Filed 5/6/15 P. v. Gallon CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067189
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM024999)
                   v.

KENNETH MCKAY GALLON,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
         Maureen M. Bodo, under appointment by the Court of Appeal, Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John
G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Franson, J. and Smith, J.
       Defendant Kenneth McKay Gallon was convicted by jury trial of second degree
burglary (Pen. Code, § 459; count 1) and dissuading a witness by force or threat (Pen.
Code, § 136.1, subd. (c)(1); count 2). The trial court granted him three years’ probation.
On appeal, he contends the prosecutor committed misconduct during closing argument by
(1) implying that defendant might have committed crimes in the past, and (2) arguing that
defendant’s poverty was a motive to commit the crime. We affirm.
                                         FACTS
       On the evening of October 20, 2012, a man grabbed a battery charger from inside
an AutoZone store in Atwater and ran out of the store. John, a customer at the store,
witnessed the crime and ran after the thief. The thief ran toward a white van that was
parked illegally, perpendicular to the parking spaces. The driver’s and passenger’s doors
of the van were open and defendant was standing nearby. Defendant got into the van’s
driver’s seat. The thief dropped the merchandise, approached the van’s passenger’s seat,
and told defendant to “go, go, go, go.” John, however, reached the thief before he could
pull his legs into the van and close the door. John got on top of him and put his hand
around his neck. Defendant was trying to get the van in gear. John, still holding the
struggling thief, reached over and grabbed the keys from the ignition and threw them
onto the roof of the adjacent taco shop. Defendant told John he had a gun. Defendant
reached behind the driver’s seat and told John he was going to shoot him. John then
pulled the thief out of the van and onto the ground, holding him down with his foot.
Defendant got out and walked around the front of the van. John was afraid he had a gun.
John noticed that defendant was a large person and knew he could not restrain both men.
John told defendant to stand back, but he kept coming, so John backed up and released
the thief. People in the taco shop said they were calling the police. The thief got up and
ran away. As the sound of sirens approached, defendant’s demeanor changed
completely; he told John he did not even know these people and he did not know what




                                             2
was going on. An officer arrived, spoke to John, and arrested defendant. No gun was
found in the van and the thief was not located.
Defense Evidence
       A private investigator testified that John said he told defendant he was going to
call the police and defendant told John he was going to call the police too.
       Defendant testified on his own behalf. He said he was 59 years old and had never
been convicted of a crime. He explained that he went to the taco shop in his van. He was
alone and had no plans of meeting anyone. He had bought a Slurpee ice drink at the
AM/PM market. He parked perpendicular to the spaces because his van’s reverse gear
was “kind of shady,” “kind of messed up.” Sometimes it worked and sometimes it did
not. If he had parked properly, he “might have to push [the van] back.” He was drinking
his Slurpee and, before he knew it, two strangers were fighting in his van. John had
chased the other man who then jumped into the van. John was on the man, hitting him.
Defendant thought John was an officer, which is why defendant did everything John told
him to do. Defendant told John to get out of his van because he did not want to be a part
of what was going on. The battery charger was now in defendant’s van; John told
defendant to take the battery charger out of the van and he would let the man go.
Defendant got out of the van because he wanted the men out of his van. He took the
battery charger out of the van and put it on the ground. Defendant let John take his keys
out of the ignition. Defendant was just waiting for officers to arrive.
       Defendant did not know the thief and did not have an agreement to meet him.
Defendant testified, “I’m 59 years old. I don’t steal battery chargers.” He said he did not
invite either of the men to get into his van.
       Then the following colloquy occurred:

              “[DEFENSE COUNSEL]: So you’re telling us you were not part of
       the plot to burglarize or rob the AutoZone on that particular evening?

              “[DEFENDANT:] No.


                                                3
              “[DEFENSE COUNSEL:] All right. You didn’t have any need for
       a battery charger. Was the—does the battery in your car work?

              “[DEFENDANT:] Yes sir.

              “[DEFENSE COUNSEL:] Okay. Now you still own that van?

              “[DEFENDANT:] Yes, sir.

             “[DEFENSE COUNSEL:] Still having problems with the
       transmission?

              “[DEFENDANT:] Every now and then. Yeah.

             “[DEFENSE COUNSEL:] Okay. Do you have the money to get the
       transmission fixed?

              “[DEFENDANT:] No. I’m a truck driver. I’ve been off.

             “[DEFENSE COUNSEL:] Okay. And do you do a little bit of auto
       work yourself on your van to keep it running?

              “[DEFENDANT:] (Moves head up and down.) Yes, sir.

             “[DEFENSE COUNSEL:] Okay. Have you been working on the
       transmission at all?

              “[DEFENDANT:] No. It just leaks a lot of fluid.

