THE PEOPLE, Plaintiff and Respondent,
v.
WESLEY THOMAS WATSON, Defendant and Appellant.

No. D058047.
Court of Appeals of California, Fourth District, Division One.

Filed February 17, 2012.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McDONALD, J.

A jury convicted defendant Wesley Watson of first degree robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A),[1] count 1), first degree burglary (§§ 459/460, count 2), assault (§ 245, subd. (a)(1), count 3), and battery with serious bodily injury (§ 243, subd. (d), count 4). The jury also found true the special allegations attached to counts 1 through 4 that Watson inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8), and the special allegations attached to counts 1 through 3 that Watson inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The jury also found true the special allegations attached to count 2 that a person other than an accomplice was present during the commission of the burglary (§ 667.5, subd. (c)(21)). Watson was sentenced to nine years in prison.

On appeal, Watson asserts the prosecutor committed misconduct by eliciting improper character evidence, acting as a witness, and “vouching” in closing arguments. He also argues jury instruction CALCRIM No. 335 misstates the law on accomplice testimony and the burglary conviction must be reversed because an occupant of the room he entered invited him to enter the room with knowledge of his felonious intent.

FACTUAL BACKGROUND

A. Prosecution Case

Ruben Carvajal, the victim, had been involved in buying marijuana from, and selling marijuana to, Noah Bloom. In mid- and late-October 2009, Bloom obtained some marijuana from Jeffrey Vuytowecz and “fronted” it to Carvajal, meaning Carvajal did not immediately pay Bloom for the delivery. In turn, Bloom had not paid Vuytowecz for the marijuana. Carvajal owed Bloom $5000 to $6000.

Carvajal and Bloom arranged for Carvajal to bring marijuana from Los Angeles to San Diego on November 27, 2009, the day after Thanksgiving. The trial testimonies of Carvajal, Bloom, and Vuytowecz concerning the plan for this trip were hazy.[2] However, it was undisputed that Carvajal did bring marijuana with him when he drove to San Diego to meet with Bloom.

On November 27, 2009, Bloom’s friend use a false ID to rent a room at a Carlsbad motel, and Bloom gave his friend cash[3] to rent the room. Bloom expected to use the room for only half an hour (to conduct the drug transaction), and planned to leave the room to his friend to use for the remainder of the night. In the past, Bloom and Carvajal had conducted business at Bloom’s house, but they used the motel room for this transaction because Bloom’s roommate did not like Carvajal.

Carvajal rendezvoused with Bloom at a 7-11 Store sometime after dark on the evening of November 27th.[4] After purchasing some beer, they went to the motel room. Carvajal brought one pound of the marijuana (along with the beer and his laptop and camera) into the motel room.

About 20 minutes after Carvajal and Bloom arrived at the motel, Vuytowecz and Watson arrived and knocked on the door. Bloom answered and invited them inside. Carvajal sat on the bed while Bloom negotiated with Vuytowecz about the marijuana. Watson asked Carvajal if there was more marijuana available, and Carvajal replied there was more in Los Angeles. Watson then attacked Carvajal, punching and choking him as he took Carvajal to the ground. Watson asked Vuytowecz for help, and Vuytowecz joined the assault by kicking Carvajal. Bloom did not come to the aid of Carvajal. Carvajal lost consciousness and, when he awoke, all of his belongings were gone, including the marijuana. He asked the front desk to call the police.

Both Bloom and Vuytowecz, who testified at trial, pleaded guilty to assault charges in connection with their roles in the assault on Carvajal. Bloom testified he had not planned to rob Carvajal and did not know that Vuytowecz and Watson planned to do so. However, Bloom testified that he suspected something was amiss immediately after Vuytowecz and Watson entered the room because the marijuana was not high quality and Vuytowecz seemed noncommittal about buying it. While he and Watson were beating Carvajal, Vuytowecz told Bloom to leave and get into Vuytowecz’s car. Vuytowecz and Watson later emerged from the room carrying Carvajal’s belongings; Bloom denied he took any of them. Bloom testified that, after leaving the motel, the assailants stopped for gas and disposed of some of Carvajal’s belongings, then went to Bloom’s house. Vuytowecz and Watson left some clothing with Carvajal’s blood on it at Bloom’s house, and Bloom disposed of it the following day.

