People v. Davidson CA2/4 ( 2023 )

Filed 7/28/23 P. v. Davidson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B320012
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA103043)
v.
SEAN ALLEN DAVIDSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Hector Guzman, Judge. Reversed in
part.
Corey J. Robins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and David E.
Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________
Appellant Sean Allen Davidson, a registered sex
offender, was convicted of failing to report a new residence
under Penal Code1 section 290, subdivision (b), and failing to
report to the last registering agency a change from one
residence to another under section 290.013. The trial court
suspended imposition of sentence and placed appellant on
formal probation, with the condition he serve a 90-day jail
term.
Appellant raises nine issues, contending:
(1) insufficient evidence supports his conviction under either
section 290 (count one) or section 290.013 (count two); (2) the
statutory definitions of “residence” or “resides” are
impermissibly vague; (3) the trial court erred in denying his
midtrial request for a mistrial or continuance; (4) the trial
court erred in allowing the prosecutor to cross-examine a
defense witness on her knowledge of appellant’s 2013
conviction; (5) the court erred in allowing Officer Stephen
Ott to offer legal opinions regarding the requirements of
section 290; (6) the trial court erroneously admitted various
lines of testimony given by Detective Ryan Harrison that
were tantamount to his opinion that appellant was guilty of
1 All further statutory references are to the Penal Code unless
otherwise specified.
2
the offenses; (7) the court improperly instructed the jury
with CALCRIM No. 333, an instruction on lay opinion
testimony; (8) the prosecutor committed misconduct during
the presentation of evidence and closing argument; and (9) a
series of errors, even if independently harmless,
accumulated in such a manner as to deprive him of his right
to a fair trial.
We conclude the evidence does not support appellant’s
conviction under count two, section 290.013 (a). The plain
language of that statute does not apply to a defendant who,
like appellant, is registered as transient and then moves into
a residence. Accordingly, we order that count dismissed.
Discerning no cognizable or reversible error in the remaining
claims, many of which have been forfeited, we otherwise
affirm the judgment.
SEX OFFENDER REGISTRATION REQUIREMENTS
The Sex Offender Registration Act (§ 290 et seq.;
hereafter, the Registration Act) requires individuals
convicted of certain offenses to register as sex offenders.2
(§ 290.) Subdivision (c) of section 290 includes any person
2 Section 290, subdivision (b) states: “Every person described in
subdivision (c) . . . while residing in California, … shall register with
the chief of police of the city in which the person is residing . . . and,
additionally . . . within five working days of coming into, or changing
his or her residence within, any … city … in which he or she
temporarily resides, and shall be required to register thereafter in
accordance with the Act.”
3
convicted of lewd conduct on a child under section 288
(or former § 288(a)). (§ 290, subd. (c).)
All sex offenders, including those who have a residence,
must register once a year within five working days of the
offender’s birthday (§ 290.012, subd. (a)), but transient sex
offenders must register once every 30 days in addition to the
annual birthday registration (§ 290.011, subds. (a), (c)).
“A transient who moves to a residence shall have five
working days within which to register at that address … .”
(§ 290.011, subd. (b).) “‘Residence’ means one or more
addresses at which a person regularly resides, regardless of
the number of days or nights spent there, such as a shelter
or structure that can be located by a street address,
including, but not limited to, houses, apartment buildings,
motels, hotels, homeless shelters, and recreational and other
vehicles.” (§ 290.011, subd. (g).)
“[Any] person who is required to register under the act
based on a felony conviction … who willfully violates any
requirement of the act … is guilty of a felony and shall be
punished by imprisonment in the state prison for 16 months,
or two or three years.” (§ 290.018, subd. (b).)
Here, appellant, who was registered as a transient,
was prosecuted and convicted for failing to report his move
to a residential apartment located within the City of
Redondo Beach.
4
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. Overview
In 2013, appellant was convicted of committing a lewd
act with a minor. Appellant submitted his first sex offender
registration with the Redondo Beach Police Department in
February 2015. In 2017, appellant began registering as
transient with Redondo Beach Police and thereafter
registered on a monthly basis, maintaining his status as
transient.
On December 10, 2020, as part of an investigation,
appellant was surveilled entering an apartment located at
an address on North Elena Avenue in Redondo Beach, using
his own key. The apartment was leased by appellant’s
friend, Dawn Suskin. After further investigation, appellant
was arrested for failing to register the apartment as his
residence.
2. Appellant’s December 2020 Registration
Stephen Ott worked for the Redondo Beach Police
Department as a community services officer assigned to the
jail. His responsibilities included registering sex offenders
who lived in Redondo Beach and updating their profiles in
the California Sex and Arson Registry (CSAR). Ott
estimated appellant had previously registered more than 30
times, and Ott had personally registered appellant about 15
times. On December 10, 2020, appellant updated his
registration at the police station. Ott gave appellant a
5
registration packet, which appellant signed and returned.
Appellant indicated there were no changes and he remained
a transient with no new address.
3. Subsequent Arrest for Registration Violation
Redondo Beach Detective Ryan Harrison investigated
sex crimes and monitored sex offenders that registered
within the city. In December 2020, Detective Harrison
investigated whether appellant was either residing or
located within the city. The detective reviewed appellant’s
previous registration forms and saw appellant began
registering in Redondo Beach as a transient in 2017,
continuing this status on a monthly basis thereafter. On
several of his 2020 registration forms, appellant indicated he
frequented a restaurant and grocery store in a shopping
center at Beryl and North Pacific Coast Highway and slept
in his vehicle. Appellant’s driver’s license and vehicle
registration forms returned to a UPS store mailbox address
located in that same shopping center.
On December 10, 2020, Detective Harrison was
informed appellant had come into the Redondo Beach police
station for his monthly transient registration. When
appellant left the station, officers followed him to an
apartment complex on North Elena. Appellant walked to the
door of an apartment, unlocked it with a key, and went
inside.
Wearing a body camera recording device, Detective
Harrison approached the apartment to speak with appellant
6
and conduct a compliance check. The video was played for
the jury.
Appellant said he slept in his car and visited Suskin’s
apartment during the day, with her permission. He said he
was “basically [there] every day,” stating the apartment was
the only place he could go to avoid COVID. He indicated
everything in an upstairs bedroom, including clothing,
belonged to him. Appellant also stated that he was
concerned Suskin’s address would show up on the sex
offender registration.
Appellant said “we,” meaning himself and Suskin, had
no weapons in the home and referred to the cat as “our cat.”
Mail found at the apartment was addressed to appellant at
his UPS mailbox address. Appellant’s cell phone, wallet,
keys, and his mail were in a desk drawer in the bedroom.
Appellant stated a desktop computer in the bedroom
belonged to him. Detective Harrison determined appellant
had registered incorrectly and arrested him.
On March 3, 2022, at 6:30 a.m., Detective Harrison
served a subpoena for Suskin at the Elena Street address.
Appellant answered the door, stating he had just arrived 10
minutes earlier and that Suskin was asleep. Appellant told
police he had parked around the corner, but officers were
unable to locate his car.
