People v. Denard, B253464

• Court: California Court of Appeals
• Writing for the Court: LUI, J.
• Citation: 242 Cal.App.4th 1012,195 Cal.Rptr.3d 676
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tony Allen DENARD, Defendant and Appellant.
• Docket Number: B253464
• Decision Date: 03 December 2015

242 Cal.App.4th 1012
195 Cal.Rptr.3d 676

The PEOPLE, Plaintiff and Respondent,
v.
Tony Allen DENARD, Defendant and Appellant.

B253464

Court of Appeal, Second District, Division 1, California.

Filed December 3, 2015

Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jaime L. Fuster and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

LUI, J.

242 Cal.App.4th 1017

Tony Denard appeals from the judgment entered following a jury trial in which he was convicted of one count of second degree commercial burglary in violation of Penal Code section 459.¹ The court found allegations that appellant had suffered two prior foreign serious or violent felonies true. (§§ 1170.12, subd. (b), 667, subds. (b)-(j).) In addition, the court found that appellant had served six prior prison terms within the meaning of section 667.5, subdivision (b) and section 1203, subdivision (e)(4). Appellant was sentenced to an aggregate term of 11 years in state prison, consisting of a base term of six years (the high term of three years doubled for a strike prior) plus five years consecutive for five separate one-year prison priors.

Appellant contends (1) his constitutional right not to testify was violated when, during argument to the jury, the prosecutor commented on appellant's failure to testify, and (2) the sentence imposed by the trial court was in error because the prosecution failed to prove that appellant's prior burglary and manslaughter convictions in Florida constituted strikes under California's "Three Strikes" law.

We conclude the comment on appellant's silence constituted harmless error, and we therefore affirm the conviction. However, we reverse the trial court's finding that the Florida burglary conviction constituted a strike because it is unsupported by substantial evidence. We also reverse the court's determination that the Florida manslaughter conviction constituted a strike

242 Cal.App.4th 1018

because it was necessarily based on factual findings that were not established by the conviction itself and thus violated the Sixth Amendment. Accordingly, we remand the matter for resentencing.

FACTUAL BACKGROUND

During the night of July 21, 2012, the Ace Hardware store on Anaheim Street in Long Beach was burglarized. The store had 12 surveillance cameras, which captured videos from inside and outside the store that night. In one of the videos appellant could be seen arriving at the back of the store on a bike pulling a small cart containing tools. Appellant opened the meter box on the wall and drilled a large hole, through which he climbed into the store. Once inside, appellant covered his face with his shirt and sprayed paint on the lenses of a number of the security cameras. But as he was spraying one of the cameras, the shirt covering his face dropped down and the camera captured an image of his face.

Appellant was in the store for over two hours. The surveillance video showed appellant removing merchandise from the shelves that he put in large plastic bags and took out of the store. The merchandise appellant took had a wholesale value between $15,000 and $16,000. Appellant

195 Cal.Rptr.3d 681

also stole an employee's wallet out of a locker.

In May 2013, almost a year after the burglary, George Evans, a police officer with the City of Long Beach, received a citywide bulletin regarding the burglary of the Ace Hardware store. The bulletin included a picture of the suspect's face taken from the surveillance video. Sometime after receiving the bulletin, Officer Evans came across appellant standing outside a doughnut shop on Cherry Avenue in Long Beach. The officer immediately recognized appellant as the person in the picture from the surveillance video. Officer Evans made contact with appellant and took appellant's picture. Appellant gave the officer the address of the residence where he had lived with his ex-wife, Maria Rosa.

Police interviewed Rosa and showed her the picture of the suspect from the surveillance video. On seeing the picture, Rosa sighed and asked, "What did he do?" She then told the officers the man in the photo "look[ed] like Tony." Sometime later Rosa viewed the surveillance video and identified appellant as the person in the video.

Rosa had great difficulty testifying against appellant, a man she had known for over 25 years and admitted she loved because they had a daughter and grandchild together. Nevertheless, Rosa testified at trial that she had had no difficulty identifying appellant from the picture police showed her. And at the

242 Cal.App.4th 1019

preliminary hearing as well as at trial, Rosa testified there was no doubt in her mind that the man in the video was appellant.

DISCUSSION

I. The Prosecutor's Argument Violated Appellant's Constitutional Right Not to Testify, But the Error Was Harmless

Appellant did not testify in his own behalf and contends that remarks made by the prosecutor in argument to the jury were direct comments on appellant's decision not to testify. Appellant asserts that the prosecutor's misconduct violated appellant's Fifth and Fourteenth Amendment rights pursuant to Griffin v. California (1965) 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (Griffin ), requiring reversal. We hold that the prosecutor's remarks constituted Griffin error. However, based on the overwhelming evidence of appellant's guilt, we conclude the error was harmless beyond a reasonable doubt.

A. Relevant Background

In closing argument to the jury, the defense argued that Rosa was in no better position than the jury to decide whether the person in the surveillance video was the defendant. In response, near the end of rebuttal, the prosecutor argued: "The defendant clearly does not want to take responsibility for his actions. He has put it upon [Rosa] to testify to get himself convicted. He has not taken responsibility himself. That is the kind of man he is. And that is typical of someone who is using or who has used [drugs], as [Rosa] testified to. There is no accountability, no responsibility, and that's why he cruelly made [Rosa] testify in identifying him, yet again."

The defense neither objected nor requested an admonition regarding the prosecutor's statements.

B. The Prosecutor's Remarks Constituted Griffin Error

Appellant contends that the prosecutor's argument could have been understood by the jury only as a comment on appellant's silence, and thus constituted Griffin error. We agree.

195 Cal.Rptr.3d 682

As a preliminary matter, respondent contends that appellant forfeited any claim regarding the prosecutor's argument because he failed to object and request an admonition when the improper remarks were made. "When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]"

242 Cal.App.4th 1020

(People v. Morales (2001) 25 Cal.4th 34, 43–44, 104 Cal.Rptr.2d 582, 18 P.3d 11 ; People v. Tafoya (2007) 42 Cal.4th 147, 184, 64 Cal.Rptr.3d 163, 164 P.3d 590.) Nevertheless, an appellate court may exercise its discretion to review a claim affecting the substantial rights of the defendant despite forfeiture for failure to raise the issue below. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7, 55 Cal.Rptr.3d 716, 153 P.3d 282 ; People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525, 176 Cal.Rptr.3d 517 (Sanchez ); see Pen.Code, § 1259 [an "appellate court may, without exception having been taken in the trial court, review any question of law involved ... at the trial ... which affected the substantial rights of the defendant"].) Because the Griffin error implicates appellant's "substantial rights" in this case, we exercise our discretion to address the merits of his claim.²

" ‘Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence.’ (People v. Lewis (2001) 25 Cal.4th 610, 670 [106 Cal.Rptr.2d 629, 22 P.3d 392].)" (People v. Tafoya, supra, 42 Cal.4th at p. 184, 64 Cal.Rptr.3d 163, 164 P.3d 590 ; Griffin, supra, 380 U.S. at pp. 614–615, 85 S.Ct. 1229.)

" ‘[A] prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.’ [Citation.]" (People v. Thomas (2012) 54 Cal.4th 908, 945, 144 Cal.Rptr.3d 366, 281 P.3d 361 (Thomas ).) Where it is "reasonably probable" that the prosecutor's comments misled the jury "into drawing an improper...