Filed 5/31/16 P. v. Urias 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C079478

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF151111)

         v.

DAVID URIAS,

                   Defendant and Appellant.




         A jury found defendant David Urias guilty of the unlawful driving or taking of a
vehicle without the consent of the owner, and the trial court sentenced him to seven years
in jail. On appeal, defendant contends as follows: (1) the prosecutor committed
misconduct by eliciting police officer testimony regarding defendant’s homelessness;
(2) the court erred in admitting evidence of his homelessness; (3) he was deprived of
effective assistance of counsel when his attorney failed to request a sidebar or court
admonitions regarding his homelessness; (4) the prosecutor committed misconduct
during closing arguments by claiming defense counsel conceded guilt; and (5) the court

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abused its discretion in admitting police officer lay opinion regarding defendant’s gloved
hand movements. Moreover, defendant contends that these acts prejudiced the jury and
violated his due process right to a fair trial, requiring reversal of his conviction.
       We disagree with each of his contentions and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On December 20, 2013, Woodland Police Officer Juan Barrera was on patrol and
pulled into a Costco parking lot. As Officer Barrera made the turn into the lot, he noticed
a red Honda Civic about to leave the parking lot and turn right onto County Road 102.
As Officer Barrera passed the Civic he “noticed the driver lift up his hand and try to
conceal his face, and at that time, [he] noticed [the driver] was wearing a glove.” Officer
Barrera also saw a female passenger in the Civic. He noted the Civic’s license plate
number, ran it, and discovered that the plate was registered to Surjit Singh, whom Officer
Barrera had previously arrested and knew was still in custody. The officer concluded
either the car or plates were stolen. Officer Barrera also knew that Singh drove a Honda
Accord that was a “very faded burgundy color.”
       Due to heavy traffic and a concrete median barrier, Officer Barrera could not
initiate an immediate stop, but he located defendant driving the Civic about an hour later.
He approached the Civic from the opposite direction, and when he passed it, defendant
attempted to conceal his face with his gloved hand. Officer Barrera conducted a traffic
stop and discovered, after running the vehicle identification number, that the owner of the
Civic had reported his vehicle stolen six days earlier. Upon inspecting the vehicle,
Officer Barrera noticed the ignition was damaged and a small flathead screwdriver was
on the driver’s side floor.
       The owner had previously purchased the Civic with one set of keys. Prior to its
being stolen, the Civic’s steering column was intact and the owner had never used a
screwdriver to start the car. The owner did not know defendant and had not given
defendant permission to drive his car.

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                                        DISCUSSION
       Defendant contends he did not receive a fair trial because the jury was prejudiced
against him due to prosecutorial misconduct, ineffective assistance of counsel, and the
admission of improper lay opinion.
                                               I
                                  Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct on two occasions
during the trial: (1) when the prosecutor elicited testimony that defendant was homeless;
and (2) when the prosecutor stated during closing argument that defense counsel had
conceded defendant’s guilt.
       The standards used to evaluate prosecutorial misconduct are well established. “A
prosecutor’s misconduct violates the Fourteenth Amendment to the United States
Constitution when it ‘infects the trial with such unfairness as to make the conviction a
denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient
significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A
prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless
violates California law if it involves ‘the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’ ” (People v. Cole (2004) 33 Cal.4th
1158, 1202.)
       We review each of defendant’s misconduct allegations in turn, finding merit in
neither.
                                               A
The Prosecutor Did Not Commit Misconduct In Eliciting That Defendant Was Homeless
       Defendant contends the prosecutor committed misconduct when he elicited from
Officer Barrera that defendant was homeless.
       The evidence that defendant was homeless arose during the prosecutor’s redirect
questioning of Officer Barrera in the following colloquy:

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       “[Prosecutor]: Officer Barrera, you indicated that when you were trying to do a
traffic stop, the vehicle was pulling into a parking stall?
       “[Officer Barrera]: Correct.
       “[Prosecutor]: Were the -- did you, as part of your investigation, obtain the
addresses of both individuals, the Defendant and his female passenger?
       “[Officer Barrera]: Yes.
       “[Prosecutor]: Were either of them associated with that address, that location?
       “[Officer Barrera]: No.
       “[Prosecutor]: And in fact, did the Defendant even give you an address or
location?
       “[Defense Counsel]: Objection, your Honor. Calls for hearsay, and relevance.
       “THE COURT: Overruled.
       “[¶] . . . [¶]
       “[Prosecutor]: So where did he say he lived?
       “[Defense counsel]: Objection, your Honor. Calls for -- well, relevance.
       “THE COURT: Overruled.
       “[Officer Barrera]: I don’t think he did. I just think we got an address from -- his
old address on his license.
       “[Prosecutor]: Now, is that something you put in your report as well, his last
known address?
       “[Officer Barrera]: We usually try to see if they’ll give us an address, or we go off
of what’s on their driver’s license at the time.
       “[Prosecutor]: What did you put for the Defendant?
       “[Officer Barrera]: Can I look at the report?
       “[Prosecutor]: If that would refresh your recollection?
       “[Officer Barrera]: Yes.
       “THE COURT: You may.