Vuytowecz’s version of the events differed in some respects from that of Bloom. He claimed Bloom did not owe him any money, but that Carvajal owed Bloom some money. Vuytowecz testified that, after he (accompanied by Watson) arrived at the motel and evaluated the marijuana, he realized it was not a high grade product and therefore tried to negotiate with Carvajal for a lower price. However, Bloom tried to justify the higher price and Carvajal was becoming upset. When the conversation turned “unfriendly,” Watson struck Carvajal with Vuytowecz joining in the attack. Vuytowecz testified it was Bloom who took all of Carvajal’s possessions.

Carvajal, as well as Vuytowecz and Bloom, identified Watson as the person who initiated the assault on Carvajal. The prosecutor agreed Vuytowecz could ameliorate his sentence if he cooperated by testifying at Watson’s trial.

B. The Defense

Watson presented alibi evidence from Mr. and Mrs. Miller, with whom he was living with at the time of the assault.[5] They testified Watson had Thanksgiving dinner with them the night before the attack, and produced a photograph of the event in which Watson appeared. Watson did not have a shaved head in that photograph.[6] Mrs. Miller testified she realized they had not celebrated Watson’s birthday, so she bought a cake and the Millers and Watson had dinner and cake the next night (the night of the attack), and Watson was sitting on the back porch when she went to bed around 8:00 or 8:30 p.m. Mr. Miller testified Watson was at the house, in Mr. Miller’s son’s room, when Mr. Miller went to bed around 9:30 that night.

II

THE CLAIMS OF PROSECUTORIAL MISCONDUCT

Watson asserts the prosecutor committed three distinct acts of misconduct. First, he asserts the prosecutor elicited improper character evidence. Second, because of the improper form of certain questions to Carvajal, Vuytowecz and Bloom, the prosecutor acted “as a witness” for the prosecution. Third, the phraseology used by the prosecutor during part of her closing argument amounted to “vouching” for the prosecution’s case.

A. General Principles

Prosecutorial Misconduct Generally

A prosecutor in a criminal case can commit misconduct under either federal or state law. “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. Morales (2001) 25 Cal.4th 34, 44.)

Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct does not require reversal of the judgment unless it was prejudicial under state law, i.e. it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct. (People v. Castillo (2008) 168 Cal.App.4th 364, 386; People v. Crew (2003) 31 Cal.4th 822, 839.) If the prosecutorial misconduct renders the defendant’s trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct is harmless beyond a reasonable doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324.)

Preservation of Issue

To preserve a claim of prosecutorial misconduct for appeal, a defendant must timely object and request a curative admonition unless an admonition would not have cured the harm caused by the misconduct. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp (1999) 20 Cal.4th 826, 858.) To avoid forfeiture or waiver of a claim of prosecutorial misconduct, a defendant generally “must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.” (People v. Brown (2003) 31 Cal.4th 518, 553.) Alternatively stated, “[a]s 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.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) However, “[a] defendant will be excused from the requirement of making a timely objection and/or a request for admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request.” (People v. Cole (2004) 33 Cal.4th 1158, 1201.)

B. The Claim of “Improper Character Evidence”

The Alleged Misconduct

Watson argues the prosecutor committed misconduct when, during the series of questions posed to Vuytowecz about the nature of his relationship to Watson, the following exchange occurred:

“[Prosecutor]: So your relationship with [Watson] is a social relationship?

“[Vuytowecz]: Yeah.

“[Prosecutor]: Yes?

“[Vuytowecz]: Yes.

“[Prosecutor]: Do you also have a business relationship with [Watson]?

“[Vuytowecz]: We’ve had one in the past, yes.

“[Prosecutor]: What kind?

“[Vuytowecz]: Just recreational drug habits.

“[Prosecutor]: Did you ever sell dope together?

“[Vuytowecz]: Yes.

“[Prosecutor]: When you did, who sold to whom?

“[Vuytowecz]: It kind of went both ways. There was no—you know, not one over the other.”

Analysis

Watson argues the prosecutor engaged in misconduct by deliberately seeking to admit inadmissible evidence (People v. Bonin (1988) 46 Cal.3d 659, 689, disapproved on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1) because the evidence that Watson and Vuytowecz had engaged in drug deals was “other acts” evidence inadmissible under Evidence Code section 1101, subdivision (a). However, Watson neither objected nor asked for a curative admonition, and therefore he has forfeited the claim of error.

