Filed 2/11/16 P. v. Jasper CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A143146
v.
KENNETH JASPER, (Contra Costa County
Super. Ct. No. 51403237)
Defendant and Appellant.
A jury found defendant Kenneth Jasper guilty as charged of possessing a forged
driver’s license (Pen. Code, § 470b), and the personal information of more than ten
people with the intent to defraud (Pen. Code, § 530.5, subd. (c)(3)). The trial court
thereafter found true an enhancement allegation that defendant had a prior robbery
conviction that qualified as a strike under the “Three Strikes” law (Pen. Code, §§ 667,
1170.12) and the habitual offender statute (Pen. Code, § 667.5). Defendant was
sentenced to state prison for an aggregate term of five years. He contends the trial court
committed instructional error, and the prosecutor committed misconduct in her closing
argument to the jury. Recognizing that the misconduct claim may be deemed forfeited
because his trial counsel objected to only one of the alleged instances of misconduct,
defendant asserts his counsel was constitutionally incompetent. We conclude there was
no instructional error, and no misconduct, and we affirm.
BACKGROUND
The salient circumstances are not in material dispute and are easily recounted.
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Information that came to the attention of Concord law enforcement authorities
caused them to obtain a warrant authorizing a lawful search of defendant’s Pittsburg
residence. Detectives Thoms and Sherwin were among the officers who conducted the
search. Defendant was present, and told Thoms that he resided there with his girlfriend,
Diana Barros, and that his children were frequent visitors. Sherwin and Thoms testified
that Barros was also present, as was an individual identified as Lisa Clayworth. From his
observance of personal items and the condition of the bedrooms, Sherwin concluded that
“several people” were living there.
In the master bedroom, Thoms discovered “a passport belonging to somebody that
was not present . . . along with a checkbook belonging to another individual that was also
not present.” She also found two driver’s licenses, and a Fannie Mae mortgage
application. The two driver’s licenses had photos of Barros, but the names on the
licenses were of other people The Fannie Mae mortgage application was not in either
defendant’s or Barros’s name, but used the name on one of the forged driver’s licenses.
In a second bedroom, officers located a footstool with a storage compartment. The
footstool contained numerous gift cards and credit cards, a magnetic stripe reader and
encoder device, a couple of small spiral bound notebooks, a Wells Fargo consumer
account application with the name “Phu Phan” on the documents, and checks. Some of
the cards appeared to have been modified by manually removing the raised numbering
(embossing) on the cards and re-embossing over the removed numbers. Other cards had
the information contained in their magnetic stripes modified. One card had an embossed
name that appeared to have been partially removed and the name “Ernesto” embossed in
its place. When officers later read that card’s magnetic stripe, it contained defendant’s
name. The notebooks contained personal identifying information for persons other than
defendant or Barros.
In a room next to the kitchen, officers found the supplies necessary for making
false identifications and credit cards as well as tools to alter credit cards and transform
gift cards into credit cards. They also found a number of California driver’s licenses—
some of which were partially completed—and strips of transparent plastic which had
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State of California seals similar to those found on California driver’s licenses. Some of
the California driver’s licenses were real, but Sherwin confirmed that most were
counterfeit. Two of the licenses, one laminated and the other in the process of being
laminated, had defendant’s pictures on them. One of the licenses, bearing the name “Ray
Anthony Juachon,” bore defendant’s photograph. The black notebook found on the desk
contained the names and personal information of approximately 38 individuals. Twelve
of those individuals testified that defendant’s possession of their personal information was
not authorized by them. The information was used to open accounts, and in some
instances charge goods and services.
Defendant did not testify, or present any evidence on his behalf.
REVIEW
The Claimed Instructional Error
The jury was instructed with CALCRIM Nos. 400 and 401, as follows:
“A person may be guilty of a crime in two ways. One, he or she may have directly
committed the crime. I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the crime.
“A person is guilty of a crime whether he or she committed it personally or aided
and abetted the perpetrator.
“To prove that the defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid
and abet the perpetrator in committing the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.
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“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.
“If all of these requirements are proved, the defendant does not need to actually
have been present when the crime was committed to be guilty as an aider and abettor.
