(Super. Ct. No. 62095069D)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Aaron Lee Patrick guilty of seven counts of second degree burglary. Defendant contends on appeal that his convictions must be reversed due to instances of prosecutorial misconduct resulting from what he characterizes as the prosecutor's decision to "defy" the trial court's ruling to exclude any references to defendant being in custody for a separate crime.
Because we conclude that defendant forfeited any claim of prosecutorial misconduct, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with eight counts of second degree burglary and two count of attempted second degree burglary for incidents that occurred on October 3, 8, 9, 29, and 30, 2009, and November 20, 2009. Three co-defendants were also charged with several counts of second degree burglary along with defendant, as well as additional counts of second degree burglary occurring on November 23, 2009. On November 21, 2009, defendant was arrested for stealing a pair of gloves from Kmart, and he remained in custody throughout the course of the trial in this case.
Before trial, the prosecutor filed a motion in limine to request that evidence of defendant's November 21, 2009, crime and subsequent conviction be admitted as evidence of motive, modus operandi, and common plan and scheme for the burglary allegations. In response, defense counsel filed a motion in limine to exclude evidence of defendant's prior conviction under Evidence Code section 1101, subdivisions (a) and (b).
After oral argument, the trial court determined that the facts of defendant's prior conviction were inadmissible and therefore granted defendant's request to exclude the evidence without prejudice. The trial court further made a sua sponte decision to prohibit any reference to defendant's custody status in front of the jury.
During trial, the prosecutor informed the court that the testimony by the officers who were present at defendant's jailhouse interview for the current crimes would inevitably indicate defendant's custody status because she could not "fathom a situation where the officer could testify fully and truthfully without indicating the circumstances under which [the officer] is questioning the [d]efendant." The prosecutor also argued that she needed to establish that defendant received his eyeglasses while he was in custody because defense counsel had asked witnesses on cross-examination whether any of the robbers were wearing eyeglasses on the nights in question. Lastly, the prosecutor argued that the jury needed to be aware of the fact that defendant was in custody because it established that he was unavailable to commit other robberies that occurred on November 23, 2009.
After conducting an Evidence Code section 352 analysis, the trial court found that the probative value of informing the jury that defendant received his eyeglasses in custody was small compared to the great prejudice inherent in informing the jury that defendant was in custody. As for the fact that defendant was interviewed in custody, the trial court further held that the prejudice outweighed the probative value. Lastly, the trial court found that the probative value of defendant's unavailability to commit the November 23, 2009, burglaries because he was in custody was also outweighed by the prejudice and, further, defendant's availability was not relevant because defendant was not charged in those particular burglary allegations.
The prosecutor subsequently questioned Jim Hudson, the detective who interviewed defendant about his involvement in the burglaries. According to Hudson, he interviewed each of the other defendants at the jail, one right after the other. After describing the interviews of several other co-defendants, the prosecutor began to specifically ask about ...