4. Witness Testimony
In Fall of 2019, John Lesser moved to an apartment
two doors down from Suskin’s apartment. On December 10,
7
2020, Lesser told a detective he believed both appellant and
Suskin lived there.3 Lesser typically saw appellant once or
twice a week in the apartment complex, which is as often as
he sees his other neighbors. Lesser also saw appellant
working on his car in the parking space allotted for Suskin’s
apartment. However, after speaking with appellant and
Suskin, Lesser did not “still believe” that appellant
“currently” lives there. Lesser had not seen appellant’s car
there in a while.
B. Defense Evidence
Appellant did not testify. Dawn Suskin testified that
she and appellant had been friends since around 2003. She
was aware appellant had been convicted of a crime and that
he was required to register as a sex offender. Before his
conviction in 2013, appellant was homeless at times, and
Suskin let him sleep in her living room.
Suskin moved to her apartment on Elena in 2014. In
2015, Suskin picked appellant up “from his release” and
brought him to her apartment where he would visit during
the day, while sleeping on the street at night. For several
years, appellant lived at the Veteran's Association (VA).
Beginning in 2018 or 2019, appellant was no longer
able to stay at the VA, so he started spending time at her
3 Under the Registration Act, “[a] person who is required to
register under the act who willfully violates any requirement of the act
is guilty of a continuing offense as to each requirement he or she
violated.” (§ 290.018, subd. (j).)
8
home almost daily, while sleeping in his car. Suskin told
appellant that he could use her apartment but could not live
there because Suskin did not want her address listed on the
sex offender registry. Appellant typically came to her
apartment early in the morning, around 6:00 a.m., to use the
bathroom and have coffee. Suskin had insomnia and did not
believe appellant ever stayed the night. She gave appellant
an apartment key so he had access to a restroom during the
day.
Suskin further testified appellant was on parole for five
years starting in April 2015 and terminating in April 2020.4
Suskin stated while appellant was on parole, officers
periodically contacted her (either in person or by phone) to
ensure appellant was not there “more than he should have
been.” At some point “possibly” during the last two years of
appellant’s parole, Suskin was told by a parole officer that
appellant could not be there between 10:00 p.m. and 6:00
a.m. Suskin assumed this to mean appellant could visit her
as long he did not stay overnight. She assumed this
continued to hold true after appellant was off parole. Suskin
was not aware of appellant ever being at her home during
those hours.
However, in December 2020, just before appellant was
arrested, appellant stayed overnight at Suskin’s apartment
4 Suskin testified she believed appellant was released around
April 2015 and assumed his parole therefore ended in April of 2020.
However, records established appellant began to register as a sex
offender in February 2015.
9
for about six nights over a three-week period. Suskin and
appellant were concerned about appellant being outside
during the COVID-19 pandemic. She believed there were no
hotels open in the area.
C. Charges and Verdicts
In an information filed on September 29, 2021,
appellant was charged with failure to register within five
days of coming into a new address (§ 290, subd. (b); count 1)
and failure to notify the last registering agency of a change
of address. (§ 290.013, subd. (a); count 2). Following a jury
trial, appellant was found guilty as charged. At the
sentencing hearing on April 4, 2022, the court suspended
imposition of sentence and placed appellant on formal
probation for a term of two years, with the condition he serve
a 90-day jail term. Appellant timely appealed.
DISCUSSION
A. Sufficiency of Evidence
Appellant contends there was insufficient evidence to
support his conviction under either count because the
prosecution failed to establish he (1) “resided” at Suskin’s
home and (2) “willfully” violated the registration
requirements. Appellant separately argues that even if
these two requirements were met, his conviction on count
two must nevertheless be reversed because section 290.013
applies only where a registrant changes from one residence
to another, whereas appellant, if anything, changed from
10
transient status to a residential address. We agree with the
latter contention, but not the first. Accordingly, we reverse
the conviction as to count two, but affirm on count one.
1. Relevant Legal Principles
The elements of failing to register as a sex offender are
the defendant: (1) was required to register as a sex offender;
(2) the defendant knew he had a duty to register “‘every
residence at which he regularly resides, regardless of the
number of days or nights spent there’”; and (3) the defendant
“‘willfully failed to register . . . every residence at which he
regularly resides.’” (People v. Gonzales (2010) 183
Cal.App.4th 24, 32, italics omitted.) A willful violation
occurs when the offender “actually know[s] of the duty to
act” and “what act is required to be performed” (People v.
Garcia (2001) 25 Cal.4th 744, 752) but the willfulness
element is not negated by “just forgetting to register.”
(People v. Barker (2004) 34 Cal.4th 345, 350.)
In reviewing a sufficiency of the evidence claim, “[w]e
view the evidence in the light most favorable to the
prosecution, and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from
the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015,
1028.) In so doing, we neither question the credibility of
witnesses nor reweigh the evidence. (People v. Navarro
(2021) 12 Cal.5th 285, 302.) We must affirm the conviction if
the circumstances reasonably support the jury’s findings,
even if the circumstances might also be reconciled with a
11
contrary finding. (People v. Jiminez (2019) 35 Cal.App.5th
373, 392.)
2. The Evidence Is Sufficient to Support the
Conviction of Count One
Appellant was convicted in count one of violating
section 290, subdivision (b) which provides, in pertinent
part: “Every person described in subdivision (c), [for the rest
of his or her life] while residing in California, … shall [be
required to] register with … the sheriff of the county …
within five working days of coming into, or changing [his or
her] residence within, any … county … in which [he or she]
temporarily resides, and shall be required to register
thereafter in accordance with the Act.” (§ 290, subd. (b).)
Under section 290.011, “[a] transient who moves to a
residence shall have five working days within which to
register at that address, in accordance with subdivision (b) of
Section 290.” (§ 290.011, subd. (b).)
The prosecutor argued appellant failed to change his
registration from transient to residing at Suskin’s
apartment.
a. Appellant “Resided” at Suskin’s Apartment
As indicated at the outset of our opinion, “residence”
under the Registration Act is defined as “one or more
addresses at which a person regularly resides, regardless of
the number of days or nights spent there.” (§ 290.011, subd.
(g).) “This broad definition is consistent with the legislative
12
purpose—to prevent recidivism by allowing law enforcement
authorities to monitor sex offenders at all times.” (People v.
Deluca (2014) 228 Cal.App.4th 1263, 1267 (Deluca); see also
Wright v. Superior Court (1997) 15 Cal.4th 521, 527
[“Ensuring offenders are ‘readily available for police
surveillance’ [citation.] depends on timely change-of-
address notification. . . Compliance is essential to that
objective; lack of compliance fatal”].)
In evaluating whether sufficient evidence supports the
jury’s finding that appellant “regularly resided” at Suskin’s
apartment, we find People v. Gonzales (2010) 183
Cal.App.4th 24 (Gonzales) instructive.
In Gonzales, the defendant registered one address as
his residence on Lurelane Street, but was found guilty of
failing to register a second residence on Fairhaven Street.