“If you conclude that defendant was present at the scene of the crime or failed to
prevent the crime, you may consider that fact in determining whether the defendant was
an aider and abettor. However, the fact that a person is present at the scene of a crime or
fails to prevent the crime does not, by itself, make him or her an aider and abettor.”
Defendant contends giving these instructions constituted prejudicial error “because
there was no evidence that defendant aided and abetted another’s possession of identity
theft items.” At best, defendant argues there was only evidence that he was a “co-
resident” with Barros, given that the prosecution presented no evidence that he
“controlled” the premises or possessed the items found therein. Thus, “while there was
evidence that another individual [i.e., Barros] might have been the perpetrator, there was
no evidence [defendant] aided her unlawful possession.”
Defendant tries to atomize the evidence, examining each item, room by room, to
try to fix who was more likely the item’s owner, and thus deserving of more criminal
attribution. The emphasis on ownership or control of the items is largely beside the
point, because “neither ownership nor physical possession is required to establish the
element of possession,” plus, “[t]wo or more persons may be in joint constructive
possession of a single item of personal property . . . .” (People v. Scott (2009) 45 Cal.4th
743, 749–750.) Even the authorities that speak of a defendant’s dominion or right to
control an object do not require that the dominion or right to control be exclusive: it can
be joint or partial. (E.g., People v. Rogers (1971) 5 Cal.3d 129, 133–134; People v.
Showers (1968) 68 Cal.2d 639, 643–644.)
In any event, as will appear, defendant appears to concede that he knew of what
was going on in his home. In light of this apparent concession, the crucial issue in aiding
and abetting is intent, which, like possession, is to be determined from the totality of the
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circumstances. (See, e.g., People v. Rollo (1977) 20 Cal.3d 109, 120; People v. Green
(1995) 34 Cal.App.4th 165, 181; People v. Peloquin (1969) 270 Cal.App.2d 610, 612.)
Defendant is therefore mistaken in emphasizing the absence of evidence demonstrating
that he had “legal control of the property. . . . owned the property, paid the mortgage on
the property, paid rent on the property, or was named on a lease for the property . . . .”; in
short, that he “had a superior possessory interest that he provided to Barros.” The
presence, or absence, of such indicia is not dispositive. Because defendant’s premise is
wrong, so is his conclusion that “the jury could not properly infer from the evidence
presented that appellant provided Barros with anything, let alone a safe place to carry out
her criminal enterprise.”
Defendant labels as “an incorrect legal theory” any suggestion “that because [he]
knew of Barros[’s] activities, this was sufficient to prove that he aided her by providing
her with a safe place to conduct her activities.” And, he claims, it is likewise “improper
to imply that mere knowledge of criminal activities taking place in a defendant’s
residence satisfies the elements of specifically intended [sic] to further another’s
wrongdoing.” These are incomplete straw man arguments. CALCRIM No. 401 clearly
told the jury that was what needed was knowledge, intent, and actual aid, facilitation,
promotion, encouragement, or instigation of the charged criminality.
Defendant told Detective Thoms he “lived there with . . . Barros.” Nothing
compelled the jury to view defendant as an innocent bystander who merely happened to
occupy living space with Barros at the same address. As the prosecutor argued: “To
claim that somehow the defendant doesn’t know that these items are present in his home
is beyond reason and is not a reasonable interpretation of the facts here before you.”
[¶] . . . [¶] “[Defense] counsel is asking you to believe that the defendant is walking
around his home without knowing these items are there, without, at a minimum, being
involved.” Besides, the instructions allowed the jury to come to precisely that
conclusion—“the fact that a person is present at the scene of a crime or fails to prevent
the crime does not, by itself, make him or her an aider and abettor.”
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The names of defendant and Barros were intermingled with the incriminating
items found during the search of defendant’s home. It is no stretch to see defendant and
Barros as being equally knowledgeable about what was going on inside the house, and
equally involved. It was just as plausible to see defendant as aiding and abetting Barros
as that she was aiding and abetting his criminal enterprise. Again, quoting the
prosecutor: “[I]f I’m understanding correctly, the [defense] argument is that since some
of the cards were in a female’s name with a picture of Ms. Barros, then that must mean
that . . . she’s the one creating those documents and running this identity theft
business . . . . [¶] I think our common sense tells us the person who is running the
identity theft business isn’t going to only make cards for himself . . . .” Flipping this
logic, because defendant’s name were found on some incriminating items, it would be
equally justified to see him as the agent to Barros’s principal.
