Filed 3/25/16 P. v. Logan CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050983

         v.                                                            (Super. Ct. No. 12WF3463)

RICHARD ALAN LOGAN,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
                   Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant Richard Alan Logan was convicted of residential burglary,
vehicle theft, possessing a controlled substance and resisting arrest. He contends his
burglary conviction must be reversed due to insufficient evidence, instructional error and
prosecutorial misconduct. We disagree and affirm the judgment.
                                          FACTS
              On the afternoon of September 30, 2012, Joel Potter’s Jeep was stolen from
his home in Hollywood. The next day around noon, Police Officer Christopher Karrer
spotted the Jeep going through a parking lot in Los Alamitos. Knowing it was stolen,
Karrer activated his overhead lights and stopped the vehicle. He then walked up to the
Jeep to find appellant in the driver’s seat and Ashley Coffey beside him. As Karrer was
looking into the Jeep’s back window, appellant suddenly stepped on the gas and took off.
However, he did not get far; another police officer stopped him within minutes in a
nearby parking lot.
              By the time Karrer arrived at that location, appellant had already fled the
scene on foot. Coffey, who was standing on the passenger side of the Jeep, told Karrer
that appellant had picked her up hitchhiking earlier in the day and that she believed his
name was Joshua Green. Karrer searched the scene and found a bag containing
methamphetamine and marijuana near the driver’s door of the Jeep. Inside the Jeep, he
also discovered a purse containing a driver’s license and social security card in the name
of Barbara Duck. After seizing those items, Karrer located appellant on the roof of a
nearby house. He was wearing only boxers and a tank top, indicating he was in the midst
of a clothing change. He was promptly arrested and taken into custody.
              On the way to the police station, appellant asked what he was being
charged with, and Karrer told him possessing a stolen vehicle and narcotics. When
Karrer asked appellant about his “habit,” he said he daily used an “8 ball” of “crystal,”
which is street jargon for one-eighth ounce of methamphetamine.



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              At the police station, appellant was interviewed by Karrer and another
officer. After admitting he discarded the drug-laden bag that was found near the Jeep, he
asked for a guarantee he would not be prosecuted if he provided information on cases in
other counties. The officers told appellant they could not guarantee him anything, but
they would let his prosecutors know he cooperated if he could provide information about
any crimes in Orange County. As it turned out, appellant had no such information, but he
did talk about the circumstances surrounding his own case.
              Appellant claimed he did not steal Potter’s Jeep, but he knew it was stolen,
which is why he fled from the police. He also claimed Coffey was his girlfriend. When
questioned about Duck’s belongings, he initially said he found her purse at a gas station
the previous evening. But he subsequently changed his story and said he found it that
morning at Seal Beach. Even though Seal Beach has a fairly prominent pier, appellant
said there was no pier in sight when he came across Duck’s purse.
              Based on his possession of the purse and the Jeep, appellant admitted he
was guilty of possessing stolen property, which he described as a “Class B” felony.
However, he insisted he was not guilty of residential burglary, which he described as a
“Class A” felony. In denying the burglary, appellant suggested the police would not find
any evidence of his involvement in that crime if they investigated the victim’s house.
              On the day of appellant’s arrest, the police called Duck to let her know they
had found her purse. Duck, who had been home at her Huntington Beach condominium
all that morning, had not even realized her purse was missing. At trial, she testified she
worked at home and always kept her front door locked. But she did not always lock the
door leading into her garage, which was right off her kitchen. Duck was in the habit of
leaving her purse on the kitchen counter when she was home. She was 90 percent sure
she had seen her purse there on the morning the police called her.




