People v. Stewart CA1/5 ( 2015 )

Filed 4/9/15 P. v. Stewart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A139733
v.
LORENZO STEWART, (Contra Costa County
Super. Ct. No. 51004522)
Defendant and Appellant.
A jury convicted Lorenzo Stewart (appellant) of first degree residential burglary,
grand theft and battery, based on prosecution evidence he entered the home of Mara
Galvao, whom he did not know, attacked her physically, and took a laptop computer
belonging to her daughter. (Pen. Code, §§ 242, 459, 460, subd. (a), 487, subd. (a).) His
defense at trial was that Galvao had invited him into her home, that they argued after she
refused to pay him for drugs, and that he left with a laptop computer she had offered him
as collateral. The court found recidivist allegations to be true. (Pen. Code, §§ 667, subd.
(a), 667.5, subd. (b), 1170.12.)
In this appeal from the judgment imposing a prison sentence and consecutive jail
term, appellant raises the following issues: (1) the trial court abused its discretion in
allowing the prosecution to introduce evidence of his many prior felony convictions for
impeachment purposes; (2) the prosecutor committed misconduct during closing
argument; (3) the court improperly admitted evidence of a security door installed at
Galvao’s home after the crimes were committed; (4) the preceding errors were
cumulatively prejudicial and require reversal of the entire judgment; (5) the court abused
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its discretion when it declined to strike his prior serious felony conviction for sentencing
purposes; and (6) the court improperly doubled the term for misdemeanor battery under
the Three Strikes law. The Attorney General argues the case must be remanded for
resentencing because the court did not state sufficient reasons for striking prior prison
term allegations under Penal Code section 667.5, subdivision (b). We agree the
misdemeanor battery count should not have been doubled, and modify that aspect of the
sentence. We also direct the trial court to issue a minute order reflecting its reasons for
striking the prior prison term allegations.
PROCEDURAL HISTORY
In a previous jury trial in this case, appellant was convicted of first degree
residential burglary with a special allegation that a person other than an accomplice was
present, first degree residential robbery, and misdemeanor battery as a lesser included
offense of aggravated assault. (Pen. Code, §§ 211, 212.5, 242, 245, subd. (a), 459, 460,
subd. (a), 667.5, subd. (c)(21).) The court sentenced him to 17 years in prison after
finding true prior conviction and prior prison term enhancement allegations. (Pen. Code,
§§ 667, subd. (a), 667.5, subd. (b), 1170.12.) This court reversed the judgment in its
entirety because the preliminary hearing testimony of the victim, Galvao, had been
introduced into evidence without an adequate showing the prosecution had used due
diligence in securing her attendance at trial. (See Evid. Code, § 240, subd. (a)(5).)
Appellant was retried before a jury on the charges of which he had been
previously convicted. This time, Galvao testified. Appellant was again convicted of first
degree residential burglary, however, the allegation that a person other than an
accomplice was present was found not true. (Pen. Code, §§ 459, 460, subd. (a).) He was
also convicted of grand theft as a lesser included offense of robbery and the charged
misdemeanor battery. (Pen. Code, §§ 242, 487, subd. (a).) In a bifurcated proceeding,
the court found true allegations appellant has suffered a prior felony conviction for
purposes of the five-year serious felony enhancement and the Three Strikes law, as well
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as three prior prison term enhancement allegations. (Pen. Code, §§ 667, subd. (a), 667.5,
subd. (b), 1170.12.)
The trial court imposed a prison sentence of 13 years for the felony counts,
consisting of the four-year middle term for burglary, doubled to eight years under the
Three Strikes law, plus the five-year serious felony enhancement. The court also
imposed a one-year consecutive jail term (the six-month term doubled under the Three
Strikes law) for the battery count. It imposed a concurrent term for the grand theft count
and struck the prior prison term allegations. Appellant’s total term was 14 years.
FACTS
1. Prosecution Evidence
Galvao shared a home in El Sobrante with her husband, her adult son and his wife,
and her college-age daughter, Giovana Lemes-Silveira. In addition to being an artist, she
managed a housecleaning business with several employees. Galvao maintained a
landline in her home as her business number, which was included on fliers advertising the
housecleaning business, the Yellow Pages, and her Web site. Galvao had a cell phone for
her personal calls but did not use it in her business.
Between 8:30 and 9:30 a.m. on the morning of October 22, 2009, Galvao was at
home and heard her doorbell ring. Her husband, son and daughter-in-law had already left
for work and Lemes-Silveira was upstairs sleeping. Galvao looked through the peephole
in the door and saw appellant, whom she did not know and had never seen before,
holding what she thought was a FedEx envelope. She opened the door but tried to close
it again when she realized appellant was not from FedEx. Appellant stuck his foot inside
the door and pushed his way into the house.
