Filed 7/6/17 P. v. Barbosa CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
RYAN MATEO BARBOSA,
Defendant and Appellant.

A147780

(Solano County
Super. Ct. No. FCR316616)


Ryan Mateo Barbosa appeals from a judgment of conviction and sentence imposed after a jury found him guilty of first degree burglary and resisting an officer. He contends that the trial court erred in excluding as hearsay certain statements he made to the victim, and that the prosecutor committed misconduct by misleading the jury. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In October 2015, an information charged Barbosa with first degree burglary (Pen. Code, § 459); misdemeanor resisting an officer (§ 148, subd. (a)(1)); and misdemeanor trespass (§ 602, subd. (1)). The information alleged that the burglary was a serious felony because a person other than an accomplice was present during its commission (§ 667.5, subd. (c)).
The trespass count was later dismissed, and the matter proceeded to a jury trial.

A. Evidence at Trial
1. Witness Juan Equihua
Juan Equihua testified that he lived in a rural area of Winters. The area lacked streetlights and had minimal traffic at night.
At approximately 11:00 p.m. on September 1, 2015, Equihua was alerted by his barking dogs that someone was on his property. He noted that the sensor light in the front of his house turned on, and his daughter saw someone outside their window walking around. Equihua opened his front door and saw a man he had never seen before, whom he identified at trial as Barbosa. Equihua asked Barbosa what he was doing there, but Barbosa continued walking. Barbosa was shirtless, wearing only shorts and tennis shoes. Equihua called 911 as he saw Barbosa head toward another house.
2. Victim Karal Erb
Karal Erb testified that she lived on a 70-acre ranch in front of Equihua’s property. According to Erb, there were no street lights and people did not typically walk around the area.
At approximately 11:30 p.m. on September 1, 2015, Erb was home alone, sitting in her bedroom, when she looked up and saw a man standing in the hallway just outside her bedroom door. Erb had never seen him before. She recalled the man was wearing shorts but was unsure whether the top of his body was clothed. At trial, she identified him as Barbosa.
Erb told Barbosa to leave her house, and he departed through a side door. She assumed he had entered through that same door, which she had left slightly open for her dogs. Erb did not observe Barbosa take anything, but, afraid he might still be outside her home, she called police about five to seven minutes after he left her residence.
3. Sheriff’s Deputies
Solano County Sheriff’s Deputy Ray Merz responded to a report of a suspicious male trespassing on private property. Merz observed an individual who matched the suspect’s description—a white male wearing shorts but no shirt—pacing in the street. At trial, Merz identified Barbosa as the individual.
Deputy Merz told Barbosa he was a police officer and asked him for identifying information. In response, Barbosa made “grunting” noises and continued to pace. Merz repeatedly commanded Barbosa to keep his hands out of his pockets; Barbosa would remove his hands from his pockets but then put them back in.
When another deputy arrived at the scene, Barbosa said to Deputy Merz, “I’m out of here,” but a third deputy pulled up in his vehicle and blocked his path. As the deputies approached Barbosa, he tensed up. When deputies tried to handcuff him, Barbosa struggled and clasped his hands together in front of his body; the deputies eventually brought him to the ground, but he continued to struggle after he was handcuffed, despite their orders to stop resisting.
Deputy Merz searched Barbosa and found a flashlight in his pocket. Erb identified the flashlight as hers; she testified that it had been on the table in her hallway where Barbosa was standing.
B. Verdict and Sentence
The jury found Barbosa guilty of first degree burglary and resisting an officer, and found true the serious felony allegation. The court thereafter sentenced him to the upper term of six years in state prison on the burglary count and a concurrent 120 days in county jail for resisting an officer.
This appeal followed.
II. DISCUSSION
Barbosa contends that the court erred in excluding evidence of statements he made to Erb while inside her home, and that the prosecutor committed misconduct by arguing the evidence in summation.
A. Exclusion of Barbosa’s Statements to Erb
1. Background
Evidence at Barbosa’s preliminary hearing indicated that he and Erb had a brief conversation as he stood outside her bedroom. Specifically, Erb testified at the preliminary hearing that she asked Barbosa what he wanted, and he replied in effect that he was there to “fix something;” Barbosa asked to have some water (or asked if she had a bottle of water); and, when she asked his name, he volunteered his true name of “Ryan Barbosa.” Then he left her house.
During in limine proceedings, defense counsel argued that Barbosa’s statements to Erb should be admitted at trial. Counsel explained that the statements were not being offered for their truth, but for the non-hearsay purpose of showing circumstantial evidence of Barbosa’s state of mind when he made them, which would be relevant to whether Barbosa had a specific intent to commit theft (or a felony) when he entered Erb’s residence, as required for burglary. (§ 459; CALCRIM No. 1700.)
The court found that Barbosa’s statements constituted inadmissible hearsay and prohibited the parties from inquiring about any of Barbosa’s remarks.
2. Analysis
