People v. Smith CA2/5 ( 2023 )

Filed 5/25/23 P. v. Smith CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B316407
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA098098)
v.
TANIEA SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lauren Weis Birnstein, Judge. Affirmed.
Stanley V. Granville, under the appointment by the Court
of Appeal, for Plaintiff and Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant and appellant Taniea Smith offered to hold her
friend and neighbor’s electronic apartment key for safekeeping
during a party. Then, while her friend remained at the party,
defendant entered her friend’s apartment and stole multiple
pairs of designer shoes and other accessories. Defendant was
convicted of a single count of first degree burglary (Pen. Code,
§ 459). On appeal, she raises discovery issues, challenges the
sufficiency of the evidence, and claims prosecutorial misconduct.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Apartment Complex
Defendant and the victim, Chloe Kahan, lived next door to
each other in apartments in a complex called Villas at Playa
Vista, which is owned by the Irvine Company. Their units were
in the “Sausalito Villa,” and, in fact, next door to each other in
the same building. They were on the second floor of apartments,
above a first floor of apartments, which sat above a garage.1
Access to the apartments is controlled by electronic key
fobs – both for the common areas and specific apartments. Each
apartment comes with two unique key fobs. Inside the system,
the fobs are labeled “Resident 1” and “Resident 2.” Whenever a
key fob is used to open a unit, it leaves an electronic time stamp
in the lock itself. Irvine Company employees could pull an “audit
log” from the lock – via a handheld device they had to physically
bring to the lock – to learn which fobs accessed the lock at which
times. If someone other than a resident – such as an Irvine
Company maintenance person – needed to access a resident’s
1 There is an elevator that can be taken from the garage
level. Pedestrians could also bypass the garage level, by means of
outdoor stairs.
2
unit, that person’s key fob would be programmed for access to the
unit. It would therefore show in the lock audit as that person’s
fob, not a resident’s fob. Because the locks were not networked,
the time of day varied from lock to lock, and would not
necessarily accurately reflect the actual time of day.
The burglary in this case occurred while Kahan was
hosting a birthday party for herself. She had the event in the
party room of a different villa, the “Malibu Villa,” which was
located about a five minute walk, or one-and-a-half to two minute
drive, from Sausalito Villa.
There are numerous security cameras in the complex,
including in the elevators, in the garage elevator lobby, and in
the Malibu party room.
2. Defendant and Kahan’s Friendship
Kahan met defendant a couple years before the burglary,
when defendant moved into the apartment next door. They had
common interests, especially fashion, and became close friends.
They would talk nearly every day, and visited each other’s
apartment.
Kahan’s apartment had a bedroom and a den. Other than
one corner devoted to a workspace, Kahan’s den was a storage
space for her bags, shoes, and accessories. Shoeboxes were
stacked higher than her head, in what was described both as a
“wall of shoes,” and “organized chaos.” Many of the shoes were
designer shoes, costing as much as a $1000 per pair. She had
over ten pairs of Louboutins, which were valued over $500 each.
She also kept more than ten designer purses in her den. She
kept some jewelry in her den, and other jewelry in her bedroom,
in a jewelry box made to look like a book. This included custom
3
diamond and gemstone pieces valued in the tens of thousands of
dollars.
Defendant also had an impressive collection of designer
shoes and accessories, kept in her own apartment. Kahan and
defendant had talked about the possibility of sharing each other’s
shoes, but they could not, because they were not the same size.
Kahan wore a 37.5 (in European sizes) while defendant wore a
36.
3. Kahan’s Party and the Burglary
On the evening of February 24, 2018, Kahan threw herself
a birthday party in the Malibu Villa party room. The party was
scheduled from 7:00-10:00 p.m., although it ran over.
Kahan kept both key fobs for her apartment on a pink
lanyard. She lived alone and generally kept both fobs with her at
all times.