Galvao saw that the item she had thought to be a FedEx envelope was really a
cane. Appellant put his finger up and told her, “You be quiet.” Galvao started screaming
and he struck her several times with the cane and his fists. Awakened by her mother’s
screams, Lemes-Silveira came downstairs and saw appellant holding her mother and
hurting her. Galvao told her daughter to go outside and save herself. Lemes-Silveira
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dialed 911 on her cell phone and went into the attached garage and opened the door to the
outside. She returned to the house to help her mother and started hitting appellant in the
head with her phone. Galvao had urinated during the struggle and slipped, with appellant
landing on top of her.
Lemes-Silveira ran outside through the garage door and screamed for help.
Appellant ran out of the house, followed by Galvao. Appellant ran back inside the house
and then out again and into the yard of a neighbor, John Loggins. Loggins, who was
inside his garage, heard someone try to open the door to his garage. When he opened the
door and saw appellant, appellant said he had the wrong house. Other neighbors and
Loggins restrained appellant and sheriff’s deputies arrived shortly afterward. Appellant
was carrying a laptop computer (worth between $1100 and $1200) that belonged to
Lemes-Silveira.
The deputies handcuffed appellant and put him in a patrol car. While he was in
the backseat, he struggled and tried to kick open the door. No drugs or drug
paraphernalia were found on appellant when he was arrested.
One of the deputies described Galvao and Lemes-Silveira as “very nervous, upset,
crying, angry.” Galvao had a cut on her lip, scratches on her neck, and scratches and red
marks in her lower back area. She did not appear to be under the influence of a drug, nor
were drugs or drug paraphernalia found inside the house. Galvao appeared bruised later
that day. She spoke more softly than usual and had difficulties swallowing for the next
few days.
Ana Maree Rea, a licensed vocational nurse who testified as a prosecution expert,
stated that symptoms of strangulation can include an inability to swallow and a hoarse
voice. Pressure on the neck can cause involuntary urination. Rea looked at photographs
of Galvao taken on the day of the incident and saw redness, bruising and petechia (broken
blood vessels) consistent with strangulation.
After the incident, Galvao had her landlord install a security door on the front of
her home.
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Lemes-Silveira had never seen appellant before and had never seen drugs or drug
paraphernalia in the house. Galvao’s son, Rodrigo Lemes, also had never seen his
mother use drugs. On the night before the incident, Lemes had been home and had gone
downstairs to snack but did not see anyone else in the house. Galvao and her husband did
not have people over to the house late at night.
2. Defense Evidence
Appellant testified at trial that he had met Galvao, who was introduced to him as
“Moms,” at a going-away party for a man who was being sent to federal prison. People
were using drugs at the party, including Moms, whom appellant saw using
methamphetamine. Appellant exchanged telephone numbers with Moms, and they got
together several times after that to do drugs.
On October 21, 2009, the day before the incident, appellant bought several rocks
of cocaine and, after making a stop to get high, took the last bus to El Sobrante. He
called Moms from a pay phone and asked to come by. She said yes, and told him to
come to the back and tap on the back door. When he arrived she gave him some vodka
and they shared methamphetamine and cocaine while watching television. At some point
another man (not Galvao’s son) came downstairs to get something from the refrigerator,
but Moms did not introduce them to one another. Moms and appellant took a convertible
to buy more drugs, and they returned to her home at about 3:00 a.m. After they finished,
Moms said she wanted more drugs so appellant took the bus to Richmond to buy some.
Moms said she did not want to drive because her family was going to wake up.
Appellant returned to Moms’s house with the drugs and rang the bell because she
had told him no one would be home. He gave her the drugs and asked her for payment,
intending to leave. She took the drugs but asked him to come back at noon to get his
money. He refused and they had an argument, during which she offered him a laptop
computer as collateral. Moms used a racial slur during their argument and ran into
appellant. He pushed her back as Moms’s daughter was coming downstairs, and
appellant told the daughter he wanted his money. Both Moms and her daughter started
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rushing at him and her daughter hit him over the head. He and Moms slipped at the same
time.
Moms’s daughter went out of the house through the garage so appellant ran out the
front door, but he saw several people who called out, “There he is,” so he went back
inside the house. He went out the back door, taking the laptop that had already been
offered to him, and slipped through a crack in the fence into another yard. He saw
Loggins, the neighbor, who asked him what he was doing, but he never tried to go inside
Loggins’s garage. Appellant was stopped by bystanders and pushed to the ground, where
he remained until deputies arrived and handcuffed him.
Appellant’s girlfriend, Tina Stanford, testified that on the day before the incident,
appellant had left their house after they had an argument. She had heard him use the
name “Moms” in the months prior, but had never met the victim in the case. One day in
the year before the incident, appellant asked Stanford to drop him off at a corner near
Galvao’s house. While appellant was in custody on the charges in this case, he asked
Stanford to tell his attorney he wanted to be released to attend a funeral service for a
family member in Contra Costa County. There was actually no service planned;
appellant wanted Stanford to lie so he could get out of jail and abscond to Atlanta.
