Filed 2/26/13 P. v. Bailey CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B241079

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA390045)
         v.

CHARLES BAILEY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I.
Sandoval, Judge. Affirmed.
         David H. Goodwin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds and Ana
R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
                                    INTRODUCTION


       A convicted sex offender is required to register in his county of residence. A
convicted sex offender who has no place to live is required to register in the county in
which he is a transient. If the transient sex offender thereafter acquires a residence, he
must register anew within five working days. (Pen. Code,1 §§ 290, 290.011, subd. (b);
People v. Aragon (2012) 207 Cal.App.4th 504, 506.)
       Defendant Charles Bailey, who previously was convicted of a crime requiring him
to register as a sex offender pursuant to section 290, appeals from the judgment entered
after a jury found him guilty of three counts of being a transient convicted sex offender
who failed to register after moving to a residence (§ 290.011, subd. (b)) and three counts
of failing to register as a sex offender after an address change (§ 290, subd. (b)), and he
admitted that he suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and
served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to state
prison for a total of six years.
       Defendant‟s sole contention on appeal is that the trial court erroneously allowed
the People to present testimony as to efforts made to locate two witnesses who did not
testify at trial. Defendant claims this evidence was irrelevant and permitted the jury to
draw speculative inferences based on innuendo. While we agree that the challenged
testimony was irrelevant and thus inadmissible, defendant has failed to demonstrate that
he was prejudiced as a result of the court‟s evidentiary error. Consequently, we affirm
the judgment.




1      All further statutory references are to the Penal Code unless otherwise noted.


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                                          FACTS


       Delmas Davis (Davis) owned a triplex comprised of 10007, 10009 and 10009½
South Hobart Boulevard in Los Angeles. He maintained the property, rented the units
and collected the rent. Davis did not live on the property, but he did live nearby.
       Jakeira Green (Jakeira) rented the rear unit commonly known as 10009 Hobart
Boulevard, and her sister, Jamila Green (Jamila), rented the upstairs unit. Carol Ross
(Ross) rented the front unit.
       Davis was a school teacher. In July and August 2011, while on vacation from
teaching, Davis went to the property four or five times a month. In September, he
returned to teaching and visited his property less often.
       While at the property, Davis often saw his tenants. Davis had seen defendant at
the triplex five to ten times before July 2011 and continued to see him through
September 1, 2011. On one occasion, after seeing him numerous times, Davis asked
defendant if he lived there. Defendant said he did not. Davis believed this conversation
took place in December 2010. Davis knew that only Jakeira and her two children, not
defendant, were listed as tenants in the rental agreement.
       On another occasion in February or March 2011, Davis observed defendant leave
Jakeira‟s unit, go to a dark green car in a robe and then return to the unit. On more than
five other occasions, Davis had seen defendant drive the green car. Davis also regularly
saw the green car parked near the triplex, perhaps 10 to 20 times. As of July 2011, Davis
believed defendant was living with Jakeira despite his prior assertion to the contrary. On
numerous occasions during the summer months, Davis saw defendant with Jakeira and
her children, leaving the unit and then returning. Davis also observed defendant coming
and going by himself or with Jakeira‟s two children and returning to the apartment.
       On one occasion, Jakeira introduced defendant to Davis as her boyfriend. On
another occasion, maybe a month later, she introduced defendant to Davis as her fiancé.
       Ross could not recall the precise year she moved into her unit, but she did recall
that Jakeira and her two children moved into the rear unit about two months later. Ross

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first saw defendant at the property in March 2011. As time went on, Ross saw defendant
more frequently. In July 2011, Ross, who was retired and described herself as a
“homebody,”2 saw defendant everyday and believed he lived with Jakeira. Ross
observed defendant leave in the morning with Jakeira and her two children, as well as his
baby, and return 20 minutes later with the baby and enter Jakeira‟s unit. In the afternoon,
defendant left with the baby and returned 20 minutes later with Jakeira and her children.
According to Ross, defendant drove Jakeira‟s white car, in that he no longer had his
green car. Ross also saw him every day in August and September 2011, and she believed
that defendant lived with Jakeira during the months of July, August and September
2011.3
         Ross observed defendant enter Jakeira‟s unit. Most of the time, defendant stayed
inside. Once or twice, Ross saw defendant wash the car in front of the building.
         On July 28, 2011, Los Angeles Police Officer Fernando Cazarez was assigned to
the Registration Enforcement and Compliance Team (REACT) at Central Division.
REACT monitors and registers sex offenders, as well as conducts compliance checks.
Defendant came into the station and informed Officer Cazarez that he was changing his
registration from one transient location to another transient location at 49th Street and
Broadway Avenue. The officer took note that defendant was very well groomed and his
clothes seemed neatly presented. In Officer Cazarez‟s view, defendant‟s appearance was
inconsistent with that of a person who was homeless.




