Filed 10/22/15 P. v. Turner 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F068801
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. MF10818A)
                   v.

DANIEL JAKE TURNER,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Daniel B. Bernstein, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Franson, J. and Smith, J.
                                   INTRODUCTION
       Appellant Daniel Jake Turner was convicted by jury of second-degree robbery
(Pen. Code, § 212.5, subd. (c), count 1) and assault by means of force likely to produce
great bodily injury (Pen. Code, § 245, subd. (a)(4), count 2). In addition, the jury found
true various enhancement allegations against appellant. Appellant was sentenced to an
aggregate term of 19 years in prison.
       Appellant contends the prosecutor committed prejudicial misconduct during her
closing argument by improperly vouching for witnesses. He asserts that although he did
not make a timely objection or request an admonition, the issue is reviewable because
either would have been futile. We disagree and affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
Prosecution Case
       On October 1, 2013, Yun He Schmidt was working at her recycling business with
her employee, Jahari Currie. Appellant, who came into the business every day, brought
cans and bottles in that morning to redeem for cash. Appellant asked Currie when he
took his lunch break and Currie replied that he usually took his lunch around noon.
       Both Currie and Schmidt testified that appellant, whom they identified at trial,
returned to the business later that day. Although Schmidt could not recall precisely when
appellant returned, Currie testified that it was around 12:15 p.m. Appellant told Schmidt
and Currie that he left a diamond ring in a bag he used to bring in recyclables. Schmidt
replied that the bag appellant was looking for should be in the trash, both Currie and
Schmidt helped appellant look for the ring. Schmidt asked appellant whether he was sure
he had a ring and appellant replied affirmatively. Schmidt then recalled waking up in a
hospital emergency room, with no memory of what happened in the interim.




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       While looking for the ring, Currie saw appellant and Schmidt talking and then
observed appellant punch1 Schmidt in the face, rendering her unconscious. Appellant
took a key out of Schmidt’s pocket and ran into an office inside the business. Currie
reached through a window in the office and picked up a phone to call the police but
appellant took the phone out of Currie’s hand. Appellant proceeded to take money from
a cash register in the office. A brief struggle ensued before appellant fled on a green
bicycle. Currie called 911.
       On October 1, 2013, at 12:20 p.m., Kern County Sherriff’s Deputy Orlando
Ramos responded to the incident. Currie related his version of events to Deputy Ramos
and provided a description of the suspect. Based upon Currie’s description, and Deputy
Ramos’s familiarity with the residents in the nearby area, Deputy Ramos suspected
appellant was the perpetrator. Currie identified appellant pursuant to a photo lineup, and
again at trial. After he was arrested and Mirandized, appellant admitted visiting the
recycling center twice on the day of the robbery, but denied any knowledge of a physical
altercation.
Defense Case
       Appellant’s parents, Isaac and Patricia Turner, testified in his defense. Mr. Turner
testified that on October 1, 2013, he and his wife drove to Lancaster at approximately
9:30 a.m. or 10:00 a.m. When they left, appellant was at the family home. When the
Turners returned home around 1:00 p.m. or 1:30 p.m., appellant was still there.
Mrs. Turner offered testimony similar to Mr. Turner’s. Both Mr. and Mrs. Turner
testified Currie and appellant are personally acquainted.
       Appellant, who testified in his own defense, acknowledged prior felony
convictions, as well as a misdemeanor conviction, for crimes of moral turpitude. He
testified that on the morning of the robbery, he made two trips to the recycling center.

1      Currie described the punch as a “sucker punch.”


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During the first trip, appellant returned home around 9:30 a.m., he left for the recycling
center a second time between 10:00 a.m. and 10:30 a.m., and stayed no longer than five
minutes. Appellant denied any involvement in the robbery. He testified that he was
home making his siblings lunch during the lunch hour that day. Appellant also denied
telling Currie and Schmidt that he lost a ring during his second trip to the business.
People’s Rebuttal
       Kern County Sheriff’s Deputy Jonathan Juden testified that he went to appellant’s
home at approximately 12:30 p.m., looking for him. Neither appellant, nor his green
bicycle, which he usually kept outside, could be located.
                                      DISCUSSION
       Appellant contends that the prosecutor improperly vouched for the credibility of
witnesses during trial. During closing argument, the prosecutor commented that Schmidt,
Currie, and Deputy Juden have no convictions for felonies or crimes of moral turpitude
and no incentive to lie. The prosecutor also commented that Deputies Ramos and Juden
have years of experience as sheriff’s deputies, and no reason to lie.
       While we are not persuaded any of the remarks amounted to vouching, we can
find no prejudice. Prosecutorial misconduct requires reversal only if it results in
prejudice to the defendant. (People v. Fields (1983) 35 Cal.3d 329, 363.) Where it
infringes upon the defendant’s constitutional rights, reversal is required unless the
reviewing court determines beyond a reasonable doubt that the misconduct did not affect
the jury’s verdict. (People v. Harris (1989) 47 Cal.3d 1047, 1083.) Prosecutorial
misconduct that violates only state law is cause for reversal when it is reasonably
probable that a result more favorable to the defendant would have occurred had the
prosecutor refrained from the objectionable conduct. (People v. Barnett (1998) 17
Cal.4th 1044, 1133.)
       To preserve a claim of prosecutorial misconduct for appeal, defense counsel “must
make a timely objection at trial and request an admonition.” (People v. Price (1991)