Appellant was walking with a cane in 2009 and his balance was not normal. When
Stanford spoke to him about his case, he told Stanford to emphasize his “ailment.”
Ronald Madison had known appellant for 25 to 30 years. He testified that several
months before the incident in this case, appellant introduced him to a woman called
“Moms,” who was standing by a convertible car in Richmond,1 and whom appellant
described as “a toss up. She’s a Richmond bitch.” Appellant and Moms took a ride with
Madison, and Madison got upset at them for smoking cocaine in his car. A defense
investigator showed Madison a photograph of Galvao, whom Madison identified as
1
Lemes-Silveira had a red convertible, which Galvao had driven only once or
twice. Galvao drove a Nissan Pathfinder.
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Moms. He had seen Moms two more times in Richmond, but not with appellant, in June
or July of 2009, but did not tell the defense investigator about the sightings.
3. Cell Phone Evidence
Appellant was carrying a cell phone on the day of his arrest, which was held with
his other personal property after he was booked into custody. Stanford testified that she
picked up the phone from the police station, looked in the contacts section and saw a
listing for “Moms.” A defense investigator picked up the phone from Stanford the next
day, although Stanford also testified she might have had the phone for a month before
turning it over. The defense investigator saw the entry for Moms and testified he did not
enter the contact into the phone.
A prosecution expert who used “Cellebrite” technology to extract information
from appellant’s phone testified the date the Moms contact was entered could not be
determined, but the contacts appeared to be in chronological order, and the Moms contact
(number 225 of 225 contacts) had been entered last. There was no evidence of any calls
or messages to the Moms number on the phone, even though text messages from the
morning of October 22, 2009, show the phone was turned on and was operational until at
least 11:25 a.m. that day.
The number listed in the Moms contact was the number for Galvao’s business
(a landline inside her house), not her cell phone.
DISCUSSION
1. Prior Convictions as Impeachment Evidence
Appellant argues the judgment must be reversed because the court allowed the
prosecution to introduce evidence of his numerous prior felony convictions as
impeachment evidence. We disagree.
a. General Principles
As a general rule, a witness’s credibility, including that of a defendant who elects
to testify, may be impeached by evidence of prior felony convictions involving moral
turpitude. (Evid. Code, § 788; People v. Castro (1985) 38 Cal.3d 301, 306 (Castro);
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People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.) The admission of felony
convictions for this purpose is limited by Evidence Code section 352, which authorizes
the court to exclude a felony conviction when its probative value on the issue of
credibility is substantially outweighed by the risk of undue prejudice. (People v.
Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza).) “Prejudice” under Evidence Code
section 352 “ ‘is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence’ ” but to “ ‘ “evidence which uniquely tends to evoke
an emotional bias against the defendant as an individual and which has very little effect
on the issues.” ’ ” (People v. Lopez (2013) 56 Cal.4th 1028, 1059 (Lopez).) A trial
court’s decision to admit a prior conviction as impeachment evidence is reviewed for
abuse of discretion. (People v. Hinton (2006) 37 Cal.4th 839, 887.)
b. Rulings and Evidence Regarding Appellant’s Prior Convictions
Appellant had several prior felony convictions involving moral turpitude,
including theft and drug offenses. Noting there was an “overkill point” when it came to
using priors as impeachment evidence, the trial court initially ruled in limine that if
appellant testified, he could be impeached with only three convictions: a 1993 burglary
conviction, a 2000 auto theft and a 2007 auto theft. The court denied the prosecution’s
request to allow impeachment with a 1991 robbery conviction, but cautioned that
appellant could put that conviction in play if he testified along the lines of “I would never
rob anybody or I would never use violence against anybody.”
Appellant admitted the burglary and auto theft convictions during his direct
examination. He testified he had met Galvao or “Moms” for the first time at a party for a
man who was going away to federal prison, and that he had introduced himself as “Zo,”
which was short for “Lorenzo.” On cross-examination, appellant was asked about his
nickname (“Zo”) and whether he had used it when he “used to run the streets,” as he had
previously testified. Appellant responded that running the streets just meant “hanging
out” with certain people, but acknowledged he had previously testified it meant “being a
bad guy, you know what I’m saying? I was a bad dude. I thought I was hip. I thought I
8
was cool.” Asked what bad things he had been referring to in that statement, appellant
responded: “I wasn’t doing nothing bad. When you[’re] young and you’re black and
you’re hanging out, you think you’re hip, you know, you try to fit in, get in, do whatever.
That’s what I was doing, sir.”