2      When Ross was questioned as to whether she saw everything, she responded, “I
see enough to know the pattern of the neighborhood and to make me aware of my
surroundings.” When asked about Jakeira‟s visitors, Ross testified “they made a lot of
noise” and that was one of the reasons she “paid attention to what was going on, because
sometimes it was boisterous.”
3     In December 2011, Ross told a defense investigator she was not sure that
defendant lived there. She also noted that she was not going to change her mind about
what she said to the police.


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       Officer Cazarez advised defendant that if he was sleeping at a residence or if he
was staying with his girlfriend or anyone else, he had to provide that information. If he
failed to do so and the police found out he was staying with someone, he would be
arrested. Defendant appeared to understand the requirements and asked no questions.
       On August 23, 2011, Officer Mehra Newby, who was assigned to REACT,
processed defendant‟s sex offender registration. Defendant, who appeared to understand
the registration requirements, stated he was homeless and did not provide information
about another address.
       On September 27, 2011, REACT Officer Lauro Larrinua registered defendant as a
sex offender. Defendant again registered as a transient in the area of 49th Street and
Broadway Avenue and gave no other address. Officer Larrinua explained to defendant
the requirements that go along with being a convicted sex offender.
       On October 17, 2011, Los Angeles Police Detective Michael Falvo, along with
other officers, went to 10009 South Hobart Boulevard, where they believed defendant
was living. Detective Falvo drove to the alley behind the location and waited while two
officers knocked on the door.
       While standing in the alley behind a steel gate door, Detective Falvo saw
defendant walk up to the gate from the side of the yard. He was wearing boxer shorts and
a T-shirt and was smoking a cigarette. The detective identified himself as a police
officer, told defendant that he recognized him from photographs and wanted him to stop
so he could talk to him. Defendant said, “I don‟t live here” and walked into the yard.
Fearing defendant would get away, Detective Falvo jumped over the fence, pursued him
through the backyard and stopped defendant as he was attempting to climb over a wall.
       At the time of defendant‟s arrest, Jakeira was present. Detective Falvo attempted
to interview Jakeira, but she was uncooperative and very upset that defendant had been
arrested. Inside Jakeira‟s apartment, Detective Falvo saw “some male clothing and
things.” He did not remember if he found any men‟s shoes. He did not look for any
documents bearing defendant‟s name or mail sent to defendant at the Hobart Boulevard
address. Detective Falvo did not go into the bedroom to see if there were any male items

                                             5
and did not know if defendant had a key to the apartment. He did enter the bathroom but
could not recall if he saw any male toiletries. The detective did not know who paid the
rent or purchased the food or whose name was on the utility bills.
       At the end of March 2012, Detective Falvo received a subpoena for Jakeira. He
went to her residence on numerous occasions but Jakeira was never there.
       On March 29, 2012, Lawrence Arnwine (Arnwine), an investigator for the District
Attorney‟s Office, received a subpoena with Jamila‟s name and date of birth and obtained
her address via public records. After checking various other search engines, Arnwine
went to Jamila‟s residence. Arnwine verified Jamila‟s identity, talked to her about this
case, and personally served her with the subpoena directing her to appear in court on
April 3.
       On April 3, the prosecutor obtained a body attachment for Jamila, who failed to
appear. That same day, Arnwine returned to Jamila‟s residence in an effort to ensure her
appearance in court. He was unable to find her at home or in the area.4 The following
day, Arnwine repeated his efforts without success.


