Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C148313
Ruvolo, P.J.
I.
Introduction
The jury convicted appellant of multiple offenses against his former girlfriend, Lena Taylor, occurring over a one-week period in March 2004. He was convicted of stalking (Pen. Code, § 646.9, subd. (a)), first degree residential burglary (§ 459), two counts of assault with a firearm (§ 245, subd. (a)(2)), misdemeanor assault (§ 240), misdemeanor battery (§ 242), misdemeanor battery against a person who is the parent of appellant’s child (§ 243, subd. (e)(1)), and criminal threats (§ 422). The jury also found that appellant had personally used a firearm in the commission of the assault (§§ 12022.5, subd. (a); 1203.06, subd. (a)(1)). He was acquitted of numerous other charges. The court sentenced appellant to a total term of 16 years 4 months in state prison.
All undesignated statutory references are to the Penal Code.
On appeal, appellant claims error at virtually every stage of the proceeding. He first claims the prosecutor used a peremptory challenge to exclude an African-American prospective juror solely because of her race in violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). He asserts numerous claims of evidentiary error, challenging the admission of evidence explaining why an eyewitness was fearful of testifying and challenging the exclusion of evidence of specific instances of the complaining witness’s untruthfulness. Additionally, he requests that this court review the mental health records of the complaining witness in order to ascertain whether the trial court erred in denying release of the records to him for purposes of impeachment. He also makes numerous allegations of prosecutorial misconduct during closing argument and argues that his own attorney’s failure to object to such misconduct and request admonitions deprived him of effective assistance of counsel. Additionally, he contends the consecutive sentence he received for the stalking conviction violated his rights under section 654, which guarantees him protection from multiple punishment. Appellant has also received permission to file a supplemental brief contending that the judicial fact finding supporting the factors in aggravation violated his Sixth Amendment right to a jury trial under the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham).
The judgment of conviction is affirmed.
II.
Facts and Procedural History
Appellant and Lena Taylor (Taylor) were romantically involved for about six years and had a four-year-old son together. By mid-March 2004, Taylor had ended their relationship. At trial, the prosecution presented evidence showing that, shortly after their relationship terminated, appellant engaged in a course of conduct of repeated harassment or intimidation of Taylor. Appellant denied participation in any of these events and presented alibi witnesses to establish his whereabouts when Taylor was being stalked and harassed.
Events of March 15, 2004
On March 15, 2004, at around 11:10 p.m., Taylor and her sister, Marlo Stewart, were returning to Taylor’s apartment complex. Appellant still had the keys to Taylor’s unit. They were on their way to see their mother, who also lived in the complex, when appellant came out of Taylor’s apartment. He was shouting angrily, calling her a “bitch” and saying “I’m going to fuck you up.” He tried to pull Taylor into her apartment. While struggling, appellant punched Taylor in the chest with a closed fist. She got loose and went to her mother’s apartment. Appellant continued yelling angrily from the outside and kicked the security door to Taylor’s mother’s apartment, denting it. Taylor and Stewart also testified that they saw appellant brandishing a gun during this episode, and then heard gunshots when appellant went out of sight.
At about 1:20 a.m. on March 16, 2004, the police arrived. The responding police officer noted that Taylor had a bruise under her left arm and a red mark on her chest. The officer also saw that a security screen on the front door of the apartment was damaged.
With regard to this incident, the jury found appellant guilty of stalking, misdemeanor assault, misdemeanor battery, and misdemeanor battery against a person who is the parent of appellant’s child. Appellant was acquitted of corporal injury to the mother of his child, making criminal threats, discharging a firearm with gross negligence, and drawing or exhibiting a firearm.
Events of March 16, 2004
At about 10:00 a.m. on March 16, 2004, Taylor was on her way to the hardware store to purchase new locks for her apartment. In the parking lot, appellant suddenly appeared and opened the driver’s side door. He pushed Taylor over and got in. Taylor grabbed her phone to call the police, and appellant grabbed her phone and got out of the car. He walked away, yelling. Taylor contacted the police. The responding police officer noted Taylor appeared upset, but he did not observe any physical injuries. The officer searched the area for appellant but did not find him.
With regard to this incident, the jury found appellant guilty of stalking. Appellant was acquitted of battery.
Events of March 20, 2004
On March 20, 2004, at around 2:20 a.m., the police came to Taylor’s apartment in response to another call from her. The officer listened to some messages on Taylor’s voice mail, featuring an angry male voice. Taylor testified that in some of the messages, appellant stated that he was going to kill her and that he was going to shoot her in the head if he saw her with anyone else. The officer advised Taylor to save the recording. Taylor did not have the recording at the time of trial and admitted that she couldn’t remember the messages “word for word.”
With regard to this incident, the jury found appellant guilty of stalking. Appellant was acquitted of the charge of making criminal threats.
Events of March 22, 2004
On March 22, 2004, at around 3:20 a.m., Taylor was asleep in her bed with Jerome Taylor (no relation). Her children were in their bedroom. They awoke suddenly to the sound of the bedroom window breaking. They saw flashes from a gun and then heard the sound of two gunshots. At trial, Taylor testified that the shooter was leaning in through the window with his upper body, and that she recognized appellant’s face. She testified that appellant stated that he was going to kill her, pointed the gun at her, and then fired several shots.
When the police arrived, they found two bullet holes in Taylor’s bedroom. Both were on the side of the room opposite the broken window. Police interviewed Taylor, Jerome Taylor and Lena Taylor’s neighbor across the street, Jerold Serrell, who heard glass breaking and witnessed the shooting. Neither Jerome Taylor nor Jerold Serrell could identify appellant as the shooter.