The court then took the position appellant’s statement “I wasn’t doing nothing
bad” opened the door to impeachment with his other prior felony convictions, including
the robbery, because those convictions showed appellant had actually been committing
felonies when he claimed to have not been doing anything bad. In a sidebar conference,
defense counsel acknowledged that impeachment with drug-related felonies was
appropriate (and might actually bolster the defense case) because appellant had already
admitted he furnished drugs to Moms, but she objected to the use of the prior conviction
for robbery because appellant stood charged with a robbery. The court overruled the
objection and denied defense counsel’s request to sanitize the prior robbery conviction:
“And as soon as he’s lying to the jury, it opens the door up. . . . [¶] . . . I find that he’s
doing this intentionally, he is trying to create an image for this jury that is not accurate,
and he’s not entitled to a false aura of credibility. . . . [I]f he had just [said], ‘Those bad
things are what running the street means,’ if he just said yes, it would have been done.
But he said, ‘I wasn’t doing nothing bad,’ and at that point I think it opens the door.”
When proceedings resumed, the prosecutor elicited appellant’s admission that in
addition to those prior felony convictions already in evidence, he had four felony drug
convictions and seven felony theft convictions, including one robbery, one burglary, two
convictions of receiving stolen property and three convictions of driving a stolen vehicle.
The court instructed the jury: “I’m going to allow you to hear the answer to this for the
limited purpose of assessing the witness’[s] credibility on the stand. It is not evidence
you may consider as this defendant’s propensity to commit any crime that is charged in
this case.”
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c. Analysis
Appellant contends the use of the additional prior theft-related convictions were
more prejudicial than probative under Evidence Code section 352 because they would
have been used by the jury as evidence of his general criminal propensity. He
characterizes his trial as a credibility contest between himself and Galvao, and argues the
three felony convictions initially introduced for impeachment, combined with the
numerous drug convictions he concedes were properly admitted, were more than
sufficient to eliminate any “ ‘false aura of veracity’ ” emanating from his testimony. (See
People v. Kwolek (1995) 40 Cal.App.4th 1521, 1533.) We are not persuaded.
Though appellant’s argument on appeal targets the numerosity of the theft-related
prior felony convictions, his counsel’s objection at trial was focused on the prior robbery
conviction and its potential for prejudice given that appellant was charged with robbery.
A strong argument can be made that appellant has forfeited his challenge to all but the
prior robbery conviction. (See People v. Marks (2003) 31 Cal.4th 197, 229.)
The prior robbery conviction was not rendered inadmissible simply because
appellant was charged with robbery in the current case. “Prior convictions for the
identical offense are not automatically excluded. ‘The identity or similarity of current
and impeaching offenses is just one factor to be considered by the trial court in exercising
its discretion.” (People v. Green (1995) 34 Cal.App.4th 165, 183 (Green).) And, even if
we assume the court should have sanitized the prior conviction so the jury would not
have learned appellant had been convicted of a robbery, any error was harmless.
Appellant was acquitted of the robbery count, hence, “it is not reasonably probable that a
result more favorable to [appellant] would have occurred” if the prior robbery conviction
had not been admitted. (Castro, supra, 38 Cal.3d at p. 319, citing People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson).)
If we treat defense counsel’s objection at trial as extending to the number of the
other theft-related priors, and not simply the admission of the robbery conviction, we still
would find no abuse of discretion. “Numerosity . . . does not mandate exclusion.”
(People v. Castro (1986) 186 Cal.App.3d 1211, 1216.) “There is no steadfast rule
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regarding the precise number of prior convictions which may be admitted in a particular
case.” (Green, supra, 34 Cal.App.4th at p. 183.) “[A] series of crimes relevant to
credibility is more probative than is a single such offense. Thus, whether or not more
than one prior felony should be admitted is simply one of the factors which must be
weighed against the danger of prejudice.” (People v. Dillingham (1986) 186 Cal.App.3d
688, 695; see Mendoza, supra, 78 Cal.App.4th at p. 927 [defendant impeached with 10
priors]; Green, at p. 183 [defendant impeached with six priors]; People v. Muldrow
(1988) 202 Cal.App.3d 636, 646 [defendant impeached with six priors].)
Any prejudice that might have flowed from the theft-related convictions in this
case was the prejudice that naturally flows from probative evidence impeaching a
testifying defendant’s credibility. The theft-related priors were not likely to invoke an
emotional bias in the jurors when those jurors already knew appellant had a lengthy
criminal history. And, it does not appear the jurors acted on any such bias, given the
acquittal on the robbery charge and the “not true” finding on the special allegation that a
person other than an accomplice was present during the burglary. The verdict rendered
shows the jury was able to consider each count on its merits, and, in light of the “not
true” finding on the burglary allegation, may well have harbored a reasonable doubt that
the initial entry into the home was without consent.2 It is not reasonably probable that
limiting impeachment to the three prior convictions initially allowed by the court and the
drug convictions that counsel acknowledged should be admitted would have resulted in a
more favorable verdict. (Castro, supra, 38 Cal.3d at p. 319.).
