Filed 5/21/15 P. v. Cooper CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067544
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF39839)
                   v.

EDWARD EMIL COOPER,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.

         Jessie Morris, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         On April 5, 2013, defendant Edward Emil Cooper was charged with one count of
evading an officer while operating a motor vehicle in willful disregard for the safety of
others (count I, Veh. Code, § 2800.2, subd. (a)), one count of evading an officer by
driving a motor vehicle in a direction opposite to traffic (count II, Veh. Code, § 2800..4),
and one count of driving with a suspended license (count III, Veh. Code, § 14601.2, subd. (a)).

As to count III, the information alleged defendant had committed four prior violations of Vehicle

Code section 14601.2, subdivision (a) within seven years of the offense alleged in count III.
Following a jury trial, defendant was found guilty of all charges and subsequently
sentenced to an aggregate term of 32 months in prison.
        On appeal, defendant argues that (1) defendant was prejudiced by inadmissible
hearsay evidence, (2) the prosecution impermissibly shifted the burden of proof onto
defendant during closing argument, (3) there was insufficient evidence to support
defendant’s convictions, (4) the prosecution committed misconduct by disparaging
defense counsel during closing argument, (5) defendant was prejudiced by the cumulative
effect of the preceding errors, and (6) the trial court erred by declining to stay defendant’s
punishment for driving on a suspended license as is required by Penal Code section 654.
We agree that the punishment imposed for driving on a suspended license must be stayed
pursuant to section 654. In all other respects, the judgment is affirmed.
                                            FACTS
        On March 24, 2013, Officer Andrew Theodore was on patrol when he noticed a
motorcycle being operated without a rear license plate. Theodore attempted to initiate a
traffic stop by activating his overhead lights and siren, but the motorcycle’s driver
refused to pull over and instead fled at speeds exceeding 90 miles per hour. During the
ensuing chase, the motorcycle drove through two red lights and at least two stop signs, as
well as crossed into oncoming traffic 20 times. The entire chase was captured on
Theodore’s patrol car dashboard camera (dash cam), and the video was played to the jury
at trial.
        On two occasions during the chase—once when the motorcycle made a wide left
turn and once when it made a U-turn and passed within a few feet of the patrol car’s
driver side window—Officer Theodore was able to observe the driver’s face through the

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opened visor of the driver’s helmet. Upon viewing the driver’s face, Theodore was “one
hundred percent sure” the motorcycle was being driven by defendant, a person familiar to
Theodore.
       Eventually, 20 minutes after the chase began, defendant was able to elude
Theodore by taking an abrupt switchback and escaping down a dirt roadway. Local law
enforcement was advised there was probable cause to arrest defendant, and he was
apprehended the following day. At the time of his arrest, defendant denied fleeing from
Theodore and stated he had been at his mother’s house during the time of the chase.
Defendant neither confirmed nor denied ownership of the motorcycle, but subsequent
investigation established it was not registered to defendant.
                                      DISCUSSION
I.     Defendant Was Not Prejudiced by Officer Theodore’s Testimony Concerning
       the Number of Motorcycles Owned by Defendant
       At trial, Sergeant Turu Vanderwiel testified that in late March, prior to the events
in this case, he had taken a photograph of a motorcycle parked outside of a home
defendant was known to reside at and circulated it to the other officers in his precinct.
The motorcycle in the photograph was the same as one later involved in the chase with
Officer Theodore.
       Following Vanderwiel’s testimony, Theodore testified he believed defendant
owned or possessed two motorcycles but he had never personally observed defendant
riding a motorcycle prior to the chase on March 24, 2013. During cross-examination, the
following exchange took place:

             “By [DEFENSE COUNSEL]: Q. How is it that you know [the
       motorcycle from the chase] belongs to [defendant]?

              “A. How did I know?

              “Q. Uh-huh.

             “A. It was based on the information provided by Sergeant
       Vanderwiel he had received and he later confirmed by locating the
       motorcycle at his mother’s residence and his girlfriend’s residence.

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                 “Q. That is based on what somebody else told you?

              “A. My supervisor, yes, correct. It is based on what somebody else
        told me.