During trial, Lurelane neighbors testified the defendant did
not appear to be at home overnight. Another witness
testified he had seen the defendant at the Fairhaven home
numerous times, including “early in the morning or in the
evening.” That witness had even seen the defendant in
“pajamas and house shoes.” (Gonzales, supra, 83
Cal.App.4th at p. 29.) The owner of the Fairhaven home
acknowledged that because the defendant helped her with
her business he was often present between 10:00 a.m. and
8:00 p.m. (Id. at p. 31)
In affirming the judgment, the appellate court held:
“There is ample evidence that defendant spent the night at
the Fairhaven house, and even if he did not, the evidence
13
was more than sufficient to support the jury’s finding that
defendant regularly resided at the Fairhaven home in
violation of section 290, since he spent a great deal of time
there and was at the home on a regular basis.” (Gonzales,
supra, 83 Cal.App.4th at p. 34.)
Similarly here, a reasonable juror could find appellant
resided at Suskin’s apartment within the meaning of
section 290.011, subdivision (g). Suskin’s neighbor, Lesser,
told police appellant and Suskin lived there, and testified he
typically saw appellant as often as he saw other residents in
the building. Suskin herself admitted appellant had a key
and spent most days at her apartment. She further
acknowledged appellant stayed overnight for about six
nights between the end of November 2020 and December 10,
2020, the day of his arrest. Suskin’s apartment was the
location at which law enforcement authorities would have
been able to regularly monitor or locate appellant had he
registered the address.
Further, appellant admitted the items found in the
upstairs bedroom belonged to him, including clothing and a
desktop. In addition, his cell phone, wallet, keys, and mail,
were all found in a desk drawer of the bedroom. Finally, in
speaking with police during the compliance check, appellant
stated, “we don’t have any weapons or anything” and
initially referred to the cat in the apartment as “our Cat
Cleo.” In light of this record, there was substantial evidence
from which the jury could infer that appellant resided at
Suskin’s apartment within the broad meaning of section
14
290.011, subdivision (g). (See Gonzales, supra, 183
Cal.App.4th at p. 34; see also People v. Moore (2016) 6
Cal.App.5th 73, 90 [“it is the jury’s prerogative, not ours, to
weigh the evidence”].)
b. Appellant “Willfully” Violated the Registration
Requirements
“[A] violation of section 290 requires actual knowledge
of the duty to register.” (People v. Garcia, supra, 25 Cal.4th
at p. 752.) “A jury may infer actual knowledge from notice
and other circumstantial evidence.” (People v. Aragon (2012)
207 Cal.App.4th 504, 511 (Aragon); see also People v. Nguyen
(2015) 61 Cal.4th 1015, 1055 [observing, generally, that
“‘[e]vidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as
sufficient as direct evidence to support a conviction’”].)
Appellant argues insufficient evidence supports the
jury’s verdict because “[t]he evidence of [his] actual
knowledge he could be deemed a resident of Suskin’s
apartment was thin at best.” We disagree.
First, the parties stipulated appellant was notified of
his registration requirements “pursuant to the Sex Offender
Registration Act,” under “section 290 through 290.023,” and
that he acknowledged all these registration requirements by
signing and dating the appropriate form on February 1,
2015.
Second, the numerous monthly registration forms
submitted by appellant included the admonishment that if a
15
transient obtained a residential address, he must update the
registration within five days of that change. These forms
included the statutory definition of residence outlined in
section 290.011, subdivision (g).
Third, when confronted by police during the December
10, 2020, compliance check, appellant made various
admissions and statements indicating he was living at
Suskin’s apartment, while repeatedly adding he did not want
Suskin’s apartment to be registered due to her work. As
reasonably argued by the prosecutor, appellant’s admission
that he did not want Suskin’s address to show up on the sex
offender registry provided a motive for why appellant would
willfully or knowingly violate the registration requirements
by failing to report her address as his residence. (People v.
Moore, supra, 6 Cal.App.5th at p. 85 [explaining that
although the prosecution need not prove motive, “motive is
relevant, and a strong motive provides powerful evidence”].)
Appellant later commented (when police were on the phone
with Suskin) that she was “trying to save [his] ass” and
wanted to protect him. This evidence was more than
sufficient to support the element of actual knowledge.
3. The Conviction of Count Two Must Be Reversed
Appellant was convicted in count two of violating
section 290.013, subdivision (a), which provides: “Any person
who was last registered at a residence address pursuant to
the Act who changes his or her residence address, whether
within the jurisdiction in which he or she is currently
16
registered or to a new jurisdiction . . . shall, in person, within
five working days of the move, inform the law enforcement
agency or agencies with which he or she last registered of
the move, the new address or transient location, if known,
and any plans he or she has to return to California.”
(§ 290.013, subd. (a), italics added.) Thus, section 290.013
applies to “an offender who was last registered at a residence
address who leaves that residence” and “also applies if the
offender who previously registered at a residence has now
become transient.” (People v. Armas (2011) 191 Cal.App.4th
1173, 1178.) It does not apply to an offender who is
registered as a transient and subsequently moves into a
residence. (Ibid.)
Respondent’s only argument to counter this conclusion
is to state that appellant “previously registered with the
Redondo Beach police in September 2020 that he was
residing at the Best Western Hotel on South Pacific Coach
(sic) Highway.” However, appellant did not register the
hotel as a “residence” but merely noted the overnight hotel
stay as an additional “location” while transient — which, as
Detective Harrison explained was “encouraged” but not
required and, as Officer Ott testified, did not alter
appellant’s transient status. Moreover, appellant continued
to register as transient in October, November, and December
prior to his arrest, and the prosecutor’s sole theory for both
counts was that appellant was no longer transient, had
taken up residence in Suskin’s apartment, and knowingly
17
and intentionally hid his new status.5 As such, there was no
evidence that appellant was an offender “who last registered
at a residence” within the meaning of section 290.013,
subdivision (a). We accordingly reverse appellant’s
conviction for count 2.
B. Vagueness Challenge to Statutory Definition of
“Residence”
Appellant contends the definition of “residence” under
section 290.011, subdivision (g) is constitutionally vague as
applied to the circumstances his case, incorporating his
sufficiency of evidence challenge to the knowledge
requirement. In light of the evidence adduced on the issue of
appellant’s knowledge of the need to report North Elena
Avenue address, we reject appellant’s challenge. (Gonzales,
supra, 183 Cal.App.4th at p. 39 [rejecting as-applied
vagueness challenge to section 290.011(g) because under any
plausible reading of section 290.011 (g), appellant was
required to register the address at issue]; see also Deluca,
supra, 228 Cal.App.4th at p. 1267 [observing “[t]here is
nothing uncertain about the language of section 290.011,
subdivision (g)”].)
5 Indeed, in closing, the prosecutor argued appellant “regularly”
and “consistently” lived at Suskin’s apartment, stating it “wasn’t just a
one-time thing. This wasn’t like the Best Western. This is a place
where he resided . . . He needed to and was required to list it under
count 2 and count 1.”
