P.
v. Roesing



Filed
10/19/12 P. v. Roesing CA5













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HAMPTON ROESING, Defendant and Appellant.

F062765 (Super. Ct. No. F11900708) O P I N I O N

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of Fresno
County. Gary R. Orozco, Judge.

Lynette
Gladd Moore, under appointment by the Court
of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.

-ooOoo-

It was alleged in an information filed March 7, 2011,
that appellant, William Hampton Roesing, committed second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c)) and that he had served two separate prison
terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). A jury convicted appellant of the lesser
included offense of grand theft from a person (Pen. Code, § 487, subd. (c)),
and in a separate proceeding appellant admitted the two prior prison term href="http://www.mcmillanlaw.us/">enhancement allegations. The court imposed a prison term of four
years, consisting of the two-year midterm on the substantive offense and one
year on each of the two prior prison term enhancements.

On appeal
appellant argues that the prosecution violated his constitutional right to due
process of law by commenting on (1) his failure to testify in his defense (>Griffin error)href="#_ftn2" name="_ftnref2" title="">^[1] and (2) his silence after he was advised of
his right to remain silent (Doyle
error).href="#_ftn3" name="_ftnref3" title="">^[2] He acknowledges that he has waived this claim
by his counsel’s failure to object below, but argues that this failure deprived
him of his constitutional right to the effective assistance of counsel. Appellant also contends the court erred in
failing to order the district attorney to file a petition for the commitment of
appellant to the California Rehabilitation
Center (CRC) pursuant to Welfare and
Institutions Code section 3051 (section 3051). We affirm.

FACTS

Prosecution Case

On February 4, 2011 (February
4), at approximately 3:00 p.m., Rusty Sills was at a grocery store (the store)
in Fresno with his wife.href="#_ftn4"
name="_ftnref4" title="">^[3] Appellant, with whom Sills was acquainted
from the methadone clinic they both frequented, had telephoned Sills “several
times wanting money,” and Sills had gone to the store both to shop and to meet
with appellant. On direct examination,
Sills testified he was not sure if appellant was asking for a loan, which would
be repaid, or if he was asking that Sills “giv[e] him money out of generosity.” On cross-examination, when asked if he (Sills)
owed money to appellant, Sills testified, “either I owed him the money or I was
helping him out and he was going to repay me.”
He further testified that it “would be fair to say” that he did not
recall whether or not he owed appellant money.


Sills’s
wife entered the store first, and Sills and appellant followed. The two “[t]alked about money.” At one point, inside the store, Sills removed
a “wad” of currency from one of his pockets; he was “counting it,” and “[the]
next thing you know [appellant] comes up behind [Sills] and he [takes] ...
[the] money.”

After
appellant “grabbed” the money, he “bolted and ran.” Sills gave chase, yelling, “‘He stole my
money, he stole my money.’” Sills caught
up with appellant outside the store, in the parking lot. Appellant “pushed [Sills] down.” Sills caught up with appellant again in the
parking lot, and again appellant pushed him down. Sills “swung at” appellant.

The chase
continued, out to the street, “over the freeway,” and back to the store parking
lot. At that point, a police officer
arrived on the scene. As he approached
appellant and Sills, appellant “started to give [Sills his] money back.” Sills told the officer appellant had robbed
him.

Esther
Torres testified to the following: She
was at the store at approximately 3:00 p.m. on February 4 when she saw two
persons, one of whom she identified as appellant, “getting into a
fistfight.” The other combatant, a
“smaller person,” yelled, “‘help, somebody call 9-1-1, I’m being robbed.’” It appeared the smaller person “was getting
beat up ....” Torres called 9-1-1.

>Defense Case

Defense
investigator Robert Rubio testified that he spoke to Sills at Sills’s
residence, and that Sills told him the following: He met with appellant at the store on February
4. Sills “was there to pay [appellant]
some money.” Sills could not recall how
much money he owed appellant.

DISCUSSION

Ineffective Assistance of Counsel

As indicated above, appellant
contends he was denied his right to the effective assistance of counsel by
defense counsel’s failure to object to instances of Doyle error and Griffin
error. We first discuss appellant’s
claims of error under Doyle and >Griffin.
We then turn to appellant’s claim of ineffective assistance of counsel.