Assuming that Barbosa’s statements to Erb did not constitute inadmissible hearsay and it was error to exclude them, an evidentiary error requires reversal only if it is reasonably probable that a result more favorable to the appealing party would have been reached without the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, ample evidence showed that Barbosa intended to commit theft when he entered Erb’s residence. Around 11:00 p.m. in a dark rural area, he was seen outside Equihua’s house, until the security light went on, Equihua’s dogs started barking, Equihua confronted him, and he headed off towards another residence without responding. Around 11:30 p.m., he entered uninvited into Erb’s house without announcing his presence, and he took her flashlight with him as he left. When police arrived, he did not answer their questions, refused their instructions, and put up a struggle as they tried to restrain him. In the face of this evidence, there is no reasonable probability that the jury would have had a doubt as to his intent if it had also heard that Barbosa told his victim he was there to “fix something,” wanted water, and gave his name.
Barbosa’s arguments to the contrary are unpersuasive. He contends a more stringent prejudice standard should apply, asserting that the exclusion of his statements deprived him of a fair trial because it effectively precluded the jury from deciding the specific intent element of burglary. He urges that the conviction must therefore be reversed unless respondent can show the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23.) But Barbosa was plainly able to raise the issue of his intent at trial, and defense counsel in fact argued forcefully that the circumstances—including his docile conduct when Erb confronted him and the absence of any burglary tool or getaway car—demonstrated that he did not intend to commit theft but was instead “lost and disoriented.” He was not deprived of a defense or a fair trial, and the Chapman standard does not apply.
Barbosa also insists that the case was “close” with respect to his intent. He notes that he appeared at Erb’s home without any burglary tool, bag to carry pilfered items, or getaway vehicle. But that evidence does not suggest a lack of intent to commit theft under the circumstances of this case, because those items are not necessary to steal—indeed, Barbosa accomplished the theft of Erb’s flashlight without them. Barbosa further points to the fact that he paced outside her residence until police arrived. But that says little if anything about his state of mind when he entered the residence. Finally, he notes that the jury sent a number of questions to the court during deliberations concerning the legal definition of intent and theft, and asked to review Erb’s testimony. (Citing People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [“Juror questions and requests to have testimony reread are indications the deliberations were close.”].) In our view, this shows the jury was doing its job carefully and thoughtfully, and even if this had been a close case with respect to intent, we find no reasonable probability that a careful, thoughtful jury would have rendered a different verdict merely because of the excuses and name Barbosa gave when confronted by his elderly victim.
Barbosa contends the prosecution relied heavily on the exclusion of the evidence, because it told the jury the following in closing argument: “With regard to that intent, I want to talk to you a little bit about it, I’m not -- I’m not asking you to speculate. I’m asking you to simply judge what [Barbosa] did. Look at what he did. Consider what you heard, the facts here that were admitted into evidence here. Look at what he did, not guess about what could have happened or possibly or whatever. Just look at what happened. He entered that house. He ran into Ms. Erb, he left, right. That’s what happened.” Barbosa maintains that the exclusion of the evidence allowed the prosecutor to imply that Barbosa left Erb’s home without saying anything, which was akin to what he did when confronted by Equihua and a “narrative more consistent with a person entering a home with the intent to commit theft.”
The prosecutor, however, did not expressly argue that Barbosa left Erb’s home without saying anything, or rely strenuously on such an inference. To the contrary, the prosecutor emphasized that Barbosa undisputedly took Erb’s flashlight, and an intent to commit theft could be inferred from that fact, as well as the fact that he entered Erb’s dark house at 11:30 p.m., he had not entered Equihua’s house because the security light came on, the dogs starting barking, and Equihua confronted him, and he displayed consciousness of guilt when he resisted police.
Barbosa has failed to establish a ground for reversal.
B. Prosecutorial Misconduct
Barbosa contends the prosecutor’s comment in closing argument that we quote ante—that Barbosa entered Erb’s house, “ran into” her, and left—constituted misconduct. Although in context it seems the prosecutor was merely urging the jury to decide the case based on the admitted evidence rather than defense counsel’s speculations, Barbosa spins it differently, asserting that the prosecutor made the jury believe Barbosa fled without saying anything, while the prosecutor knew that Erb and Barbosa had actually had a conversation. (Citing People v. Varona (1983) 143 Cal.App.3d 566, 569–570; People v. Daggett (1990) 225 Cal.App.3d 751, 758.)
As respondent points out, Barbosa did not object to this particular statement of the prosecutor or request an admonition, and he has not shown that an objection and request for admonition would have been futile or that an admonishment would not have cured the harm. Therefore, his claim of error is forfeited. (People v. Earp (1999) 20 Cal.4th 826, 858–859.)
Barbosa further argues that his trial attorney’s failure to object constituted ineffective assistance of counsel. However, he has not established that his attorney lacked any conceivable legitimate tactical purpose in not objecting. (See People v. Diaz (1992) 3 Cal.4th 495, 558.) Nor has he established that he would have obtained a more favorable verdict if his attorney had objected. He fails to demonstrate ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.



NEEDHAM, J.



We concur.




JONES, P.J.




BRUINIERS, J.