2
The evidence showed appellant entered the house before the altercation with
Galvao, went outside after the altercation, and then reentered the house before leaving
with Lemes-Silveira’s laptop computer. As part of the definition of burglary given in
CALCRIM No. 1700, the jury was instructed: “The People have presented evidence of
more than one act to prove that the defendant entered a building or a room within a
building. You must not find the defendant guilty unless you all agree that the People
have proved that the defendant made at least one of these entries and you all agree on
which entry he made.”
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Moreover, the court gave a limiting instruction advising the jury the prior
convictions were admissible solely on the issue of appellant’s credibility as a witness, and
not to prove propensity to commit any charged offense. “ ‘ “The crucial assumption
underlying our constitutional system of trial by jury is that jurors generally understand
and faithfully follow instructions.” [Citations.]’ ” (People v. Chavez (2000) 84
Cal.App.4th 25, 30-31.) We assume the jury understood its duty to follow the instruction
and did not consider the prior convictions as evidence of criminal propensity.
2. Prosecutorial Misconduct
Appellant argues the prosecutor committed misconduct during closing argument
by arguing facts outside of the evidence and by mischaracterizing certain evidence
presented at trial. Reversal is not required.
a. General Principles
“ ‘ “The standards governing review of [prosecutorial] misconduct claims are
settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such “ ‘unfairness as to make the resulting conviction a
denial of due process.’ ” [Citations.] Under state law, a prosecutor who uses such
methods commits misconduct even when those actions do not result in a fundamentally
unfair trial.’ [Citation.] . . . When a claim of misconduct is based on the prosecutor’s
comments before the jury, ‘ “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.” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 427.)
Even when prosecutorial misconduct has been committed, reversal is not required
unless the defendant demonstrates prejudice. (People v. Fernandez (2013) 216
Cal.App.4th 540, 564 (Fernandez).) When the error affects a defendant’s federal
constitutional rights, prejudice is measured under the harmless-beyond-a-reasonable-
doubt standard of Chapman v. California (1967) 386 U.S. 18. (Fernandez, at p. 564.)
When the objectionable action is misconduct only under state law, we apply the standard
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of Watson, supra, 46 Cal.2d at page 836, and ask whether it is reasonably probable a
more favorable result would have been reached absent the misconduct. (People v.
Adanandus (2007) 157 Cal.App.4th 496, 514 (Adanandus).)
b. Argument Regarding Madison’s Identification of Galvao as Moms
The first instance of alleged misconduct involves the prosecutor’s discussion of
the evidence that Madison, the defense witness who testified he had seen appellant and
Moms together, identified a photograph of Galvao as Moms: “And then you look at the
description that he gives of this person[,] Moms. He says the person with black and red
hair. He talks about the nose, the little itty-bitty piercing I think he said [was] on the
nose. And then somewhere in there the defense investigator shows him a picture of . . .
Ms. Galvao, a single picture—that picture—and he says, yeah, that’s her. That’s Moms.
[¶] When you do it in law enforcement, you show a packet of six photos, different
people.” The court overruled a defense objection that the comment assumed facts not in
evidence, and the prosecutor continued: “This is what’s called a suggestive lineup.
[There] is one single picture of the person he knows is the victim in this case. And when
you look, black and orange hair, the way the light looks, I’ll leave it to you to decide. He
saw this picture and then he described this person.” Defense counsel objected on the
ground the prosecutor was misstating the testimony, and the court again overruled the
objection.
As appellant points out, a prosecutor may not refer to facts not in evidence, as
“such statements ‘tend[] to make the prosecutor his own witness—offering unsworn
testimony not subject to cross-examination.’ ” (People v. Hill (1998) 17 Cal.4th 800,
828.) No evidence was presented at trial that police photo identification procedures often
involve the proverbial “six-pack,” but, in context, the prosecutor was making the larger
(and unobjectionable) point that showing a person a single photograph is more suggestive
than showing an array of photographs. This statement was not deceptive or
reprehensible, nor was it likely to be applied by the jury in an objectionable fashion. (See
People v. Yeoman (2003) 31 Cal.4th 93, 149 [statement by prosecutor that “ ‘you can try
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a million murder cases over the years and there is no special mark an individual has when
he does murders’ ” was not clear violation of rule that prosecutors should refrain from
invoking personal beliefs or experiences as support for facts not in evidence].)