Watson argues the issue should be deemed preserved because an objection would have been futile (because an admonition would not have cured the harm caused by the misconduct) or, alternatively, that he is entitled to relief because the failure to object constituted ineffective assistance of counsel. We are not persuaded by Watson’s arguments because both are premised on the assumption the evidence was inadmissible under Evidence Code section 1101, subdivision (a). However, “Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant `when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.’ Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity. It also recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. [Citation.] The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but . . . the list is not exclusive. [Citations.] As we have explained, the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] In order to be material, the fact in dispute `may be either an ultimate fact in the proceeding or an intermediate fact “from which such ultimate fact[] may be . . . inferred.”‘ [(Quoting People v. Thompson (1980) 27 Cal.3d 303, 315, fn. omitted.)]” (People v. Catlin (2001) 26 Cal.4th 81, 145-146.)

Here, the testimony was relevant to show the nature of the relationship between Watson and Vuytowecz, and to corroborate Vuytowecz’s testimony that Watson accompanied Vuytowecz on a mission to acquire marijuana. (See People v. Ellers (1980) 108 Cal.App.3d 943, 953-954.) There was no misconduct in eliciting that evidence.

C. The Claim of “Acting as a Witness”

Watson argues the prosecutor improperly “acted as a witness” because of the form of some of the questions posed to Carvajal, Vuytowecz and Bloom.

The Alleged Misconduct

During the examination of Carvajal, Bloom and Vuytowecz, the prosecutor asked some questions that were prefaced by phrases like “[d]o you recall in the interview with me and my investigator you said,” “[d]o you remember talking to me in my office and saying,” or “[d]o you recall telling me.”

Analysis

Watson, citing numerous cases that a prosecutor commits misconduct by offering unsworn testimony to convict the defendant, argues these questions constituted misconduct because it was analogous to offering her unsworn testimony to convict Watson. However, Watson neither objected nor asked for a curative admonition, and therefore he has forfeited any claim of error as to the form of the questions.

Watson resurrects his twin claims that the issue should be deemed preserved because an objection would have been futile (because an admonition would not have cured the harm caused by the misconduct) or, alternatively, that he is entitled to relief because the failure to object constituted ineffective assistance of counsel. We are not persuaded by Watson’s arguments because both arguments are premised on the assumption that posing leading questions to a witness is misconduct, insofar as the leading questions imply some knowledge by the prosecutor of facts outside of the record, and the questions amount to an interjection of those facts in an unsworn fashion. However, in People v. Collins (2010) 49 Cal.4th 175, the defendant argued the trial court committed reversible error in allowing the prosecutor to ask leading questions of a witness and argued that “by using leading questions, the prosecutor essentially testified for Zamora, who was not credible.” (Id. at p. 214.) The court, after noting that “leading questions are not always impermissible on direct examination” and that a trial court has discretion to permit such questions (ibid. ), concluded that questions substantively indistinguishable from the questions asked in this case were not improper. For example, in Collins, the prosecutor (referring the witness to a meeting between himself, the prosecutor and a detective several days before his trial testimony) asked, “`Do you remember saying you had forgotten to tell us something because you were scared and now you want to tell us something else,'” “`Do you remember telling us,'” “`Did you tell us,'” and “`Do you remember telling us.'” (Id. at p. 215.) Collins concluded such questions were permissible under the circumstances of that case.

Watson argues Collins is distinguishable, and the numerous cases he relies on should be followed,[7] because the prosecutor in Collins relied on a transcript of an interview that would have been admissible as a prior inconsistent statement, while no similar transcript existed here. However, Collins specifically noted that “[c]ontrary to defendant’s assertion, there is no requirement that transcripts of the prior statements be admitted in evidence before a witness can be questioned about their content” (Collins, supra, 49 Cal.4th at p. 216, fn. 13), and Watson does not explain why the existence of a transcript of an interview would transform improper leading questions into proper leading questions.

D. The Claim of “Vouching”

The Alleged Misconduct

During closing argument, the prosecutor concluded by arguing:

There is no issue here, ladies and gentlemen. Do not think because we are here in trial there’s a problem with the case. Well, there’s liars. That’s never an easy thing to present to somebody but doesn’t take away what the facts are. [Watson] has an absolute right to [a] jury trial, and he has had it.

“And it wouldn’t matter if there was DNA or fingerprints. And there was no DNA or fingerprints of [Watsonat that crime scene, but neither were there any of [Carvajal, Bloom or Vuytowecz]. And they all admitted to you they were there, so that doesn’t mean [Watson] wasn’t there.” (Italics added.)