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       “[Officer Barrera]: (Witness reviews documents.) Put homeless.”
       Defendant contends that evidence of his homelessness was prejudicially
inadmissible because it “play[ed] on the jury’s fears,” “invited the jury to decide the case
based upon [his] character rather than on the facts,” and “infused the proceedings with
the notion that the city would be a safer[,] cleaner place if [he] was shipped off to
prison.” Defendant argues that evidence of homelessness presents the “same danger as
evidence of poverty, although the stigma of homelessness is much more prejudicial.” We
are not persuaded.
       “ ‘A prosecutor is under a duty to guard against inadmissible statements from his
witnesses and guilty of misconduct when he violates that duty. . . .’ [Citation.] [¶]
When a prosecutor intentionally asks questions, the answers of which he knows are
inadmissible, the prosecutor is guilty of bad faith attempts to improperly persuade the
court or jury.” (People v. Parsons (1984) 156 Cal.App.3d 1165, 1170.)
       Here, the prosecutor did not elicit evidence he knew was inadmissible because the
court permitted his line of questions and there was nothing in the record of a pretrial
ruling barring its admission. Even assuming the information was irrelevant, the single
reference to defendant’s homelessness was not prejudicial. As soon as the prosecutor
elicited this information from Officer Barrera, he moved on to another topic by asking,
“Now, the other individual in the car, what was her name?” The prosecutor did not
reference defendant’s homelessness again. He did not use it in closing argument to
persuade the jury to consider that defendant’s homelessness created a motive or
propensity to steal.
                                              B
         The Prosecutor Did Not Commit Misconduct During Closing Argument
       Defendant contends the prosecutor committed misconduct by arguing in rebuttal
that defense counsel had conceded guilt, violating his due process rights and improperly
shifting the burden of proof. He contends the prosecutor “effectively precluded the jury

                                              5
from considering [his] knowledge which went to the element of his intent to deprive the
owner of possession.” He further contends that the trial court’s admonition was
inadequate. We are not persuaded.
       “To establish a [person]’s guilt of violating Vehicle Code section 10851,
subdivision (a), the prosecution is required to prove that the defendant drove or took a
vehicle belonging to another person, without the owner’s consent, and that the defendant
had the specific intent to permanently or temporarily deprive the owner of title or
possession.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.)
       During closing argument, in an effort to persuade the jury there was a reasonable
doubt as to whether defendant intended to deprive the owner of possession of the car,
defense counsel contrasted what facts were “known” from those that were “unknown” by
saying as follows:
       “Now, I went through and I tried to list a few of the things we do know in this
case. We know the . . . Civic was stolen or [sic] about December 14th, 2013, but nobody
told you that [defendant] or anybody else was seen driving that car on December 14th,
15th, 16th, 17th, 18th, or 19th.
       “It wasn’t until December 20th at about noon that [defendant] [wa]s seen driving
the [Civic], and we know that the [Honda Accord] was abandoned . . . about a week prior
to December 20th.
       “[¶ . . . ¶]
       “The only thing we know is that [defendant] was driving the . . . Civic at about 1
o’clock on December 20th, 201[3], and it was being driven with a screwdriver. Anything
else more than that is pure speculation, and subject to thousands of reasonable doubts.
       “Now, the People told you in their opening that there would be evidence that
[defendant] stole the [Civic]. I think it’s very clear there was absolutely no evidence who
stole the [Civic].



                                             6
       “Again, the only evidence we have is that [defendant] was driving the [Civic]
about a week later. We had information from [a convicted car thief] . . . that oftentimes
people who steal cars give them away to other people.
       “Now, whether or not you or I would take a car from somebody that was being
driven with a screwdriver, probably not. Pretty certain that none of us would be [sic] do
that. But that doesn’t mean that somebody is guilty of a crime if they act differently than
how we would act.
       “This is not a guessing game. It’s far too serious for that. So what I’m asking you
to do, on behalf of [defendant], is to look carefully at the evidence.”
       On rebuttal closing argument, the prosecutor argued, in relevant part as follows:
       “Ladies and gentlemen, [defense counsel] just conceded Count 1 of the
Information, the stolen vehicle. [Defense counsel] conceded that [defendant] was not
authorized to drive [the Civic].
       “You heard [defense counsel] say yes, [defendant] was driving -- [but he] did not
mention anything about the fact that [the owner of the Civic] did not give [defendant]
permission, because [defense counsel] can’t argue that. There’s nothing to refute there.
[Defense counsel] chose not to respond to that, because there is no doubt.
       “When you look at reasonable doubt, what possible scenarios can you fit in there
to say that [defendant’s] driving a vehicle that’s not his, he doesn’t have permission to
drive it, and he never returned it? If the Defense concedes the argument, the evidence
supports the argument[;] your job is easy for Count 1. It’s guilty.”
       Near the end of the prosecution’s rebuttal argument, the following exchange
occurred:
       “[Prosecutor]: And the evidence shows beyond all doubt for Count 1, as agreed
by the Defense, that he was driving that vehicle without --
       “[Defense Counsel]: Your Honor, I’m going to object as to [sic] misstates my
argument.

