Filed 10/31/14 P. v. Carmony CA6
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                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039980
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1077394)

             v.

DAVID LOUIS CARMONY,

         Defendant and Appellant.



         Defendant appeals a judgment arising out of a residential burglary and other
property crimes. We will affirm it.
                                         PROCEDURAL BACKGROUND
         An information charged defendant David Louis Carmony with the first degree
burglary of the house of Michael and Kristin Savini on or about May 21, 2010. (Pen.
Code, §§ 459, 460, subd. (a).)1 It also charged three counts of receiving stolen property
on or about that date. (§ 496, subd. (a).) It alleged three prior convictions under the




         1   All statutory references are to the Penal Code.
“Three Strikes” law (§§ 667, subds. (b)-(i)), 1170.12), two prior serious felony
convictions (§ 667, subd. (a)), and service of two prison terms (§ 667.5, subd. (b)).
       Defendant was tried to a jury, which found him guilty on all counts. The trial
court found the prior conviction allegations to be true. It sentenced defendant, as a Three
Strikes law offender, to a term of 25 years to life in state prison consecutive to 16 years
8 months therein.
                                           FACTS
       On the morning of May 21, 2010, the Savinis heard noises downstairs and found
defendant rummaging through Ms. Savini’s purse in the kitchen. Defendant fled and
Mr. Savini tackled him outside. Police arrived and apprehended him. Six $20 bills were
found in his front pocket, money that was separate from his wallet, which police found in
another pocket. The Savinis’ daughter discovered that six $20 bills were missing from a
wallet she had left in a car parked in the driveway
       Further police investigation discovered that defendant possessed Apple brand
electronic devices bearing identifications of Nolan Johnson, Barbara Carman, Alex
Buooher, Joan Rizutto, Heather McKenzie, and one “Matt,” last name unknown. Johnson
and Carman testified that they had discovered their devices to be missing from their cars.
                                        DISCUSSION
       I. Claims of Prosecutorial Misconduct
       Defendant claims his rights under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution and under state law were violated by instances of
prosecutorial misconduct.
       The law of prosecutorial misconduct, in the face of a claim of misconduct under
the federal Constitution or state law, is well-settled. “ ‘ “When a prosecutor’s
intemperate behavior is sufficiently egregious that it infects the trial with such a degree of
unfairness as to render the subsequent conviction a denial of due process, the federal

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Constitution is violated.” ’ [Citations.] ‘ “Prosecutorial misconduct that falls short of
rendering the trial fundamentally unfair may still constitute misconduct under state law if
it involves the use of deceptive or reprehensible methods to persuade the trial court or the
jury.” [Citation.]’ ” (People v. Shazier (2014) 60 Cal.4th 109, 127.)
       As for a defendant’s entitlement to relief if prosecutorial misconduct has occurred,
we apply the following legal standards: With regard to due process, we will not speak of
prejudice; if there is a due process violation, prejudice is a part of the violation.2 With
regard to state law, the Watson standard of prejudice (People v. Watson (1956) 46 Cal.2d
818, 836) applies: “Misconduct that does not constitute a federal constitutional violation
warrants reversal only if it is reasonably probable the trial outcome was affected.”
(People v. Shazier, supra, 60 Cal.4th at p. 127.)



       2  On this point, the United States Supreme Court has undertaken different
approaches. One view is that either there is or is not a due process violation, such a
violation being generally understood, with regard to trial errors, to be a defect that
rendered the trial fundamentally unfair (see Gagnon v. Scarpelli (1973) 411 U.S. 778,
790). Thus, if there is a due process violation, “ ‘[i]t is unnecessary to add a separate
layer of harmless-error analysis . . . .’ ” (Kyles v. Whitley (1995) 514 U.S. 419, 436,
fn. 9.) “[O]nce a reviewing court applying [a review for materiality] has found
constitutional error there is no need for further harmless-error review.” (Id. at p. 435.)
Elsewhere, however, the high court has intertwined the consideration of prejudice and
due process violations. “[I]f Banks succeeds in demonstrating ‘cause and prejudice,’ he
will at the same time succeed in establishing the elements of his . . . due process claim.”
(Banks v. Dretke (2004) 540 U.S. 668, 691.) Still elsewhere, the court has implied that an
inquiry into both a due process violation and prejudice is valid appellate procedure.
(Bradshaw v. Stumpf (2005) 545 U.S. 175, 187 [“we therefore express no opinion on
whether the prosecutor’s actions amounted to a due process violation, or whether any
such violation would have been prejudicial”].) The applicable standard may depend on
the type of due process claim; for example, the due process claim addressed in Kyles
contains a materiality component and so prejudice analysis may be superfluous.