The Supreme Court held in >Griffin that “the Fifth Amendment ...
forbids ... comment by the prosecution on the accused’s silence ....” (Griffin,
supra, 380 U.S. at p. 615.) “Under the rule in Griffin, error is committed whenever the
prosecutor or the court comments, either directly or indirectly, upon
defendant’s failure to testify in his defense.”
(People v. Medina (1995) 11
Cal.4th 694, 755.) “The prosecutor’s
argument cannot refer to the absence of evidence that only the defendant’s
testimony could provide. [Citation.] The rule, however, does not extend to
comments on the state of the evidence or on the failure of the defense to
introduce material evidence or to call logical witnesses. [Citation.]”
(People v. Brady (2010) 50
Cal.4th 547, 565-566.)

Our Supreme Court has also made clear that “‘[t]he
prosecutor cannot use the defendant’s invocation of his right to remain silent
or refusal to answer questions ... to impeach his credibility. [Citations.]
[¶] To establish a violation of
due process under Doyle the defendant
must show that the prosecution inappropriately used his postarrest silence for
impeachment purposes and the trial court permitted the prosecution to engage in
such inquiry or argument.’ [Citation.] ‘To assess whether these questions constitute
Doyle error, we ask whether the
prosecutor referred to the defendant’s post-arrest silence so that the jury
would draw “inferences of guilt from [the] defendant’s decision to remain
silent after ... arrest.” [Citation.]’ [Citation.]”
(People v. Hollinquest (2010)
190 Cal.App.4th 1534, 1555-1556.)

Appellant bases his due process
claims on three statements by the prosecutor in closing argument. In the first, the prosecutor referred to the
following testimony of City of Fresno Police Officer Henry Okazaki: On February 4, during the course of
investigating a report of a robbery, the officer made contact with appellant
and “attempted to Mirandize him,” but appellant “kept talking over [the
officer] which made it difficult to complete the Miranda advisement.”href="#_ftn5" name="_ftnref5" title="">^[4] Officer Okazaki indicated that “at that point
[he] chose to terminate [the] interview and not get a statement from
[appellant].”

The prosecutor stated: “What did Officer Okazaki say? He said ‘I tried to talk to him, I tried to
admonish him of certain rights, and he spoke over me and he would not
cooperate.’ I would submit to you that
if this was a simple misunderstanding, and [appellant] really was owed that
money, 45 minutes after he’s been sitting in a squad car he would just say,
‘Officer, that guy owed me money, I took what I thought was mine.’ If that were the evidence in the case, you
would have heard it. But we didn’t hear
that.”

Second, the prosecutor told the
jury: “If you think that [appellant] was
there and these circumstances show that he was just collecting the money he was
owed, even though there has not been one shred of evidence, how much money, why
it was owed, who it was owed to, when it was loaned. Despite the fact that the defense never brought
any of that evidence into you, if that’s what you believe, then find him not
guilty.”

Finally, appellant finds fault with
the following statement by the prosecutor:
“If the defendant obtained property under a claim of right, he did not
have the intent required for the crime of theft or robbery. That’s what 1863 asks you to consider.[href="#_ftn6" name="_ftnref6" title="">^[5]] It goes on to say, the defendant obtained
property under a claim of right. If you
believe in good faith that he had the right to a specific property or -- a very
important ‘or’ there -- a specific amount of money and he openly took it. What specific amount of money could he have
possibly thought -- think that he was entitled to? There has been zero evidence in that regard. Not one shred, not one mention by the defense
or any of the witnesses. How much money
was it that [appellant] was owed? Five
bucks? Seven bucks?
Nine bucks? Ten bucks? We don’t
know. That is why the defense does not
apply to our case. The law is very
clear. A specific amount of money. You would only be guessing as to how much
money that was. There is absolutely no
evidence as to this effect.”

Appellant argues that the foregoing
remarks by the prosecutor constituted comment on appellant’s postarrest silence
and his failure to testify, in violation of his Fifth Amendment rights. However, as appellant acknowledges, by
failing to object to these remarks below he forfeited his Griffin- and Doyle-based
claims on appeal. (People v. Lancaster (2007) 41 Cal.4th 50, 84 [Griffin error waived by failure to object]; People v. Cornwell (2005) 37 Cal.4th 50, 91, disapproved on another
point in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22 (Doolin) [>Griffin error waived by failure to
object]; People v. Crandell (1988) 46
Cal.3d 833, 879, fn. 14, disapproved on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365 [>Doyle error waived by failure to
object].) We turn now to appellant’s
claim that counsel’s failure constituted ineffective assistance of counsel.

