California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of San Bernardino County No. FWV1200490. Shahla Sabet, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
KING Acting P. J.
A jury convicted defendant and appellant Jose Cesar Sanchez of grand theft of copper wire. (Pen. Code, § 487, subd. (a).) He was sentenced to three years in county jail. On appeal, defendant contends that four statements made by the prosecutor during closing argument deprived him of his constitutional rights to due process and a fair trial in two respects. First, the prosecutor committed Griffin error by implicating defendant’s failure to testify. Second, the prosecutor made inflammatory statements about defendant and the jurors. We hold that one comment constituted Griffin error and another amounted to prosecutorial misconduct. We conclude, however, that the errors, individually and cumulatively, are harmless. We therefore affirm the judgment.
II. FACTUAL BACKGROUND
Around 3:00 a.m. on February 28, 2012, two Southern California Edison (SCE) employees drove to an SCE service center. The center, or yard, is surrounded by a brick wall topped with barbed wire; entry requires an electronic key card. As they pulled into the yard, one of the employees saw a person underneath a truck. The employee called the police.
Police officers arrived and found defendant in the wheel well of a truck. An officer ordered defendant to come out. When defendant did not comply, the officer tased him, pulled him out, and arrested him. Inside the wheel well there were rolls of tape and a walkie-talkie.
The police officers found a large extension ladder propped up against the north wall of the distribution yard. A backpack containing pliers and miscellaneous hand tools was found near the truck. Spools of SCE’s wire were on the ground, along with wire cutters; a milk crate holding drills and an impact wrench was found in the middle of the yard. According to one of the SCE employees, the location of the ladder and the items found on the ground was unusual and would violate SCE’s rules.
Police officers located a GMC Yukon at a restaurant parking lot about a block away from the SCE yard. The vehicle had been last registered in defendant’s name in 2010. Jasmine Rodriguez was in the driver’s seat. Rodriguez consented to a search of the vehicle. The search turned up a
notebook with the word “Cash” written on it and containing addresses of several SCE yards, including the yard in which defendant was found. A walkie-talkie found in the vehicle connected directly to the walkie-talkie found inside the SCE truck wheel well. Inside the Yukon there were also several tools, black tape, a dolly, and a ceramic insulator of the kind used on power poles.
A surveillance videotape of the SCE distribution yard revealed two figures climbing in and out of SCE trucks and taking items off the trucks during the two hours preceding defendant’s apprehension. The videotape also showed a person walking toward the south end of the yard—the same area in which defendant was found—at 3:03 a.m. Less than two minutes later, the two SCE employees who found defendant pulled into the yard.
The copper wire found lying on the ground was about 3, 125 feet long. The total value of the wire was $4, 185. If the wire was deemed scrap, it would be worth $1, 366.
III. THE PROSECUTOR’S COMMENTS DURING CLOSING ARGUMENT
At trial, defendant did not testify and did not present any defense witnesses.
At the conclusion of rebuttal argument, the prosecutor stated: “Ladies and gentlemen, ultimately the thing to remember is that defense attorneys don’t get up here and say, ‘You know what, ladies and gentlemen, the evidence is just damning. My guy is guilty. Find him guilty. Thank you, I’m done.’ [¶] They don’t do that. They get up here and they work with what they have. And the reality is that this is not a good case for the defense so they get up here and argue whatever they can. If the defense had a plausible, reasonable explanation why the defendant was in the yard that morning, they would have given it. They haven’t. [¶] [Defense counsel] is a talented attorney, skilled attorney. And if she had a reasonable, plausible explanation for the defendant’s presence in that yard at 3:00 in the morning she would have given it. She hasn’t because....” (Italics added.) At this point, defense counsel objected to these statements as Griffin error. The court took the matter under submission.
The prosecutor continued: “I would submit to you ultimately the defense’s argument is about hope. It’s about hope that one of you—and just one of you, that’s all they need—just one of you, will be gullible enough to think that the defendant just happened to be in that Edison yard at 3:00 in the morning.... Hope that one of you, just one of you will be naïve enough to believe that
this was some kind of inside job. Hope that one of you, just one of you, will be hoodwinked by the idea that [the two SCE employees] came in here and lied about how the yards are kept at Southern California Edison. Hope that one of you, just one of you, will be gullible enough to be bought by one of these ridiculous arguments. Hope that one of you will be naïve enough to think that any of this amounts to reasonable doubt. [¶] Why? So that the defendant can go home and have a good laugh at your expense.” (Italics added.)
Defense counsel objected to these statements as “[i]mproper.” In the presence of the jury, the court instructed the prosecution “not [to] influence the jurors by calling them names, basically, naïve or gullible if they did something you don’t like.”
The prosecutor concluded his argument by stating: “Ladies and gentlemen, as we sit here today, the defendant is still in that wheel well in a very real sense, and this time he’s hiding from all of you.... Pull him out of that wheel well one last time. Thank you.” (Italics added) Defense counsel did not object to this statement. Despite the lack of objection, the court addressed some of these statements outside the presence of the jury.
Although the court had been “vigilantly listening, ” it “did not see or hear any Griffin error.” However, the court reminded the prosecutor that he is held to “high, high ethical standards, ” and told the prosecutor there were a couple of times when he “got very close to the line.” In particular, the court pointed to the prosecutor’s statement that defendant is: “[S]till hiding in this barrel [sic]. You repeated your theme... that he never acknowledged his guilt so he’s still hiding, he doesn’t acknowledge his guilt.” The prosecutor was reminded to “stay away from those arguments because it’s going to be appealed. It’s going to be a huge issue.”
IV. STANDARD OF REVIEW
We evaluate claims of Griffin error by inquiring whether there is “a reasonable likelihood that any of the [prosecutor’s] comments could have been understood, within its context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2 Cal.4th 629, 663 [7 Cal.Rptr.2d 564, 828 P.2d 705].) The standard for evaluating claims of prosecutorial misconduct is well established and summarized as follows: “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either
the trial court or the jury. Furthermore, ... when the claim focuses upon comments made by the prosecutor 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. ...