During the party, defendant offered to look after Kahan’s
keys, so that Kahan would not have to worry about them. At
around 9:15, defendant gave Kahan her lanyard with both key
fobs on it. She trusted defendant and thought defendant was
being helpful.
Shortly thereafter, defendant left the party. The cameras
in the Malibu Villa party room would show defendant was gone
for 35 minutes between 9:36 and 10:11, according to the time
stamps on the video.2 During her absence, defendant went back
2 Although there were four cameras in the Malibu party
room, all of the relevant video clips are from the same camera.
Thus, while the actual times of defendant’s departure and return
may be subject to debate, the amount of time that passed
between these events is not. Specifically, the video clips show:
(1) at 9:16, Kahan gave defendant her lanyard with the key fobs;
4
to the Sausalito Villa building, and burglarized Kahan’s
apartment – using Kahan’s own key fob to enter her unit, and
bringing stolen items back to her own apartment. Key fob logs
would show this back-and-forth occurred twice during the 35-
minute window.3
Defendant did not directly return the lanyard to Kahan,
but gave it to a friend of Kahan’s, who later gave it to Kahan.
When defendant returned the lanyard, it was missing one of
Kahan’s key fobs, which defendant apparently gave to an
unidentified accomplice, who used it to enter Kahan’s apartment
again that night, after defendant had returned to the party.
When Kahan went home after the party, she discovered
that her lanyard had only a single key fob on it, “Resident 2.”
She assumed the other one had fallen off, and, seeing nothing
amiss in her apartment, was unconcerned. The next morning,
she called the leasing office and told them she had lost a key fob
and needed it deactivated. It was not deactivated at this time.
(2) at 9:17, defendant picked up her coat and left; (3) at 9:28,
defendant returned for her purse; (4) at 9:36, defendant left
again; (5) at 10:11, defendant returned, having changed her shoes
into flats; and (6) at 10:12, defendant handed the lanyard to a
seated woman. In short, defendant was gone, with Kahan’s key
fobs, from 9:36 to 10:11, a period of 35 minutes.
3 The key fob logs on the two apartments are not
synchronized to each other, real time, or the Malibu Villa party
room, and it is likely the times are not precisely accurate. They
show four entries to Kahan’s door in a 31-minute period (9:32,
9:37, 10:01 and 10:03); and two entries to defendant’s apartment
within a similar time period, 27 minutes apart (9:49 and 10:16).
5
4. Possible Second Burglary
On February 27 – a few days after the party – defendant
called Kahan; she was upset and needed to talk. Kahan was on
her way out and could not talk, but told defendant she would let
her know when she got home. The key fob logs reveal additional
entries into Kahan’s apartment with her missing “Resident 1”
key fob during the time she had told defendant she would be
away.
5. Kahan’s Discovery of the Burglary
On March 1, Kahan wanted to use her Celine Phantom
purse, and discovered it was not where it should have been. She
searched the entire apartment and concluded it was missing.
She then searched for a particular Louis Vuitton purse and could
not find it either. At this point, she realized she had been
burglarized, and called the police.
Kahan also called defendant, thinking that defendant
might also be in harm’s way. Defendant, at this point, insinuated
herself into the investigation, accompanying Kahan when she
first met with Irvine Company representatives and the police.
6. The Initial Investigation
Jay Vela is Irvine Company’s Service Manager for the
Sausalito Villa. He arranged a meeting for Kahan with, among
others, Joseph Alvarez, the head of security. Kahan was very
upset at the meeting, yelling at everyone. She suspected the
Irvine Company – possibly maintenance employees – of stealing
her belongings. Defendant was agreeing with everything Kahan
said. Alvarez first thought the two women were roommates;
when he learned defendant was just a friend of Kahan’s, he asked
her to leave.
6
Alvarez had suggested that Vela run a lock audit to see
who had been in Kahan’s apartment. Vela ran it that day. It did
not show any entries from maintenance or other Irvine Company
employees; but it did reveal the February 24th and 27th entries
with the “Resident 1” key fob Kahan had thought she lost at the
party.