“The burden of proving ineffective
assistance of counsel is on the defendant.”
(People v. Babbitt (1988) 45
Cal.3d 660, 707.) To meet this burden,
“a defendant must show both that his counsel’s performance was deficient when
measured against the standard of a reasonably competent attorney and that
counsel’s deficient performance resulted in prejudice to defendant ....” (People
v. Lewis (2001) 25 Cal.4th 610, 674.)
Prejudice is shown
when 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. [Citation.]” (In re
Sixto (1989) 48 Cal.3d 1247, 1257.)
Since the failure of either prong of an ineffective assistance of
counsel claim is fatal to establishing the claim, we need not address both
prongs if we conclude appellant cannot prevail on one of them. (People
v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in >Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “In particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” (Strickland
v. Washington (1984) 466 U.S. 668, 697.)
We conclude appellant has not made the required showing of prejudice.href="#_ftn7" name="_ftnref7" title="">^[6]

“[A] defendant’s good faith belief, even if mistakenly
held, that he has a right or claim to property he takes from another negates
the felonious intent necessary for conviction of theft or robbery.” (People
v. Tufunga (1999) 21 Cal.4th 935, 938 (Tufunga).) Appellant raised this defense—commonly called
the claim-of-right defense—in the instant case.
He suggests the prosecutor’s comments, quoted above, told the jury that
appellant’s failure to testify and his silence at the time of his arrest cast
doubt on his claim, asserted at trial, that Sills owed him money. Implicit in this claim is the further claim
that if he was merely trying to collect a debt, he did not have the intent necessary
for a conviction of theft. This assertion
is without merit.

In rejecting the availability of a claim-of-right defense
when a robbery is accomplished to satisfy a debt, the court in >Tufunga invoked the following principal:
“‘The law does not contemplate the use of criminal process as a means of
collecting a debt. To invoke such
process for the purpose named is, as held by all authorities, contrary to
public policy. Hence, good faith, or the
fact that the end accomplished by such means is rightful, cannot avail one as a
defense in such prosecution, any more than such facts would constitute a
defense where one compels payment of a just debt by the threat to do an
unlawful injury to the person of his debtor.’
[Citation.]” (>Tufunga, supra, 21 Cal.4th at p. 956, italics omitted.) The court quoted with approval a Wisconsin
Supreme Court case, which also declined to allow a claim-of-right defense for
debt collection in a robbery prosecution:
“‘The distinction between specific
personal property and money in general is important. A debtor can owe another $150 but >the $150 in the debtor’s pocket is not the
specific property of the creditor.
One has the intention to steal when he takes money from another’s
possession against the possessor’s consent even though he also intends to apply
the stolen money to a debt. The efficacy
of self-help by force to enforce a bona fide claim for money does not negate
the intent to commit robbery. Can one
break into a bank and take money so long as he does not take more than the
balance in his savings or checking account?
Under the majority rule [as it then existed, allowing a claim of right
defense to any robbery] the accused must make change to be sure he collects no
more than the amount he believes is due him on the debt. A debt is a relationship and in respect to
money seldom finds itself embedded in specific coins and currency of the
realm. Consequently, taking money from a
debtor by force to pay a debt is robbery.
The creditor has no such right of appropriation and allocation.’ [Citation.]”
(Id. at pp. 954-955, italics
added.)

Applying its holding that a claim-of-right defense cannot
be used to justify a robbery for the alleged purpose of collecting a debt, the Tufunga
court concluded that the defense was available in that case because, according
to the defendant’s version of events, he was not taking property to collect on
a debt, but rather retrieving the specific money that he had brought to the
alleged robbery victim’s house. In Tufunga,
the defendant testified that he was paid $200 in cash on the day of the alleged
robbery by his employer/relative, who corroborated that fact, and brought that
money to his ex-wife’s house, putting it on the coffee table and stating it was
to help pay a bill. (>Tufunga, supra, 21 Cal.4th at p. 941.)
When the defendant and his ex-wife began to argue, and his former
mother-in-law went to call 911, the defendant’s ex-wife took the money and put
it in her bra. (Id. at pp. 941-942.) The
defendant believed that his ex-wife would give the money to her mother and that
the two were out to take the money. (>Id. at p. 942.) Although the defendant demanded the money,
his ex-wife refused, and he wrestled with her, reached into her bra and took it
back. (Ibid.) Based on these facts, the Supreme Court
concluded that the defendant could assert a claim-of-right defense because, if
his version of the events were believed, “he brought $200 into the victim’s
home and took back the same currency upon fleeing.” (Id.
at pp. 944-945.)