              “[DEFENSE COUNSEL:] Leaks fluid?

              “[DEFENDANT:] Fluid, yeah. I was going to get it fixed when I
       get back to work.

              “[DEFENSE COUNSEL:] Very well.”
       Defendant denied threatening John or telling him he had a gun. He was surprised
when John grabbed his keys from the ignition and threw them, because defendant was not
going anywhere. He was waiting for the officers. John damaged the van when he pulled
the keys out. Defendant testified that he was afraid for his own safety during the
incident. He was just sitting there and he did not know what to do. He told the officer he
was having problems with his reverse gear.




                                             4
       On cross-examination, defendant confirmed that he had come from the AM/PM
market where he got a Slurpee. He then stopped by Mandy’s house, even though he did
not know her last name or address. She used to live by him. He also confirmed that he
told the officer that he parked where he did because he had a bathroom emergency and
also was going to buy some food at the taco shop. He testified that he was “sort of
borderline diabetic. It appear[s] every now and then.” He did not know if he ever asked
the officer to use the bathroom. He agreed that the AM/PM market he had come from
had a bathroom and his house was less than one-half mile from the taco shop. He agreed
that his van was parked perpendicular to the parking spaces. His doors were closed and
he was sitting in the van drinking his Slurpee when, about five minutes later, strangers
entered his van.
Argument
       In his opening argument, the prosecutor discussed the evidence and argued that all
of the elements of the two charged offenses were satisfied.
       Next, defense counsel’s argument included the following:

               “I will present for your consideration my argument as to Count 1 in a
       nutshell. And Count 1 is the burglary and there is simply, there is just not
       enough proof that [defendant] is involved in this burglary. There is
       absolutely no motive for him to commit this crime. Nothing has been
       presented to you as to why he would need a battery charger or why he
       would become involved with some other individual who’s never even
       identified. [¶] And I think one of the biggest aspects of this case, one of
       the reasons that I called [defendant] to the witness stand, is to be extremely
       uncharacteristic for [defendant]. [¶] This gentleman is 59 years old and so
       he’s got 41 years of adult life. [Forty-one] years to do something wrong.
       [Forty-one] years to commit a crime.”
       Defense counsel continued by detailing for the “young jury” all of the presidents
who had been in office since 1971 and all of the places the Olympics had been held since
1972. He noted that 41 years is a long time and he could not even remember all of the
Olympic venues. He continued:



                                             5
             “This idea of time in a person’s life where that person has not
      committed an offense, is not convicted of an offense is very significant for
      people that have achieved 59 years and have no record. [¶] Because what
      would be [defendant’s] motivation on October 20th to suddenly for the first
      time in his life to make a decision to commit a crime, to actually commit,
      not the type of crime that happens spontaneously like a battery when you’re
      suddenly in a fight with somebody, but the type of crime that requires
      premedication [sic], preplanning, cooperation with another criminal. The
      desire to help another person achieve a criminal goal. It just does not make
      sense.”
      In his closing argument, the prosecutor explained that the defense interpretation of
the evidence was an effort to encourage the jurors to feel sorry for defendant. Then the
following occurred:

      “[PROSECUTOR:] And that, you know, the portrayal of him [as] being,
      you know, 59 years old and law abiding and, you know, no motive. [¶]
      And just stopping for a second, the Judge did not tell you that I have to
      prove motive. I don’t have to prove motive. But as long as that issue has
      been brought up, you don’t know that [defendant] has been a law abiding
      citizen for 41 years. We don’t know that. It’s not—

            “[DEFENSE COUNSEL]: Your Honor, I’m going to object to this.
      The prosecution has the opportunity to present evidence that he has–

             “THE COURT: Overruled.

             “[DEFENSE COUNSEL]: —any prior conviction.

             “THE COURT: Overruled. Overruled.

             “[DEFENSE COUNSEL]: Well, Your Honor—

             “THE COURT: Overruled.

             “[DEFENSE COUNSEL]: —you’re allowing them to speculate—

             “THE COURT: Overruled.

             “[DEFENSE COUNSEL]: —that he has a criminal record when
      they’re the custodian of that record.

             “THE COURT: No. Overruled.

             “[PROSECUTOR]: What you know is that [defendant] told you that
      he’s not been convicted of any crime. And that’s different from never

                                            6
having committed a crime. That’s different from never having been
arrested for a crime. And I’m not telling you anything different than that.
It’s just not evidence. And so the idea that we have this fine law abiding
citizen, okay, but you don’t know.

        “And the other thing is motive. You know, even though I don’t have
to prove it I have to say, and I didn’t make an issue of this on opening,
because these are very difficult and trying economic times. And when a
person is out of work and when a person has no money to repair a vehicle, I
think it’s—

       “[DEFENSE COUNSEL]: Excuse me, Your Honor, it’s improper to
argue that the poverty of an accused person—

       “THE COURT: What was your objection?