To the extent the prosecutor argued that Madison saw a photograph of Galvao and
then described Moms, he appears to have been making the point that Madison saw the
photograph in advance of his trial testimony, the implication being he knew what the
victim in this case looked liked before he gave an independent description of Moms at
trial. This was a reasonable interpretation of the evidence because Madison
acknowledged a defense investigator had shown him the photograph. The prosecutor’s
comment did not amount to misconduct.
c. Argument Regarding Dates Madison Saw Moms
Appellant also contends the prosecutor committed misconduct during closing
argument by suggesting Madison was lying about seeing Moms in late June or early July
of 2009, because he was in custody from July 3, 2009, through November 2009. The
court overruled defense counsel’s objection but advised the jury: “Okay. Members of
the jury, remember that nothing that the lawyers say is evidence, and it’s up to you to
determine what the witnesses said and recall the evidence.” Defense counsel continued
to argue that Madison had claimed to see Galvao once in late June, once in Richmond a
couple of weeks later, and then a third time in Richmond a couple of weeks after that.
The court again overruled a defense objection that the prosecutor had misstated the
evidence.
Madison testified that he first saw Galvao sometime during the summer of 2009,
in June or July (not necessarily in late June or early July), and then saw her again on two
other occasions within a three-week period. But, assuming the prosecutor’s argument
mischaracterized the timeframe given by Madison, the trial court’s admonition that the
jury alone was to determine what the evidence showed rendered the comments harmless.
(People v. Maciel (2013) 57 Cal.4th 482, 542 [prosecutor’s argument regarding activities
defendant could participate in while in prison was not prejudicial in light of admonition
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to prosecutor and court’s instruction to jury to determine the case based only on evidence
received at trial]; People v. McDowell (2012) 54 Cal.4th 395, 438 [court’s instructions to
same effect rendered any misconduct harmless; arguments from counsel carry less weight
than instructions by the court].)
d. Argument Regarding Appellant’s Entry of Moms’s Number into Phone
Appellant presented evidence his cell phone contained a contact for “Moms” with
Galvao’s business number (a landline), in support of his claim they were acquainted
before the incident leading to the charges in this case. The prosecution presented an
expert witness who testified that in his opinion, the contact for Moms was the last one
entered on appellant’s phone. During closing argument, the prosecutor asked the jury to
draw the inference that someone else had entered the number into appellant’s phone after
it was released to Stanford following appellant’s arrest. Appellant complains the
prosecutor then “placed [t]his argument into appellant’s mouth” by incorrectly stating:
“He [appellant] also says that he remembers that this entry for Moms was the last entry
into the phone. That’s what he testified to. ‘Yes, I know the entry for Moms was the last
number that I entered into that phone.’ ” The trial court overruled a defense objection
that this statement misstated appellant’s testimony.
Appellant correctly notes he did not testify the contact for Moms was the last one
entered into his cell phone’s contacts. Rather, he testified only that he entered the
number himself and did not ask anyone else to do it for him. But the mischaracterization
of his testimony was harmless under any standard. No evidence was offered to contradict
the testimony of the prosecution expert that the Moms number was number 225 of 225
contacts. The crucial issue was not whether appellant had entered the number last, but
whether he had done so himself before his arrest in this case. Even if the jury credited
the prosecutor’s statement that appellant had admitted entering the number last, this was
not tantamount to an admission he had done so after the crimes in this case were
committed. Far more damaging to the defense case, and appellant’s claim that he knew
Galvao, was the evidence that (1) the phone number for Moms was Galvao’s business
15
line, which was publicly available, rather than her cell phone number; and (2) no calls
had been made between appellant’s phone and Moms on the date of the incident, when he
claimed he was traveling to and from her house.
The prosecutor’s misstatement was harmless beyond a reasonable doubt and it is
not reasonably probable the jury would have reached a different conclusion absent that
portion of the argument. (Adanandus, supra, 157 Cal.App.4th at p. 514.) This is
particularly true when the jury was instructed with CALCRIM No. 104: “You must
decide what the facts are in this case. You must use only the evidence that is presented in
the courtroom. . . . [¶] Nothing that the attorneys say is evidence. In their opening
statements and closing arguments, the attorneys will discuss the case, but their remarks
are not evidence.” We presume the jury understood and followed this instruction. (See
People v. Hovarter (2008) 44 Cal.4th 983, 1005; People v. Boyette (2002) 29 Cal.4th
381, 453.)
3. Installation of Security Door
Over a defense objection on the grounds of relevancy and undue prejudice under
Evidence Code section 352, the prosecution was allowed to present evidence of a security
door installed at Galvao’s home after the incident. The court ruled that photographs of
the door were admissible because the door showed Galvao’s concern about forced entries
into her home and made it more likely her version of events was truthful. After the court
ruled the evidence admissible, Galvao’s daughter, Lemes-Silveira, identified the
photographs of the security door, and testified it had two locks and was installed “soon
after” the incident. Galvao testified she had asked her landlord to install the door after
the incident because she “didn’t feel safe anymore.” Appellant argues the evidence of the
security door should have been excluded because it “tended to shift the jury’s attention
from the evidence, and prejudiced it against appellant for causing [Galvao] the continuing
emotional anguish of not feeling safe in her own home.”