Alvarez decided to watch the videos recorded from the
cameras in the Malibu Villa party room for the entirety of the
party, to see if he could track Kahan’s pink lanyard with the key
fobs on it. This was a lengthy process as there were multiple
cameras, and it would take him days to complete.
On March 1, the same day as Kahan’s initial meeting with
Alvarez, she and defendant also met with Los Angeles Police
Department officers. During their meeting, defendant told police
that a number of people had held Kahan’s keys during the party.
She volunteered, “Like, at one point, I had her keys, but I was
stationed in the place.” She said she had Kahan’s keys so that
she could let people in.
7. Alvarez’s Review of the Videos Points to Defendant
In his search of the videos from the party, Alvarez saw
Kahan pass her lanyard to defendant, and defendant leave the
party. He saw her return, wearing different shoes, and pass the
lanyard to an unidentified woman in a chair. Finally, Alvarez
saw the seated woman return the lanyard to Kahan, without
handing it to anyone else or leaving the room in between.
7
At this point, Alvarez checked against videos from the
Sausalito Villa elevator lobby (on the garage level) and inside the
elevator itself.4 He spotted defendant there.
In the first pair of videos, defendant enters the elevator
lobby from the garage, purse (and jacket) in one hand, and
Kahan’s pink lanyard swinging in the other. She puts on her
jacket, shoves the lanyard into the coat pocket, and takes the
elevator up to the third floor. In the second pair of videos,
showing events 31 minutes later, defendant enters the elevator
lobby from a different entrance. She has changed her shoes and
is now wearing flats. She appears to be texting on her phone,
walks off camera for about 15 seconds, returns, and goes back to
the elevator and up to the third floor again. Before she gets off
the elevator, she reaches into her purse and appears to take out a
lone key fob, unattached to a key ring. Alvarez testified that he
had watched the intervening elevator footage, and saw nothing
else depicting defendant, Kahan, or the pink lanyard.
At that point, Alvarez suspected defendant. He requested a
key lock audit of her apartment. He discovered the entries into
defendant’s apartment after the suspicious entries into Kahan’s.
He shared his findings with the Irvine Company, and ultimately
turned over the video clips, the lock audits, and his notes to the
investigating officer, Detective Rebecca McIntire.
4 The timestamps in these videos are approximately seven
minutes off from each other. That is to say, defendant can be
seen entering the elevator and pressing a button in videos taken
from both cameras. From the elevator lobby camera, she hits the
button at approximately 9:42:46, but from the elevator interior
camera, she hits it at 9:49:53. It is unknown whether either of
them are accurate to real time.
8
8. The Search
Detective McIntire did not simply accept the results of
Alvarez’s investigation; she conducted her own. Nonetheless, she
suspected defendant. The videos proved that defendant had lied
to police when she told them she had held Kahan’s keys but “was
stationed in the place.” After reviewing all of the evidence,
Detective McIntire came to the belief that defendant had entered
Kahan’s apartment.
As the investigation was progressing, Kahan determined
more and more of her belongings had been stolen. In addition to
the two purses she initially discovered missing, there were also
multiple pairs of designer shoes, additional bags, and about a
dozen pieces of jewelry.
The friendship between defendant and Kahan soured.
Detective McIntire had not wanted Kahan to arouse defendant’s
suspicions for fear defendant would try to get rid of the stolen
property, but defendant had become aware that her conduct was
being investigated.
On May 8, 2018, a search warrant was executed at
defendant’s apartment and in her car. Alvarez accompanied the
police search team, as an observer. Police found two of Kahan’s
purses in defendant’s apartment. They also found five pairs of
Kahan’s Louboutin shoes in defendant’s trunk.5
5 The police took digital photographs of all of the evidence
they recovered during the search. Detective McIntire testified
that the memory card with the photos was lost. However,
Alvarez had also taken photographs of the shoes in defendant’s
trunk.