Analysis

Watson, citing numerous cases holding a prosecutor commits misconduct by “vouching for the case” presented to the jury, argues use of the italicized words was misconduct for three reasons. First, Watson asserts that because the prosecutor implied (when she said “there’s no problem here”) that she was privy to information the jury had not seen and knew from that information Watson was guilty. Second, he asserts that the prosecutor (when she said “[d]o not think because we are here in trial there’s a problem with the case”) was adverting to her experience in trying criminal cases in which a defendant is clearly guilty (but nevertheless required trial) and that this was such a case. Third, he asserts the prosecutor (when she said “there was no DNA or fingerprints of [Watson] at that crime scene, but neither were there any of [Carvajal, Bloom or Vuytowecz]”) was referring to evidence not introduced at trial, i.e. that the results of testing were negative for all parties allegedly involved in the assault.

Watson argues these statements constituted misconduct because they implied the prosecutor had information the jury did not, and the information convinced her Watson was guilty. However, Watson neither objected nor asked for a curative admonition regarding these comments in the prosecutor’s closing argument, and therefore he has forfeited any claim of error as to the form of the questions.

Watson, again arguing we should nevertheless reach the issue because an objection would have been futile or (in the alternative) the failure to object constituted ineffective assistance of counsel, notes numerous cases have found misconduct when a prosecutor’s closing argument either argues facts not admitted at trial or invokes his or her experience to assure the jurors that the defendant is guilty. Even assuming the issue were preserved, we are unpersuaded these statements amounted to misconduct. When the claim of misconduct “`focuses on comments made by the prosecutor before the jury, 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.’ [(Quoting People v. Berryman (1993) 6 Cal.4th 1048, 1072); citations.] A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom.” (People v. Harrison (2005) 35 Cal.4th 208, 244, italics added.) When evaluating a defendant’s claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner and, when “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, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

We are unpersuaded there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks as adverting to unadmitted evidence of which the prosecutor was aware, or that she was inviting the jury to defer to her expertise in evaluating criminal matters. For example, the prosecutor’s statement that “[t]here is no issue here, ladies and gentlemen[,] [d]o not think because we are here in trial there’s a problem with the case. . . [Watson] has an absolute right to a jury trial, and he has had it,” could reasonably be understood to be a comment on the evidence that, while Bloom and Vuytowecz had pleaded guilty, Watson differed only because he elected to require the prosecution to prove its case against him. Reading the comment in the least damaging fashion, this statement was an argument on the evidence, i.e. that the jury should not infer this difference alone meant there were issues or problems with the case against Watson.

Similarly, the prosecutor’s statement that “there was no DNA or fingerprints of [Watson] at that crime scene, but neither were there any of [Carvajal, Bloom or Vuytowecz] [a]nd they all admitted to you they were there, so that doesn’t mean [Watson] wasn’t there,” read in the least damaging fashion, could also reasonably be understood to be a comment on the evidence instead of a suggestion that there was unadmitted evidence of which the prosecutor was aware. When the defense cross-examined Detective Williams, it elicited testimony that neither Watson’s fingerprints nor his DNA was found in the hotel room. On redirect, the prosecutor asked Detective Williams to confirm police also had not found fingerprints or DNA in the hotel room from Carvajal, Bloom or Vuytowecz because the room was not processed to collect fingerprints or DNA. Thus, the comments were based on the evidence and argued no adverse inference should be drawn from the absence of physical evidence linking Watson to the crime scene because the same absence of physical evidence pertained to people who admitted they were at the crime scene. Thus, reading the comment in the least damaging fashion, this statement was an argument on the evidence rather than an implication of the prosecutor’s knowledge of unadmitted evidence.

E. Conclusion

We conclude Watson’s claims of misconduct are forfeited and, even were these claims preserved, the cited conduct did not involve deceptive or reprehensible methods to persuade the jury nor did it infect the trial with such unfairness as to make the conviction a denial of due process.

III

THE CLAIM OF INSTRUCTIONAL ERROR

Watson contends the judgment should be reversed because the accomplice instruction the court gave with CALCRIM No. 335 instructed the jury that the evidence supporting the testimony of an accomplice need only be “slight” and “tend to” connect Watson to the crimes. He asserts this violated his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution because, by instructing the jury that the evidence supporting the accomplice testimony only had to be “slight” and “tend to connect the defendant to the commission of the crimes,” the court erroneously diluted the requirement that Watson could be found guilty only on proof beyond a reasonable doubt.