               “[DEFENSE COUNSEL]: Your Honor, I’m going to move to strike the
        testimony that he knows how many motorcycles. It is clear hearsay.
After hearing arguments outside the presence of the jury, the trial court denied defense
counsel’s motion to strike, finding the photograph was “conveyed to Officer Theodore
[as] part of an ongoing investigation,” and was “not being offered for the truth” of the
matter stated.
        Now, defendant again contends the trial court erred by refusing to strike
Theodore’s testimony concerning the number of motorcycles owned by defendant. We
agree, but find the error harmless.
        Hearsay evidence is “evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) Here, Theodore’s testimony that defendant
owned the motorcycle in the picture was based entirely on information provided to
Theodore by Sergeant Vanderwiel. This evidence was relevant only to show defendant
owned the motorcycle. Accordingly, that portion of Officer Theodore’s testimony was
hearsay and should have been excluded by the trial court.
        This error, however, was manifestly harmless. The erroneous admission of
evidence does not require reversal unless “the error or errors complained of resulted in a
miscarriage of justice.” (Evid. Code, § 353, subd. (b).) A miscarriage of justice occurs
when “it is reasonably probable that a result more favorable to the appealing party would
have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818,
836.)
        Here, the photograph Officer Theodore referred to had already been introduced
into evidence by the time he took the stand, Further, as noted below, there was ample
evidence to support defendant’s convictions. Theodore testified he was absolutely certain


                                              4.
defendant was the driver of the motorcycle after observing the driver’s face twice during
the chase. And while Theodore did reference the photograph when testifying how he
identified the motorcycle’s vehicle identification number and how he concluded that
defendant possessed the motorcycle, Theodore’s identification of defendant during the
chase appears to have been based solely on his observation of defendant’s face during
that chase. In fact, the record shows Theodore identified defendant as the driver over his
police radio immediately after the first turn where he claimed to have seen defendant’s
face. Given the strength of Officer Theodore’s identification, the aspects of his testimony
concerning the photograph taken by Sergeant Vanderwiel were collateral at best, and did
not result in a miscarriage of justice. (People v. Watson, supra, 46 Cal.2d at p. 836.)
II.    The Prosecution Did Not Commit Misconduct by Arguing Defendant’s
       Failure to Present Alibi Witnesses
       At trial, Officer Theodore testified defendant claimed to have been at his mother’s
house during the time the chase took place. Over defendant’s relevance objection,
Theodore also testified defendant’s mother was in the courtroom. During closing
arguments, defense counsel made the following remarks:

               “Now, Officer Theodore was asked about when he saw [defendant]’s
       mother. He saw her yesterday, and the implication from that is, ‘Why
       didn’t I call her as a witness?’ [Defendant] said he was there all day. But if
       I called her, [the prosecution] would tell you, ‘It’s his mother. Of course
       she is going to testify in his favor.’ The real question is if that is truly an
       issue.

              “And if the D.A. wants to argue [defendant] was not at her house,
       why didn’t the prosecution call her after all. If [defendant] wasn’t there?
       She is the one to ask. Boy, that just supports their case. Why didn’t they?
       Well, maybe because they didn’t bother. Maybe they did and she didn’t
       say what they wanted to hear. Again, unless the evidence proves the
       defendant is guilty beyond a reasonable doubt, [defendant] is entitled to a
       verdict of not guilty.”
During rebuttal, the prosecution made the following argument:

       “And what about the mother and the girlfriend? They were here. The
       defense presented no evidence about where the defendant was that day.
       Now, I expect every witness to tell the truth when they take the stand. I

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       have the same expectation for every single witness to tell the truth. And
       that is what I tell my witnesses: ‘Tell the truth. Get on the stand and tell
       the truth.’ The mother and the girlfriend did not testify.”
       On appeal, defendant does not challenge the court’s ruling on his relevance
objection. Instead, defendant argues the prosecution’s comments during closing
arguments impermissibly shifted the burden of proof onto defendant and improperly
presented a condensed version of what defendant’s potential alibi witnesses would have
testified to had they taken the stand. We find this claim is forfeited for failure to object
on these grounds at trial.
       While the prosecution is prohibited from making direct or indirect comment on a
defendant’s failure to testify, that prohibition does not extend to comments on the failure
of the defense to introduce material evidence or to call logical witnesses. (People v.
Hughes (2002) 27 Cal.4th 287, 372.) A trial court has discretion when determining
whether a comment on a defendant’s failure to call witnesses is permissible or
impermissible. (People v. Ford (1988) 45 Cal.3d 431, 437.) Here, however, the court
was never asked to exercise this discretion, as defendant did not object during closing
arguments. Thus, “defendant has waived his right to complain of [the] asserted … error
on appeal.” (People v. Hughes, supra, at p. 372.)
       Further, even if defendant had not forfeited the issue, we do not find the comments
improper. At trial, Officer Theodore testified defendant claimed he was at his mother’s
house during the time the chase took place, but defendant’s mother was not called as a
witness for the defense. As defendant’s mother would have been a corroborating witness
to the alibi defendant asserted to law enforcement, she was a logical witness, and the
prosecution was not prohibited from commenting on the defense’s failure to call her,
especially after defense counsel had called attention to this issue in argument.
       Defendant attempts to circumvent this fact, however, by claiming the
prosecution’s comments improperly summarized what the testimony of any alleged alibi
witness would have been. In support of this argument, defendant points to People v.