18
C. Midtrial Motion for Mistrial or Continuance
Appellant contends the trial court erred by denying his
midtrial motions for a mistrial or continuance after a
reference to his parole status was admitted and that his
constitutional rights were violated by both rulings. On this
record, we discern no reversible error.
1. The Trial Court Did Not Err In Denying The
Mistrial Motion
a. Proceedings in Trial Court
Before trial, the prosecutor noted that in the video of
appellant’s statements to Detective Harrison, appellant
mentioned he was, or might have been on parole. The court
stated any references to appellant’s parole status should be
removed.
During trial, the prosecutor played the video recording
for the jury and provided written transcripts that included
one unredacted reference to parole. Defense counsel noted
the issue, and the prosecutor apologized, explaining he
redacted the parole reference several lines earlier, but
missed this reference as it was “muffled” on the audio
portion of the tape. The court denied the mistrial motion,
noting both parties had the transcript before the video was
presented to the jury.
The trial court offered to admonish the jury not to
consider the parole reference, but defense counsel,
recognizing that this would only highlight a slight reference,
declined.
19
The prosecutor redacted the parole reference in the
transcript and replaced the transcripts given to the jury with
the new version. The prosecutor noted the reference was
less than one second of muffled audio. The court agreed the
parole reference was difficult to understand from the audio
and found the prosecutor’s failure to make the redaction was
inadvertent. The court further noted the jury was already
aware appellant was convicted of a serious offense in light of
the registration requirement.
b. Analysis
“Whether a particular incident is incurably prejudicial
is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial
motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854)
Further, in reviewing a ruling on a mistrial motion, the
appellate court may consider the context of the trial at the
time of the allegedly prejudicial event. (People v. Woodberry
(1970) 10 Cal.App.3d 695.)
Here, as the trial court found, appellant’s reference to
his parole status was muffled in the video, fleeting, and the
written transcript was redacted shortly after the error was
discovered. (See People v. Franklin (2016) 248 Cal.App.4th
938, 956 [upholding denial of mistrial because three “vague
and fleeting references to appellant’s criminal history” did
not result in “incurable prejudice or irreparably damage[e]
. . . appellant’s chance of obtaining a fair trial”]; see also
People v. Bolden (2002) 29 Cal.4th 515, 554-555 [mistrial
20
motion properly denied after witness mentioned that he
found defendant’s address at the parole office].)
Citing People v. Allen (1978) 77 Cal.App.3d 924 (Allen),
appellant nevertheless insists the statement about his parole
status necessitated a mistrial. However, the facts of Allen
are distinguishable. In Allen, a rebuttal witness mentioned
the defendant’s alibi witness told her defendant was on
parole. (Id. at p. 934.) On appeal, the reviewing court held
the denial of a mistrial was reversible error. In so
concluding, the appellate court found the case was
“extremely close” and noted the parole was the result of a
juvenile conviction which “cannot be deemed a conviction of
a crime for any purpose.” (Id. at pp. 934-935.)
Here, by contrast, the jury was already aware
appellant had been convicted of a crime that required him to
register as a sex offender, and evidence he was residing at
Suskin’s apartment within the meaning of section 290.011(g)
was strong. As such (and in light of the aforementioned
authority upholding denials of mistrials in similar
circumstances), Allen does not warrant a different result.
2. The Trial Court Did Not Err in Denying A
Continuance
a. Proceedings in Trial Court
After defense counsel renewed her mistrial motion, she
alternatively requested a continuance to produce appellant’s
prior parole agent Ms. Tobias. Counsel stated she did not
subpoena the agent so the jury would not learn appellant
21
had been to prison, but in light of the parole reference, she
wanted “some time to be able to get Miss Tobias in to
testify.” Counsel stated she had tried to contact Ms. Tobias
“the other day” had again tried over the recent lunch hour,
without success.
The court denied the request, stating it was not clear
how Agent Tobias’ testimony would support a defense and
trial counsel had not subpoenaed Agent Tobias. The court
further expressed concern jurors might become ill or contract
COVID, which would further delay the trial.
Trial counsel added had she known the jury would
learn appellant was on parole, she would have called the
parole officer to testify she gave appellant “permission to be
at that address and not have it listed as a residence.” The
court responded that “being told you can . . . break the law”
was not a defense to the crime. Counsel agreed, but noted
that it went “to the knowledge requirement” of the crime.
The court stood by its ruling.
Counsel then requested, notwithstanding the court’s
exclusion of the word “parole” from the audio and transcript,
permission to discuss parole in front of the jury. The court
granted the request. Suskin later testified Agent Tobias told
her, sometime in the past two years, that appellant could
visit during daytime hours.
b. Analysis
A continuance in a criminal case may be granted only
for “good cause”. (§ 1050, subd. (e).) Whether good cause
22
exists is a question for the trial court’s discretion. (People v.
Jenkins (2000) 22 Cal.4th 900, 1037.) The court must
consider “‘“not only the benefit which the moving party
anticipates but also the likelihood that such benefit will
result, the burden on other witnesses, jurors and the court
and, above all, whether substantial justice will be
accomplished or defeated by a granting of the motion.”’”
(Ibid.) “Absent a showing of an abuse of discretion and
prejudice, the trial court’s denial does not warrant reversal.”
(People v. Barnett (1998) 17 Cal.4th 1044, 1126.)
Here, appellant has failed to make the requisite
showing for reversible error. First, counsel had not
subpoenaed Agent Tobias, had previously tried to reach her
with no success, and again failed in attempting to do so the
day she made the continuance request. Under these
circumstances, including the trial court’s concerns the trial
would be delayed and the jury could contract COVID, the
denial of a continuance was not an abuse of discretion.
(People v. Beames (2007) 40 Cal.4th 907, 920 [observing “an
order denying a continuance motion is seldom successfully
attacked”]; cf. People v. Winbush (2017) 2 Cal.5th 402, 470
[in light of counsel’s unsuccessful attempt to locate the key
witnesses, the trial court acted well within its discretion in
concluding an additional continuance, with no proffered
basis to expect success, was unjustified].)
Second, appellant has failed to demonstrate prejudice.
Trial counsel’s explanation as to what Agent Tobias might
state in her testimony was vague and conclusory, and the
23
record does not demonstrate Agent Tobias would have
testified in a manner consistent with Suskin. (People v. Fain
(1959) 2 Cal.5th 402, 862 [no abuse of discretion to deny
continuance where counsel was “without exact statements of
what the witness would testify to and without appropriate
affidavits”]; People v. Waidla (2000) 22 Cal.4th 690, 749, fn.
1 [stating an appeal is limited to the four corners of the
appellate record]; People v. Venegas (1994) 25 Cal.App.4th
1731; 1741-1742 [noting, in context of ineffective assistance
of counsel (for failing to further pursue potential witness) in
direct appeal: “Nor does the appellate record show prejudice.
We simply do not know how [the witness] would have
testified”].)
Moreover, Suskin testified that appellant did, in fact,
stay at her apartment overnight multiple nights prior to his
arrest, and the evidence he was staying there was, as
indicated by the record, abundant. As such, appellant has
not shown sufficient grounds for reversal. (See People v.