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              Describing her activities that morning, Duck said she got up early to do
some work in her home office. At about 9:30 a.m., she went upstairs to take a shower,
and then about 45 minutes later, she went downstairs and resumed working. After
speaking with the police, she checked her garage and discovered the glove compartment
of her car was open and its contents had been disturbed. She also noticed her garage door
was open about six inches. The police dusted Duck’s car for fingerprints but none were
found.
              In closing argument, defense counsel conceded appellant was guilty of
unlawfully taking or driving a vehicle, possessing a controlled substance and resisting
arrest. However, he asserted appellant was not guilty of residential burglary because he
had nothing to do with the taking of Duck’s purse. In arguing otherwise, the prosecutor
theorized appellant personally entered Duck’s home to steal her purse. Alternatively, the
prosecutor argued appellant aided and abetted Coffey in taking Duck’s purse from her
home. The jury convicted on all counts. After finding appellant had a prior serious
felony conviction, the court sentenced him to 13 years in prison.
                                       DISCUSSION
                                Sufficiency of the Evidence
              Appellant contends there is insufficient evidence to support his conviction
for residential burglary. The record shows otherwise.
              “In reviewing the sufficiency of the evidence to support a criminal
conviction, we review the record ‘“in the light most favorable to the judgment to
determine whether it discloses substantial evidence – that is, evidence that is reasonable,
credible, and of solid value – such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” [Citation.]’ [Citation.] We do not reweigh the
evidence or revisit credibility issues, but rather presume in support of the judgment the
existence of every fact that could reasonably be deduced from the evidence. [Citation.]



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              “‘The same standard applies when the conviction rests primarily on
circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if
it finds the circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate court that
must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] “‘If
the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment. [Citation.]’”’ [Citation.]”
(People v. Pham (2009) 180 Cal.App.4th 919, 924-925.)
              The law in California is well established: The possession of recently stolen
property is deemed so incriminating there need only be slight corroboration to sustain a
conviction for burglary. (People v. Mendoza (2000) 24 Cal.4th 130, 176; People v.
Harris (1968) 266 Cal.App.2d 426, 427.) Corroboration can take the form of false
statements or any conduct indicative of guilt, such as flight or evasiveness. (Ibid.; People
v. Wells (1960) 187 Cal.App.2d 324, 329; People v. Wade (1946) 76 Cal.App.2d 430,
431.)
              The record in this case shows appellant repeatedly fled from the police after
he was pulled over. Although he claimed he took off because he knew the Jeep was
stolen, the jury was not required to accept this explanation but could instead reasonably
infer appellant fled to avoid getting in trouble for stealing Duck’s purse. After all, the
theft occurred close in time to appellant’s arrest, and he gave conflicting stories about
how he allegedly came into possession of the purse. At first he claimed he found the
purse at a gas station the night before his arrest, but he later claimed he found it at Seal
Beach the morning he was arrested. Moreover, his beach story was clouded by his
misdescription of Seal Beach as having no pier. And, of course, the victim had not been




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to Seal Beach after seeing her purse on her kitchen counter, so defendant’s story was
rather spectacularly unconvincing. All told, the evidence was more than sufficient to
support the jury’s finding appellant was guilty of residential burglary.
                                       Instructional Error
               Appellant also contends there was insufficient evidence to support
instructions on aiding and abetting liability. We agree but find the error was harmless
under the circumstances presented.
               “‘The test for determining whether instructions on a particular theory of
guilt are appropriate is whether there is substantial evidence which would support
conviction on that theory. [Citation.]’” (People v. Campbell (1994) 25 Cal.App.4th 402,
408.) By definition “substantial evidence” requires actual evidence; it cannot be arrived
at by mere speculation, conjecture or surmise. (People v. Perez (1992) 2 Cal.4th 1117,
1133.)
               At trial, the court was initially inclined not to instruct the jury on aiding and
abetting liability. However, the prosecutor claimed there was a sufficient factual basis
for this theory. He asserted, “I think there is an inference that can be made or an
assumption that can be made by anyone in the jury thinking, hey, you know, the stolen
purse is in the [Jeep]. There’s another individual (Coffey) in the [Jeep]. Maybe
[appellant] actually didn’t commit the residential burglary. Maybe [Coffey] was the one
that actually entered the house and stole the purse. I think that’s a totally legit inference,
because [appellant] admitted driving the [Jeep]. He was driving it since the night before.
He told the police [Coffey was] his girlfriend. [¶] There’s evidence of aiding and
abetting. He would have had to drive her to the house. I think if she is the one that went
in the house and stole it, he’s sitting out in the alleyway. [¶] . . . [¶] . . . [¶] [And] [i]f she
went into the house, he would have, obviously, known about it. He would have had to
drive her there. He would have had to wait for her to go in, come back out with the
purse.”

