People v. Thomas CA2/1

Filed 7/28/16 P. v. Thomas CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B263424

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA091688) v.

JEREMY DEWAYNE THOMAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Scott T. Millington, Judge. Affirmed. ______

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi, and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Jeremy Thomas of second degree robbery (Pen. Code, § 211) and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377). The jury found true an allegation that Thomas used a dangerous and deadly weapon in the commission of the robbery (Pen. Code, § 12022, subd. (b)(1)), making the offense a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(23). The court sentenced him to three years in prison on the robbery count, plus one year for the weapon enhancement. His 135-day sentence for the methamphetamine count had been satisfied by his time served. During rebuttal argument, the prosecutor made three statements that Thomas argues were comments on his failure to testify, thereby violating his constitutional rights under Griffin v. California (1965) 380 U.S. 609. Although Thomas failed to object to the prosecutor’s comments on that basis, he contends that he has not forfeited his Griffin error claim on appeal because any objection would have been futile and the harm caused by the comments was incurable. Thomas further contends that if his counsel forfeited the Griffin argument by failing to object, he has been deprived of his right to the effective assistance of counsel. We hold that the futility exception to the forfeiture rule does not apply to the facts of this case and, therefore, Thomas has not preserved the Griffin error claim on appeal. Nevertheless, we exercise our discretion to address the Griffin error claim, and hold that although two statements by the prosecutor amounted to impermissible comment on Thomas’s failure to testify, any error was harmless, making it unnecessary to consider his claim of ineffective assistance of counsel. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY On the night of December 10, 2014, Donald Cotterell was walking home from his girlfriend’s house. Thomas approached Cotterell, pushed him into a corner, held a knife to his throat, and began rifling through his pockets. Cotterell attempted to talk Thomas out of stealing from him, but Thomas threatened Cotterell, saying, “ ‘Do you want to die over this?’ ” Thomas took Cotterell’s wallet and a couple of loose dollars.~(RT 349)~