9
9. Defendant’s Interview
Defendant was taken to the station, Mirandized, and
interviewed by police. Almost immediately, defendant
volunteered that there is a lot of “history” between her and
Kahan, and that she (defendant) “paid for a lot of things when it
came to” Kahan. While she never expressly stated that she had
engaged in self-help to compensate herself, she claimed that
Kahan “use[s]” people, and rattled off a litany of expenses she
had paid for Kahan, as though this was somehow exculpatory.
Defendant denied using Kahan’s key fob to enter her
apartment. She said the seized bags were her own, but the
interview ended up focusing on the shoes.6 When specifically
asked about the shoes found in her car, defendant first said the
shoes were hers. Later, she suggested she was being set up by
Kahan. When told one of the pairs was turquoise in color, she
said she did not own shoes in that color. Eventually, she said,
“Then more than likely if they are in my car they not belong to
me. I don’t keep shoes in my car like that.” Finally, she pleaded,
“If they’re hers, give them back to her.”
Police did, in fact, return the shoes, and the two bags, to
Kahan. During defendant’s interview, police repeatedly advised
her that if she had receipts for the shoes, she could help her case
by supplying them to the police. She never did.
6 At one point, one of the detectives questioning defendant,
Detective Salazar, said that maybe the bags were defendant’s and
maybe they were Kahan’s, but the shoes undeniably belonged to
Kahan.
10
10. The Charges
On March 25, 2019, defendant was charged by information
with two counts of burglary – related to February 24 and
February 28. She entered a plea of not guilty.
11. Defendant’s Motions to Compel Discovery
Alvarez had given Detective McIntire only the relevant
video clips he found, not the entirety of the party surveillance
video from the four cameras in the Malibu room.
At the March 11, 2019 preliminary hearing, in cross-
examination by defense counsel, Alvarez said, “All footage was
turned over. It was transferred to a flash drive.” Counsel, at this
point, believing there had been two cameras in the room (rather
than four), asked if Alvarez had turned over footage from both
cameras for the entirety of the party. Alvarez responded, “I don’t
believe so.” The following colloquy occurred:
“Q: Okay. So if there is still footage out there you
still have it though, correct?
“A: Negative.
“Q: What happened to that footage?
“THE COURT: Counsel?
“Defense Counsel: Okay. Thank you.”
On August 19, 2019, defendant moved to compel discovery
from the prosecution, seeking the entirety of the footage.
Defendant relied on Alvarez’s preliminary hearing testimony that
he had turned over all of the footage, overlooking Alvarez’s
subsequent statement that he did not believe he had. Defendant
asked that the court “order the prosecution to turn over the full,
unedited version of the surveillance footage, in the same
condition that it was initially turned over.”
11
At the hearing on the motion, the court asked Detective
McIntire if she had the full surveillance and added, “if you do, the
court is ordering you to turn it over to the defense.” The detective
replied she had turned over every video she had, but agreed to
check again. The court added that defense counsel had his own
investigator who had access to Alvarez and could ask him what
he did or did not provide to the detective.
Defendant then filed a motion in limine, asking to hold a
foundational hearing on whether the Malibu room footage was
provided to Detective McIntire in clips or “in one giant chunk.”
This was followed by a second motion to compel discovery, which
sought, “[f]ull, un-edited, unclipped, video surveillance footage
from 02/24/2018 and 02/27/2018, or, in the alternative, the
original flash drive provided to Law Enforcement by Joseph
Alvarez containing the surveillance footage as it was provided on
the date it came into possession of law enforcement.” (Emphasis
omitted.) Finally, at an April 23, 2021 hearing, defense counsel
represented that he had spoken with the prosecutor, who had
spoken to the detective, and counsel was satisfied that “there’s
nothing more that . . . the prosecuting team can do to get the
discovery that is – either no longer exists or is outstanding
because it’s – they don’t have access to it or it just no longer
exists.”7
7 In her opening brief on appeal, defendant states that the
prosecution was ordered to turn over the requested discovery but
“never fully complied.” To the contrary, the record indicates
defense counsel conceded the prosecution satisfied its obligation.
