Filed 6/30/15 P. v. Jones CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)


THE PEOPLE,                                                                                  C077316

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF127860A)

         v.

DENNIS JONES,

                   Defendant and Appellant.




         Defendant Dennis Jones was convicted by a jury of knowingly possessing a stolen
vehicle. In a trial by court, defendant was found to have three prior strike convictions
and to have served four separate prior prison terms. He was sentenced to prison for an
aggregate term of six years.
         On appeal defendant contends the prosecutor committed several instances of
misconduct, the combination of which deprived him of a fair trial. Defendant also asserts
that if we conclude his failure to object to the instances of misconduct forfeits the issue
for purposes of appeal, then he received ineffective assistance of counsel. We conclude
that defendant has forfeited the misconduct issues for appellate review and we reject his
ineffective assistance of counsel claim.



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                                STATEMENT OF FACTS
        Prosecution’s Case
        On April 18, 2014,1 Margarita Lopez Arredondo (hereafter Lopez), who works at
the Cancun Restaurant in Stockton, attended a party at Rubie’s Nightclub. Around
midnight, Lopez left the party with her boyfriend, Fidel Morales, and sat in her Mercury
Mountaineer while he stood outside. As they were talking, a man came up to Morales,
demanded “everything” Morales had, and threatened to “beat the crap” out of him.
Morales gave the man his cell phone and wallet. The man told Morales to tell Lopez to
give him what she had. Lopez saw a second man and gave up her purse. The two men
got into a car and drove off. Morales told Lopez that they should go because the men
were going to come back. Lopez locked her Mountaineer, got into Morales’s car and he
drove her home.
        The following morning, Lopez went to the parking lot to retrieve her Mountaineer,
but it was gone. She then reported the incident to the police.
        About 7:15 p.m. on April 21, Officers Mike Sarale and Jason Digiulio were on
duty when they were directed to drive to a specified location. There, the officers saw
defendant sitting in Lopez’s Mountaineer. Defendant got out of the vehicle and was
searched. In defendant’s front pocket was an envelope that contained two payroll checks
for Lopez, her Social Security card, and her Mexican identification card. The
Mountaineer’s registration form bore Lopez’s name. Also found in the Mountaineer was
an identification card bearing another person’s name, which defendant claimed he had
found in a hotel parking lot and knew the person.
        That same evening, Lopez went to the location where her Mountaineer had been
found. A window was broken, a hammer was on the rear floorboard, and the stereo had




1   Except as otherwise noted, date references are to events that occurred in 2014.

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been “ripped” out. An officer at the scene returned the stolen items found on defendant
to Lopez. Defendant was still at the scene, but Lopez said she had never seen him before.
It was stipulated that defendant was not one of the men who took Lopez’s Mountaineer.
       Defense Case
       Lynn Jones, defendant’s girlfriend, testified they were living together in a hotel
when they received a letter from the City of Stockton informing them that they had to
move by the end of April because of “violations.”
       On April 21, in anticipation of moving their possessions to some friends’ house,
Jones gave defendant $30 to find someone to help them move. Defendant returned later
that day with what turned out to be Lopez’s Mountaineer, for which he had the keys.
After loading their belongings, they drove to the friends’ home, but no one was there.
They returned to their residence at the hotel about 12:30 p.m. While in the Mountaineer,
Jones saw an envelope that contained some checks and she told defendant to be sure to
give the checks back to “the people . . . [¶] . . . [¶] . . . that we rented the [Mountaineer]
from.” She noticed the Mountaineer’s broken window, but aside from that, there was
nothing about the vehicle that suggested it might have been stolen.
                                        DISCUSSION
                                                I
       Defendant cites four instances in which he claims the prosecutor engaged in
misconduct, three of which involved the prosecutor’s cross-examination of defendant’s
girlfriend, Jones, and the fourth in his argument to the jury.
       First, defendant complains that the prosecutor repeatedly questioned Jones
regarding the large number of times she had visited defendant while he was in jail,
thereby making it “very clear” to the jurors the defendant was in custody.
       Second, that the prosecutor repeatedly challenged Jones’s credibility by
questioning her regarding why she did not tell the police or prosecutor about what she



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knew prior to trial without having established who had told her not to speak with the
police or prosecutor.
       Third, that the prosecutor misquoted Jones’s testimony, thereby making it appear
that defendant had admitted to her that he knew the vehicle was stolen, when in fact she
had not so testified.
       Fourth, that the prosecutor continued to make reference to the hammer and items
found in the Mountaineer to suggest that defendant had a role in the robbery, which was
contrary to the stipulation that defendant was not one of the robbers.
       “As a general rule 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.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Defendant never
objected to any of the cited conduct on grounds of prosecutorial misconduct, nor did he
request an admonition. Accordingly, the prosecutorial misconduct issues have not been
preserved for appeal.
                                             II
       Defendant contends that if we determine that his counsel’s failure to object to the
prosecutor’s alleged misconduct had forfeited the prosecutorial misconduct issue for
appeal, which we have done, then he received ineffective assistance of counsel. No
ineffectiveness has been shown.
       “ ‘ “[I]n order to demonstrate ineffective assistance of counsel, a defendant must
first show counsel’s performance was ‘deficient’ because his ‘representation fell below
an objective standard of reasonableness . . . under prevailing professional norms.’
[Citation.] Second, he must also show prejudice flowing from counsel’s performance or
lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been



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different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’ [Citations]” [Citation].’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
       As noted by the United States Supreme Court in Strickland v. Washington (1984)
466 U.S. 668 [80 L.Ed.2d 674], “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” (Id. at p. 697, italics added; cited with approval in In re
Alvernaz (1992) 2 Cal.4th 924, 945.) Following the directive of the United States and
California Supreme Courts, we address whether defendant has established prejudice
because of his counsel’s failure to object.
       Defendant has expended great effort in his attempt to establish the first prong of an
ineffective assistance of counsel argument, namely, that counsel’s representation was
below that to be expected of reasonably competent counsel. However, defendant has
made no effort whatsoever to establish the existence of the second prong, namely, that in
the absence of his counsel’s omissions, there is a reasonable probability that a different
result would have occurred. This failure is fatal to defendant’s ineffectiveness argument.
       Moreover, on this record there is no reasonable likelihood that in the absence of
counsel’s omissions, the jury would have determined that he did not know the
Mountaineer was stolen. Lopez’s Mountaineer was stolen from her by two robbers on
the night of April 18. Defendant, who it was stipulated was not one of the robbers, was
caught by the police in Lopez’s Mountaineer at 7:15 p.m. on April 21. He was alone in
the vehicle and in his pocket was an envelope which contained two of Lopez’s payroll
checks, Lopez’s Social Security card, and Lopez’s Mexican identification card. Lopez’s
name was on the Mountaineer’s registration. The back window of the Mountaineer had
been broken out, a hammer lay on the floor behind the driver’s seat, and the stereo had
been ripped out. An identification card in another person’s name was found in the

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Mountaineer. Accordingly, there is no reasonable probability that the jury would have
reached a different verdict in the absence of counsel’s omissions.
                                      DISPOSITION
       The judgment is affirmed.



                                            BLEASE                   , Acting P. J.


We concur:


         NICHOLSON                 , J.


         MURRAY                    , J.




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