                                      DISCUSSION


A. Pertinent Background
       Defendant unsuccessfully objected on relevancy grounds to the testimony of
Detective Falvo regarding his efforts to subpoena Jakeira and to the testimony of
Investigator Arnwine regarding his efforts to locate Jamila after she failed to appear in
court as directed by the subpoena with which she was served. Defense counsel argued,
among other things, that this testimony would insinuate that the testimony of the sisters
would be favorable to the People. The trial court noted that, in Jakeira‟s and Jamila‟s
absence, the defense was at liberty to argue that the jury never heard from the two people



4      On April 3, Ross testified that Jamila no longer lived in the upstairs unit.


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in the best position to say whether defendant was living there, and thus “it‟s fair to permit
the People to say, we tried to subpoena them, they were unavailable.” In the court‟s
view, the absence of Jakeira and Jamila foreclosed any argument that they might have
said something favorable to defendant. Defense counsel was unable to cite any legal
authority suggesting that it would be improper to admit the detective‟s and the
investigator‟s challenged testimony.
       In her closing argument to the jury, defense counsel referenced the prosecution‟s
efforts to secure the presence of Jakeira and Jamila, stating: “Now, you did not hear from
Jamila Green or Jakeira Green, and the People put on evidence that they somehow
attempted to bring these people in and were unable to. The fact that they tried to get
these witnesses in and didn‟t does not lower their burden of proof in this case. It‟s
irrelevant that they aren‟t here. And frankly, . . . you don‟t know what they would say.
For all you know, they would have said that Mr. Bailey did in fact not live there. So you
cannot consider that. You must go back in the jury deliberation room and look at what
you have in front of you and decide, did they prove this case. And the fact that they
didn‟t — tried to get witnesses and weren‟t able to does not give you credence to then
gloss over that and then — and assume that what they said would have helped them prove
this case.”
       In her final summation, the prosecutor responded to defense counsel‟s argument as
follows: “We can speculate all we want about Jakeira Green and Jamila Green. You
didn‟t hear from them, obviously. We know that Jakeira Green, from the evidence, was
upset when the defendant was arrested. And she wasn‟t here despite the efforts of my
office and the law enforcement agency to find her. And the same goes for Jamila Green.
You might wonder and — you‟re not to speculate, because that‟s not evidence, but what I
will tell you is that the defense doesn‟t have to call a single witness. They don‟t have the
burden of proof. But if they want to, they have the power to subpoena anybody they
want, if they want to. They don‟t have to. They don‟t have to do anything.”
       After the trial court overruled an objection made by defendant, the prosecutor
continued: “Yes. The defense, as I was saying, has no burden of proof, but they are

                                              7
entitled and they do have the power to subpoena witnesses on their own behalf, logically,
witnesses that they would want to call. They don‟t have to, but they can. That‟s neither
here nor there, in a way, because neither side — you heard from the People‟s witnesses
that attempts were made to find these two witnesses, and those attempts were
unsuccessful. But you actually got to hear from witnesses who were completely
unrelated to the defendant and that‟s better, in a way, than hearing from people who are
— like Jakeira Green dating the defendant, right, or people who are related to the
defendant‟s girlfriend, people with a potential bias or motive. You heard from
completely independent neutral witnesses with no motive to lie, with no reason to come
in here and tell you anything but the reality of their observations.”


B. Relevancy
       To be admissible, evidence must be relevant. (Evid. Code, § 350; People v. Tully
(2012) 54 Cal.4th 952, 1010; People v. Lewis (2001) 25 Cal.4th 610, 639-640.)
“„Relevant evidence‟ means evidence . . . having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.)
       Evidence that is proffered to prove or disprove a disputed fact in an action is
relevant if “[t]he disputed fact is either an intermediate or ultimate fact that is of
consequence to determination of the action” and “[t]he evidence, in the light of logic,
reason, experience, or common sense, has, by reasonable inference, a tendency to prove
or disprove the disputed fact.” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th
ed. 2009) Relevancy and General Principles of Evidence, § 21.16, p. 354; accord, People
v. Hill (1992) 3 Cal.4th 959, 987-988, overruled on other grounds in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
       “The court must exclude irrelevant proffered evidence which has a tendency to
prove or disprove a disputed fact only if the trier of fact must draw speculative or
conjectural inferences from it. [Citation.]” (People v. Parrison (1982) 137 Cal.App.3d
529, 539; 1 Jefferson, Cal. Evidence Benchbook, supra, Relevancy and General

                                               8
Principles of Evidence, § 21.17, p. 354 [“Proffered evidence is not relevant if it has a
tendency to prove or disprove a disputed intermediate or ultimate fact of consequence to
determination of the action only by resort to inferences or deductions from that evidence
that are speculative or conjectural in nature.”].)
       The trial court has wide discretion in determining whether evidence is relevant.
(People v. Booker (2011) 51 Cal.4th 141, 187; People v. Lomax (2010) 49 Cal.4th 530,
581.) The trial court has no discretion to admit irrelevant evidence. (People v. Blacksher
(2011) 52 Cal.4th 769, 819.)