“The court has a sua sponte duty to instruct on aiding and abetting when the
prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35 Cal.3d
547, 560–561 . . . .)” (CALCRIM No. 401 (2015 ed.), Bench Notes, p. 158, bold type
omitted.) Which the prosecution here obviously did.
And, if it was Barros whom the jury saw as the aider and abettor, that would make
defendant the direct perpetrator, and the jury would, as instructed with CALCRIM
No. 200, disregard the theory that defendant was an aider and abettor to Barros, and find
him guilty as the direct perpetrator. There was no error.
The Claimed Prosecutorial Misconduct
According to defendant, “In the People’s closing argument, the prosecutor argued
appellant must have knowingly possessed the hand gun, forged license and notebook of
names and identity information. The defense argued that there was a doubt whether
appellant knew of the items found in the house because they were concealed, not out in the
open, and there was evidence that Barros may have possessed them instead. In rebutting
this argument, the prosecutor engaged in several distinct manners of improper argument:
(1) she shifted the burden of proof by suggesting appellant needed to prove that Barros
possessed the items, (2) she shifted the burden of proof by focusing on the reasonableness of
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the People’s interpretation of the evidence, (3) she misstated the law regarding the
presumption of innocence, (4) she pointed to facts not in evidence to speculate why
appellant’s name might have appeared on the magnetic stripe of a card found in the
footstool, and (5) she urged the jury to use gender-based stereotyping in evaluating the
evidence to find that appellant—a male, not Barros—a female, possessed the items.”
Actually, defendant makes it clear he is not challenging any statements made by the
prosecutor in the first part of her argument; the objectionable remarks were confined to
what defendant calls the prosecutor’s “rebuttal closing argument.” However, defendant
recognizes he faces an obstacle to the merits being reached.
“ ‘ “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.” ’ [Citation.] ‘Because we do not expect the trial court to recognize and
correct all possible or arguable misconduct on its own motion [citations], defendant bears
the responsibility to seek an admonition if he believes the prosecutor has overstepped the
bounds of proper comment, argument, or inquiry.’ [Citation.]” (People v. Gray (2005)
37 Cal.4th 168, 215.) “ ‘In the absence of a timely objection the claim is reviewable only
if an admonition would not have otherwise cured the harm caused by the misconduct.’ ”
(People v. Hinton (2006) 37 Cal.4th 839, 863.)
Defendant concedes his trial counsel “objected to only one of the instances of
misconduct raised in this argument.” That instance occurred immediately after the
“identity theft business” quoted above, as follows:
“And if I’m understanding correctly, the comment about the card that when
swiped said—would say . . . Kenneth Jasper was presented to you as a reason that maybe
then that’s not—that he’s not the one involved in this identity theft, maybe I
misunderstood that, but I want to make sure it’s clear. If an individual goes to a store and
wants to make a return or get a refund back on a card, maybe there’s some reason that
they think they’re going to get a refund for something. They need a way to get that
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money, that cashier is not going to hand them cash. So they need a card that will swipe
to their own personal account.
“MR. HSIEH: Objection. Assumes facts not in evidence.
“THE COURT: Overruled.
“MS. TOMPKINS [the prosecutor]: So the fact that there’s a card that would read
to Kenneth Jasper is still completely consistent with him being involved in this identity
theft and in no way would negate his involvement. It’s yet another tie to him in yet
another room that shows that he is in fact involved.”
“ ‘Prosecutors have wide latitude to discuss and draw inferences from the evidence
at trial.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 337.) Except for situations with
expert testimony, “jurors are permitted to rely on their own common sense and good
judgment in evaluating the weight of the evidence presented to them.” (People v.