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       As we discuss below in subpart A, the prosecutor committed an instance of
misconduct under our Supreme Court’s interpretation of Griffin v. California (1965) 380
U.S. 609 (Griffin). We conclude, however, that, unfortunate though the occurrence was,
the misconduct did not give rise to a due process violation or prejudice under state law.
Another claim, discussed below in subpart B, is without merit.
              A. Claim of Shifting the Burden of Proof to Defendant
       At closing argument, defense counsel noted that Kristin Savini had not testified for
the prosecution. This circumstance, she argued, left a critical gap in the state’s evidence
of burglary. The prosecutor argued in rebuttal that the jury was not permitted to speculate
on why Ms. Savini did not testify. He then gilded the proverbial lily by saying, “There is
[sic] still plenty of other strands that you can consider to tie the defendant to burglary. In
fact, one thing that was glaringly missing from argument, counsel did not offer a
reasonable explanation of innocence.” Defendant objected that the prosecutor was
“[s]hifting the burden” to him to prove his innocence, which is, of course, anathema to
our justice system. The trial court overruled the objection.
       The prosecutor continued in the same vein. “You didn’t even hear the defense
offer a reasonable explanation of innocence. They simply argued—” and here defense
counsel cut the prosecutor off and objected on the same ground. The trial court again
overruled the objection.
       The trial court explained to the jury that the prosecutor was talking about
circumstantial evidence: “The . . . language of reasonable interpretation of the evidence




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in the circumstantial evidence instruction is being argued and it’s . . . proper so I’m going
to allow it.”3
       The prosecutor resumed his argument, saying, “There is no other reason he is
going into that house at 4:45 in the morning.”
       The prosecutor’s remarks about innocence, made in the heat of closing arguments,
constituted Griffin error. (Griffin, supra, 380 U.S. at p. 615.)
       Griffin holds that “error is committed whenever the prosecutor or the court
comments upon defendant’s failure to testify.” (People v. Vargas (1973) 9 Cal.3d 470,
475.) Defendant did not testify, just as Ms. Savini did not, and under Griffin “it is error
for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that
evidence could not be contradicted or refuted by anyone other than the defendant
testifying on his or her own behalf.” (People v. Hughes (2002) 27 Cal.4th 287, 371
(Hughes); accord, People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).)4



       3  The trial court was referring to CALCRIM No. 225. In pertinent part, it
instructed the jury that “before you may rely on circumstantial evidence to conclude that
the defendant had the required intent or mental state, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence is that the defendant had
the required intent or mental state. If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those reasonable conclusions supports a
finding that the defendant did have the required intent or mental state and another
reasonable conclusion supports a finding that the defendant did not, you must conclude
that the required intent or mental state was not proved by the circumstantial evidence.
However, when considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
       4 The foregoing two decisions illustrate the point that Griffin applies both to direct
and indirect prosecutorial comments on a defendant’s failure to testify on his or her own
behalf. (People v. Mincey (1992) 2 Cal.4th 408, 446.)




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       In a post-argument discussion with the trial court and defense counsel, the
prosecutor noted that he did not expressly mention defendant’s silence; he mentioned
defense counsel’s arguments. That explanation, along with the trial court’s view that the
remark was tied to the instruction on circumstantial evidence, seemed to satisfy the court.
       The prosecutor’s explanation attempted to invoke the rule that “comments by the
prosecution during closing argument noting the absence of evidence contradicting what
was produced by the prosecution . . . and the failure of the defense to introduce material
evidence . . . cannot fairly be interpreted as referring to defendant’s failure to testify.”
(Bradford, supra, 15 Cal.4th at p. 1339.)
       The problem, though, is that the defense strategy was to admit that defendant was
in the Savini house unlawfully, as a trespasser, but to maintain that the prosecution had
not met its burden of showing he intended to commit theft when he broke and entered, an
essential element for burglary. (§ 459.) Thus, at closing argument, defense counsel
argued: “We’re not disputing the fact that Mr. Carmony was inside the house. . . . What
is disputed here is . . . state of mind . . . and we submit . . . that he did not have the . . .
intent to steal when he was inside the Savini’s [sic] home. If he was just inside the home,
this is a trespass. It is still a crime. He still had no business being in their home. [¶] But
without that . . . intent to steal, it is not a burglary.” The defense called no witnesses, and
the prosecution witnesses did not testify to having any knowledge of defendant’s mental
state. The only person who could have testified that he lacked the intent to commit theft
or a felony when he entered the Savinis’ house was defendant himself. In these
circumstances, arguing that there was no defense evidence that would point to innocence
constituted Griffin error, under the principle articulated in Hughes, supra, 27 Cal.4th 287,
and Bradford, supra, 15 Cal.4th 1229.
       In both Hughes and Bradford, the court found no Griffin error. In both cases,
however, the high court relied on circumstances that do not exist here. In Hughes, supra,