Beames, supra, 40 Cal.4th at p. 920 [appellate record failed
to show any actual prejudice resulted from denial of
continuance].)
D. Cross-Examination of Suskin
Appellant contends the trial court abused its discretion
by permitting the prosecutor to cross-examine Suskin on
circumstances relating to her knowledge of appellant’s 2013
conviction. He claims this testimony was irrelevant and
24
unduly prejudicial. We disagree. The court acted within its
discretion in allowing a limited inquiry into the matter.
1. Relevant Proceedings
Before trial, the prosecutor agreed not to discuss the
underlying facts of appellant’s section 288 conviction.
During direct examination, Suskin testified she was
aware appellant was convicted in 2013 of a crime requiring
registration as a sex offender. Suskin and appellant had
been friends since 2003 or 2004, having originally met as co-
workers. Appellant was going through a divorce and before
his conviction in 2013, they did things together, including
spending time together with his “at the-time two children” at
the park or at “Chuck E. Cheese or McDonald’s for lunch.”
Suskin maintained her friendship with appellant and
after his “release” in 2015, she brought him to her home and
let him stay there during the day. Suskin testified appellant
was “like family” and and that she gave him a key to her
apartment, knowing she could trust him not to take
advantage of the situation.
Before direct examination of Suskin concluded, the
prosecutor noted Suskin had testified about the time she
spent with appellant and his children before 2013. Because
the victim of appellant’s conviction for a lewd act was one of
his daughters, the prosecutor argued Suskin had implicitly
elicited testimony as to his character that went directly to
the issue of his conviction. That is, a rational juror could
infer appellant was a good person and a good father because
25
he was allowed to spend time with his children after his
divorce.
Defense counsel countered she did not call Suskin as a
character witness and simply elicited the testimony to
establish their friendship. The court disagreed, observing
“there’s no doubt that the information came out about his
contact with his children to portray him as a loving father,
as a good person and trustworthy, and it’s all part that goes
along with her testimony.” And now the prosecutor was
simply stating “there’s a different angle to this father-like
figure to his children that’s to be trusted.” However, the
court noted the prosecutor must “tread carefully” and asked
the prosecutor how he intended to explore the issue.
The prosecutor stated his intention would be to elicit
testimony that Suskin has not seen the defendant with his
children since 2013 and she is aware of the nature and
charges of which he was convicted in 2013. The prosecutor
also intended to ask Suskin whether she attended any of the
proceedings in defendant’s case and whether she is aware of
any facts of the case independent of what appellant has told
her.
Defense counsel stated she could understand why the
questions “do you know what happened in that case” and
“have you seen him with the children since then” might be
allowed, but did not see why the last question — i.e. Suskin’s
independent knowledge of the facts — was necessary. The
prosecutor stated he would withdraw the last question, and
the court stated, “fair enough.”
26
On cross-examination, the prosecutor asked Suskin if
she had seen appellant with his children since 2013, and
Suskin replied, “No.” She also testified she was aware of the
type of charges of which appellant was convicted of in 2013,
and she attended some of the proceedings in that case
because she was his friend. The prosecutor’s line of
questioning garnered no objections from defense counsel.
2. Analysis
The trial court has broad discretion in determining the
relevance of evidence, but lacks the discretion to admit
irrelevant evidence. (People v. Crittenden (1994) 9 Cal.4th
83, 132.) A trial court’s exercise of discretion in admitting or
excluding evidence is reviewable by an appellate court for
abuse of discretion and will not be disturbed absent a
showing the trial court acted in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest
miscarriage of justice. (People v. Mills (2010) 48 Cal.4th 158,
195; People v. Rodrigues (1994) 8 Cal. 4th 1060, 1124-1125.)
Here, notwithstanding defense counsel’s assertions to
the contrary, the testimony elicited by defense counsel from
Suskin included implicit characterizations of appellant’s
character as good or positive. This testimony opened the
door to the brief line of inquiry pursued by the prosecutor.
(See People v. Hawara (2021) 61 Cal.App.5th 704, 712-713
[once witness testifies to defendant’s good character based on
his or her own perceptions, it is appropriate to cross-examine
27
the witness regarding the underlying basis for the
perception].)
We further note that during an earlier discussion
regarding proposed jury instructions, the court asked if
either party intended to put on character evidence. Defense
counsel stated she intended to call the owner of the
apartment (Suskin) “and there definitely probably will be
character evidence that comes out during her testimony”
such as “the reasons why she was allowing him to stay
during COVID and not to live with her will probably go to
his character.” This is what occurred during defense
counsel’s examination of Suskin, wherein Suskin implied
appellant was worthy of her continued trust (and unfettered
access to her apartment) because he was not someone who
would flout the rules due, in part, to the time she spent with
him and his two children and their “like family” connection.
In any event, the prosecutor did not elicit facts
regarding the underlying conviction and stayed within the
limits discussed by the court and parties. As such, we
discern no abuse of discretion in the court’s ruling.
E. Challenges to Testimony of Officer Ott
Appellant contends that various lines of testimony
given by Officer Ott amounted to an improper opinion on
appellant’s guilt. Appellant’s claims are forfeited for lack of
objection, and he has failed to demonstrate a viable
exception to the forfeiture rule.
28
1. Challenged Testimony
Appellant argues Ott improperly testified: (1)
“changing one’s residence was not “limited to . . . leasing an
apartment . . . [but] can occur for something less;” (2) the box
labeled “address/registration definitions” are to “help” a
registrant understand what they are being asked to state on
that part of the form; (3) the information provided under
“locations frequented by a transient” might include areas
frequented by transient such as “Redondo Beach Pier” or
physical addresses where the transient showers or grooms,
works, or attends school; and (4) Ott agreed with the
prosecutor that a registrant who moved back to an earlier
address would “usually have to come in and fill out that
change of address registration event.”
Appellant argues that this testimony was tantamount
to Ott testifying appellant was, in essence, required to
register Suskin’s apartment. (People v. Clay (1964) 227
Cal.App.2d 87, 98 (“It is a settled and long-established rule
. . . that a witness cannot express an opinion concerning the
guilt or innocence of the defendant”].)6
2. Appellant Forfeited His Claims
Reviewing courts will generally not consider a
challenge to the admissibility of evidence in the absence of
6 Officer Ott was not designated as an expert witness, and we
therefore assume his testimony was offered as a lay witness. (See
footnote 9, post.)
29
“‘“a specific and timely objection in the trial court on the
[same] grounds sought to be urged on appeal.”’” (People v.
Champion (1995) 9 Cal.4th 879, 918; People v. Raley (1992) 2
Cal.4th 870, 892; see Evid. Code, § 353, subd. (a).)