                                              6.
Gaines (1997) 54 Cal.App.4th 821, 824-825 (misconduct to state during closing
arguments that “[the alibi witness] was going to testify to the contrary. [He] would have
impeached the defendant, and it was the defense that got [him] out of here before he
could damage them”), and People v. Wolfe (1954) 42 Cal.2d 663, 667-668 (misconduct to
state during closing arguments “how many convicts do you think will testify on behalf of
the People in a case like this? [Y]ou know that if any man, any convict came down here
and testified against [the defendants] he would be setting himself up for a knife in his
own back”).
          These cases are readily distinguished, however, as in this case the prosecution did
not state defendant’s potential alibi witnesses would impeach defendant if they testified,
nor did the prosecution suggest defendant would kill any witnesses that were called to
impeach him. Instead, the prosecutor’s remarks constituted acceptable comment on the
defense’s decision not to call logical witnesses. Accordingly, defendant’s argument
fails.1
III.      There Was Sufficient Evidence to Support Defendant’s Convictions
          Next, defendant argues his convictions were not supported by sufficient evidence.
We disagree. When addressing a challenge to the sufficiency of the evidence, we view
the record in the light most favorable to the conviction and presume the existence of
every fact in support of the conviction the trier of fact could reasonably infer from the
evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.). “Reversal is not warranted
unless it appears ‘“that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v. Duran (2002
97 Cal.App.4th 1448, 1457.)



          1Defendant also argues his trial counsel was ineffective for failing to object to the
People’s closing arguments. As we find the comments in question were not improper,
defendant’s claim of ineffective assistance of counsel must fail. “Representation does not
become deficient for failing to make meritless objections.” (People v. Ochoa (1998) 19 Cal.4th
353, 463.)

                                                   7.
       In this case, Officer Theodore testified he had been acquainted with defendant
prior to the chase, and he was “one hundred percent sure” he saw defendant’s face on two
occasions during the chase, once from a distance of only seven feet. In fact, the evidence
shows Theodore twice identified defendant by name over his police radio while the chase
was ongoing. The evidence also showed the boots defendant was wearing when he was
arrested were the same as the boots the driver of the motorcycle had been wearing, and
the motorcycle was the same as one that had been photographed outside of a house where
defendant resided.
       Defendant attempts to rebut this evidence, however, by arguing his face was not
identifiable in the dash cam video, no evidence directly established he owned or rode the
motorcycle in question, and no evidence established his boots were unusual amongst
motorcyclists. This is little more than a call for this court to reweigh the evidence. The
jury viewed the dash cam footage, heard Officer Theodore’s testimony, and observed the
boots defendant was wearing at the time of his arrest prior to rendering its verdict.
Further, while defendant asserts the dash cam footage does not show the motorcycle
rider’s face, Officer Theodore specifically testified his vantage point was different and
superior to that of the dash cam, and the jury was given the opportunity to sit in a patrol
car identical to the one driven by Officer Theodore on the date of the chase.
       “A single witness’ uncorroborated testimony is sufficient to sustain a conviction
unless the testimony is physically impossible or inherently improbable. [Citation.]”
(People v. Turner (1983) 145 Cal.App.3d 658, 671, disapproved on other grounds in
People v. Newman (1999) 21 Cal.4th 413.) Here, Officer Theodore’s identification was
unequivocal, and having viewed the video and the patrol car, it is clear the jury did not
find it to be physically impossible or inherently improbable. Given the strength of
Theodore’s testimony, as well as the corroborating circumstantial evidence, we find there
was ample evidence to support defendant’s convictions.