                                              7
       “THE COURT: This is not evidence. Argument is not evidence. You heard the
evidence, you decide what the facts are, you apply the law as I instruct you to the facts.
[¶] Continue.”
       When the claim of prosecutorial misconduct focuses on comments before the jury,
the “ ‘question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.’ ” (People v.
Harrison (2005) 35 Cal.4th 208, 244.) “A prosecutor is given wide latitude during
closing argument. The argument may be vigorous as long as it is a fair comment on the
evidence, which can include reasonable inferences or deductions to be drawn therefrom.”
(Ibid.) However, “[i]t is improper for a prosecutor to argue to the jury as an analysis of
the defense argument or strategy that defense counsel believes his client is guilty.”
(People v. Bell (1989) 49 Cal.3d 502, 537.) A conviction will not be reversed for
prosecutorial misconduct “unless it is reasonably probable that a result more favorable to
the defendant would have been reached without the misconduct.” (People v. Crew
(2003) 31 Cal.4th 822, 839.)
       Here, defense counsel objected on the ground that the prosecutor “misstate[d his]
argument,” (italics added) not that he misstated the law or misstated the facts. But the
prosecutor was merely characterizing defense counsel’s admission that defendant drove
the Civic as a concession of guilt on the unlawful taking or driving count. The prosecutor
was arguing that defendant admitted driving the car, which, in fact, he did. The
prosecutor cited both what defense counsel said and what counsel failed to argue as the
basis for his assertion that defense counsel had conceded his client’s guilt. Defense
counsel objected to the prosecutor’s characterization of his argument and the court
offered a curative admonition by reminding the jury that counsel’s argument is not
evidence. We do not find the prosecutor’s assertion that defense counsel conceded guilt
on the unlawful taking count to be misconduct, and in any event, we find the trial court’s
admonition was sufficient to cure any potential prejudice against defendant.

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                                              II
                       The Trial Court Did Not Abuse Its Discretion
       Defendant contends the trial court erred in admitting: (1) evidence of his
homelessness; and (2) Officer Barrera’s opinion testimony regarding the meaning of
defendant’s hand movements and the wearing of gloves. We disagree.
                                              A
                          Evidence Of Defendant’s Homelessness
       Defendant contends the trial court erred in admitting evidence of his homelessness
because it was inadmissible character evidence, irrelevant, and unduly prejudicial. We
disagree.
       On appeal, a trial court’s decision to admit or not admit evidence is only reviewed
for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196.) “In
determining the admissibility of evidence, the trial court has broad discretion.” (Ibid.)
“[T]he erroneous admission or exclusion of evidence does not require reversal except
where the error or errors caused a miscarriage of justice.” (People v. Richardson (2008)
43 Cal.4th 959, 1001.) A reviewing court should find a miscarriage of justice “only when
the court, ‘after examination of the entire cause, including the evidence,’ is of the
‘opinion’ that 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.)
       The admission of the singular reference to defendant’s homelessness did not lead
to a “miscarriage of justice.” The prosecutor never relied on this evidence in argument, it
was not proof of any matter at trial, and there is no evidence the jury relied on this
evidence in its determination of defendant’s guilt.




                                              9
                                             B
                              Officer Barrera’s Lay Opinion
       Defendant contends he did not receive a fair trial because the trial court
erroneously admitted Officer Barrera’s lay opinions that defendant’s gloved hand
movements were an attempt to conceal his appearance and most car thieves wear gloves.
We disagree.
       Defendant’s contention is based on the following exchanges during the direct
examination of Officer Barrera:
       “[Prosecutor]: What did you observe at that time?
       “[Officer Barrera]: As I was driving into the parking lot, I saw [the Civic] getting
ready to turn onto County Road 102. When I passed the vehicle, I noticed the driver lift
up his hand and try to conceal his face, and at that time, I noticed he was wearing a glove.
       “[Prosecutor]: And you were able to see the face -- before the driver of the vehicle
put his hand up, were you able to see his face?
       “[Officer Barrera]: I wasn’t able to make out who he was or anything.
       “[Prosecutor]: Okay. Now, you indicated -- you just gestured that he put up his
hand, just sort of blocking the side of his face. Why did it appear to you that he was
trying to hide his face?
       “[Defense counsel]: Objection, your Honor. Calls for speculation.
       “THE COURT: Overruled.
       “[Officer Barrera]: It just -- it’s out of the ordinary. When you see a police officer
and you cover your face, to us, it’s trying to hide something, or you just did something
wrong.
       “[Prosecutor]: Did it appear -- could it have been that -- well, was there a glare?
Was the sun pointed in that direction?
       “[Officer Barrera]: [He] was the only [person who] was covering [his] face.
Nobody else was doing it.

