Filed 2/21/14 P. v. Love CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E056356

v.                                                                       (Super.Ct.No. RIF1105819)

JAMAL ANDRE LOVE,                                                        OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of Riverside County. Edward D. Webster,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

         Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Melissa Mandel and

Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       According to the alleged victims, defendant Jamal Andre Love, along with two

other men, both armed with guns, committed a terrifying home invasion robbery. The

robbery failed because the victims fought back, using a knife, a miniature baseball bat,

and their bare hands. The next morning, defendant was admitted to a hospital with some

15 stab wounds.

       According to defendant, however, he went to the victims’ house because he had

heard that he could buy cocaine there. Victim Roy Alba invited him in and showed him

some cocaine. When defendant refused to buy it, Roy and his father attacked him.

       After a jury trial, defendant was found guilty on:

       Count 2: First degree burglary (Pen. Code, § 459);

       Count 6: Simple assault (Pen. Code, § 240) as a lesser included offense of assault

by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4));

an armed principal enhancement (Pen. Code, § 12022, subd. (a)(1)) was found not true.

       Defendant was acquitted on:

       Count 1: Robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A));

       Counts 3-4: Forcible false imprisonment (Pen. Code, § 236);

       Count 5: Making a criminal threat (Pen. Code, § 422);

       Counts 7-9: Assault with a firearm (Pen. Code, § 245, subd. (a)(2)).

       In a bifurcated proceeding, defendant admitted two prior prison term

enhancements (Pen. Code, § 667.5, subd. (b)).




                                             2
       As a result, defendant was sentenced to a total of eight years in prison, along with

all the usual fines, fees, and conditions.

       Defendant now contends:

       1. The trial court erred by excluding evidence that Roy Alba had previously been

found in possession of multiple baggies of cocaine.

       2. The prosecutor committed misconduct by stating, in closing argument, that

there was “no evidence” that Roy was a drug dealer, when she knew that the trial court

had excluded evidence that Roy had previously been found in possession of multiple

baggies of cocaine.

       3. There was insufficient evidence that defendant intended to commit a theft to

support his conviction for burglary.

       We will conclude that defendant’s first two claims of error have been forfeited.

We will reject the third. Hence, we will affirm.1

                                             I

                                FACTUAL BACKGROUND

       Jesus Alba and his wife Rosalba Alba lived on Buxton Avenue in Moreno Valley.

They slept in an upstairs bedroom. Their 19-year-old son, Roy Alba, had a separate

bedroom upstairs. Jesus’s 78-year-old father, Manuel Alba, had a bedroom downstairs.




       1     Defendant has also filed a related petition for writ of habeas corpus. (In re
Love, case No. E060322.) We denied defendant’s request to consolidate the two cases.
Thus, we will resolve the habeas case by separate order.


                                             3
          On December 8-9, 2011, Roy was awakened by the doorbell. He looked out a

window and saw two men across the street. They seemed to be going away, so he went

back to sleep.

          Around 2:30 or 3:00 a.m., Manuel awoke when two men, carrying flashlights,

came into his room. One of them made him lie face down on the bed, tied him up with a

cord from his own computer, and blindfolded him with his own t-shirt. He then heard

them going upstairs.

          Roy awoke when two men told him, “Wake up. Wake up.” One of them was

holding what felt like a gun to his head. They rummaged through his drawers and

repeatedly asked, “Where’s the money?”

          One of the men sat on top of Roy and started to tie his hands behind his back with

his own “cell phone cord.” Roy managed to get his hands free, then turned partway

around and poked the man in the eyes and nose. He grabbed a small souvenir bat that

was next to his bed and tried to hit the man with it.

          Meanwhile, Jesus awoke because he heard voices coming from Roy’s room. He

went into the hall and called, “Roy, are you there?” Then he yelled to Rosalba to call the

police.

          Two black men came out of Roy’s bedroom. They both had guns. They pointed

their guns at Jesus and Rosalba and said, “If you call the police, we’re going to kill you.”

          Jesus retreated into his bedroom and got a six-inch folding knife. Rosalba grabbed

one man’s gun hand; he knocked her to the floor. Jesus ran back out into the hallway and



                                               4
stabbed one of the men in the face. The two men ran downstairs. Rosalba got her cell

phone, ran into a closet, and called 911.