A. Background

The court instructed the jury with a modified version of CALCRIM No. 335, as follows:

“If the crimes charged in Counts 1 through 4 . . . were committed[,] then [Bloom and Vuytowecz] were accomplices to those crimes.

“You may not convict the defendant of the crimes charged in Counts 1 through 4 based on the testimony of an accomplice alone. You may use the testimony of an accomplice to convict the defendant only if: [¶] One, the accomplice’s testimony is supported by other evidence that you believe; [¶] Two, that supporting evidence is independent of the accomplice’s testimony; [¶] and [¶] Three, that supporting evidence tends to connect the defendant to the commission of the crimes.

“Supporting evidence[,] however[,] may be slight. It does not need to be enough[,] by itself, to prove the defendant is guilty of the charged crime, and it does not need to support every fact about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice.

“Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give the testimony the weight you think it deserves after examining it with care and caution and in light of all of the other evidence.”

Watson acknowledges that defense counsel did not object to the instruction.

B. Analysis

Watson claims CALCRIM No. 335, as given by the court, unconstitutionally lessened the prosecution’s burden of proof by requiring far less proof than proof beyond a reasonable doubt. However, under the federal Constitution, there is no requirement of any corroboration before an accomplice’s testimony may provide proof beyond a reasonable doubt (see, e.g., U.S. v. Necoechea (9th Cir. 1993) 986 F.2d 1273, 1282), much less that such corroboration must achieve a level of persuasiveness satisfying the proof beyond a reasonable doubt standard. Instead, the requirement under section 1111 that “[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated” is a matter of state law that does not implicate a federal constitutional right. (See, e.g., In re R.C. (1974) 39 Cal.App.3d 887, 892-893; Barco v. Tilton (C.D. Cal. 2010) 694 F.Supp.2d 1122, 1136.)

Although federal due process mandates that the elements of the offenses be shown beyond a reasonable doubt (see, e.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278), the corroboration statutorily imposed by section 1111 does not require that proof. Instead, the court in People v. Frye, supra, 18 Cal.4th at page 966, after holding that “[d]efendant’s characterization of the accomplice corroboration requirement as an element of the crime subject to proof beyond a reasonable doubt [citations] is unsupported and unpersuasive,” concluded the state law principles governing accomplice evidence (including permitting the corroborating evidence to be satisfied by “slight” evidence) did not offend due process protections provided by the federal Constitution.

IV

THE CLAIM OF INSUFFICENT EVIDENCE

Watson asserts his burglary conviction must be reversed because Bloom invited Watson (along with Vuytowecz) to enter the motel room with knowledge that Watson and Vuytowecz intended to rob Carvajal. The People argue that, even assuming Bloom invited Watson into the motel room knowing of his intent to rob Carvajal, the burglary conviction was nevertheless proper because Carvajal was a co-occupant of the room who did not consent to Watson’s entry knowing of his intent, and therefore the burglary conviction was proper under the rationale of People v. Clayton (1998) 65 Cal.App.4th 418.

A. Legal Principles

Any person who enters a house or building with the intent to commit a felony or theft is guilty of burglary. (§ 459.) The entry need not be a trespass to support a burglary conviction. (People v. Frye, supra, 18 Cal.4th at p. 954.) As a general rule, one who enters for a felonious purpose may be found guilty of burglary even if he or she enters with the owner’s or occupant’s consent. (Id. at p. 954; People v. Deptula (1962) 58 Cal.2d 225, 228.) A hotel room can qualify as a residence for purposes of burglary. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321.)

An exception to this general principle has been judicially crafted. Under limited circumstances, consent by the owner of property will constitute a defense to a burglary charge. As stated in People v. Felix (1994) 23 Cal.App.4th 1385, 1397-1398, a defense to a charge of burglary is available “when the owner actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee. [Citation.] . . . [T]he owner-possessor must know the felonious intention of the invitee. There must be evidence `of informed consent to enter coupled with the “visitor’s” knowledge the occupant is aware of the felonious purpose and does not challenge it.'” (See also People v. Sherow (2011) 196 Cal.App.4th 1296, 1302; People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 1484; People v. Salemme (1992) 2 Cal.App.4th 775, 777-778 [“a person who enters a structure enumerated in . . . section 459 with the intent to commit any felony is guilty of burglary except when he or she (1) has an unconditional possessory right to enter as the occupant of that structure or (2) is invited in by the occupant who knows of and endorses the entrant’s felonious intent”].)