                                             10
          “[Prosecutor]: And so there was -- you know, was the driver, did he at any point
hold his hand up sort of above this eyebrow, as to shield the sun while waiting at that
light?
          “[Officer Barrera]: No. It was directly across the whole left side of his face.
          “[Prosecutor]: Was that unusual to you?
          “[Officer Barrera]: Yes it is.
          “[Prosecutor]: And why was that?
          “[Officer Barrera]: Like I said, most people don’t do that when they see a police
officer. It’s either trying to hide something or they just did something wrong, so you
don’t recognize their face.
          “[Defense counsel]: Your Honor, I object again as speculation, and move to
strike.
          “THE COURT: You’re going to hear an instruction on a lay opinion. This is a lay
opinion. He can give his reasons for his opinion. You don’t have to accept the opinion
as true and correct. You can consider his opinion and what he bases his opinion on, and
you can decide how much weight to give his opinion.
          “[¶ . . . ¶]
          “[Prosecutor]: Now you indicated that the driver was wearing gloves, black
gloves.
          “[Officer Barrera]: Correct.
          “[Prosecutor]: Was -- was that of any significance to you?
          “[Officer Barrera]: Yes it is.
          “[Prosecutor]: Why?
          “[Defense counsel]: Objection, your Honor. Calls for speculation.
          “THE COURT: Overruled at this time.
          “[Officer Barrera]: Most of the times when they steal cars they’ll wear gloves,
because they think they’re going to leave fingerprints on the vehicle, and when we find it,

                                               11
we’ll dust the car for fingerprints and send them to off for testing. So if you wear gloves,
you won’t leave fingerprints on the vehicle.”
       Prior to its deliberating, the jury was given the CALCRIM No. 333 instruction
concerning lay opinion testimony. “ ‘A lay witness may testify to an opinion if it is
rationally based on the witness’s perception and if it is helpful to a clear understanding of
his testimony.’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1254.) “The admission of a
layperson’s opinion testimony lies in the discretion of the trial court and will not be
disturbed ‘ “unless a clear abuse of discretion appears.” ’ ” (People v. Brown (2001) 96
Cal.App.4th Supp. 1, 33.) Evidence Code section 8001 “merely requires that witnesses
express themselves at the lowest possible level of abstraction. [Citation.] Whenever
feasible, ‘concluding’ should be left to the jury; however, when the details observed, even
though recalled, are ‘too complex or too subtle’ for concrete description by the witness,
he may state his general impression.” (People v. Hurlic (1971) 14 Cal.App.3d 122, 127.)
       Here, Officer Barrera’s lay opinion fell squarely within Evidence Code
section 800. Officer Barrera’s description of defendant’s hand movement was based on
his visual perception. His opinion that defendant was attempting to conceal his face was
an inference rationally related to his visual observation and helpful to the jury, so it
would understand why Barrera considered defendant’s conduct unusual and furtive. The
same goes for his comment about gloves and car thieves. In his experience, car thieves
usually wear gloves to prevent the collection of fingerprints. This information was



1      Evidence Code section 800 provides:

        “If a witness is not testifying as an expert, his testimony in the form of an opinion
is limited to such an opinion as is permitted by law, including but not limited to an
opinion that is:

       “(a)   Rationally based on the perception of the witness; and

       “(b)   Helpful to a clear understanding of his testimony.”

                                              12
helpful to the jury to understand why the glove was a factor in Officer Barrera’s
suspicion that defendant might be engaged in wrongdoing. Therefore, we find that the
trial court did not abuse its discretion in admitting Officer Barrera’s lay opinion
testimony.
                                              III
                              Ineffective Assistance Of Counsel
         Defendant contends his counsel was ineffective in failing to request a sidebar “to
inform the court that the prosecutor was attempting to elicit the fact that the defendant
was homeless.” We disagree. Because we have found that defendant’s other claims on
this subject are without merit, his ineffective assistance of counsel claim is also without
merit.
                                       DISPOSITION
         The judgment is affirmed.



                                                    /s/
                                                    Robie, Acting P. J.

We concur:


/s/
Mauro, J.


/s/
Duarte, J.




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