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              Finding this argument persuasive, the trial court provided the jury with full
instructions on aiding and abetting liability. (CALCRIM Nos. 400, 401.) The court also
instructed the jurors that another person, i.e., Coffey, may have been involved in
appellant’s crimes, but they could not speculate about whether she had been prosecuted.
(CALCRIM No. 373.) In support of its decision to give these instructions, the court
reasoned, “There’s a possibility [the jurors] think [Coffey] did something and [appellant]
was an aider and abettor, based upon [their] being together in the car.”
              The prosecutor and the court both had to resort to the words “maybe,”
“assumption” and “possibility” to support this theory. This underscores the weakness of
their position. As defense counsel pointed out below, there was no evidence the Jeep was
anywhere near Duck’s residence, let alone in a nearby alley. Nor was there any evidence
placing Coffey in the vicinity of Duck’s home at the time of the burglary. Like appellant,
Coffey was found to be in possession of Duck’s recently stolen purse. However, standing
alone, that fact was insufficient to support a finding Coffey was involved in the taking of
that purse. (People v. Rogers (2013) 57 Cal.4th 296, 335.) Moreover, there is simply no
evidence Coffey intended to commit the charged burglary or that appellant intended to
help her do so.
              The trial court should not have instructed the jury on aiding and abetting
liability, but it could not have made a difference in the outcome of the case. Giving
instructions on a factually unsupported theory is not grounds for reversal “unless a review
of the entire record affirmatively demonstrates a reasonable probability that the jury in
fact found the defendant guilty solely on the unsupported theory.” (People v. Guiton
(1993) 4 Cal.4th 1116, 1130.) Here, the prosecution’s primary theory of the case was
that appellant personally committed the charged burglary by going into Duck’s house and
stealing her purse. Most of the prosecutor’s closing argument was devoted to this theory.
Toward the very end of his argument, the prosecutor did briefly mention the aiding and
abetting instructions, but his lack of enthusiasm for this theory was made obvious when

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he told the jury, “You might be thinking, maybe [Coffey] entered the house, and she put
the purse in the [Jeep]. [¶] Maybe. I don’t think so, based on all the defendant’s conduct
subsequent, but maybe.”
                  Given the disproportionate emphasis on the direct liability theory and the
lack of evidence supporting an aiding and abetting theory, it is not reasonably likely the
jury convicted appellant of burglary based solely on the theory he was merely Coffey’s
wheelman. Therefore, the error in instructing on aiding and abetting is not cause for
reversal.
                                               Prosecutorial Misconduct
                  Appellant contends the prosecutor engaged in multiple instances of
prejudicial misconduct during the trial. We do not see it that way.1
                  As the representative of the government in a criminal case, “‘It is a
prosecutor’s duty “to see that those accused of crime are afforded a fair trial.”
[Citation.]’” (People v. Daggett (1990) 225 Cal.App.3d 751, 759.) A prosecutor “may
strike hard blows, [but] he is not at liberty to strike foul ones.” (Berger v. United States
(1935) 295 U.S. 78, 88.) “Under California law, a prosecutor commits reversible
misconduct if he or she makes use of ‘deceptive or reprehensible methods’ in attempting
to persuade either the trial court or the jury, and when it is reasonably probable that
without such misconduct, an outcome more favorable to the defendant would have
resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does
not result in the denial of the defendant’s specific constitutional rights . . . but is
otherwise worthy of condemnation, is not a constitutional violation unless the challenged



         1
                   As appellant admits, his trial attorney did not object to all of the alleged misconduct, which raises
the specter of forfeiture. (People v. Samayoa (1997) 15 Cal.4th 795, 841 [“As a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion – and on the same ground – the defendant
made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”].)
However, because appellant contends his attorney was ineffective to the extent his objections were inadequate we
will consider all his arguments on their merits. (People v. Daya (1994) 29 Cal.App.4th 697, 714.)