Here, trial counsel objected to the prosecutor’s
questions of Officer Ott on two occasions: (1) a question
asking where on the registration document a transient
would list the address of a residence wherein they “shower or
groom,” as assuming facts not in evidence and improper
hypothetical and (2) a question regarding Megan’s Law, as
leading. Accordingly, appellant’s contentions that Ott’s
testimony amounted to improper legal opinions and/or
expressions of appellant’s guilt of the charged crimes are
forfeited. (People v. Dykes (2009) 46 Cal.4th 731 (Dykes),
756-757; People v. Demetrulias (2006) 39 Cal.4th 1, 19-21
(Demetrulias).) The same holds true for appellant’s separate
contention that the admission of the evidence violated his
constitutional rights. People v. Prince (2007) 40 Cal.4th
1179, 1229-1130 (Prince) [constitutional error not raised in
trial court forfeited on appeal]; Demetrulias, supra, at p. 21,
fn. 3 [same]; People v. Partida (2005) 37 Cal.4th 428, 437-438
(Partida) [holding if constitutional error is subsumed within
(or merely a gloss on) state law error objection it may be
reviewed on appeal; otherwise claim is forfeited].)
To the extent appellant argues we should find
exception to the forfeiture rule on grounds that any objection
would have been futile, we disagree. In support of this
argument, appellant cites other objections, to different lines
30
of testimony, made by counsel throughout trial, which the
court did not sustain.7 Appellant does not show that trial
counsel’s repeated objections to the specific evidence at issue
were overruled such that further objections would be futile.
This is inadequate to overcome application of the forfeiture
rule. (See Dykes, supra, 46 Cal.4th at pp. 756-757;
Demetrulias, supra, 39 Cal.4th at pp. 20-21; cf. People v.
Gomez (2018) 6 Cal.5th 243, 287 [finding further objection
futile where trial counsel repeatedly sought to exclude
specific evidence challenged on appeal on various state law
grounds, trial court cut off counsel’s argument, and court
made clear its intention to admit testimony on the point
even if it had to be a “‘pioneer’” on the issue].)
3. Appellant Has Failed To Demonstrate Trial
Counsel Was Ineffective For Failing to Preserve
These Issues
Appellant argues that, to the extent his evidentiary
claim is forfeited, his defense attorney rendered ineffective
assistance for failing to timely object. Appellant has failed to
satisfy his burden on the issue. (People v. Mickel (2016) 2
Cal.5th 181, 198 [A defendant bears the burden of
demonstrating ineffective assistance of counsel].)
7 Appellant also declares, without argument or supporting
authority, “an admonition would not have cured the resulting
prejudice.”
31
“‘[A] defendant claiming a violation of the federal
constitutional right to effective assistance of counsel must
satisfy a two-pronged showing: that counsel’s performance
was deficient, and that the defendant was prejudiced, that
is, there is a reasonable probability the outcome would have
been different were it not for the deficient performance.’”
(People v. Woodruff (2018) 5 Cal.5th 697, 736 (Woodruff).)
Reversal is permitted “‘only if (1) the record affirmatively
discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be
no satisfactory explanation.’” (People v. Arredondo (2019) 8
Cal.5th 694, 711.) In addition, “prejudice must be
affirmatively proved” on the trial record. (People v. Bolin
(1998) 18 Cal.4th 297, 333.)
Here, appellant has failed to demonstrate trial counsel
was ineffective. First, Officer Ott’s testimony aimed to
explain the registration process and based on his experience
in having registered around 300 sex offenders, including
appellant, since 2015. His testimony was generally helpful
for the jury to understand the registration process. (People
v. Farnam (2002) 28 Cal.4th 107, 153, citing Evidence Code,
§ 800, subds. (a) and (b); People v. McAlpin (1991) 53 Cal.3d
1289, 1306, fn. 11.)
Second, trial counsel herself questioned Officer Ott
(and Detective Harrison, see Argument F, post), on the
registration forms and requirements to support her defense
of appellant.
32
In her opening argument, counsel told the jury
appellant registered every 30 days as a transient and
“provided [police] with all of the areas he frequented while
he was homeless and living in his car, which were all within
a four-block radius of Suskin’s house.” However, she argued
the jury would not find evidence appellant needed to register
Suskin’s home as a residence. Defense counsel told the jury
appellant provided Suskin’s address to police in 2015 and
there was “no reason for [appellant] . . . to hide this
residence or hide this location.”
During her cross examination of Detective Ott, counsel
focused on the locations a transient might report in the
“locations frequented” section, and how specific or vague this
information was for transient registrants. Counsel further
elicited testimony that a print-out from the CSAR database,
which contained an overview of all addresses that had been
associated with appellant “at any point,” included Suskin’s
Elena Street address.8 Counsel used this testimony to argue
to the jury that appellant did not knowingly and willfully
violate the registration requirements. (People v. Bolin,
supra, 18 Cal.4th at p. 333 [“Tactical errors are generally not
8 During cross-examination, Detective Harrison testified Suskin’s
address was provided to the Department of Corrections when appellant
was initially released from incarceration. However, appellant changed
his address shortly thereafter, was out of jurisdiction in Los Angeles
for a period of time, and did not report Suskin’s address on any of his
sex offender registration forms in Redondo Beach thereafter. To the
extent he resided at her apartment, he was obligated to report a
change in his transient status within five days.
33
deemed reversible, and counsel’s decision-making must be
evaluated in the context of the available facts”].)
However, ultimately appellant was prosecuted for
failing to report Suskin’s address as a “residence” as that
term was defined not only by statute but also in his
registration forms. The evidence that his failure was willful
and knowing was strong, based on his own admissions,
Suskin’s testimony, and the physical evidence of his
possessions at the apartment. The fact that appellant never
reported Suskin’s address as a location he frequented
throughout his numerous transient registrations cut against
any assertion that he innocently, inadvertently, or
unknowingly failed to report his change of status and
supported the prosecutor’s contention that he was motivated
to obscure his move into the apartment. In sum, appellant
has failed to demonstrate counsel’s failure to object to Ott’s
testimony was without any satisfactory explanation or that
an alternate approach would have yielded a more favorable
outcome. (People v. Lewis (1990) 50 Cal.3d 262, 288-289 [“It
is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable”]; People v. Gray
(2005) 37 Cal.4th 168, 212 [rejecting ineffective assistance of
counsel claim where no prejudice resulted].)
34
F. Challenges to Testimony of Detective Harrison
Appellant challenges various lines of testimony by
Detective Harrison, arguing they amounted to improper
opinions as to appellant’s guilt. As background, appellant
summarizes the following testimony by Detective Harrison.
1. Challenged Testimony
Detective Harrison, a sex crimes detective, testified he
arrested appellant after an investigation into appellant’s
registration compliance.9 During his investigation Harrison
reviewed appellant’s sex offender registration forms, his
prior vehicular registration and DMV forms, which led him
to a UPS mail store near Suskin’s apartment. Harrison
noted that appellant’s registration form for September 2020,
listed an overnight stay at the Best Western Hotel, with the
address, under locations “frequented” and that same
registration form contained an admonishment notifying
appellant if he were to acquire a residence -- or place that
could be construed as a residence under the forms -- then he
would have to provide that notification to the police
9 We note that although the prosecutor indicated early in the trial
that Detective Harrison may testify as an expert, Detective Harrison
was not offered as an expert, and the trial court did not designate him
as such. Moreover, the jury was not provided with an instruction on
expert testimony, but only lay testimony opinion. (See, Argument G,
post) (Cf. People v. Becerrada (2017) 2 Cal.5th 1009, 1032 (Becerrada)
[stating it was unclear from record whether evidence offered by officer
was admitted as expert opinion and thus assuming it was admitted as
lay opinion]; People v. Phillips (2022) 75 Cal.App.5th 643, 682-683.)