       Jesus ran into Roy’s room. He saw a third man on top of Roy. At trial, Jesus,

Rosalba, and Roy all identified defendant as this third man. Defendant and Roy were

“struggling.” Jesus stabbed defendant in the back. Defendant did not get off of Roy, so

Jesus kept stabbing him. Defendant still did not get off Roy, so Jesus pulled him off.

Defendant fell on top of Jesus. This caused the knife to close, cutting Jesus’s hand. Roy

hit defendant with the bat.

       Defendant “stumbled out” of the bedroom and headed toward the stairs; Roy

chased him. Roy pushed defendant down the stairs and fell down the stairs with him.

Roy kept hitting defendant with the bat until it broke; then Roy tried to stab defendant

with the jagged end of the broken bat. Rosalba grabbed defendant’s jacket, hoping to

detain him until the police arrived. In the struggle, defendant’s cell phone fell on the

floor, but he managed to open the front door and “tumble[] out.”

       Rosalba saw defendant get into a red pickup truck about two houses away on a

cross-street called Heath Court.

       Rosalba noticed that a kitchen window, which she had shut before going to bed,

was open, and the screen had been removed. “Everything [in the kitchen] was opened,”

even the dishwasher. Later, Rosalba also realized that approximately $100 was missing

from the kitchen. Roy found that $200 was missing from his wallet; his cell phone and a

gold chain were also missing.



                                              5
      At 3:00 a.m., the police arrived. They found a large patch of blood in the front

yard. They determined that the dropped cell phone belonged to defendant. Phone

records indicated that defendant had been on the phone with a contact named Jason Crum

from 12:20 a.m. to 2:20 a.m. Earlier, defendant had made several calls to another contact

named Duke. The police determined that Jason’s number had also called Duke’s number

that same night. They found the phone with Duke’s number at a house on Heath Court.

      At 8:40 a.m., defendant was admitted to a hospital. He had 15 stab wounds, to his

face, head, arm, stomach, and back.

      Defendant testified that, on December 8-9, 2011, he was hanging out with Jason

Crum and Victor “Duke” Rice at the Heath Court house. Defendant got drunk on

champagne and tequila. Jason told him he could buy cocaine at the Albas’s address.

      At 1:00 or 1:30 a.m., defendant went over to the Albas’s house to try to buy

cocaine. He thought someone in the house was awake, because he could see light

through a second-floor window.

      Defendant knocked on the door; Roy opened it. Defendant said he wanted to buy

cocaine and explained that he had heard about Roy through Jason. Roy led defendant up

to his bedroom and showed defendant a bag of cocaine. Defendant tasted it and found it

unsatisfactory. When he said he did not want it, Roy got upset. They had “words.”

Suddenly, Jesus started stabbing defendant, while Roy hit him with a bat.

      Defendant “crawled out and got to the stairs.” He fell down the stairs with Roy.

Someone grabbed him, but he managed to run out the door. He passed out for about 10



                                            6
minutes in the front yard. He got in his car and started to drive to the hospital, but he

passed out again, so he drove back to the Heath Court house. When he got there, he did

not ask anyone to call 911 or to drive him to the hospital; he only asked them to call his

wife.

        He insisted that he went to the Alba house between 1:00 and 1:30 a.m., even

though his phone records showed that he was on the phone at that time. He denied seeing

any police cars after he left.

        Roy denied ever selling illegal drugs. He also denied having any illegal drugs in

the house that night.

                                              II

            EXCLUSION OF EVIDENCE OF ROY’S POSSESSION OF COCAINE

        Defendant contends that the trial court erred by excluding evidence that victim

Roy Alba had previously been found in possession of multiple baggies of cocaine.

        A.      Additional Factual and Procedural Background.

        According to the parties’ representations below, in 2010, Roy had been arrested

for possession of cocaine. However, he had completed diversion,2 and his case had been

dismissed.



        2      During motions in limine, defense counsel represented that Roy’s diversion
was pursuant to Penal Code section 1000 et seq. Later, however, at sentencing, she stated
that it was pursuant to Proposition 36.
      Under either statutory scheme, subject to certain exceptions not applicable here, a
defendant who successfully completes drug diversion may indicate in response to “any
                                                                  [footnote continued on next page]


                                              7
        The prosecution filed a motion in limine to exclude Roy’s “prior arrest” as

irrelevant. (Capitalization altered.)

