Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF2890 Richard M. King, Judge.
Sarah A. Stockwell, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda
Cartwright-Ladendorf, Christine Levingston Bergman and Vincent LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Joseph Garcia appeals from a judgment after a jury convicted him of first degree residential burglary. Garcia argues the trial court erroneously denied his motion to suppress his prearrest statements because he was not advised of his Miranda rights, there was insufficient evidence he committed first degree residential burglary, the prosecutor committed misconduct, the court erroneously denied his motion for a new trial, and there was cumulative error. None of his contentions have merit, and we affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTS
In June 2006, Patricia Beck hired handyman Eddie Garcia (Eddie) to paint and renovate her home. Eddie hired his brother, Garcia, to paint. They finished the renovation by the end of June; Beck settled her account, and the men removed their equipment and tools. In mid-July, Garcia went to Beck’s home. When Beck’s cleaning lady, Dominga Bailon, answered the door, Garcia asked if Beck was home, and Bailon replied she was not.
One week later, Garcia returned to Beck’s home around noon and again asked Bailon if Beck was home. Garcia had black hair and was wearing a white shirt and blue pants. Bailon said she was not and Garcia left. They repeated the same exchange one hour later, only this time Garcia asked Bailon when Beck would be home and when she was leaving. Bailon responded she did not know when Beck would be home and she would be leaving by 2:30 p.m. Garcia left, and true to her word, Bailon left about 2:20 p.m.
Approximately 15 minutes later, Beck’s neighbor, Jose Ponce, saw a man at Beck’s front door and then walk away. The man was Hispanic, and “had grayish-black, light gray hair[]” and “pigmentation or light skin[]” by his lip. The man was about Ponce’s height, five feet nine inches, and weighed about 200 pounds and was clean shaven. He was wearing blue jeans and a dark shirt. Ponce became suspicious, and after asking another neighbor to contact Beck to see if anyone was supposed to be working at her house, Ponce walked into Beck’s backyard. He saw a man pushing on the kitchen window and asked him what he was doing. The man responded he was the painter, he grabbed two cans of paint, and Ponce left. When Ponce returned to the neighbor’s house, she told him no one was supposed to be at Beck’s home, and she called the police.
When law enforcement officers arrived at Beck’s home, the rear kitchen window was completely open, and the screen was open two inches and off the track. There were a couple paint cans near the kitchen window. Taken from Beck’s home was jewelry, $55, a video camera, and a digital camera.
In September, Bailon identified Garcia in a photographic lineup as the man who came to Beck’s house on the day of the burglary. Ponce could not identify anyone.
Also in September, Officer Aaron Towner interviewed Eddie, who told him that before the burglary Garcia said he went to Beck’s house to “‘get some things[.]’” Eddie stated he had not spoken to Garcia since he learned of Garcia’s involvement in the burglary. Eddie told him that he had offered Beck money to reimburse her for her losses, but that she refused.
That same month, Officer Miguel Cuenca interviewed Garcia, who told him that he had worked at Beck’s house three months earlier. Garcia said that at some point he returned to Beck’s house to inquire about further work. When Cuenca said Garcia knew what he did and he was trying to recover Beck’s property, Garcia responded, “I got nothing with me.” When Cuenca asked him what he did with it, Garcia replied, “I didn’t do nothing, I didn’t do nothing with it.” At the end of the interview, Cuenca arrested Garcia.
The interview was recorded, and a tape of the interview was played for the jury.
As we explain below, these statements were admitted after the parties litigated a motion to suppress, which the trial granted in part and denied in part.
In February 2007, nearly seven months after the robberies, a defense investigator showed Ponce another photographic lineup. He initially identified one of the photographs as the man he saw in Beck’s backyard, but then stated he was unsure.
An information charged Garcia with first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)). The information alleged Garcia suffered eight prior felony convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), five prior prison allegations (§ 667.5, subd. (b)), and three prior serious felony convictions (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Before trial, Garcia moved to suppress his statements to Cuenca, and the trial court conducted an Evidence Code section 402 hearing. In addition to the evidence above, there was further testimony concerning the location of the interview and what was said after Garcia claimed he “did nothing” with Beck’s property.