The instant case differs from Tufunga in that here there was no evidence from which the jury
reasonably could conclude that appellant sought to recover specific
property. Rather, the evidence shows
that although appellant may have been seeking to collect a debt that he
believed, in good faith, he was owed, he was trying to do so through “‘the
use of criminal process
....’” (Tufunga, supra, 21
Cal.4th at p. 956.) Under these
circumstances, under Tufunga, a claim-of-right defense was not
available. Therefore, it is of no moment
that the prosecutor’s remarks, quoted above, cast doubt on the validity of such
a defense. And from this point it
follows that it is not reasonably probable that objection by defense counsel to
those remarks would have led to a result more favorable to appellant.

Section 3051

Appellant contends the court abused
its discretion in failing to direct the district attorney to initiate civil
commitment proceedings under section 3051.
The People counter that appellant has forfeited this claim by failing to
raise it below. The People are correct.

Statutory Framework

“Section 3000 et seq. establishes a
program for the nonpunitive treatment and control of narcotics addicts,
including persons convicted of criminal offenses, implemented by periods of
treatment within CRC and outpatient supervision.” (People
v. Cruz (1990) 217 Cal.App.3d 413, 419.) Section 3051 “vests discretion in the trial
court to determine whether evaluation for commitment to CRC is
appropriate.” (People v. Masters (2002) 96 Cal.App.4th 700, 703-704.)

Section 3051 provides in relevant
part: “Upon conviction of a defendant
for a felony, … if it appears to the judge that the defendant may be addicted
or by reason of repeated use of narcotics may be in imminent danger of becoming
addicted to narcotics the judge shall suspend the execution of the sentence and
order the district attorney to file a petition for commitment of the defendant
to the Director of Corrections for confinement in the narcotic detention,
treatment, and rehabilitation facility unless, in the opinion of the judge, the
defendant’s record and probation report indicate such a pattern of criminality
that he or she does not constitute a fit subject for commitment under this
section.”

Procedural
Background

The
report of the probation officer indicates that appellant, who was 29 years old
at the time of sentencing, told the probation officer the following: He first used alcohol at the age of 13, and
“[b]etween his teenage years and the age of 26, he was an alcoholic.” He has used marijuana, cocaine, methamphetamine
and heroin. He has been using methadone
since he turned 18. On February 4, “he
had Klonipin, methadone, and cocaine in his system.”

At sentencing, defense counsel told
the court: “We would ask for
probation.… [¶] ... [¶] [Appellant] is requesting the opportunity to
participate in a program. [¶] ...
[¶] He ... is requesting the opportunity
to participate in a program. He does have
family, a minor children and wife, who is very supportive of him. So we would request a program and probation.”

Analysis

As appellant acknowledges, an
appellate challenge to a trial court’s failure to direct the district attorney
to initiate CRC commitment proceedings is waived by a defendant’s failure to
raise the claim in the trial court. (>People v. Lizarraga (2003) 110
Cal.App.4th 689, 690; People v. Planavsky
(1995) 40 Cal.App.4th 1300, 1305-1315.)
Appellant argues that although there was no mention of CRC or section
3051 proceedings in the trial court, counsel’s request for a “program”
preserved his claim for appeal. We
disagree.

Here, appellant requested
probation. Probation is part of the
criminal process. At sentencing, the
court’s choices include a grant of probation or imposition of a prison sentence. (See Cal. Rules of Court, rules
4.411-4.420.) As indicated above,
however, the CRC commitment process requires suspension of criminal
proceedings. (§ 3051.) Because appellant specifically requested a
disposition that presupposes the continuation of criminal proceedings, his
further request for a “program” cannot reasonably be construed as a request for
CRC commitment. For this reason, and
because appellant did not otherwise mention the civil commitment process for
drug addicts, appellant waived his claim that the court erred in failing to
direct the district attorney to initiate civil commitment proceedings.

DISPOSITION

The
judgment is affirmed.