        At the same time, defense counsel filed a motion in limine to admit Roy’s “drug

history.” She argued: “Mr. Roy Alba did complete . . . [d]iversion. However, even in

cases where a divertee has successfully completed diversion, the divertee still must

disclose the conviction on applications for state licensure and on applications to become

law enforcement. To allow Mr. Alba to deny any drug conviction on the stand is

tantamount to suborning perjury.” (Bolding omitted; capitalization altered.)

        At the argument on the motions,3 the trial court began by observing that, under

People v. Castro (1985) 38 Cal.3d 301, simple possession of cocaine is not a crime of

moral turpitude and hence could not be used for impeachment. It continued:

        “[THE COURT:] But . . . apparently, at the time of Mr. Alba’s arrest, the drugs

were found in multiple baggies and there w[ere] empty baggies as well. So you are

thinking some evidence of sales; is that correct?

        “[DEFENSE COUNSEL]: Yes.”



[footnote continued from previous page]
question concerning his or her prior criminal record” that he or she was not arrested for or
convicted of the drug offense. (Pen. Code, §§ 1000.4, subd. (a), 1210.1, subd. (e)(3).)
        3     The parties and the court had already discussed the issue off the record in
chambers. At defendant’s request, we ordered the preparation of a settled statement
about what happened during the off-the-record discussion. According to the settled
statement, “[e]verything of substance that had been discussed [off the record] was
readdressed on the record.”



                                             8
       The court then asked defense counsel to “explain [her] position and make [her]

record[.]”

       She argued: “ . . . I understand that Mr. Roy Alba’s [diversion] was successfully

completed. However, even i[n] cases where someone successfully completes diversion,

they still have to disclose the conviction on certain applications such as an application for

a state license or if they . . . apply to become a peace officer. So, by analogy, I’d argue

that testifying under oath at a trial is of even . . . greater importance that he be honest as

far as his priors. And, I guess, maybe a public policy argument that it’s more important

for him not to perjure himself — if he has to disclose it for a state license, he should have

to disclose it for testimony under oath.”

       The trial court then ruled that the evidence was not admissible to impeach; it

explained that it was bound by Castro. It continued:

       “Now, if it comes up during the course of the trial and something happens and you

think it comes up in a different context, fine, I’ll be happy to address it at that point in

time. Now, let’s assume your client or somebody who is percipient about this testifies

. . . , ‘Well, why did you go to Mr. Alba’s house?’ ‘Well, we’d bought drugs before,’ or,

‘It was our understanding he had drugs and we went there to buy drugs, and we ma[d]e

contact with him because of that.’ Then that would probably be admissible because that

would explain why they’re not [sic] there.”




                                               9
       There was some discussion of whether defense counsel could ask Roy if there

were drugs in his home at the time of the crimes. The trial court ruled that she could.

Then defense counsel asked:

       “[DEFENSE COUNSEL]: But I’m not allowed to ask about the conduct from the

prior at all?

       “THE COURT: Correct. There’s really a couple [of] reasons. One, you have the

Supreme Court case — in effect you are actually inferring that he had something two

things before . . . . [¶] . . . [¶] . . . Now, you have it again on this occasion. Generally,

we do not allow that inference[,] he had it before he has it again.”

       B.       Analysis.

       Defendant argues that evidence of the conduct underlying Roy’s prior arrest (as

opposed to the arrest itself) was admissible to impeach Roy, as well as to support

defendant’s claim that he went to the Alba house to buy cocaine.

       The People respond that defense counsel forfeited defendant’s present contention

by failing to make an adequate offer of proof.

       “On appeal, we may not reverse a judgment for the erroneous exclusion of

evidence unless ‘[t]he substance, purpose, and relevance of the excluded evidence was

made known to the court by the questions asked, an offer of proof, or by any other

means.’ (Evid. Code, § 354.)” (People v. Vines (2011) 51 Cal.4th 830, 868-869.)