Cuenca testified he interviewed Garcia at his parole agent’s office, in an approximately 10-by 10-foot room. Cuenca explained that when Garcia arrived for his regularly scheduled parole meeting, he was waiting for him, along with his parole agent and another parole officer. Cuenca stated Garcia was there “on his own free will[.]” Cuenca asked Garcia if he had any weapons, and with his consent, conducted a patdown search. Cuenca told him that he wanted to speak with him about a burglary. Garcia agreed to speak with him. At this point in the conversation, Garcia was not handcuffed, he was not arrested, he was not being held against his will, and officers did not have their guns drawn. Cuenca believed the office door was open, and Garcia never asked to leave or was prevented from doing so. Officers did not promise Garcia anything for cooperating, and did not threaten him.
The transcript of the interview consisted of 11 pages. On pages 1 and 2, Cuenca questioned Garcia about his prior conviction for second degree residential burglary. On pages 2 through 7, the testimony the trial court admitted into evidence and we detail above, Cuenca questioned Garcia concerning his work at Beck’s home and whether he returned to Beck’s home and spoke with her house cleaner. On pages 7 through 11, the following additional testimony was provided. Garcia asked Cuenca if he was going to arrest him. Cuenca said he was and asked for Garcia’s help in retrieving Beck’s property. After Cuenca repeated he needed his help and asked him what happened in Beck’s backyard, Garcia responded it was not right he was going to arrest him and make him answer questions. When Garcia insisted it did not make sense Cuenca was going to arrest him and seek his help in retrieving Beck’s property, Garcia replied he did not say that. Cuenca stated whether he was arrested depended on what happened. After Cuenca said he “screwed up” and to “shut [his] mouth[,]” Garcia asked if he was being arrested. Cuenca continued to ask Garcia if he was going to help retrieve Beck’s property, and Garcia continued to ask if he was being arrested. Cuenca stated, “Stand up, turn around. Spread your feet, wide. Do a [“]Van Dam[”] for me. Tired of sitting here and playing games with your dumb ass, you understand me?”
The trial court ruled pages 1 through 7 of the transcript were admissible because Garcia was not in custody and his statements were voluntary, although the court later excluded pages 1 and 2 because there were inadmissible pursuant to Evidence Code section 1101, subdivision (b). The court also concluded Garcia’s statements on pages 7 through 11 were inadmissible because he was in custody and Cuenca did not advise him of his Miranda rights.
At trial, Ponce identified Garcia as the man he saw in Beck’s backyard. On cross-examination, Ponce testified he wore corrective lenses and was “farsighted.” After a short demonstration in court, Ponce admitted Garcia was shorter than he remembered him to be and he did not see any discoloration on his lip. He admitted not being able to identify anyone in the photographic lineups.
Ponce testified he is “farsighted,” and when defense counsel stated that meant he could not see things near to him, he replied, “No, I can see near. I can’t see that far.” We think Ponce meant to say he has myopia, or is nearsighted.
For the limited purpose of assessing Eddie’s credibility, Beck testified Eddie offered to reimburse her for her losses, and Eddie said he would have to contact clients where Garcia had worked to determine if they suffered any losses.
The prosecutor also offered Eddie’s testimony. Eddie testified Garcia did not tell him that he went to Beck’s house to get some things, and he did not tell Towner that. On cross-examination, Eddie admitted he offered to compensate Beck because she was a friend. Eddie claimed a friend, Sergio Verino, informed him of the burglary. On redirect examination, Eddie stated he offered to reimburse Beck because he had done work for her and her daughters and “[he] felt it would just be the right thing to do.” He did not remember telling her that he would have to contact prior clients to determine if they suffered any losses. Towner testified that when he interviewed Eddie, he never mentioned Verino.