12
12. The Trial
The matter proceeded to jury trial. The prosecution
introduced defendant’s statement to police about having Kahan’s
keys but being stationed in place; the video clips that undermined
that statement; the key logs showing unauthorized entries into
Kahan’s unit; the results of the search; and Kahan’s detailed
testimony, supported by photographs and receipts, demonstrating
ownership of the seized shoes and bags.
Defendant called no witnesses and offered no evidence of
her ownership of the seized items.
13. The Verdict, Sentence, and Appeal
The jury found defendant guilty of the February 24 count of
first degree burglary, and not guilty of the February 27 count.
The trial court suspended imposition of sentence and ordered
defendant to complete two years of formal probation with 25
actual days in jail and 60 days of community labor. She was to
pay restitution in an amount to be determined. She filed a timely
notice of appeal.
DISCUSSION
On appeal, defendant argues: (1) she was denied due
process by the failure of the prosecution to turn over the complete
videos in the possession of the Irvine Company; (2) she was
denied due process by the prosecution having allowed the Irvine
Company to destroy the exculpatory evidence of the remaining
videos; (3) the evidence was insufficient to support the verdict;
and (4) the prosecutor committed misconduct in argument to the
jury.
13
1. The Prosecution Had No Duty to Turn Over Video It
Never Possessed
Defendant first contends that the missing video evidence
was exculpatory and that, therefore, the prosecution’s failure to
turn it over violated its obligations under Brady v. Maryland
(1963) 373 U.S. 83, 87 (Brady). Brady provides, “the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” (Id. at p. 87.)
When a Brady claim is based on the failure to disclose
evidence the defendant knew about at trial, the defendant’s
“failure to make proper objections, request appropriate sanctions,
or seek any continuance on the matter is fatal to his contentions
on appeal.” (People v. Morrison (2004) 34 Cal.4th 698, 714.)
Here, once defense counsel was satisfied Alvarez had never given
the full video to Detective McIntire, he conceded that the
prosecution had satisfied its disclosure obligations.8 The
contention is therefore waived.
In any event, it is meritless. The prosecution has a duty to
search for and disclose exculpatory evidence if it is possessed by a
person or agency that was used by the prosecutor or investigating
agency to assist the prosecution or investigating agency in its
work. (IAR Systems Software, Inc. v. Superior Court (2017)
8 In her appellate brief, defendant references a motion for
sanctions for the failure to turn over evidence. But that motion
related to the stolen shoes and purses the police had returned to
Kahan, and the loss of the police photographs of those items, not
the complete videos Alvarez reviewed. Defendant makes no
argument on appeal regarding the court’s ruling on her motion
for sanctions.
14
12 Cal.App.5th 503, 514 (IAR Systems).) On appeal, defendant
argues that “when the [LAPD] enlisted The Irvine Co.’s
employees, they became an extension of the investigation and of
the LAPD.” Case authority provides for a totality of the
circumstances inquiry to determine whether “the prosecution has
exercised such a degree of control over the nongovernmental
actor or witness that the actor or witness’s actions should be
deemed to be those of the prosecution for purposes of Brady
compliance.” (IAR Systems, at pp. 517-518.) Defendant does not
attempt this analysis on appeal, nor did she pursue the argument
before the trial court. To the contrary, when discussing other
evidence in Alvarez’s possession (the photographs he had taken of
the search), defense counsel conceded that it was “outside the
prosecuting team’s realm of possession.” This was clearly correct;
Alvarez conducted his own investigation and shared the results
with Detective McIntire; he was not part of the police’s inquiry.
2. The Prosecution Had No Duty to Preserve Evidence It
Never Possessed
Defendant next argues that the prosecution violated her
due process rights by failing to immediately seize all of the video
in the Irvine Company’s possession, as the Irvine Company was
itself a suspect in the theft.