       Here, the substance of the evidence was reasonably clear. Both sides agreed that

Roy had been arrested for possession of cocaine. The trial court was also made aware



                                              10
(presumably during the off-the-record discussion) that Roy had been found with cocaine

in multiple baggies and/or empty baggies. This was sufficient to permit us, as well as the

trial court, to evaluate the admissibility of this evidence under any given theory of

relevance.

       The People argue that defense counsel “did not make an offer of proof as to who

could be called to testify to the underlying conduct or what that person would testify to

specifically.” They also argue that defense counsel “failed to present the court with

police reports or other evidence of the conduct underlying Roy’s conviction and failed to

call any witnesses to testify, in a 402 hearing, as to the asserted facts underlying the

conviction.” (Fn. omitted.) This level of detail, however, was unnecessary to a

determination of whether the evidence was admissible.

       Defendant’s theory of relevance, however, was never made clear.4 Defense

counsel focused on arguing that the evidence was not inadmissible under the applicable

diversion statute. This begged the question of why exactly it was admissible.

Nevertheless, the trial court, on its own, raised the question of whether the evidence was

admissible to impeach. It noted that, under Castro, a conviction for simple possession

would not be admissible to impeach; however, it also noted that there was some evidence

that Roy actually committed possession for sale. It then invited defense counsel to

“explain [her] position and make [her] record[.]” Even then, defense counsel simply

       4      According to the settled statement, even during the off-the-record
discussion, “[I]t was somewhat unclear as to why defense counsel . . . wanted to
introduce [the] evidence . . . .”


                                              11
reiterated that the evidence was not inadmissible because of the applicable diversion

statute. She focused on the conviction, as opposed to the underlying conduct; for

example, she argued that, because the conviction would have to be disclosed in an

application to become a peace officer, “by analogy,” it should have to be disclosed at

trial. The trial court therefore ruled that it was bound by Castro.

       On this record, the trial court had no reason to think it was being asked to rule on

the admissibility of the underlying conduct — as opposed to the arrest or the conviction

— to impeach. It had raised the applicability of Castro; it had noted that the underlying

conduct involved sales; and it had given defense counsel an opportunity to address both

points. This she signally failed to do.

       In this appeal, defendant argues that “[s]pecific instances of conduct involving

moral turpitude are admissible for impeachment.” He also argues that “‘[p]ossession of

drugs for sale . . . is conduct involving moral turpitude.’” Defense counsel, however,

failed to articulate either of these arguments below.

       At one point, she did ask, “But I’m not allowed to ask about the conduct from the

prior at all?” Merely asking this question, however, fell far short of making known the

purpose and relevance of the excluded evidence. Thus, defense counsel forfeited any

claim that the evidence was relevant and admissible to impeach Roy.




                                             12
       Defendant also argues that the evidence was relevant and admissible as character

evidence, to show that Roy had sold cocaine in the past and hence that defendant might

be telling the truth when he claimed that this was a drug deal gone bad. (See Evid. Code,

§ 1103, subd. (a)(1) [criminal defendant can introduce specific instances of conduct of

the victim as evidence of other conduct in conformity therewith].) Once again, however,

defense counsel never articulated this theory of relevance below. The trial court did

acknowledge that it might become applicable, but only if defendant claimed that he went

to the Alba house to buy drugs. Defense counsel did not make any offer of proof that

defendant would so testify. Even more important, the trial court specifically refused to

rule on this theory in limine; it stated, “Now, if it comes up during the course of the trial

and something happens and you think it comes up in a different context, fine, I’ll be

happy to address it at that point in time.” Defense counsel never reopened the issue

during trial.5 Thus, defense counsel also forfeited any claim that the evidence was

relevant and admissible to corroborate defendant’s testimony.

                                              III

                           PROSECUTORIAL MISCONDUCT

       Defendant contends that the prosecutor committed misconduct by stating, in

closing argument, that there was “no evidence” that Roy was a drug dealer, when she




       5     After Roy testified, he was excused subject to recall, so defense counsel
could have reopened the issue as late as after defendant testified.



                                              13
knew that the trial court had excluded evidence that Roy had been found with cocaine in

multiple baggies (see part II, ante).

          A.     Additional Factual and Procedural Background.

          During her rebuttal closing argument, the prosecutor stated: “Roy Alba is not a

drug dealer.” “There’s absolutely no evidence, no evidence at all to support that Roy

Alba was a drug dealer other than what the defendant told you.” Defense counsel did not

object.