“ ‘Except as otherwise provided by statute, all relevant evidence is admissible.’ ”
(People v. Clark (2011) 52 Cal.4th 856, 892.) “ ‘Relevant evidence’ means evidence,
16
including evidence relevant to the credibility of a witness or hearsay declarant, having
any tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.” (Evid. Code, § 210.) A trial court has “considerable
discretion” in determining the relevancy of evidence and a ruling in this regard is
reviewed for abuse of discretion. (People v. Williams (2008) 43 Cal.4th 584, 634.)
The trial court did not abuse its discretion in concluding the installation of a
security door was relevant to Galvao’s credibility as a witness. Appellant’s testimony
painted Galvao as a drug user who confronted him physically after refusing to pay him
for cocaine. Evidence Galvao installed a security door after the incident suggested she
was fearful of intruders and was therefore more likely to have been truthful in her
testimony that appellant had forcibly entered her home. While the defense was free to
suggest the installation of the security door was a coincidence or that Galvao might have
decided it was a prudent measure even if appellant’s version of events were true, it cannot
be said the evidence was irrelevant. Nor was the evidence unduly prejudicial under
Evidence Code section 352, as it did not tend to evoke an emotional bias against
appellant as an individual. (Lopez, supra, 56 Cal.4th 1059.)
4. Cumulative Prejudice of Alleged Trial Error
Appellant argues the cumulative weight of the trial errors he has alleged were
prejudicial even if they do not warrant reversal when considered individually. (See
People v. Williams (2009) 170 Cal.App.4th 587.) We have concluded the trial court did
not err in allowing the prosecution to impeach appellant with all of his prior felony
convictions or in admitting evidence of the security door installed in Galvao’s home after
the incident. To the extent the prosecutor made misstatements during closing arguments,
those remarks were harmless under any standard, whether considered individually or
cumulatively. (Ibid.) The verdict itself suggests appellant was not prejudiced because
the jury acquitted appellant of robbery and the lesser included offense of attempted
robbery and found not true the allegation that a person other than an accomplice was
present during the burglary. (See People v. Williams (2013) 218 Cal.App.4th 1038, 1073
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[acquittal of some counts was “a strong indication that the jury remained objective”
despite the prosecutor’s remarks].)
5. Denial of Motion to Dismiss Three Strikes Allegation
The trial court found true an allegation that appellant had suffered a single
conviction under the Three Strikes law, a 1991 conviction for robbery. Defense counsel
asked the court to strike this prior conviction for sentencing purposes, but the court
declined to do so. Appellant argues the trial court erred in denying this request and
imposing a doubled prison term under the Three Strikes law.
A trial judge may dismiss a prior strike allegation in the furtherance of justice
under Penal Code section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th
497, 529-530 (Romero).) In resolving a so-called Romero motion, the trial court “must
consider whether, in light of the nature and circumstances of [the current] felonies and
prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17
Cal.4th 148, 161.)
We apply the deferential abuse of discretion standard to a trial court’s denial of a
Romero motion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) “[A] trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (Id. at p. 377.) Furthermore, “the three strikes
law not only establishes a sentencing norm, it carefully circumscribes the trial court’s
power to depart from this norm. . . . In doing so, the law creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper.”
(Id. at p. 378.) In denying a Romero motion, the trial court abuses its discretion only in
“limited circumstances,” such as when it is unaware of its discretion to dismiss, when it
considers impermissible factors in declining to dismiss, or when the three strikes law
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produces an “ ‘ “arbitrary, capricious or patently absurd” result’ under the specific facts
of a particular case.” (Ibid.)
The trial court did not abuse its discretion in denying appellant’s request to
dismiss his prior strike conviction. The record reflects the court was fully aware of its
discretion to dismiss and did not consider any impermissible factors. Appellant’s record
included ten theft-related felony convictions and seven drug-related felony convictions
The court noted that while appellant had suffered his prior strike conviction in 1991,
“[H]e’s been in and out of custody constantly since. He hasn’t been out for more than
some number of months before he was back in. So it’s not like he had a strike and then
years’ worth of blameless conduct.”
The court acknowledged appellant had a drug problem, but was not convinced he
would get the treatment necessary to stop committing criminal acts: “Look at your
record. We’ve seen you again and again and again. And you may be tired of doing the
same thing, but I have zero confidence that you, in fact, will be able or willing to do
anything different than victimize people. [¶] And you got up here and you lied on the
stand, you tried to get your girlfriend or whatever she was to you to lie and let you get out
of custody so that you could abscond. I have zero confidence that you will be able to get
yourself clean or that you’ll be able to comply with the rules of civilized society. So I
have to put you someplace where you can’t hurt people.”