The duty to retain, rather than to disclose, potentially
exculpatory evidence is governed not by Brady, but by California
v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Ariz. v.
Youngblood (1988) 488 U.S. 51 (Youngblood).
Trombetta held that the duty to preserve evidence in police
possession applies only if the evidence possesses an exculpatory
value that was apparent before it was destroyed, and if it is of
such a nature that the defendant would be unable to obtain
15
comparable evidence by other reasonably available means.
(Trombetta, supra, 467 U.S. at pp. 488-489.) Youngblood held
that if the evidence the police failed to preserve was merely
potentially exculpatory, there is no denial of due process unless
the defendant can establish bad faith on the part of the police.
(Youngblood, supra, 488 U.S. at p. 58.)
Defendant attempts to fit this case under Trombetta, by
arguing the missing Malibu room surveillance tapes were
apparently exculpatory, as they would establish precisely how
incorrect the time stamps were on the inculpatory clips. There is
no factual support for this argument. As to the single camera in
the Malibu room from which all of the relevant clips were taken,
the prosecution established at trial that the camera was less than
one minute off.9 More importantly, the actual time of events in
the Malibu room was largely irrelevant; what matters was the
correspondence of those events to defendant being back in the
Sausalito building with Kahan’s key fobs, and the key lock
audits. Additional Malibu room video would have made no
difference on this point. Indeed, prosecution witnesses admitted
at trial than none of the time stamps on any of the videos or lock
audits were accurate. Further evidence of inaccuracy did not
have apparent exculpatory value.
Trombetta therefore does not apply. At best, this is a case
of potentially exculpatory evidence, bringing this case under
9 At one point in the party, someone used Kahan’s phone to
take a posed picture of Kahan and defendant. Comparing the
time stamp on the photo on Kahan’s phone with the time stamp
on the Malibu surveillance video of when the photo was taken
revealed a discrepancy of about 15 seconds.
16
Youngblood, and requiring defendant to establish bad faith. She
did not attempt to do so before the trial court, and provides no
legal basis for the suggestion that she can raise this inherently
factual inquiry for the first time on appeal.10 In any event,
defendant’s bad faith argument is based on the premise that the
police left the video “in the exclusive hands of a suspect.” This, in
turn, is based on Kahan’s initial belief that perhaps a
maintenance person had entered her apartment. But the key
lock audits, performed the same day Kahan first contacted police,
established that the unauthorized entry was from her own,
missing, “Resident 1” key fob, not the fob of an Irvine Company
employee.11 On these facts, defendant cannot establish bad faith.
3. The Evidence of Guilt is Sufficient
“ ‘In reviewing a claim for sufficiency of the evidence, we
must determine whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime . . . beyond a
reasonable doubt. We review the entire record in the light most
favorable to the judgment below to determine whether it discloses
sufficient evidence—that is, evidence that is reasonable, credible,
and of solid value—supporting the decision, and not whether the
evidence proves guilt beyond a reasonable doubt. [Citation.] We
neither reweigh the evidence nor reevaluate the credibility of
witnesses. [Citation.] We presume in support of the judgment
10 We review a trial court’s decision on a Youngblood motion
for substantial evidence. (People v. Alvarez (2014)
229 Cal.App.4th 761, 744.)
11 Moreover, Alvarez, who had possession of the videos, was
not an Irvine Company employee. He worked for Allied
Universal, a hired vendor for the complex.
17
the existence of every fact the jury reasonably could deduce from
the evidence. [Citation.] If the circumstances reasonably justify
the findings made by the trier of fact, reversal of the judgment is
not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ ” (People v.
Mohamed (2011) 201 Cal.App.4th 515, 521.)
