Filed 1/7/16 P. v. Harris CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144857
v.
IRA BERNARD HARRIS,                                                  (Contra Costa County
                                                                     Super. Ct. No. 5-150039-6)
         Defendant and Appellant.


         A jury convicted Ira Bernard Harris of felony first- and second-degree residential
burglary and of misdemeanor receiving stolen property.1 The trial court imposed a low-
term sentence of two years in state prison for first-degree residential burglary, a 16-month
sentence in state prison for second-degree residential burglary, which was stayed, and a
concurrent sentence of six months in county jail for receiving stolen property. Harris’s
appellate counsel has asked this court for an independent review of the record to
determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d
436.) We have reviewed the record and have found no errors. We therefore affirm.
                                                        FACTS
         On the afternoon of June 16, 2014, Vince Ruso was in the garage of his home on
Minert Road in Contra Costa County. The garage faces the street, and the garage door


1
   The felony first- and second-degree residential burglary convictions were based on
Penal Code sections 459 and 460, subdivision (a). The receiving stolen property charge
was based on Penal Code section 496, subdivision (a). All further statutory references
are to the Penal Code.

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was open. Ruso heard someone honking a car horn at a slow-moving car ahead of it.
The slow-moving car, a white, older model, four-door Mercedes sedan, then pulled over
and parked across the street from Ruso’s house. Two young men got out of the
Mercedes, one of whom Ruso identified at trial as Harris. Ruso saw the men cross the
street and walk up to the front door of the home of his next-door neighbor, Mary
Tuchscherer. Ruso lost sight of the men when they entered the porch area. A short time
later, Ruso realized that the two men were in Tuchscherer’s back yard. He became
suspicious, but he could not see clearly what they were doing because a fence blocked his
view. He alerted his wife and asked her to call the police. Before the police arrived,
Ruso and his wife saw Harris go back to the Mercedes, retrieve a small grey bag or
pouch, and return to Tuchscherer’s yard.
       Two officers arrived on the scene while the men were still there. One of the
officers, Daren Billington, reached over the tall gate at the side of Tuchscherer’s house to
undo the latch. As he did so, he saw Harris’s accomplice, later identified as Tarell Smith,
come around a corner at the rear of the house and walk toward the gate. Billington made
eye contact with Smith, who abruptly stopped, turned around, and retreated. After
Billington opened the gate, the officers entered the back yard, but no one was there. A
shed in the garden contained two separate banks of file cabinets, which had been
ransacked with drawers pulled open and papers strewn about. A black neoprene glove
was found in the yard near the rear of the shed. A screen on a window at the back of the
house had been cut in an L-shaped pattern along the frame. The cut had been made on
the left side of the screen, running approximately 12 inches down the side of the screen
and over six inches along the bottom of the screen. The smoothness of the cut on the
screen showed the incision was made by a cutting tool. Police officers searched the
property of the neighbor on the far side of Tuchscherer’s property and found Harris
hiding behind a tree in the back yard.
       After Harris was apprehended, Billington located the white Mercedes with its
engine still running. The vehicle appeared to be in working order, and Billington saw no
smoke coming from under the hood. In a subsequent search of the Mercedes, police


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found jewelry and electronics, including a pillowcase in the trunk containing jewelry, a
Ziploc bag containing jewelry, two Amazon Kindles, a camera, Bose headphones, a De
La Salle high school soccer ring, and another soccer ring with the name Dolan inscribed
on it. There was also medical paperwork related to Tarell Smith in the car. Billington
obtained a photograph from Smith’s driver’s license from the Department of Motor
Vehicles records and immediately recognized Smith as the person Billington saw when
he was trying to open the gate to Tuchscherer’s back yard. Later, Billington searched
Harris at the Concord jail and found a class ring for De La Salle high school in Harris’s
front right pants pocket.
       Tuchscherer returned home on the day of the burglary to find police officers in
front of her house. When police allowed her to go inside, Tuchscherer inspected the
premises. She noticed that a screen in the living room window had been cut. She had left
the window open a few inches when she left the house earlier that day, but she had locked
the window in position so it could not be opened wider. The shed in the back yard had
been ransacked, but no one appeared to have physically entered the home, and no
property from inside the house was missing.
       Several witnesses who lived in Contra Costa County testified that their homes had
been burglarized within a month of the incident at Tuchscherer’s home. All of them
identified property recovered from Harris’s vehicle as belonging to them. These
witnesses included Patrick Dolan who testified that his four championship soccer rings,
two from De La Salle high school and two from UC Berkeley, were stolen from his home
and later returned to him by police. The UC Berkeley rings were inscribed with Dolan’s
name and shirt number.
       Harris testified that in June 2014 he was homeless and living in his car (the white
Mercedes). He kept all his belongings in the vehicle. His friend, Tarell Smith, was also
homeless at the time, and Smith stayed in the Mercedes with Harris at least three nights
per week and stored some of his property in the vehicle.
       Harris testified about the events leading up to his arrest. He testified that he was
driving the Mercedes slowly because it was overheating and smoke was coming from the