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action ‘“so infected the trial with unfairness as to make the resulting conviction a denial
of due process.”’ [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 157.)
              Appellant’s first claim of prosecutorial misconduct relates to one of the
primary issues at trial: Was appellant being honest when he told the police he was not
involved in the burglary of Duck’s residence? The defense contended appellant’s
willingness to admit the possession crimes indicated he was telling the truth when he
denied committing the burglary. The defense even accused the prosecution of trying to
“have [its] cake and eat it, too” by urging the jury to believe all of the incriminating
aspects of appellant’s statement but not the one part that was exculpatory.
              In attempting to explain why this made sense, the prosecutor claimed
appellant was a sophisticated criminal who was out to minimize his potential punishment.
As proof of this, the prosecutor tried to elicit evidence through Officer Karrer that
burglary is a more serious offense than possessing stolen property and that appellant was
aware of this fact. Although the trial court sustained objections to this line of
questioning, appellant contends this area of inquiry was not only improper, it was highly
prejudicial because it effectively invited the jury to consider the issue of punishment.
              Appellant is correct that “possible punishment is not a proper matter for
jury consideration. [Citation.]” (People v. Holt (1984) 37 Cal.3d 436, 458.) But the
prosecutor’s claims and questioning were not intended to inflame the jury or distract it
from its responsibility to assess appellant’s culpability based on the facts of the case.
Instead, the prosecutor was simply offering an alternative explanation to defense
counsel’s take on the evidence. Although California does not classify its felonies by
letter gradations, appellant’s reference to burglary as a “Class A” felony and possessing
stolen property as a “Class B” felony indicates he believed burglary is the more serious of
the two offenses. The evidence also shows appellant was angling for some sort of deal
while he was speaking with the police. His apparent awareness of the distinction in
gravity between the subject offenses thus provided an alternative reasonable explanation

                                              9
for why he was reluctant to admit the burglary while readily conceding the possession
offenses. Therefore, it was permissible for the prosecutor to explore this area. The
prosecutor’s theory and comments were based on the evidence and did not constitute an
improper or unfair attempt to influence the jury.
              Appellant also takes umbrage with the prosecutor’s attempt to get the jury
to sympathize with Duck. Working on the assumption appellant stole Duck’s purse while
she was taking a shower, the prosecutor told the jury to “[t]hink about how terrifying that
would be, . . . especially when you’re a woman in Miss Duck’s position[.] You are alone.
You are in your house taking a shower, and we have this guy downstairs in your kitchen
going through your purse.” Despite the fact the trial court sustained defense counsel’s
objection to these statements as “improper argument,” the prosecutor asked the jury to
“[t]hink about how terrifying that would be” before eventually moving on to another
topic.
              Respondent attempts to defend these comments on the basis they are not as
graphic as comments that have been condemned in other cases. However, the state also
admits the prosecutor would probably have been better off steering clear of the comments
altogether. We agree. Indeed, the law is well established that it is improper for a
prosecutor to invite jurors to put themselves in the victim’s position because of the
natural emotion and sympathy it evokes. (People v. Jackson (2009) 45 Cal.4th 662, 691.)
The emotions of the victim are generally not a part of a burglary case.
              However, defense counsel offered a strong rejoinder to the subject remarks.
Speaking to the jurors, he stated, “Let me tell you another thing you cannot do, you’re not
going to be manipulated into this idea would you want a creepy guy like that going into
your house when you’re showering if you’re a woman? You are not going to let that
affect you, because that is wrong. That is not the law.” In sustaining defense counsel’s