Garcia offered testimony law enforcement officers found fingerprints and shoeprints from Beck’s home and neither matched Garcia. He also offered Verino’s testimony. Verino stated he called Eddie and told him about the burglary and that Garcia was a suspect. He claimed Eddie seemed stunned.
The jury convicted Garcia of first degree residential burglary. After the trial court denied Garcia’s new trial motion and found true all but one of the prior felony convictions and one of the prior prison allegations, the court sentenced him to a total term of 40 years to life.
DISCUSSION
I. Miranda
Garcia argues the trial court erroneously denied his motion to suppress because “the only reasonable conclusion is that Garcia was in custody from the moment he set foot in that room.” We disagree.
“Miranda warnings are required ‘as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.”’ [Citation.] This determination presents a mixed question of law and fact. [Citation.] We apply a deferential substantial evidence standard to the trial court’s factual findings, but independently determine whether the interrogation was custodial. [Citation.] [¶] Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, fn. omitted (Pilster).)
Preliminarily, Cuenca’s conduct and statements during the excluded portion of the interview, pages 7 through 11, are irrelevant to our inquiry, and Garcia’s reliance on them is misplaced. As we explain above, the trial court admitted only that portion of the interview from the time Cuenca questioned Garcia concerning this crime to the point where Garcia said he “did nothing” with Beck’s property—pages 2 through 7 of the transcript. At that point, Cuenca had not arrested Garcia, Cuenca had not handcuffed him, Garcia was not being held against his will, and he was not prevented from leaving. And most importantly, Cuenca testified Garcia agreed to speak with him, although Cuenca did not tell him that he was free to terminate the questioning and leave. It is unclear the length of the interview, but Garcia does not claim it was unduly prolonged. Garcia was at a regularly scheduled meeting at his parole officer’s office, however, that is not dispositive on the issue of custody. (See People v. Carpenter (1997) 15 Cal.4th 312, 383-384, superseded by statute on another ground in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) Garcia was outnumbered three to one, but Cuenca believed the office door was open, Cuenca did not have his gun drawn, and Garcia consented to the search of his person. Cuenca testified he did not promise Garcia anything or threaten him. Admittingly, it is difficult to discern Cuenca’s tone from a cold reading of the transcript, but it appears Cuenca was not aggressive, confrontational, or accusatory until just before Garcia stated he “did nothing” with Beck’s property. Finally, Cuenca did not tell Garcia he considered him a suspect, although Garcia must have been aware of that fact just prior to him claiming he “did nothing” with the property. Based on all the circumstances, we conclude the trial court properly admitted pages 2 through 7 of the transcript of the interview because Garcia was not in custody for that portion of the interview and his statements were voluntary.
II. Sufficiency of the Evidence
Garcia claims insufficient evidence supports his conviction for first degree residential burglary because there was no credible, reliable evidence he was the burglar. Not so.
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104 (Valdez).)
The crime of burglary and the identification of the perpetrator are often established entirely by circumstantial evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1329; People v. Naughton (1969) 270 Cal.App.2d 1, 7-8.) Residential burglary occurs when a person enters an inhabited dwelling with the intent to commit larceny or any felony. (§ 459.)
Here, there was ample circumstantial evidence Garcia was the person who burgled Beck’s home. Bailon testified Garcia was at Beck’s home approximately one and one-half hours before the robbery inquiring when Beck would be home. Bailon also stated Garcia asked when she was leaving. From this evidence a reasonable juror could doubt Garcia’s explanation he was looking for work—if Garcia was looking for work why was it important he know when the cleaning lady was leaving. Additionally, although Ponce could not pick Garcia out of a photographic lineup and his description was not 100 percent accurate, in court Ponce testified he was “100 percent certain” Garcia was the man he saw in Beck’s backyard that day. This testimony alone was sufficient evidence Garcia was the burglar. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Without reciting each of Garcia’s assertions, he essentially asks us to reweigh the evidence. That we cannot do. (Valdez, supra, 32 Cal.4th at p. 104.) Thus, there was sufficient evidence to support Garcia’s conviction for first degree residential burglary.