C. Analysis
       On appeal, we review the trial court‟s decision to admit evidence under the abuse
of discretion standard. (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) An
abuse of discretion occurs when the trial court‟s ruling falls outside the bounds of reason.
(People v. Benavides (2005) 35 Cal.4th 69, 88.)
       In this case, the disputed material fact was whether defendant was residing with
Jakeira in July, August and September 2011, the months during which he registered
solely as a transient sex offender. Defendant contends that “[a] witness provides relevant
evidence through his or her testimony” and that “[t]he fact that a witness testified or how
the witness got to court is not relevant.” Defendant further observes that “[a] witness not
testifying does not provide relevant information.” We agree in this case.
       Evidence of the efforts made to secure Jakeira‟s and Jamila‟s appearance at trial
had no tendency in reason to prove or disprove whether defendant resided with Jakeira,
and had the potential of allowing the jurors to speculate as to why the two sisters did not
appear in court. Because this evidence was irrelevant, the trial court abused its discretion
in admitting it. (People v. Blacksher, supra, 52 Cal.4th at p. 819; People v. Parrison,
supra, 137 Cal.App.3d at p. 539.)
       Prejudice is not presumed, however. It must be affirmatively demonstrated
(People v. Bell (1998) 61 Cal.App.4th 282, 291), and defendant has failed to make the
required showing. Reversal of the judgment is only required if the erroneous admission

                                               9
of evidence is prejudicial, resulting in a miscarriage of justice. (Evid. Code, § 353; Cal.
Const., art. 6, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) It is a miscarriage of
justice if a result more favorable to defendant would have been attained in the absence of
error. (Watson, supra, at p. 836.)
       In this case, the evidentiary error unquestionably “was harmless in light of the
strong evidence of defendant‟s guilt.” (People v. Homick (2012) 55 Cal.4th 816, 872;
accord, People v. Weaver (2001) 26 Cal.4th 876, 946.) The testimony of Davis and Ross,
both impartial witnesses, amply established that defendant was residing with Jakeira
during July, August and September 2011. That testimony, along with the testimony of
the REACT officers that defendant registered as a transient during those months,
established that defendant was guilty of the crimes with which he was charged.
       In addition, the trial court instructed the jury to determine the facts “based only on
the evidence that has been presented to you in this trial,” and to “not let bias, sympathy,
prejudice, or public opinion influence” its decision. (CALCRIM No. 200) The trial court
also instructed the jury that defendant was presumed innocent and that the People had the
burden of proving his guilt beyond a reasonable doubt. (CALCRIM No. 220) The jury
received instructions regarding the sufficiency of circumstantial evidence and the
requirement that the People prove each element of the crime beyond a reasonable doubt,
as well as how to evaluate a witness‟s testimony. In addition, the trial court instructed the
jury that “[n]either side is required to call all witnesses who may have information about
the case or to produce all physical evidence that might be relevant” (CALCRIM No. 300)
and that “[t]he testimony of only one witness can prove any fact” (CALCRIM No. 301).
We presume that the jury understood and followed these instructions. (People v. Homick,
supra, 55 Cal.4th at p. 853.)
       And finally, in her final summation to the jury, the prosecutor stressed that it was
not to speculate about what Jakeira and Jamila would have said since speculation was not




                                             10
evidence.5 The prosecutor urged the jury to focus on the actual evidence before it,
particularly the testimony of Davis and Ross. In her summation to the jury, defense
counsel emphasized that the absence of Jakeira and Jamila did not lessen the
prosecution‟s burden of proof and that the jury could not assume that they would have
given testimony favorable to the prosecution.
       We conclude that based upon the strength of the evidence presented at trial, the
instructions provided to the jury and counsels‟ summations to the jury, it is not
reasonably probable that a result more favorable to defendant would have occurred if the
challenged testimony of Detective Falvo and Investigator Arnwine had been excluded.
The error in admitting this testimony was “manifestly harmless.” (People v. Weaver,
supra, 26 Cal.4th at p. 946.)


                                     DISPOSITION


       The judgment is affirmed.



                                                  JACKSON, J.


We concur:



              WOODS, Acting P. J.



              ZELON, J.



5      This was a correct statement of the law. (People v. Waidla (2000) 22 Cal.4th 690,
735 [“„speculation is not evidence‟”]; People v. Fielder (2004) 114 Cal.App.4th 1221,
1234.)

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