Venegas (1998) 18 Cal.4th 47, 80; see People v. McKinnon (2011) 52 Cal.4th 610, 670
[“We ‘credit jurors with intelligence and common sense.’ ”].) As for reviewing courts,
“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. Samayoa
(1997) 15 Cal.4th 795, 841.) And, “[i]n 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. Frye (1998) 18 Cal.4th 894, 970.)
We think the topic of credit card fraud and the ways it can be facilitated by
identity theft is no longer so arcane that expert testimony is required to make it
comprehensible. The topic is widely addressed in print, as well as television
commercials and programs, and can now be treated as common knowledge. The
prosecutor was simply asking the jurors to call upon that knowledge and make a
reasonable extrapolation. Strictly speaking, the solicited extrapolation may have
exceeded the evidence, but the prosecutor’s remarks did not cross into misconduct. (E.g.,
People v. Hill (1998) 17 Cal.4th 800, 819; People v. Wharton (1991) 53 Cal.3d 522, 567.)
As for the remaining instances of alleged misconduct, defendant submits he should
escape the forfeiture rule because of the strategically egregious nature of the misconduct,
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and, if that fails, because his trial counsel failed to interpose a timely objection to the
misconduct. These efforts are unavailing.
Defendant sees misconduct in the prosecutor advancing the “incorrect legal
theory” already discussed, that mere knowledge establishes aiding and abetting. But we
think the jury recognized the prosecutor’s argument was just that, argument, and that the
law to be applied came in the form of the court’s instructions. The jury was instructed
with CALCRIM No. 200 that “You must follow the law as I explain it to you . . . . If . . .
the attorneys’ comments on the law conflict with my instructions, you must follow my
instructions.” The prosecutor reiterated the point: “the judge . . . has the final say and the
only say on what the law is.” “ ‘When argument runs counter to instructions given a jury,
we will ordinarily conclude that the jury followed the latter and disregarded the former,
for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to
persuade.” ’ ” (People v. Centeno (2014) 60 Cal.4th 659, 676.) This presumption is
especially potent here, for the jury did not convict defendant of another illegal
possession, that of stolen property. (For this reason we do not address instances of
alleged misconduct directed at this charge.)
Defendant asserts that the prejudicial consequences of this “incorrect legal theory”
are that the prosecutor thereby “shifted the burden of proof, undercut the presumption of
innocence and urged improper inferences.” And that the prosecutor also “misrepresented
the law,” and, indeed, “relied heavily on gender-based stereotypes in arguing that it was
appellant, not Barros, who was responsible for the items found in the home.” Defendant
is putting the worst construction on the prosecutor’s remarks. However, having carefully
reviewed the entirety of the prosecutor’s argument, we think it exceedingly unlikely that
the jury viewed those remarks in the same manner. (People v. Frye, supra 18 Cal.4th
894, 970; People v. Samayoa, supra, 15 Cal.4th 795, 841.) On the contrary, they were
within the prosecutor’s “ ‘wide latitude to discuss and draw inferences from the evidence
at trial.’ ” (People v. Wilson, supra, 36 Cal.4th at p. 337.) In short, the remarks cannot
fairly be characterized as improper.
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The prosecutor was not “undercutting” the presumption of innocence by arguing
“that presumption is lifted as soon as you believe sufficient evidence has been presented
to you.” The context makes clear that “sufficient evidence” means the evidence the
prosecutor had presented, and believed, that proved defendant’s guilt beyond a
reasonable doubt. The prosecutor was only asking the jury to agree with this conclusion.
She was not telling the jury the presumption ceased to apply once the prosecution had
presented any evidence. Nor was she, as occurred in People v. Dowdell (2014)
227 Cal.App.4th 1388, 1408, telling the jury that the presumption ended before the jury
deliberated. This was not misconduct. (People v. Booker (2011) 51 Cal.4th 141, 185;
People v. Panah (2005) 35 Cal.4th 395, 463.)
It is also pertinent to note that the prosecutor’s remarks about whether defendant
was an aider and abettor was only her fall-back argument. We conclude that, even if
appropriate and timely objection had preserved the issue for review, no misconduct
occurred. Moreover, because there was no misconduct, trial counsel was not ineffective
for not objecting to the prosecutor’s proper argument.
DISPOSITION
The judgment of conviction is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A143146; P. v. Jasper
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