Defendant argues the prosecution’s “case was based on the
speculation that the defendant was not seen on the [Malibu room]
video at the time the apartment door was opened,” and relies on
the conceded inaccuracy of the time stamps on the surveillance
cameras and lock audits. This is an understatement of the
evidence against defendant. It was not simply that she was
absent from the party at the time of the entries into Kahan’s
apartment. The evidence established that defendant left the
party with Kahan’s keys. With Kahan’s lanyard indisputably in
her hand, she returned to Sausalito Villa and went up to the
third floor.12 Unauthorized entries were made with a key fob
that defendant had in her pocket. Five pairs of Kahan’s shoes
were subsequently discovered in defendant’s car. This evidence
justifies the verdict.
4. Defendant’s Assertion of Prosecutorial Misconduct
Fails
Finally, defendant claims the prosecutor committed
misconduct during argument, by characterizing defendant as a
“liar” and “backstabber” who “trampled” Kahan’s friendship. The
12 In passing on appeal, defendant argues that there is no
evidence that she drove, rather than walked, from Malibu Villa to
Sausalito Villa, greatly limiting her time to commit the burglary.
We disagree. The video shows defendant entered the elevator
lobby on the garage level from the garage.
18
prosecutor did, in fact, make those, and similar, statements
during argument. Indeed, that defendant betrayed Kahan’s trust
had been the theme of the prosecutor’s opening statement from
the beginning of the case. Defendant challenges these
statements as improper epithets and attacks on her character.
There are at least two reasons why this argument fails.
First, defendant failed to object and request the jury be
admonished. “It is well settled that making a timely and specific
objection at trial, and requesting the jury be admonished (if jury
is not waived), is a necessary prerequisite to preserve a claim of
prosecutorial misconduct for appeal.” (People v. Seumanu (2015)
61 Cal.4th 1293, 1328 (Seumanu).)
Second, a criminal prosecutor has “much latitude” in
closing argument, and may make a “strongly worded and
vigorous” argument as long as it “fairly comments on the
evidence” or “asks the jury to draw reasonable inferences” from
that evidence. (Seumanu, supra, 61 Cal.4th at p. 1331.) “The
prosecution may properly refer to a defendant as a ‘liar’ if it is a
‘reasonable inference based on the evidence.’ ” (People v. Wilson
(2005) 36 Cal.4th 309, 338.) Here, the characterizations were
supported by the evidence. Kahan and Detective McIntire both
testified to their opinions that defendant had been untruthful.13
13 Anticipating that the prosecution would argue defendant
waived prosecutorial misconduct by failing to object, defendant
suggests that his trial counsel rendered ineffective assistance by
not objecting. Although we conclude there was no misconduct, we
reject the ineffective assistance argument for a second reason:
the existence of a deliberate tactical reason for the failure to
object. (Seumanu, supra, 61 Cal.4th at p. 1331.) The trial court
observed that when Detective McIntire testified that she believed
19
Detective McIntire also testified that, during her interview with
defendant, defendant was “deflecting blame to the victim.” In
addition, “trampl[ing]” a friendship is certainly a reasonable
characterization of the facts here, where defendant relied on
Kahan’s trust and friendship to take her keys, only to
surreptitiously enter her apartment and steal her belongings.
DISPOSITION
The judgment is affirmed.
MOOR, J.
WE CONCUR:
RUBIN, P. J. KIM, J.
defendant was untruthful in the interview, “there was no
objection by the defense. I was waiting for one.” Defense counsel
replied, “Your Honor, just quickly, for the record, just generally,
the objection wasn’t levied because – purposefully. And I’ll just
leave it at that just for later on down the road, if it gets to the
Court of Appeals.” The trial court stated, “So you had your
motivation for not objecting.” Counsel confirmed, “Yes.” In
defense counsel’s closing argument, he suggested that everyone
was calling defendant a liar by focusing on every little
inconsistency in her statements, but ignoring the inconsistencies
in Kahan’s statements. Counsel appears to have made the
tactical decision to allow defendant to be characterized as a liar,
so that he could point out the unfairness of the characterization
when compared to Kahan’s inconsistencies. This tactical reason
for the failure to object to Detective McIntire’s testimony applies
equally to the failure to object to the prosecutor’s argument.
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