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27 Cal.4th 287, there were defense expert witnesses who testified on certain matters the
prosecutor raised in closing argument (id. at p. 374), so any testimony by the defendant
would not have been the sole focus of the prosecutor’s remarks. Regarding other topics
the prosecutor in Hughes addressed, “Under the defense theory of the case, defendant
was in an unconscious state during the killing, and hence could not be expected to have
provided answers to the prosecutor’s questions, even had he taken the witness stand.”
(Id. at p. 373.) In Bradford, supra, 15 Cal.4th 1229, “the lack of evidence . . . might have
been presented in the form of physical evidence or testimony other than that of
defendant.” (Id. at p. 1340, italics deleted.)
       Although we find Griffin error, we find no due process violation and no prejudice
under state law. Regarding due process, the comments did not render the trial
fundamentally unfair. The jury was instructed, under CALCRIM No. 355, that a criminal
defendant has “an absolute constitutional right not to testify.” “Do not consider, for any
reason at all, the fact the defendant did not testify. Do not discuss that fact during your
deliberation or let it influence your decision in any way.” And, of course, the jury was
instructed, under CALCRIM No. 220, that defendant was presumed to be innocent and
that the prosecution had to prove his guilt beyond a reasonable doubt. The instructions
are presumed to have carried much more weight than the prosecutor’s argument. “ ‘We
presume that jurors treat the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ”
(People v. Thornton (2007) 41 Cal.4th 391, 441.) Regarding prejudice under state law,
the prosecutor’s remark is noteworthy for its very needlessness, because the prosecution’s
case was ironclad, given the physical evidence and the victims’ testimony. There is no
reasonable probability that, had the prosecutor not committed Griffin error, the outcome
would have been more favorable to defendant. He is not entitled to relief.



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         As for defendant’s general argument that the prosecutor’s remarks shifted the
burden to him to prove his innocence, we see no such implication in them, and reiterate
that the jury was instructed that he was presumed innocent. (See Bradford, supra, 15
Cal.4th at p. 1340.) Even if the prosecutor’s remarks could be said to contain a veiled
reference to burden, there would be no constitutional due process violation or prejudice
under state law. As stated, we view the applicable instructions as carrying greater weight
than any untoward prosecutorial remarks.
                B. Claim of Mentioning a Matter Purportedly Outside the Record
         Defendant next faults the prosecutor for telling the jury it should not consider
Ms. Savini’s absence and doing so in these terms: “you can’t speculate why Kristin
Savini was not called to testify in this case, whether she’s available or unavailable three
years later.” Defense counsel objected to this remark as constituting testimony by the
prosecutor. Defendant renews that contention on appeal.
         The gravamen of the claim is that by referring to the witness’s unavailability, the
prosecutor was providing the jury with a mixed point of law and fact outside the record,
i.e., that the witness was legally unavailable, and thus testifying, which counsel are not
permitted to do.
         We discern no misconduct. Reference to a matter of common knowledge is, as a
rule, not misconduct, in the face of a claim that the prosecutor has introduced a matter
outside the record. (See People v. Tully (2012) 54 Cal.4th 952, 1046; People v. Dickey
(2005) 35 Cal.4th 884, 915.) The prosecutor advised the jury not to wonder why the
witness was available or not available, and whether she was or wasn’t available invoked
only an axiomatic principle, not evidence that the jury did not hear. The claim is without
merit.
                                         DISPOSITION
         The judgment is affirmed.

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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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