          B.     Analysis.

          “A prosecutor’s conduct violates the federal Constitution when it infects the trial

with such unfairness as to make the resulting conviction a denial of due process. Conduct

by a prosecutor that does not rise to this level nevertheless violates California law if it

involves the use of deceptive or reprehensible methods to attempt to persuade either the

court or the jury. [Citations.]” (People v. Whalen (2013) 56 Cal.4th 1, 52.)

          “[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent

that it suggests a prosecutor must act with a culpable state of mind. A more apt

description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th

800, 823, fn. 1.)

          “‘“[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.

[Citation.]”’ [Citations.]” (People v. Pearson (2013) 56 Cal.4th 393, 426.)



                                               14
       Here, defense counsel did not object to the asserted misconduct. Defendant argues

that the trial court’s earlier ruling excluding the evidence of Roy’s possession of cocaine

made any objection futile. In part II, ante, however, we concluded that any error in

excluding the evidence was not reversible, in part because defense counsel simply never

argued that the evidence was relevant to show that Roy was a drug dealer. The trial court

affirmatively indicated that it would be willing to reconsider the issue if defendant

claimed that he went to the Alba house to buy drugs. We cannot say that, if defense

counsel had objected that the excluded evidence tended to show that Roy was a drug

dealer, and hence that the prosecutor’s closing argument was misleading, the trial court

would have overruled that objection out of hand. We therefore conclude that defense

counsel forfeited the misconduct claim.

                                                IV

    THE SUFFICIENCY OF THE EVIDENCE OF INTENT TO COMMIT THEFT

                FOR PURPOSES OF THE BURGLARY CONVICTION

       Defendant contends that there is insufficient evidence that he intended to commit a

theft to support his conviction for burglary.

       “‘[W]hen a defendant challenges the sufficiency of the evidence, “‘[t]he court

must review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence — that is, evidence which is

reasonable, credible, and of solid value — such that a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citations.] . . .



                                                15
“Substantial evidence includes circumstantial evidence and any reasonable inferences

drawn from that evidence. [Citation.]” [Citation.] We “‘“presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the

evidence.”’ [Citation.]” [Citation.]’ [Citation.]” (People v. Lopez (2013) 56 Cal.4th

1028, 1069.)

       Burglary consists of entering a house or other specified structure “with intent to

commit . . . larceny or any felony . . . .” (Pen. Code, § 459.) In this case, the jury was

instructed that, one of the elements of the burglary count was that “[w]hen [defendant]

entered a building, he intended to commit theft.”

       Roy testified, however, that the men in his bedroom rummaged through his

drawers and asked, “Where’s the money?” Moreover, after the intruders left, $200 was

missing from Roy’s wallet; his cell phone and a gold chain were also missing. All the

kitchen cabinets were open and $100 was missing from the kitchen. This was sufficient

evidence of intent to commit theft. (People v. Edwards (2013) 57 Cal.4th 658, 719 [fact

that bedroom was ransacked and jewelry was missing was sufficient to prove that

defendant entered home with intent to commit theft].)

       Defendant argues that none of the money was found in his possession.

Presumably, however, his accomplices made off with it.

       Defendant also argues that there is no evidence that he entered the house other

than — as he testified — by Roy’s invitation. Rosalba testified, however, that a kitchen

window had been opened and the screen had been removed. Defendant argues that his



                                             16
fingerprints were not on the window and no one saw him come in the window. To this,

we might add that the window was four feet off the ground and nothing inside under the

window appeared to be disturbed. None of this, however, makes it impossible for the

window to have been the initial point of entry. Perhaps one of defendant’s accomplices

came in through the window, then opened the front door to let in the other two

perpetrators. In any event, all of this is beside the point; even assuming defendant

entered with Roy’s invitation and consent, as long as he entered with the secret intent to

commit theft, he is still guilty. (See People v. Felix (1994) 23 Cal.App.4th 1385, 1397-

1398.)

         We therefore conclude that the burglary conviction is supported by substantial

evidence.

                                              V

                                       DISPOSITION

         The judgment is affirmed.

         NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                RICHLI
                                                                                             J.
We concur:


RAMIREZ
                         P. J.


CODRINGTON
                            J.


                                             17