In his headings, Garcia also suggests there was insufficient evidence he aided and abetted the perpetrator in committing the burglary, but he does not provide any reasoned argument to support his claim. The prosecutor did argue the theory, and the trial court instructed the jury on aiding and abetting principles. We presume Garcia did not argue this because there is no conceivable evidence upon which a jury could convict him of burglary on an aiding and abetting theory.
III. Prosecutorial Misconduct
Garcia argues the prosecutor committed misconduct during opening and closing arguments. After providing the general principles governing prosecutorial misconduct, we address each of his claims.
A. Governing Law
“‘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.]’” (People v. Parson (2008) 44 Cal.4th 332, 359.)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
B. Opening Argument
Garcia asserts the prosecutor committed misconduct during opening argument when she referred to inadmissible evidence and “misled the jury as to the order of the interrogation by... Cuenca.” Although Garcia highlights two instances of alleged misconduct, from the portion of the prosecutor’s argument he cites to and his broad assertions of alleged misconduct, we discern three instances of alleged wrongdoing.
Before we provide the relevant portion of the prosecutor’s opening argument, we must first set the scene. As we explain above, Cuenca interviewed Garcia at his parole agent’s office, and the trial court admitted pages 2 through 7 of the interview transcript. After Cuenca interviewed and arrested Garcia, he took him to the police station, where Towner advised him of his Miranda rights and interviewed him. At the Evidence Code section 402 hearing, Towner testified he questioned Garcia about the burglary, Garcia asked if he was arrested, and Towner responded he was under arrest. Towner testified he asked him further questions concerning his involvement, but “he did not respond to [him] at all, and after several attempts to communicate with him and receiving no response, he requested that an attorney be present.” The trial court ruled the prosecutor could mention Garcia’s statements to Towner up to the point Garcia went silent, but it was reserving ruling on the issue of whether the prosecutor could mention his silence until the court could research the issue. The prosecutor indicated she needed a few minutes to adjust her slides to conform to the court’s ruling.
During opening argument, the prosecutor stated: “Now... Cuenca conducts an interview with [Garcia].... Cuenca explains that he wanted to ask [Garcia] about a burglary that occurred in July in the City of Orange, and [Garcia] agreed to speak with... Cuenca. This conversation was recorded and you will hear that conversation. The gist of that conversation is that [Garcia] stated he did work for his brother Eddie... as a painter and he confirmed that he worked at... Beck’s residence during the month of June helping his brother with the painting job. [¶]... Cuenca questioned [Garcia] about when he went to the home and spoke to the maid,... Bailon, several times. He questioned him about that, and [Garcia] asked if he was going to be arrested. [Cuenca] ignores [Garcia’s] question and begins to continue to question [Garcia] about the burglary, and [Garcia] continues to answer [Cuenca] with a question. [Cuenca] tries another avenue and says, ‘look, we need to get that jewelry back to... Beck. You need to help the jewelry [sic] that was stolen from her -- from her home to be returned to her.’ [¶] When [Cuenca] asks [Garcia], ‘Where is the stuff?’ Where was it? Where did he take it? Whether he had it with him, whether he had pawned it, [Garcia] responded, ‘I got nothing with me.’” Defense counsel objected, claiming the prosecutor misstated the evidence. After the trial court overruled the objection, the court instructed the jury the attorneys’ argument was not evidence.
The prosecutor continued: “When asked what he did with the stuff, [Garcia] responded, ‘I didn’t do nothing. I didn’t do nothing with it.’ [¶]... Cuenca again ignores [Garcia’s] questions that he continues to ask, and essentially that’s the end of the conversation. And [Garcia] is arrested at that point and never denied committing the burglary during that interview with... Cuenca. [¶] Now,... Towner interviews [Garcia] about an hour to an hour and a half later at the Orange Police Department after [Garcia] is arrested.” Defense counsel objected to the prosecutor’s statement Garcia never denied committing the burglary during the Cuenca interview on the grounds is misstated the transcript. The trial court overruled the objection and again admonished the jury.