       “[DEFENSE COUNSEL]: Improper argument. It’s improper to
argue that the poverty—

       “THE COURT: No, just state the objection, please.

        “[DEFENSE COUNSEL]: Improper argument. Improper reference
to the poverty of an individual in relation to a motivation, a bald motivation
to commit thievery. It’s not allowed.

       “THE COURT: Well—

       “[PROSECUTOR]: I’ll leave it, Your Honor.

       “THE COURT: Yeah, leave—

       “[PROSECUTOR]: I think I made my point.

       “THE COURT: You made your point.

       “[DEFENSE COUNSEL]: I think the jury should be considered
[sic] not to consider that.

       “THE COURT: Well, I’m going to let the record stand where it is.

       “[PROSECUTOR]: So let me move on.”




                                      7
                                      DISCUSSION
I.     Prosecutorial Misconduct
       “‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.’” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) When the claim
of prosecutorial misconduct is based on comments made before the jury, “we must view
the statements in the context of the argument as a whole” (People v. Dennis (1998) 17
Cal.4th 468, 522), and “‘the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the
most damaging rather than the least damaging meaning from the prosecutor’s
statements.’” (People v. Dykes (2009) 46 Cal.4th 731, 771-772.)
       Under state law, “we may not reverse the judgment if it is not reasonably probable
that a result more favorable to the defendant would have been reached in [the] absence
[of the prosecutorial misconduct]. (People v. Watson (1956) 46 Cal.2d 818, 836 .…)”
(People v. Barnett (1998) 17 Cal.4th 1044, 1133.) If, however, the prosecutorial
misconduct renders the defendant’s trial fundamentally unfair under the federal
Constitution, we must reverse the judgment unless the misconduct is harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Bordelon
(2008) 162 Cal.App.4th 1311, 1323.) “[I]mproper comment that ‘falls short of rendering
the trial fundamentally unfair’ is error under state law. [Citation.] ‘[I]n cases where
jurors are improperly exposed to certain factual matters, the error is usually tested under
the standard set out in People v. Watson[, supra,] 46 Cal.2d 818, 836.’” (People v.
Bordelon, supra, at pp. 1323-1324.)


                                             8
II.    Past Crimes
       Defendant contends the prosecutor committed misconduct during closing
argument by suggesting defendant might have a criminal past, and arguing that not
having been convicted of a crime is different than not having committed a crime.
Defendant says the argument was speculative, misleading, and alluded to facts not in
evidence. He explains that the prosecutor’s comment invited the jury to speculate that he
might have been a criminal with an undisclosed history who had eluded detection and
arrest. Defendant adds that the prosecutor knew what he was arguing was untrue because
the probation officer’s report established that, in fact, defendant had no criminal history
whatsoever.1
       A prosecutor is free to give an opinion on the state of the evidence. He has wide
latitude to comment on the quality of the evidence and the credibility of witnesses as long
as it is a fair comment on the evidence and reasonable inferences or deductions
therefrom. (People v. Bonilla (2007) 41 Cal.4th 313, 336-337; see People v. Martinez
(2010) 47 Cal.4th 911, 957 [prosecutors are allowed a wide range of descriptive comment
and their argument may be vigorous as long as it amounts to fair comment on the
evidence].) The prosecutor “has broad discretion to state its views regarding which
reasonable inferences may or may not be drawn from the evidence.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1026.) “Arguments by the prosecutor that otherwise
might be deemed improper do not constitute misconduct if they fall within the proper
limits of rebuttal to the arguments of defense counsel.” (Ibid.)
       But a prosecutor commits misconduct if he argues facts not in evidence during
closing argument “because such statements ‘tend[] to make the prosecutor his own
witness—offering unsworn testimony not subject to cross-examination. It has been
recognized that such testimony, “although worthless as a matter of law, can be