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engine. He pulled over on Minert Road after the driver behind him honked at him. As he
pulled over, Smith said that he knew the person who lived in the house across from where
they were parked who could help with the car. Smith said the person would leave the
sliding glass door in the back open for him if the front door was locked. After Smith and
Harris knocked on the front door and no one answered, they went around back. Smith
tried to open the sliding glass door while Harris looked for a hose to get some water for
the car. Harris found a hose but it was not long enough to reach the car, so he went back
to the Mercedes to look for a container that could hold water. Finding none in the car, he
returned to the back yard. Smith then suggested they look in the garden shed for some
coolant for the car. Harris followed Smith into the shed, did not see anything that would
be helpful, and came back out. Harris made a few calls on his cell phone to try to get
some help with the car; he talked with Jerome Monroe, a friend who lived in North
Concord and whose next-door neighbor was a mechanic. While Harris was on the phone
he did not notice what Smith was doing; he did not see Smith cut the screen window and
did not see Smith with any sharp implements that day. At one point while Harris was on
the phone, Smith ran toward him yelling, “Run.” Harris jumped over the side fence into
a neighboring yard and hid. Smith jumped over the back fence.
       Harris testified that he ran because he was frightened by Smith’s yelling and
running, but he thought they had permission to be in Tuchscherer’s back yard. He
assumed that Smith was running from somebody intent on harming him. Harris did not
realize Smith was running from the police until Harris was hiding under the tree and saw
an officer with a police dog. Harris testified that he had no idea Smith was trying to
break into a stranger’s home and did not know that some of the property Smith stored in
the Mercedes was stolen. Regarding the soccer rings in particular, Harris testified that he
did not know that they were stolen. He stated that he saw Smith wearing the rings on his
fingers and asked if he could have one because he thought they were “cool.”




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                                       DISCUSSION
        During voir dire, the prosecutor exercised a peremptory challenge against Juror
No. 1. Defense counsel then made a Batson-Wheeler2 motion on the ground that Juror
No. 1 “did not give answers to either of us that would lead to the exercise of a
peremptory challenge for any reason other than the fact he’s Hispanic.” In response, the
prosecutor explained that he had excused the juror because the juror was “very young,”
showed “poor judgment” by wearing a T-shirt with a woman in a bikini on it to court, and
was the “last juror to arrive” that morning. The court found no prima facie case of group
bias was established and denied the motion. We find no arguable issue on this point.
(See People v. Panah (2005) 35 Cal.4th 395, 442 [defendant’s Batson-Wheeler claim was
“particularly weak as it consisted of little more than an assertion that a . . . prospective
juror[] from a cognizable group had been excused”].)
        Before closing argument, defense counsel asked the court to remove CALCRIM
No. 361 from the jury instructions. CACRIM No. 361 instructs the jury on how to treat
defendant’s failure to explain or deny adverse testimony.3 The trial court declined to
remove the instruction because Harris had not explained how one of Dolan’s rings came
to be found in the Nissan car that Harris owned just before he bought the Mercedes. We
find no arguable issue on this point because, regardless of the evidence about the ring,
other evidence was presented that was either not explained or explained with a patently
implausible account. (See People v. Mask (1986) 188 Cal.App.3d 450, 455 [“if the
defendant tenders an explanation which, while superficially accounting for his activities,
nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have


2
    Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258.
3
   CALCRIM No. 361 as given states: “If [a] defendant failed in (his/her) testimony to
explain or deny evidence against him or her, and if (he/she) could reasonably be expected
to have done so based on what (he/she) knew, you may consider [the] failure to explain
or deny in evaluating that evidence. Any such failure is not enough by itself to prove
guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If
the defendant failed to explain or deny, it is up to you to decide the meaning and
importance of that failure.”