The prosecutor continued: “Now,... Towner read [Garcia] his Miranda rights at this point because [Garcia] was arrested and [Garcia] agreed to speak with... Towner.... Towner explains to [Garcia] why he’s there to talk to him and asked him what happened at... Beck’s home. [Garcia] asked... Towner if he’s been arrested.... Towner explains, ‘you have been arrested for residential burglary.’ And [Towner] then asks [Garcia] why he committed the burglary. [Garcia] just sits there and looks at [Towner].” Defense counsel objected, and the trial court excused the jury.
The trial court asked the prosecutor if it was her offer of proof Garcia “looked” at Towner before or after he made statements about being at the residence. The court indicated that if it was before, the prosecutor’s statement was permissible, but if it was after, “then we have a problem.” The prosecutor explained the police report indicated Towner advised Garcia of his Miranda rights and asked him about his involvement in the burglary. After Garcia asked if he was arrested, Towner stated he was in custody and asked him why he committed the burglary. Garcia sat and looked at Towner. The court ruled the prosecutor’s comment was not in bad faith and the police report supported her explanation. When the trial court indicated it would admonish the jury and inquired whether defense counsel wanted an admonishment, counsel requested a mistrial. The court denied the motion, and defense counsel did not want the jury admonished on this point. The court ordered the prosecutor to modify her slides and preserve both for possible appellate review.
To the extent, if at all, Garcia claims the prosecutor committed misconduct when she argued Cuenca asked him where he took Beck’s property or whether he had Beck’s property, Garcia responded, “I got nothing with me.” The portion of the transcript the trial court admitted into evidence, pages 2 through 7, included this statement. The prosecutor could properly refer to it during her opening argument.
With respect to Garcia’s claim the prosecutor committed misconduct when she asserted that during the Cuenca interview he did not deny committing the burglary and her statement implicated his Fifth Amendment rights against self-incrimination, we disagree. As we explain above, when Cuenca interviewed Garcia at his parole agent’s office, Garcia was not under arrest and was not in custody. The Fifth Amendment privilege against self-incrimination is not implicated until a suspect has been formally arrested or otherwise restrained. (See Stansbury v. California (1994) 511 U.S. 318, 322.) Cuenca asked Garcia where Beck’s property was, where he took it, and whether he had any of Beck’s property with him. Garcia said he had nothing with him and he did not do anything with it. Garcia had the opportunity to deny involvement in the burglary and did not. As we explain above, Garcia was not under arrest or in custody at this point, Cuenca was not required to advise him of his Miranda rights, and the trial court properly admitted this portion of the transcript into evidence. Therefore, the prosecutor could properly comment on Cuenca’s failure to deny involvement in the burglary.
As to Garcia’s claim the prosecutor committed misconduct when she disobeyed a court order and stated that during the Towner interview when he asked Garcia why he committed the burglary, Garcia just sat there and looked at him, again we conclude there was no misconduct. “[R]emarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor was so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.” (People v. Davenport (1995) 11 Cal.4th 1171, 1212-1213, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) A defendant’s due process rights are not violated when post-Miranda a defendant voluntarily speaks. (Anderson v. Charles (1980) 447 U.S. 404, 408.)
Here, Towner testified that after he advised Garcia of his Miranda rights and Towner said he was under arrest for burglary, Garcia answered his questions. Towner testified that it was not until he told Garcia he wanted to recover Beck’s property and return it to her that Garcia was silent and soon thereafter requested an attorney. Although the trial court ordered the prosecutor not to mention Garcia’s silence in her opening argument, the prosecutor did just that. We caution the prosecutor to follow more closely the court’s orders, and if upon discovery of additional evidence supporting her position, to bring it to the court’s attention and litigate the matter.