1      The probation report, prepared after trial, stated: “The defendant has no prior
adult or juvenile history.”


                                              9
‘dynamite’ to the jury because of the special regard the jury has for the prosecutor,
thereby effectively circumventing the rules of evidence.”’” (People v. Hill (1998) 17
Cal.4th 800, 828; People v. Cunningham, supra, 25 Cal.4th at p. 1026.) 2
       For example, in People v. Bolton (1979) 23 Cal.3d 208 (Bolton), defense counsel
had been allowed to impeach the victim with the victim’s prior felonies. In his closing
argument, the prosecutor hinted that, if it were not for “‘certain rules of court,’” he could
show that the defendant was “‘just as bad a guy as [the victim].’” (Id., at p. 212, fn. 1.)
The Supreme Court stated: “There is no doubt that the prosecutor’s statement constituted
improper argument, for he was attempting to smuggle in by inference claims that could
not be argued openly and legally. In essence, the prosecutor invited the jury to speculate
about–and possibly base a verdict upon–‘evidence’ never presented at trial. Appellant, in
fact, had no prior criminal record.”3 (Id. at p. 212.)
       Here, defendant testified that he had never been convicted of a crime and that he
was not involved with this particular crime. Then during argument, defense counsel
argued that committing this crime would have been “extremely uncharacteristic” of
defendant. Counsel explained that defendant had 41 years to do something wrong or
commit a crime. He stressed that 41 years is a very long time, marked by the passage of
many presidential terms and Olympic venues, and it is significant that a person achieves
the age of 59 without committing an offense or being convicted of an offense.
       Although defense counsel’s argument was not an entirely accurate comment on
the evidence (which did not establish that defendant had not done anything wrong in
41 years), we believe the prosecutor’s response to the comment came dangerously close
to inviting the jury to speculate that defendant had engaged in bad behavior not reported

2      Although a prosecutor may not argue matters outside the record, he may argue
inferences from the evidence, or matters that are drawn from common experience,
history, or literature. (People v. Williams (1997) 16 Cal.4th 153, 221.)
3     The court found the misconduct harmless under any standard. (Bolton, supra, 23
Cal.3d at p. 214.)


                                             10
in his record, and to suggesting the prosecutor had information about that bad behavior.
The trial court provided no admonition to cure any possible prejudice resulting from the
comment.
       But even assuming the prosecutor’s comment constituted misconduct, we
conclude it was nevertheless harmless under any standard. The evidence against
defendant was overwhelming. John testified in detail to the entire incident, explaining
that he saw defendant waiting outside the van, saw him get into the driver’s seat as the
thief ran toward the van, heard the thief tell defendant to go, and heard defendant threaten
to shoot him if he did not let the thief go. Defendant’s testimony, on the other hand, was
undermined by some of his own explanations, such as his testimony that he stopped for a
bathroom emergency because he was sort of borderline diabetic, but he had bypassed
other available facilities and then sat in his van drinking a Slurpee. Under these
circumstances, we are confident beyond a reasonable doubt that, had the prosecutor not
made the comment, the jury would have reached the same verdicts. (See Bolton, supra,
23 Cal.3d at p. 214 [“Whatever test of prejudice this court applies to the present case, it is
certain that any reasonable jury would have reached the same verdict even in the absence
of the prosecutor’s remarks.”].)
III.   Poverty as Motive
       Defendant also contends the prosecutor committed misconduct by arguing that
defendant’s poverty was a motive to commit the burglary. Again, we conclude defendant
was not prejudiced by any misconduct.
       As detailed above, defendant testified he parked perpendicular to the parking
spaces because his transmission was giving him trouble. He also testified that at the time
of trial he was still having trouble with the van’s transmission because he could not
afford to fix it since he had been out of work. He also testified that he was not involved
in the crime, explaining, “I’m 59 years old. I don’t steal battery chargers,”
       In his opening argument, the prosecutor did not mention motive.


                                             11
       But then defense counsel argued there was absolutely no motive for defendant to
commit this crime and nothing had been presented to the jury to explain why defendant
would need a battery charger or get involved with a thief. Counsel asked the jurors what
would motivate defendant, after 41 years of crime-free living, to suddenly and for the
first time in his life decide to commit this crime.
       In response, the prosecutor argued that he did not have to prove motive, but as
long as it had been brought up, he had to say that the economic times were difficult and
when a person is out of work and has no money to repair a vehicle. Defense counsel
interrupted, objecting that it was improper to argue poverty as a motive to commit theft.
       “Ordinarily, ‘[e]vidence of a defendant’s poverty or indebtedness, without more, is
inadmissible to establish motive for robbery or theft because it is unfair to make poverty
alone a ground of suspicion and the probative value of the evidence is deemed to be
outweighed by the risk of prejudice.’” (People v. Clark (2011) 52 Cal.4th 856, 929.)
There are, however, “circumstances under which evidence of a defendant’s
unemployment or financial status is relevant and admissible to a charge of robbery,” such
as “the limited purpose of rebutting an assertion that he did not commit the charged
robberies because he did not need money,” and “to eliminate legitimate explanations for
his sudden possession of an unusually larger amount of money after the robbery.” (Ibid.,
fn. omitted.)
       Again, we need not decide whether the prosecutor’s argument was misconduct
because we conclude any error was harmless. The prosecutor did not present evidence on
defendant’s poverty, but only commented on it during argument; he did not make the
comment until his final argument; the comment was brief; and defense counsel objected
at length. And, as explained above, the case against defendant was compelling.
                                      DISPOSITION
       The judgment is affirmed.




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