P. v. Solomon
Filed 4/24/13 P. v. Solomon CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LANDON ANTHONY SOLOMON,
Defendant and Appellant.
B239354
(Los Angeles County
Super. Ct. No. GA083955)
APPEAL from a judgment of the Superior Court of
County, Janice Claire Croft, Judge. Affirmed.
Stephanie L. Gunther, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Mary Sanchez and Esther P. Kim, Deputy Attorneys General, for
Plaintiff and Respondent.
Appellant
Landon Anthony Solomon challenges his conviction for
theft-related convictions (Pen. Code, § 666), contending that there was
prosecutorial misconduct and that he
received ineffective assistance of counsel.
We conclude that appellant has failed to show
On October 3,
2011, an
information was filed, charging appellant with petty theft with three prior
convictions. In addition, the
information alleged that appellant had served five prior prison terms (§ 667.5,
subd. (b)), and had two convictions, for purposes of the “Three Strikes†Law
(§§ 667, subds. (b)-(i), 1170. 12, subds. (a)-(d)). Appellant pleaded not guilty and denied the
special allegations.
Prior
to trial, appellant admitted that he had three prior convictions, for purposes
of the offense charged against him. On November 22, 2011, a jury found appellant guilty as charged. In waiving a bench trial on the special allegations, appellant admitted
that he had served five prior prison terms (§ 667, subd. (b)) and had one
“strike†conviction. The trial court
sentenced him to a total prison term of 5 years.
A. Prosecution
Evidence
On August
6, 2011, Stephanie
Villa was employed as an asset protection associate in a Walmart store in Rosemead.
She watched five closed circuit television monitors displaying different
areas of the store, including the cash registers. Villa was able to move some of the television
cameras to adjust her view. Video recordings of the pertinent events that
she witnessed were played for the jury.
At 3:48 p.m., Villa saw appellant accompanying a
child in a shopping cart. Appellant
opened a package of band-aids, placed one on his finger and several others in
his pocket, and replaced the package on a shelf. He then pushed his cart to the children’s
clothing department, where he joined Sandra Hernandez, who had a second
shopping cart containing another child and a reusable shopping bag. Hernandez and appellant selected items of
children’s clothing that appellant appeared to place in the shopping bag. According to Villa, when appellant and
Hernandez left the children’s clothing department and moved toward the cash
registers, the shopping bag in the cart seemed to be “much fuller than when
[Villa] originally saw it.â€
As appellant
and Hernandez approached the cash registers, they removed a wallet from the
shopping bag. Afterward, appellant tied
up the bag, moved it to a corner of the cart, and put some paper over the
bag. He then placed more goods in the
cart and entered the cash register area, accompanied by Hernandez. When appellant transferred goods from the
cart to the cash register conveyor belt, he removed no items from the shopping
bag. He paid only for the goods on the
conveyor belt and some gift cards.
Hernandez stood nearby while appellant completed the transaction. After appellant and Hernandez left the store
with cart, Villa confronted them and discovered unpaid items worth $78.65
inside the shopping bag. In addition,
appellant possessed unpaid band-aids valued at $3.32.
B. Defense
Evidence
Appellant
admitted that he had prior convictions for theft-related offenses, but denied
that he intended to steal from the Walmart store. He testified that his sole goal was to give
his friend, Hernandez, a ride to the store and help with her children, and that
Hernandez carried the reusable shopping bag into the store. According to appellant, he placed no items in
the bag, and believed that Hernandez was obliged to pay for any goods that it
contained. He further stated that
Hernandez bought the goods on the cash register conveyor belt.
Appellant
contends (1) that there was prosecutorial misconduct, and (2) that his defense
counsel rendered ineffective assistance by failing to object to the purported
misconduct. For the reasons discussed
below, appellant has failed to demonstrate reversible error.
A.
Appellant maintains that the
prosecutor’s cross-examination of appellant constituted misconduct, arguing
that the prosecutor implied the existence of facts unfavorable to appellant,
but provided no evidence to establish the facts. Generally, “[i]t is improper for a prosecutor
to ask questions of a witness that suggest facts harmful to a defendant, absent
a good faith belief that such facts exist.
[Citations.]†(
480.) Nonetheless, the prosecutor may
ask such questions when he or she has the requisite belief. (People
v. Lucas (1995) 12 Cal.4th 415, 467.)
Appellant asserts that the prosecutor asked questions regarding
admissions that appellant purportedly made to a deputy sheriff, but never
presented the deputy sheriff as a witness.
As explained below, appellant has forfeited his contention.
Appellant was obliged to object to
prosecutor’s questions in order to preserve his contention of error for appeal. (People
v. Bolden (2002) 29 Cal.4th 515, 562.)
As our Supreme Court has explained, “if the defense does not object, and
the prosecutor is not asked to justify the question, a reviewing court is
rarely able to determine whether this form of
Therefore, a claim of misconduct on this basis is [forfeited] absent a
timely and specific objection during the trial.†(People v. Price (1991) 1 Cal.4th 324,
481.)
The record
discloses no objections to the prosecutor’s questions or her failure to present
the deputy sheriff as a witness. Shortly
before defense counsel completed his direct examination of appellant, the
prosecutor told the trial court that she intended to cross-examine appellant
regarding certain statements that appellant had made to the deputy
sheriff. According to the prosecutor,
appellant told the deputy sheriff that while he was in the Walmart store, he
saw that his finger was bleeding, and took a band-aid from a package on a store
shelf to put on his finger. He also told
the deputy sheriff that as both of Hernandez’s children had opened beverages,
he put some of the clothing in the bag to protect it. Defense counsel asserted no objection to the
proposed questions.