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objection to the subject comments, the court made this clear to the jury, as well. In
addition, the court instructed the jurors they were not allowed to let sympathy or
prejudice influence their decision.
              We presume the jury heeded these instructions. (People v. Cain (1995) 10
Cal.4th 1, 34.) Given the way the issue was handled, we do not believe the challenged
remarks rendered appellant’s trial unfair or it is reasonably likely he would have obtained
a more favorable result had they not been made. Indeed they gave the defense a fine
opportunity to undermine the jury’s confidence in the prosecution – an opportunity that
was well exploited. Thus, they do not warrant reversal. (People v. Rundle, supra, 43
Cal.4th at p. 157.)
              Next, appellant contends the prosecution misused CALCRIM No. 226,
which allows the jury to disbelieve everything a “witness” says if it believes the witness
has lied about something significant in the case. As respondent concedes, appellant did
not testify at trial, so he was not a “witness” for purposes of CALCRIM No. 226. Yet,
the prosecutor invoked this instruction in urging the jury to disbelieve appellant’s pretrial
denial about the burglary because he gave conflicting stories to the police about where he
found Duck’s purse.
              Given that CALCRIM No. 226 only applies to witnesses, we agree this
argument was improper. However, the trial court consistently sustained defense
counsel’s objections to the argument on the basis it amounted to “a misstatement of law.”
The court also granted defense counsel’s request to strike the prosecutor’s argument,
which made it obvious to the jury CALCRIM No. 226 did not apply to appellant’s
pretrial statements. There is nothing in the record to suggest the jurors ignored the
court’s ruling in this regard.
              Even if they did, we would be hard pressed to reverse on that basis. While
the scope of CALCRIM No. 226 is limited to witnesses, the basic idea underlying the
instruction – someone who lies about one thing may not be telling the truth about another

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– has universal application to witnesses and nonwitnesses alike. (See generally People v.
Hill (1998) 17 Cal.4th 800, 819 [prosecutor’s have wide latitude in closing argument and
may properly base their arguments on matters of common knowledge and experience].)
Moreover, the jury was properly instructed per CALCRIM No. 362 that it could consider
the veracity of appellant’s pretrial statements about the burglary in determining whether
he was guilty of that offense. So even though CALCRIM No. 226 was inapt as to
appellant, we do not believe the prosecutor committed reversible error by invoking it in
this case.
              Lastly, appellant contends the prosecutor committed misconduct by
suggesting to the jurors they were not allowed to believe appellant’s story about how he
came into possession of Duck’s purse. Here is what the prosecutor told the jurors in that
regard: “Go back to those jury instructions. You can’t let bias affect your decision. That
means bias for or against me or the defendant. So, if you’re choosing to believe the
defendant’s story in the face of the fact that he lied on that specific topic . . . and he has
no detail to support his story, you would have a clear bias for the defendant, because
there’s no reason why you would believe that story, unless you just wanted to ignore all
the evidence and you had a bias for him, and that would violate the rules.”
              Appellant interprets these remarks as an improper threat to the jurors that
they would be breaking the law if they believed appellant’s story about finding Duck’s
purse. That’s a reach too far. It appears the prosecutor was simply attempting to remind
the jurors they were not permitted to let bias influence their opinion of appellant’s
credibility. In making this point, the prosecutor also made it clear he did not believe
there was any rational justification for believing appellant’s story. This was a valid
argument subject to rebuttal by the defense. Although it was ineloquently constructed, it
is not reasonably likely the jurors construed it to mean they lacked the authority to acquit
appellant on the basis of his denial, so the argument is not cause for reversal. As a matter
of fact, whether considered individually or in combination, none of the claims raised by

                                               12
appellant undermines our confidence in the verdict or indicates appellant was denied his
constitutional right to a fair trial. Therefore, there is no reason to disturb the jury’s
verdict.
                                        DISPOSITION
              The judgment is affirmed.




                                                    BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




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