The trial court’s decision cannot be viewed as irrational or unreasonable, nor does
it lead to an arbitrary, capricious or patently absurd result. (Carmony, supra, 33 Cal.4th
at p. 378.)
6. Doubling of Sentencing for Misdemeanor Battery
The trial court used appellant’s prior strike conviction to double the term on both
the principal count of residential burglary and the six-month consecutive jail term for
misdemeanor battery. When a defendant has suffered one prior serious or violent felony
conviction under the Three Strikes law, “the determinate term or minimum term for an
indeterminate term shall be twice the term otherwise provided as punishment for the
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current felony conviction.” (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)
Appellant contends, and the People rightly concede, that the plain language of the Three
Strikes law does not allow the court to double the term for a misdemeanor count.
Appellant urges us to modify the unauthorized one-year term for battery to six
months, the maximum jail term authorized by statute and the term the trial court selected
to double. (See Pen. Code, § 243, subd. (a).) The People suggest remanding the case for
a new sentencing hearing because if the trial court had realized it could only impose six
months for the battery count, it might have restructured the sentence, presumably by
imposing additional time on the burglary count or one of the prison priors it elected to
strike.
We decline the People’s suggestion because the trial court explicitly stated, in the
context of striking the prison priors, that it found 14 years “sufficient for the counts . . .
on which the jury found the defendant guilty and for the conduct here.” Moreover, any
increase in the sentence on remand (by selecting a higher term for the burglary count or
imposing a previously stricken prison prior, for example) would run afoul of the rule that
a defendant who successfully appeals from a criminal conviction generally may not be
subjected to a greater aggregate sentence on remand. (People v. Ali (1967) 66 Cal.2d
277, 281-282; People v. Henderson (1963) 60 Cal.2d 482, 495-497; People v. Craig
(1998) 66 Cal.App.4th 1444, 1447-1448, and cases cited therein.)
7. Court’s Order Striking Prison Priors
The People argue the case must be remanded for resentencing because the trial
court did not state adequate reasons for striking the prior prison term enhancements.
Although the People have not appealed from the judgment, they rely on the rule that in an
appeal by a criminal defendant, the court may “consider and pass upon all rulings of the
trial court adverse to the State which it may be requested to pass upon by the Attorney
General.” (Pen. Code, § 1252.)
Penal Code section 1252 does not allow the People to challenge the substance of
the trial court’s order striking the prison priors in the current appeal. A trial court has the
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discretionary power under Penal Code section 1385 to strike a prior prison term
enhancement in the furtherance of justice, meaning the challenged order was, at most, an
abuse of discretion rather than an unauthorized sentence. (See People v. Bradley (1998)
64 Cal.App.4th 386, 391 [discretion to strike prison priors]; cf. People v. Johnwell (2004)
121 Cal.App.4th 1267, 1283-1284 [when sentence unauthorized, the People may
challenge it by way of their own appeal under Pen. Code, § 1238, subd. (a)(1) or on the
defendant’s appeal].) Penal Code section 1252 allows the People to raise issues in a
defendant’s appeal that might be involved on retrial or which would provide a theory of
affirmance in a case that would otherwise be reversed. (People v. Braeseke (1979) 25
Cal.3d 691, 701 & fn. 5, judg. vacated and cause remanded sub nom. California v.
Braeseke (1980) 446 U.S. 932.) However, “[t]he statute was not designed to give the
People a right in the nature of an appeal.” (People v. Zelver (1955) 135 Cal.App.2d 226,
236-237.)
Because the People are not claiming the sentence was unauthorized, and their
challenge to the order striking the priors does not involve an issue being raised on retrial
or provide a basis for affirming the judgment, the claim they do raise is not properly
before us. In any event, the court’s stated reason for striking the prison priors—that the
overall sentence was sufficient to punish appellant for his conduct—was a legitimate
consideration in determining whether to strike these priors. (See People v. Garcia (1999)
20 Cal.4th 490, 500 [a defendant’s sentence is a relevant consideration in determining
whether to strike prior conviction allegation; avoidance of unjust sentences is underlying
reason for power to dismiss or strike].)
The People do not challenge the order striking the prison priors on the separate
ground that the trial court failed to enter the reason for the order in its minutes. (Pen.
Code, § 1385, subd. (a); People v. Bonnetta (2009) 46 Cal.4th 143, 148-153.) However,
when it issues a new order reducing the jail term imposed for the battery count, the trial
court should enter the reasons for the order striking the prison priors as required by Penal
Code section 1385, subdivision (a).
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DISPOSITION
The consecutive jail term imposed for the misdemeanor battery count is reduced
from one year to six months. The superior court is directed to issue a new minute order
(1) reflecting that modification, and (2) stating the reasons for its order striking the prior
prison term enhancements under Penal Code section 667.5, subdivision (b). The
judgment is otherwise affirmed.
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NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
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