35
department. Otherwise, “he would be in violation of . . . his
290 status.”
In explaining why he arrested appellant for violating
the registration requirements, Detective Harrison stated
when he followed appellant to Suskin’s apartment, he saw
appellant used his own key for entry and did not “knock on
[Suskin’s door] and wait to be let in” and then entered “as if
he resided there.” He also found various other pieces of
information significant, including appellant’s own
statements to police, and the discovery of appellant’s mail
inside the desk drawer of the bedroom. Detective Harrison
concluded that, “based on all those things, we made the
determination that [appellant] had, in fact, been registering
incorrectly, per the terms of California Penal Code section
290.”
2. Appellant’s Improper Opinion Challenges Are
Forfeited
As previously explained, to preserve an evidentiary
issue for appellate review, a defendant must demonstrate he
or she objected on the same grounds below. (Dykes, supra,
46 Cal.4th at p. 756). Appellant points to no objections to
Harrison’s testimony made on the grounds of improper
opinion. Accordingly, any arguments based on these
grounds are deemed forfeited. The same holds true for
appellant’s assertions of federal constitutional error.
(Prince, supra, 40 Cal.4th at pp. 1229-1130; Partida, supra,37 Cal.4th at pp. 437-438.)
36
To the extent appellant argues exceptions to the
forfeiture rule, appellant relies on the same arguments made
in relation to Officer Ott’s testimony. As previously
indicated in our opinion, these arguments are insufficient to
overcome application of the forfeiture rule. (See Argument
E, subsection 2, ante)
3. Appellant’s Additional Challenges Are Equally
Forfeited
In his opening brief, appellant makes several
additional challenges to Detective Harrison’s testimony,
which are equally forfeited.
First, under a separate heading entitled “Detective
Harrison Improperly Testified: (1) Appellant Was Residing
at Suskin’s Rather Than Living As A Transient;
(2) Appellant Knew He Was No Longer Transient; and
(3) Appellant Intentionally Sought To Hide Suskin’s
Address” appellant string cites to the same trial testimony
by Detective Harrison summarized above, and then asserts
“[t]his was improper opinion testimony, was irrelevant . . .
was unfairly prejudicial and likely to confuse and mislead
the jury under Evidence Code section 352.” However, the
argument that follows is simply a repetition of his assertion
that Harrison engaged in improper opinion testimony, with
no argument on the other asserted grounds. Accordingly, we
need not, and do not, address these contentions here. (Bitner
v. Department of Corrections & Rehabilitation (2023) 87
37
Cal.App.5th 1048, 1065; Pizarro v. Reynoso (2017) 10
Cal.App.5th 172, 179.)
Second, under a heading entitled “Detective Harrison
Improperly Testified That People Who Rented Postal
Mailboxes At Appellant’s Specific UPS Store Were ‘Maybe’
Trying To Conceal Their Whereabouts To Commit Crimes”
appellant argues Harrison’s testimony on this point was
lacking in “personal knowledge,” inadmissible hearsay,
irrelevant, unfairly prejudicial under section 352, and
improper character evidence. However, the only objection to
Harrison’s UPS store testimony was based on lack of
foundation, which was followed by additional testimony that
provided the requested foundation — namely, that based on
Detective Harrison’s training and experience (and
discussions with investigators from the United States Postal
Service) the UPS store was required to obtain a physical
address from a customer seeking to rent a mailbox.10
10 When Harrison made the observation referenced by appellant —
i.e. that based on this training and experience, he was aware that
individuals who are making it difficult to locate them or engaging in
various criminal activities “will often get mailboxes that aren’t specific
to their actual physical residential address and” — trial counsel
interjected a “nonresponsive to foundation” objection, and Harrison
moved on to state the response identified above.
Appellant asserts Detective Harrison’s statement “had nothing
to do with establishing foundation as to how to rent a UPS mailbox at
appellant’s UPS store.” However, we discern no actionable error. The
testimony was provided in the context of Harrison explaining why he
proceeded to the UPS store during his investigation of appellant. (See,
generally, People v. Virgil (2011) 51 Cal.4th 1210, 1253-1254
(Fn. is continued on the next page.)
38
Third, appellant contends Detective Harrison’s
testimony regarding the importance of compliance checks for
sex offenders and that, in his experience, previous
compliance checks involving other registrants had resulted
in information that prevented potential crimes was
“irrelevant and unfairly prejudicial” and “improper character
evidence.” Appellant interposed no objections to this
background testimony, and these challenges are therefore
forfeited.
Fourth, appellant contends Detective Harrison
improperly testified, on rebuttal, that he had never heard a
parole officer tell a registrant they could “withhold listing a
residential address on official paperwork” and opined such
advice could result in a “great deal of liability” for the officer.
Appellant argues such testimony was improper opinion and
prejudicial under section 352. However, appellant
interposed no objection to this rebuttal testimony, and we
accordingly deem these challenges forfeited as well.
Fifth, and finally, appellant challenges additional
testimony by Detective Harrison, regarding the registration
form requirements as improper “opinions on questions of
[detective’s testimony helpful for jury to understand how he came to
suspect defendant]; Becerrada, supra, 2 Cal.5th at p. 1032, [no error in
admitting correctional officer’s testimony as lay opinion where it was
based on his knowledge and experience and court could not conclude
admission of testimony lacked any rational basis or failed to clarify his
testimony]; see also People v. Jablonski (2006) 37 Cal.4th 774, 833
[“assuming only for argument's sake” that witness’s comment was “in
any way inappropriate” no prejudice resulted].)
39
law.” However, the record citations provided by appellant
are all, save one, directed at testimony elicited by defense
counsel during cross-examination and the testimony elicited
on redirect examination by the prosecutor garnered no
objection. As such, there is no preserved issue for review.
4. Appellant Has Failed To Demonstrate Ineffective
Assistance of Counsel
Appellant contends that if any of his contentions are
deemed forfeited for failure of trial counsel to interpose an
objection, then trial counsel was ineffective for failing to so
do. However, as previously indicated appellant must show
not only that there was no satisfactory basis for counsel’s
inaction, but the outcome would have been different had
counsel challenged the testimony at issue. (Woodruff, supra,
5 Cal.5th at p. 736.) Appellant cannot meet this standard.
First, the testimony challenged by appellant as
improper opinion, was elicited in the context of Detective
Harrison explaining his background investigation and the
events that led to appellant’s arrest and were relevant for
this purpose. (People v. Virgil, supra, 51 Cal.4th at
pp. 1253-1254; Becerrada, supra, 2 Cal.5th at p. 1032.)