Relying on a police report, however, the prosecutor argued that Towner asked Garcia about his involvement in the burglary, Garcia asked if he was arrested, Towner responded he was in custody, Towner asked him why he committed the burglary, and Garcia “sits and looks” at Towner. The prosecutor indicated Towner then asked Garcia if he was ever at Beck’s home, he replied he did some work for his brother at Beck’s home, Towner asked his additional questions, and then Garcia was silent, and shortly thereafter requested an attorney. Although the trial court later excluded evidence of Garcia’s silence, this evidence was not so patently inadmissible as to charge the prosecutor with the knowledge it could never be admitted. It was reasonable for the prosecutor to conclude that post-Miranda warnings, evidence of Garcia’s silence in the midst of answering Towner’s questions may have been admitted. Additionally, it is of no consequence there was also a slide that illustrated this statement for the jury.
Finally, Garcia’s claim the prosecutor committed misconduct when she “ma[de] confused testimony appear chronological and seamless,” is meritless. “The function of an opening statement is not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and more readily discern its materiality, force, and meaning.” (People v. Dennis (1998) 17 Cal.4th 468, 518.) Garcia cites to no instance where the prosecutor referred to evidence she knew was inadmissible. Thus, the prosecutor did not commit misconduct during opening argument.
C. Closing Argument
Relying on People v. Bolton (1979) 23 Cal.3d 208 (Bolton), and People v. Woods (2006) 146 Cal.App.4th 106 (Woods), Garcia argues the prosecutor also committed misconduct during closing argument when she “testif[ied] to events without supporting evidence admitted at trial[.]” Not so.
“A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. [Citation.] Comments on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the People’s case are generally permissible. [Citation.] However, a prosecutor may not suggest that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ [Citations.] [¶] A prosecutor may not suggest the existence of ‘“facts”’ outside of the record by arguing matters not in evidence. [Citation.] Nor may a prosecutor suggest that matters outside the record establish the veracity of a witness; however, the prosecutor may assure the jury of a witness’s apparent honesty or reliability based on matters in the record. [Citations.]” (Woods, supra, 146 Cal.App.4th at pp. 112-113.)
During rebuttal, the prosecutor argued: “So none of them have a reason to lie or fabricate the evidence, and they all testified consistently to their previous statements by police. Because you better believe if they were real inconsistent, if there was a ton of inconsistencies with their prior statements to the police, counsel would have brought them up because he has got those police reports and he sees what they’ve told -- he can see what they told the police previously.”
A little later, the prosecutor continued: “[Eddie]... very little to no recollection about what happened, certainly not taking notes in this case. He said he never told police that his brother went back to get some things. [¶] Well, that just doesn’t make sense in light of his subsequent actions of going to... Beck and trying to pay her off for the amount of money loss and telling... Beck that now [he has] to go to all of the other jobs and see if there is any property missing, other jobs that [he] worked on with [his] brother. [¶] He said he never had a conversation with his brother about the burglary. Well, that is just not true. He told... Towner he had a conversation with his brother about it. And if he didn’t have the conversation -- again never got an answer to this question -- why did he go to... Beck and offer to pay her? Why did he tell... Beck that he has got to check the other jobs now? [¶] Said he heard about the burglary only from... Verino. Again he talked to his brother about this. And you know what? I’m going to bet you what happened. I’m just guessing, but this is what -- I bet you what happened. [¶]... Verino hears about this burglary, and he calls up [Garcia]. I’m not saying that didn’t happen. I’m not saying... Verino came in here and lied to you all. I’m sure he called his brother. And I bet you [Eddie]... is shocked, he is agitated as was testified to. And you better believes [sic] he calls and confronts his brother because he gave his brother a job. [¶] And I bet he called him and said, you know what, I heard you are involved in this burglary. And you get an answer back from [Garcia], yeah, I went back there to get some things. And at this point this is when [Eddie]... says, now I got to go to... Beck and make it right. Now I got to go and make sure all of these other jobs are -- everything is right with those. [¶] Because he is the front man. He is the one that is contracting with all of these customers. It just didn’t make sense to me when I asked him, why did you go to... Beck? And he said, well, I just felt responsible. [¶] Well, no smart businessman is going to start paying, shelling out money for a burglary that occurred at a client’s home a month before or a month after you did your job there, okay, just because you fell responsible because you stepped foot on the premises at one time. [¶] That is just not what -- you are not going to do that. It doesn’t make sense. That is not reasonable. That is not our common sense. What is reasonable is you find out about the burglary. You confront your brother. You find out that it is true, and then you go back and you make it right. And that’s what happened in this case. I’m going to bet you that is what happened in this case. And that conversation happened between [Garcia] and his brother where he admitted that he did the burglary. [¶] Again he says he didn’t remember talking about the amount of loss to... Beck. Well,... Beck told you. She said, yeah, I’m pretty sure I told him about the amount, especially the amount of that ring, that blue tanzanite ring. That was about $1,100. And he says he never went back to... Beck to check with other jobs. [¶] I specifically asked her that question. I asked her, did he tell you that he was going to check other jobs for missing items? And she said, yes, he did tell me that.”