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1 Cal.4th 324, 447.) The issue is otherwise only reviewable if either a timely objection or
a request for admonition would have been futile, or if a request for jury admonition
“‘“would not have cured the harm caused by the misconduct.”’” (People v. Hill (1998)
17 Cal.4th 800, 820 (Hill).)
       Here, defense counsel did not make an objection or request a jury admonition in
response to the prosecutor’s closing argument. Nonetheless, appellant contends that he
should be excused from the necessity thereof because either an objection or jury
admonition would have been futile. We disagree and find that the issue is forfeited on
appeal.
       In Hill, the court determined, in relevant part, whether the appellant’s claim of
prosecutorial misconduct was preserved for review on appeal where no objection was
made and an admonition was not requested. (Hill, supra, 17 Cal.4th at p. 820.) The Hill
court ruled the appellant did not waive his claim, reasoning any objection or request for
an admonishment would have been futile. (Id. at p. 822.) The court specified the
prosecutor’s barrage of unethical misconduct, in conjunction with repeated chastising
comments by the bench, would have subjected defense counsel to the risk of “repeatedly
provoking the trial court’s wrath” and prejudicing the jury toward the defendant had
defense counsel made a timely objection. (Id. at p. 821.)
       Considering this same issue, the court in People v. Alvarado (2006)
141 Cal.App.4th 1577 (Alvarado) found that an admonition would not have been curative
where the prosecutor vouched for the integrity of her office as well as the one eyewitness
to the crime. During her closing argument, the prosecutor remarked “‘I have a duty and I
have taken an oath as a deputy District Attorney not to prosecute a case if I have any
doubt that that crime occurred. [¶] The defendant charged is the person who did it.’”
(Id. at p. 1585.) The impermissible inferences from the prosecutor’s remarks were that
“(1) the prosecutor would not have charged [the defendant] unless he was guilty, (2) the
jury should rely on the prosecutor’s opinion and therefore convict him, and (3) the jurors

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should believe [the witness] for the same reason.” (Ibid.) In finding that an
admonishment would not have been curative, the court reasoned that because the case
turned on the credibility of the one eyewitness, who identified the appellant based on a
single brief encounter, it was too late to “unring the bell sounded by the prosecutor’s
improper attempt to bolster his credibility.” (Id. at p. 1586.)
       The instant case is distinguishable from both Hill and Alvarado. In Hill, there
were repeated instances of prosecutorial misconduct and the appellate court found
objections by the defense would have served only to further provoke the bench; whereas
here, appellant alleges only one instance of misconduct, the prosecutor vouching for the
credibility of witnesses. In addition, there is no evidence that an objection by defense
would have invited critical comments from the bench, prejudicing the jury against
appellant and rendering additional objections futile. As such, appellant cannot establish
that he should be excused from making a timely objection or request for admonition.
       The instant case is distinguishable from Alvarado given the overwhelming
evidence presented against the defendant in this case. Here, even assuming Currie and
appellant were not personally acquainted, appellant visited the business every day.
Currie’s repeated encounters with appellant would make his identification more reliable
than the witness in Alvarado, who had only a single brief encounter with the appellant.
(Alvarado, supra, 141 Cal.App.4th at p. 1585.) Further, Deputy Ramos also suspected
that appellant was the perpetrator of the robbery based on the description of the suspect
provided by Currie, and Deputy Ramos’s familiarity and frequent contacts with the
residents within the small community.
       We also find that the testimony of two independent witnesses casts doubt on the
veracity of appellant’s version of the events. Appellant testified that he did not return to
Schmidt’s recycling business under the pretense of searching for a lost ring. However,
both Schmidt and Currie’s testimony directly contradict appellant’s claim; both claim
appellant returned to the business a second time, claiming he lost a ring.

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       Police were also unable to verify appellant’s whereabouts during the robbery.
Appellant testified he was home during the lunch hour on the day of the robbery;
however, neither him, nor his bicycle, were located at his home when police arrived at
12:30 p.m. Although appellant’s parents testified he was home when they left the family
residence around 9:30 a.m. or 10:00 a.m., and when they returned at 1:00 p.m. or 1:30
p.m., they could not confirm his whereabouts in the interim, when the robbery occurred.
       In light of Currie’s positive identification of appellant, a man who regularly came
into the business; appellant’s testimony, which contradicted the account of two
independent witnesses to the robbery; as well as appellant’s inability to verify his
whereabouts at the time of the robbery, the evidence presented against him was
overwhelming. As a result, even if the prosecutor’s remarks were improper, we can find
no prejudice to appellant.
                                      DISPOSITION
       The judgment is affirmed.




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