is like a magnet with stolen property.â€
The
defense objected to the “magnet comment†on the ground that the prosecutor was
arguing that Joachim had a propensity to commit the crime; defense counsel also
moved for a mistrial, which the court denied.
The prosecutor then explained that he did not have to prove that Joachim
committed the burglaries, but that Joachim possessed stolen property, and that
“[t]here is a mountain of evidence that makes it unreasonable that he didn’t.â€
Joachim
contends the prosecutor’s indication that Joachim stole the property was
improper, because there was no evidence that he had done so. In fact, Joachim argues, Lagorio did not
identify Joachim as one of the men he saw leaving his property, and actually
described the men as being of different age and physique than Joachim.
Joachim’s
argument is unpersuasive. In the first
place, contrary to his urging, there was
evidence from which it could be inferred that Joachim was one of the
participants in the burglaries. Ample
evidence linked Joachim to the red Ford van, which was seen trolling Milton
Road on the day burglars gained access to Lewis’ home by breaking a window;
Willis testified at trial that Joachim was on Milton Road touching up this van
on the very morning of this burglary; when Detective Murphy stopped the van a
few days later, Joachim was driving, and within his reach was a pair of rubber
gloves that could be used to avoid leaving fingerprints and a window punch that
could be used to break windows; and the van contained a number of stolen items
from multiple burglaries – including the burglary of Lewis’ house – just as
there had been a number of stolen items in the Dodge truck that Joachim would
later claim to be his.
Moreover,
whether the prosecutor’s inference was compelling or not, it was not misconduct
for the prosecutor to ask the jury to draw it.
(See Younger, supra, 84
Cal.App.4th at p. 1384.) At no time did
the prosecutor state that he had specific, direct evidence that Joachim stole
the items in the van. To the contrary,
he repeatedly said that he was merely suggesting that Joachim was the burglar
based on other evidence admitted at the trial.
Furthermore, the court instructed the jury pursuant to CALCRIM No. 222,
telling the jurors: “Nothing that the
attorneys say is evidence. In their
opening statements and closing arguments, the attorneys discussed the case, but
their remarks are not evidence.â€
In
the totality of the circumstances, there is no reasonable likelihood that the jury
construed or applied any of the prosecutor’s statements in an objectionable
manner, or that the jury used the prosecutor’s statements to convict Joachim of
crimes it did not otherwise believe he committed. Joachim fails to establish prosecutorial
III.
DISPOSITION
The judgment is affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
statutory references are to the Penal Code.
October 15, 2010, in which Joachim indicated that he had not requested money
from an individual until his Dodge
pickup was taken by the Napa County Sheriff’s Department. At trial, the prosecutor argued that this
was an admission by Joachim that he owned the truck.