Garcia cites to no authority to support his proposition the prosecutor committed misconduct when she repeatedly used the word “bet.” The prosecutor commented on what she “thought” or “believed” were reasonable inferences from the evidence. This was permissible.
With respect to his contention the prosecutor commented on evidence never presented at trial, we disagree. The prosecutor merely drew a reasonable inference from the evidence offered at trial. Towner testified Eddie told him that he spoke to Garcia before the burglary and Garcia told Eddie that he returned to Beck’s to get some things. Towner also stated Eddie said he had not spoken to Garcia since he learned of his involvement in the burglary. Verino testified Eddie seemed surprised to hear about Garcia’s involvement in robbery. The prosecutor argued Eddie’s conduct in going to Beck and offering to compensate her and his statements he would have to compensate other clients were inconsistent with Eddie’s explanation. The prosecutor drew a reasonable inference that from Eddie’s conduct after learning of the burglary he had to have spoken with Garcia about his involvement in the burglary.
As to his claim the prosecutor relied on police reports not admitted into evidence to vouch for witnesses who testified at trial, her statement was more of a comment on the failure of defense counsel to offer evidence impeaching Bailon or Ponce. A prosecutor may comment on defense counsel’s failure to rebut the People’s case. And, there is no suggestion Garcia was “obligated” to present any evidence thereby implicating his federal constitutional rights.
Garcia claims the prosecutor’s comments were unfair because they were during rebuttal and he did not have an opportunity to rebut them. The majority of the prosecutor’s comments Garcia complains about concerned Eddie’s credibility, and the prosecutor’s statements were in response to defense counsel’s statements during closing argument where he stated Eddie was a credible and honest witness.
Although Garcia suggests the prosecutor also committed misconduct during closing argument when she argued he was guilty under an aiding and abetting theory, he does not provide any reasoned argument to support this claims. We need not address it. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration’”].)
Finally, Garcia’s reliance on Bolton, supra, 23 Cal.3d 208, and Woods, supra, 146 Cal.App.4th 106, is misplaced. In Bolton, the prosecutor invited the jury to speculate defendant had a prior conviction when in fact he did not. (Bolton, supra, 23 Cal.3d at pp. 212-213.) In Woods, the prosecutor’s argument implied she had additional knowledge not before the jury, and argued facts that were dissimilar to the circumstances of the case. (Woods, supra, 146 Cal.App.4th at pp. 113, 115-116.) Neither Bolton nor Woods is instructive here. Therefore, the prosecutor did not commit misconduct during opening or closing argument.
IV. New Trial Motion
Garcia argues the trial court erroneously denied his new trial motion because the trial court erroneously denied his motion to suppress and the prosecutor committed misconduct. We disagree.
“In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court ‘should [not] disregard the verdict... but instead... should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.’ [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523-524.) Here, as we explain above, the trial court properly denied Garcia’s suppression motion as to pages 2 through 7 and the prosecutor did not commit misconduct.
V. Cumulative Error
Garcia contends the cumulative effect of the errors requires reversal. We have concluded there were no errors, and therefore, his claim has no merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J. RYLAARSDAM, J.