Later, during
the prosecutor’s cross-examination, appellant denied that he opened a package
of band-aids and placed one on his finger, and that he put items of clothing in
the shopping bag. He also denied telling
the deputy sheriff that he took a band-aid and placed clothing in the bag. Defense counsel did not object to the
prosecutor’s questions regarding these matters.
After
appellant completed his defense-in-chief, the trial court asked whether the
prosecutor had more witnesses. When the
prosecutor replied that she was considering presenting the deputy sheriff who had
heard appellant’s remarks, defense counsel requested an opportunity to retrieve
a transcript of the deputy sheriff’s testimony in an unrelated trial. Defense counsel stated: “I was able to cross-examine [the deputy
sheriff] on some very inconsistent statements in his testimony, and I would
want to make a photocopy of that transcript and give it to the
prosecution.†The trial court initially
stated that it was prepared to continue the trial to facilitate defense
counsel’s proposed cross-examination of the deputy sheriff. However, after a brief recess, the court
informed the jury that both sides had rested.
The record discloses no objection by defense counsel to the prosecutor’s
decision not to call the deputy sheriff and no request for any admonition to
the jury. Nor does the record reveal the
prosecutor’s reason for her decision.
The
record thus establishes that appellant forfeited his contention of error. Appellant objected neither to the
prosecutor’s cross-examination nor to her failure to call the deputy sheriff as
a witness. Defense counsel requested no
admonition. Accordingly, appellant has not preserved the issue of prosecutorial
misconduct for review. (
Moreover, we would not find misconduct
were we to consider appellant’s contention.
On appeal, “‘error is never presumed, but must be affirmatively shown,
and the burden is upon the appellant to present a record showing it, any
uncertainty in the record in that respect being resolved against him.’†(People
v. Clifton (1969) 270 Cal.App.2d 860, 862, quoting 3 Cal.Jur.2d (1952)
Appeal and Error, § 260, pp. 781-782.)
Ordinarily, the prosecutor’s failure to submit evidence confirming the
facts underlying his or her questions, by itself, does not prove the absence of
a good faith belief in those facts, unless that is the only reasonable
inference supported by the record. (
1046, 1098.) Nothing
before us suggests the prosecutor lacked a good faith belief regarding
appellant’s admissions to the deputy sheriff.
On the contrary, both the prosecutor and defense counsel appear to have
believed that the deputy sheriff, if called as a witness, would testify that
appellant made the admissions. In sum,
appellant has failed to demonstrate prosecutorial misconduct.
B. Ineffective
Assistance of Counsel
Appellant also contends that his
counsel rendered ineffective assistance by asserting no objection to the
prosecutor’s cross-examination and her subsequent failure to call the deputy
sheriff.
title="">[2] We disagree. Generally, “[w]hether
to object to arguably inadmissible evidence is a tactical decision; because
trial counsel’s tactical decisions are accorded substantial deference, failure
to object seldom establishes counsel’s incompetence.†(People
v. Maury (2003) 30 Cal.4th 342, 415-416.)
In such cases, we will find ineffective assistance only when “the record
on appeal demonstrates counsel had no rational purpose for the failure to
object . . . .†(
Here, the
record discloses a rational tactical basis for defense counsel’s conduct. As noted above, when appellant denied telling
the deputy sheriff that he took a band-aid and put clothing in the shopping
bag, both the prosecutor and defense counsel appear to have believed that the
deputy sheriff, if called as a witness, would rebut appellant’s testimony. Under the circumstances, it was not
objectively unreasonable for defense counsel to remain silent regarding the
prosecutor’s cross-examination and failure to call the deputy sheriff, rather
than assert objections that might highlight appellant’s testimony or compel the
prosecutor to call the deputy sheriff.
(See People v. Rowland (1992)
4 Cal.4th 238, 275-276, fn. 16 [defense counsel’s failure to object to
prosecutor’s cross-examination was not unreasonable, as it avoided drawing the
jury’s attention to prosecutor’s questions].)
In addition,
we would find no prejudice resulted from defense counsel’s performance, even if
it were deficient. The jury was
instructed that “[s]tatements by attorneys made during trial are not evidenceâ€
and that it should “not assume to be true any insinuation suggested by a
question asked a witness.†We presume
the jury followed these instructions. (
436.) In addition, there was
considerable evidence independent of appellant’s cross-examination establishing
that he stole the band-aids and the items in the shopping bag, including the
video recordings that were viewed by the jury.
Accordingly, it is not reasonably likely that appellant would have
obtained a more favorable outcome had defense counsel raised successful
objections to the prosecutor’s conduct.
(People v. Jennings,
The
judgment is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
name="_ftn1" title="">[1] All further statutory citations are to the
Penal Code.
assistance of counsel, a defendant must first show counsel’s performance was
‘deficient’ because his ‘representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.’ [Citations.]
Second, he must also show prejudice flowing from counsel’s performance
or lack thereof. [Citations.] 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.’ [Citations.]â€
(People v. Jennings (1991) 53
Cal.3d 334, 357.)