B. Analysis

Watson’s argument on appeal, and the People’s rejoinder, are both based on the premise that, as a matter of law, the evidence showed Bloom—at the time he allowed Watson and Vuytowecz to enter the motel room—was aware of and endorsed Watson’s and Vuytowecz’s intent to rob Carvajal. However, although that was a theory proffered during the prosecutor’s closing argument and there was some evidence to support that theory,[8] the trial testimonies of Bloom and Vuytowecz (if credited by the jury) supported a conclusion Bloom did not know Watson harbored an intent to rob Carvajal at the time Bloom admitted Vuytowecz and Watson into the room. Bloom testified that, after Vuytowecz and Watson arrived, Vuytowecz examined the marijuana for a minute and then Bloom negotiated with him over the price for the marijuana. When Vuytowecz seemed noncommittal, Bloom said he was going to use the bathroom and would let them think it over, and the attack on Carvajal started while Bloom was in the bathroom. Bloom testified he had not planned to rob Carvajal, and did not know Vuytowecz and Watson planned to rob Carvajal, and only suspected something was amiss after Vuytowecz and Watson entered the room because Vuytowecz seemed noncommittal about buying the marijuana, and Watson had accompanied Vuytowecz to the room (implying to Bloom he might be a buyer for the marijuana) but then took no part in examining it for quality.

The jury could have concluded that Bloom invited Vuytowecz and Watson into the room without the knowledge Watson intended to attack and rob Carvajal. There is therefore substantial evidence from which the jury could have concluded Watson entered the room with the intent to commit a felony and was not “invited in by the occupant who [knew] of and endors[ed] the entrant’s felonious intent.” (People v. Salemme, supra, 2 Cal.App.4th at p. 778.)

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J. and HALLER, J., concurs.

[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Carvajal testified he was bringing the marijuana to sell to Bloom, who might resell it to another buyer. Bloom testified Carvajal had concocted a plan to satisfy the debt he owed to Bloom by agreeing to sell him a quantity of high grade marijuana at a substantially reduced price. Vuytowecz said Bloom simply told Vuytowecz there was an opportunity to buy high grade marijuana for a good price.

[3] Bloom testified Vuytowecz gave him the cash to rent the room, but Vuytowecz denied he paid for the room.

[4] Bloom said he checked in after the sun had already set, and guessed it was around 7:00 p.m.

[5] Watson also pointed out there was no fingerprint or DNA evidence collected from the motel room.

[6] Carvajal’s original description of the assailants to the investigating officer was that the attackers had shaved heads but, when later interviewed by the officer, Carvajal said one of the attackers had a shaved head and the other had acne.

[7] In every case cited by Watson, however, the prosecutor’s misconduct was the interjection of unsworn evidence into closing arguments. (See, e.g., People v. Hill, supra, 17 Cal.4th at pp. 826-827 [misconduct found because “[i]n [the prosecutor’s] closing argument, he told the jury” unsworn facts]; People v. Gaines (1997) 54 Cal.App.4th 821, 824-825 [misconduct found because in his closing argument the prosecutor responded with reference to facts not in evidence]; U.S. v. Roberts (9th Cir. 1980) 618 F.2d 530, 532-533 [in his closing argument prosecutor referred to facts not in evidence].) No similar proscription was violated here and, indeed, the jury was specifically instructed that it was to decide the case on the evidence and that the attorneys'”questions are not evidence.” The cases cited by Watson are inapposite, and Collins is controlling.

[8] The prosecutor argued during closing argument that “Bloom was friends with . . . Carvajal and he set him up. . . . [Bloom] said, I thought it was going to be a robbery [but] I didn’t think anybody was going to be hurt.” The prosecutor was apparently adverting to Detective Williams’s testimony that he interviewed Bloom and, after Bloom gave his first version of the events and Williams told him that he did not believe that version because it sounded like a “self-serving statement to eliminate [Bloom’s] responsibility,” Bloom then gave a second version. In this second version, he told Williams that Bloom owed money to Vuytowecz and set up a drug deal to help pay that debt, and that he suspected Vuytowecz was going to rob Carvajal.