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known about circumstances claimed to be outside his knowledge is a credibility question
for resolution by the jury”].) Consistent with the instruction, it was up to the jury to
decide whether Harris failed to explain or deny evidence that he could reasonably have
been expected to explain or deny, and it was up to the jury to decide whether an inference
should be drawn from any such failure. (See People v. Saddler (1979) 24 Cal.3d 671,
680 [“inferences are permissible only if the jury finds that defendant failed to explain or
deny facts or evidence that he could be reasonably expected to explain or deny,” original
italics].)
        The court properly instructed the jury on burglary under direct liability and aiding
and abetting liability. (See People v. Alexander (2010) 49 Cal.4th 846, 921 [“Because
the evidence could support aiding and abetting liability, the trial court properly gave the
aiding and abetting instructions”].) Although no property was found missing from inside
Tuchscherer’s home, the court correctly instructed the jury that “a person enters a
building if some part of his body, or some object under his control, penetrates the area
inside the building’s outer boundary. A building’s outer boundary includes the area
inside a window screen.” (See People v. Valencia (2002) 28 Cal.4th 1, 14-15,
disapproved on an unrelated point in People v. Yarbrough (2012) 54 Cal.4th 889, 894
[because “a window screen is part of the outer boundary of a building for purposes of
burglary, it follows that the area behind the window screen is inside the premises. Entry
that is just barely inside the premises, even if the area penetrated is small, is sufficient,”
original italics].)
        During closing argument, the prosecutor remarked that the defense “has the same
subpoena power that the People have” and can “call in witnesses,” yet did not call Jerome
Monroe to testify that he took a phone call from Harris about a mechanical problem on
the afternoon of the burglary. Defense counsel objected that the prosecutor’s comment
was “[i]mproper argument.” The court overruled the objection and defense counsel
asked to approach the bench. An unreported sidebar was held at that point. Later, out of
the presence of the jury, defense counsel moved for a mistrial on the ground that the court
had “interject[ed its] personal thoughts about the trial” because during the unreported


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sidebar the court referred to counsel’s objection as “baloney” in a voice loud enough to
be heard by the jury. The court denied the motion for mistrial, stating, “I didn’t say
anything loud enough for the jury to hear. I want to make that absolutely clear.
[¶] . . . [¶] The microphone was turned off, and I talked to you the same way every time
up here.” Moreover, the court observed that the challenged remarks were permissible
argument on Harris’s failure to sufficiently address adverse evidence. We find no
arguable issues in these exchanges between defense counsel and the trial court. (See
People v. Bemore (2000) 22 Cal.4th 809, 846 [“the prosecutor has wide latitude in
describing the deficiencies in opposing counsel’s tactics and factual account”].)
       In his sentencing memorandum, defense counsel requested the court to exercise its
discretion and grant Harris a three-year term of probation and order completion of a drug
treatment program as a condition of probation. At the sentencing hearing, the court noted
that Harris was presumptively ineligible for probation because he was convicted of
residential burglary. Penal Code, section 462 permits probation in such cases only “in
unusual cases where the interests of justice would best be served.” (§ 462, subd. (a).)
The court concluded that this was not such a case, and probation was unwarranted under
the factors set forth in California Rules of Court, rule 4.414(b)(2) because Harris was on
probation when he committed the instant offense, showed no remorse, and “attempted to
deceive the judicial system with lies.” The trial court’s denial of probation does not
present an arguable issue. (See People v. Martinez (1985) 175 Cal.App.3d 881, 896 [“An
order denying probation will not be reversed in the absence of a clear abuse of discretion.
[Citation.] In reviewing the matter on appeal, a trial court is presumed to have acted to
achieve legitimate sentencing objectives in the absence of a clear showing the sentencing
decision was irrational or arbitrary. [Citations.]”]) Having denied probation, the court
imposed the low term of two years in state prison for first degree residential burglary and
imposed the fines required by law.
       In sum, we have reviewed the entire record and find no meritorious issues to be
argued on appeal.



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                            DISPOSITION
The judgment is affirmed.




                                 8
                                 _________________________
                                 Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Dondero, J.




People v. Harris (A144857)




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