                                             8.
IV.    The Prosecutor Did Not Commit Misconduct by Referring to the Defense as a
       “Jedi Mind Trick”
       During closing arguments, the prosecution made the following remarks:

       “The defense in this case is—and I’m loathed [sic] to use movie references,
       I’m hoping at least some of you understand this one, it is pretty good—is
       the Jedi mind trick. That is the defense. These aren’t the droids you’re
       looking for. This is the evidence. That is the argument, ‘This isn’t the
       driver.’”
Defense counsel objected to the prosecutor’s comments, but was overruled.
       On appeal, defendant asserts the prosecution committed prejudicial misconduct by
referring to his defense as a “Jedi mind trick.” Specifically, defendant alleges that,
because the Jedi mind trick in the movie Star Wars (Twentieth Century Fox 1977) was
alleged to only work on the weak-minded, the prosecutor’s remarks claimed defense
counsel viewed the jurors as weak-minded individuals and had presented them with a
fabricated defense. We disagree.
       “The applicable federal and state standards regarding prosecutorial misconduct are
well established. ‘“A prosecutor’s … intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.”’ [Citations.]”
(People v. Samayoa (1997) 15 Cal.4th 795, 841.) “Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves ‘“the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.”’ [Citation.]” (Ibid.)
       Here, the prosecutor’s comments can hardly be said to be egregious, deceptive, or
reprehensible. In Star Wars, a Jedi Knight employs the Jedi mind trick by asserting to
investigating stormtroopers that “these are not the droids you’re looking for,” when the
droids accompanying the Jedi Knight are, in fact, the droids the stormtroopers were
looking for. (<http://www.imsdb.com/scripts/Star-Wars-A-New-Hope.html> (as of
May 19, 2015).) While perhaps overly flippant, we do not find this to be an egregious
denigration of the defense in this case. In fact, the instant case did boil down to the
                                              9.
prosecutor insisting that defendant was the driver of the motorcycle, while defendant
asserted he was not the driver of the motorcycle.
       Similarly, we find no merit to defendant’s claim the jurors would infer from the
prosecutor’s remarks that defense counsel believed them to be weak-minded. Such an
interpretation would assume not only an extensive knowledge of Star Wars on the part of
the members of the jury, but also that the jurors interpreted the prosecutor’s remark in the
most offensive and damaging way imaginable. However, “we do not lightly infer that the
prosecutor intended his remarks to have their most damaging meaning or that the jury
drew that meaning rather than the less damaging one.” (People v. Howard (1992) 1
Cal.4th 1132, 1192.) As we find the prosecution’s comments were neither improper nor
prejudicial, defendant’s argument must fail.
V.     Defendant Was Not Prejudiced By Cumulative Error
       Defendant argues that even if none of the errors alleged above merits reversal on
its own, the cumulative effect of those errors requires reversal. We disagree. Under the
cumulative error doctrine, reversal may be required when the cumulative effect of the
errors made at trial amounted to a miscarriage of justice. (See People v. Hill (1998) 17
Cal.4th 800, 844.) While we found the trial court erred by admitting Officer Theodore’s
hearsay testimony, that error was harmless and we find no other errors. Therefore, in the
absence of errors to accumulate, we must reject defendant’s contention he was harmed by
the cumulative effect of multiple judicial errors.
VI.    Defendant’s Sentence for Count III Should Be Stayed
       At sentencing, the trial court sentenced defendant to a term of two years for count
I, two years for count II, and one year for count III. The trial court stayed the sentence
for count II pursuant to Penal Code section 654, but did not stay the sentence for count
III, driving with a suspended license. On appeal, defendant contends the court should
have stayed his sentence for driving with a suspended license as well, as all three of his
convictions stemmed from a single act. The People concede this error, and we agree.



                                             10.
       Under Penal Code section 654, subdivision (a), “[a]n act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” For the purposes
of section 654, an act is “a single physical act that violates different provisions of law.”
(People v. Jones, supra, at p. 358.)
       Here, all three of defendant’s convictions arose out of the single, continuous
physical act of driving his motorcycle. Accordingly, defendant should be punished under
the provision that provides for the longest potential term of imprisonment, and the
remaining punishments should be stayed. As count III, driving with a suspended license,
does not provide for a longer term of imprisonment than count I, evading an officer while
operating a motor vehicle in willful disregard for the safety of others, we order that
defendant’s sentence for count III be stayed.
                                       DISPOSITION
       The judgment is modified to stay the sentence on count III pursuant to Penal Code
section 654. The clerk of the Tuolumne Superior Court is directed to prepare an amended
abstract of judgment and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

                                                           __________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
CORNELL, Acting P.J.


 ________________________________
GOMES, J.




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