Second, appellant’s trial counsel utilized the fact that
Detective Harrison had reviewed all of appellant’s previous
monthly registrations, to elicit detailed testimony that
appellant, on multiple registrations as a transient, listed
areas he frequented and motels where he stayed overnight.
As with Officer Ott, counsel further elicited testimony from
40
Detective Harrison, that all addresses previously provided
by appellant appear in the CSAR database, which included,
at one point, the Elena Street address. Finally, counsel
cross-examined Detective Harrison on the locations a
transient might report in the “places frequented” section and
how specific—or even necessary—this information was for
transient registrants. In other words, counsel herself sought
to elicit opinions from Harrison on requirements in the
registration process.
As previously explained, on this record, we cannot
conclude defense counsel’s approach was strategically
untenable. (People v. Lewis, supra, 50 Cal.3d at
pp. 288-290.) Nor has appellant shown a more favorable
outcome would have resulted if counsel had pursued a
different approach or objected to the challenged testimony.
(People v. Gray, supra, 37 Cal.4th at p. 212.)
G. CALCRIM No. 333
The jury was instructed with CALCRIM No. 333, the
standard instruction on lay opinion testimony; the parties
agreed to the instruction.11 Appellant makes no argument
11 The instruction, as given, provided, “A witness, who was not
testifying as an expert, gave their opinion during the trial. You may
but are not required to accept those opinions as true or accurate. You
may give the opinions whatever weight you think appropriate.
Consider the extent of the witness’s opportunity to perceive the
matters on which his or her opinion is based, the reasons given for any
opinion, and the facts or information on which the witness relied in
forming that opinion. You must decide whether information on which
(Fn. is continued on the next page.)
41
that CALCRIM No. 333 improperly stated the law, but
simply argues that it “magnified” the prejudice from the
opinions provided by Detective Harrison and Officer Ott.
Even assuming appellant’s instructional challenge is
not forfeited by his failure to object below (§ 1259), the
instruction was proper. Lay opinion testimony was, in fact,
admitted at trial, including John Lesser’s testimony on
whether he personally believed appellant actually lived in
Suskin’s apartment based on his perceptions as a neighbor.
(See CALCRIM No. 333; Evid. Code, § 800; People v.
Phillips, supra, 75 Cal.App.5th at pp. 682-683.) As such,
appellant has failed to demonstrate instructional error.
H. Prosecutorial Misconduct Claims
Appellant argues the prosecutor committed prejudicial
misconduct during trial and closing argument.
As to the prosecutor’s trial conduct, appellant contends
the prosecutor: (1) asked repeated questions of John Lesser,
to improperly create the false impression Lesser believed
appellant lived at Suskin’s apartment; (2) asked improper
“were they lying” questions of Suskin regarding appellant
and Lesser’s statements; and (3) failed to comply with the
the witness relied was true and accurate. You may disregard all or any
part of an opinion that you find unbelievable, unreasonable, or
unsupported by the evidence.”
42
trial court’s order to redact all references to parole and
elicited improper testimony from Detective Harrison.12
As to closing argument, appellant contends the
prosecutor: (1) mischaracterized Lesser and Suskin’s
testimony as to whether appellant actually attended or
participated in a resident’s-only gathering in 2019;
(2) mischaracterized the defense’s parole-related evidence;
(3) improperly “implied” appellant may have violated his
parole; (4) and improperly argued that appellant, and
sometimes Suskin, were the only people who used the
“communal” computer in the apartment.
We conclude appellant has forfeited his assertions of
prosecutorial misconduct by failing to interpose objections,
and request admonitions, at trial.
1. Prosecutorial Misconduct Claims and Forfeiture
Rules
A prosecutor’s conduct violates the Fourteenth
Amendment to the United States Constitution when it
infects the trial with such unfairness as to make the
12 In making this third argument for prosecutorial misconduct,
appellant incorporates his previous briefing arguments directed at the
court’s denial of his mistrial motion and his challenges to Detective
Harrison’s testimony as improper opinion. Appellant also notes the
prosecutor, at one point, asked a follow-up question about the genesis
of “Megan’s Law” after the court sustained a defense objection for lack
of relevance. However, the initial objection to the testimony was for
lack of foundation, and the prosecutor was attempting to lay that
foundation during this line of inquiry.
43
conviction a denial of due process. (Darden v. Wainwright
(1986) 477 U.S. 168, 181; People v. Parson (2008) 44 Cal.4th
332, 359 (Parson)). 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. Jablonski, supra,37 Cal.4th at p. 835.)
To preserve a claim of prosecutorial misconduct for
appeal, a defendant must make a specific timely objection
and request the trial court to admonish the jury. (Parson,
supra, 44 Cal.4th at p. 359; People v. Brown (2003) 31
Cal.4th 518, 553.)
2. Appellant Has Forfeited His Claims of
Prosecutorial Misconduct and Has Failed To
Demonstrate Ineffective Assistance of Counsel
With Regard To These Issues
In the final subheading of his prosecutorial misconduct
claims, appellant asserts “these misconduct issues were
adequately preserved, but if not, trial counsel was
ineffective.” Appellant, however, points to no objections to
these assertions of misconduct (or request for admonition,
see footnote 7, ante); nor does he, in his reply brief, refute
respondent’s assertions that he failed to object to these
alleged instances of prosecutorial misconduct. Instead,
appellant simply reincorporates his previous arguments
(made in relation to his evidentiary objections) that any
44
objection would have been futile or any admonition
ineffective to cure any potential error. Alternatively,
appellant contends “there can be no reasonable explanation
for trial counsel to not have objected and sought curative
admonitions” and “[t]hus, if any of these misconduct issues
are forfeited, trial counsel rendered ineffective assistance.”
In light of our previous discussions, the strength of the
evidence, and the record in relation to the issues raised,
appellant has failed to demonstrate any viable exception to
the forfeiture rule or that trial counsel failed to act in a
manner that resulted in demonstrable prejudice. (People v.
Arredondo, supra, 8 Cal.5th at p. 711; Woodruff, supra, 5
Cal.5th at p. 736; People v. Brown, supra, 31 Cal.4th at
p. 553.)
I. Cumulative Error
Appellant contends the trial errors he has alleged, even
if not individually prejudicial, resulted in a cumulative
prejudice that rendered his trial fundamentally unfair. In
light of our disposition of the issues, we disagree. (See
People v. Cain (1995) 10 Cal.4th 1, 82 [rejecting assertion of
cumulative error, and observing “[d]efendant was entitled to
a fair trial, not a perfect one”]; People v. Marshall (1990) 50
Cal.3d 907, 945 [same]; cf. People v. Hill (1998) 17 Cal.4th
800, 844 [acknowledging that “a series of trial errors, though
independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error” but
45
appellant must make “a clear showing of a miscarriage of
justice”].)
DISPOSITION
Appellant’s conviction for count two, section 290.013 is
reversed. On remand, the trial court shall enter an order
dismissing the conviction for that count. The judgment is
otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
CURREY, P. J.
ZUKIN, J.
46