With regard to this incident, the jury found appellant guilty of stalking, first degree burglary, assault with a firearm on Lena Taylor and Jerome Taylor, and making criminal threats.
III.
Discussion
A. Error in Jury Selection
Appellant contends that the trial court erred in denying his motion for a new jury panel under Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258. He argues that the prosecutor failed to show that he had genuine nondiscriminatory motives for exercising one of his peremptory challenges to remove an African-American female from the panel.
Generally, “[t]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution [citation] as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. [Citation.] . . . [¶] ‘A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue.’. . .” (People v. Burgener (2003) 29 Cal.4th 833, 863-864, quoting People v. Jenkins (2000) 22 Cal.4th 900, 993.)
To carry this burden, the prosecutor “need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) Thus, justification for a challenge may be properly found in “ ‘bare looks and gestures’ ” that may alienate a party (Wheeler, supra, 22 Cal.3d at p. 276) and a challenge “based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.]” (People v. Turner (1994) 8 Cal.4th 137, 165, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
“The trial court’s ruling on this issue is reviewed for substantial evidence,” provided that “ ‘the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror.’ [Citations.]” (People v. McDermott (2002) 28 Cal.4th 946, 971, quoting People v. Silva (2001) 25 Cal.4th 345, 386.)
Appellant contends the prosecutor exercised one of his peremptory challenges in a constitutionally impermissible manner in excusing prospective juror Sandra B. After the prosecutor had exercised six peremptory challenges, and the defense had exercised eight peremptory challenges, both sides passed. The court was about to swear in the jury, which included Sandra B., when three jurors raised hardship concerns. After exploring each juror’s hardship request, the court excused one of the jurors. The prosecutor then used two of his remaining peremptory challenges to excuse Sandra B. and another juror.
After the prosecutor excused Sandra B., the defense objected on Wheeler grounds, saying “I see no reason for him to excuse her. He already accepted her at one point. . . . And I don’t see any other reason other than her membership in that protected class [African-American women] that she’s being excused from the jury.”
The court found a prima facie case and the prosecutor provided the following reasons for exercising a peremptory challenge to excuse Sandra B.: “With respect to Ms. [B.], after Mr. [T.] got kicked, got excused for cause, I did not like the make-up of the jury. It had nothing to do with her being African American at all. I’m African American myself. I do not have a problem. In fact, she might have been good for me. But I did not like her responses when I look [sic] at them again. When she was asked about reasonable doubt, she was most definitely if I didn’t prove my case. She was just emphatic about her answers.”
The prosecutor went on to explain, “I didn’t have a problem with her at first. Once Mr. [T.] was gone . . . I didn’t like Ms. [B.] It had nothing to do with her being African American whatsoever.”
The court asked, “What did it have to do with?” The prosecutor replied that “she might be too strong of a personality for this jury. There has to be some leaders and there has to be some followers. . . . [¶] I thought Ms. [B.] might have been too strong a personality, period. And her answering the defense questions the way she did, that kind of swung me and I kicked her. It has nothing to do with her being African American. The prosecutor also pointed out that he had left one African American on the jury. The court denied appellant’s motion.
The prosecutor could properly challenge Sandra B. based on the manner in which she answered his questions. “ ‘[N]othing in Wheeler disallows reliance on the prospective jurors’ body language or manner of answering questions as a basis for rebutting a prima facie case’ of exclusion for group bias. [Citation.] . . . ‘Nowhere does Wheeler or Batson say that trivial reasons are invalid. What is required are reasonably specific and neutral explanations that are related to the particular case being tried.’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 917 (Reynoso); People v. Montiel (1993) 5 Cal.4th 877, 909.)
Appellant claims the prosecutor’s explanation for striking Sandra B. “was implausible in light of the whole record” because “there were several jurors who were empaneled [sic] who had given similar ‘emphatic’ answers.” However, in considering appellant’s argument, looking at the cold record provides no assistance in determining whether a particular juror’s response was “emphatic.” Whether or not a statement is emphatic is based on “ ‘tone, demeanor, facial expression, and emphasis’ ”—none of which can be reflected in a cold record. (People v. Dunn (1995) 40 Cal.App.4th 1039, 1050.)
Clearly the trial judge, who had the opportunity to observe the demeanor of this juror, was in the best position to evaluate such a complex, nuanced, observation-based justification for excusing this prospective juror. Moreover, we have no way of assessing the demeanor of the other prospective jurors as they answered similar questions posed by counsel. In short, the cold record cannot overcome the credibility determination made by the trial court.
Appellant did not engage in a comparative analysis of other jurors when he made his Wheeler motion in the trial court. Historically, our Supreme Court has refrained from engaging in a comparative juror analysis for the first time on appeal when such an analysis was not conducted below. (See People v. Box (2000) 23 Cal.4th 1153, 1190 [questioning validity and reliability of comparative juror analysis for the first time on cold appellate record].) Recently, however, the United States Supreme Court utilized a comparative juror analysis for the first time on appeal in the connection with review of a Batson motion. (See, e.g., Miller-El v. Dretke (2005) 545 U.S. 231, 240-248.) The California State Supreme Court, while acknowledging this new precedent, has not fully embraced it. (See People v. Avila (2006) 38 Cal.4th 491, 545-546.)
Also, the timing of the peremptory challenge in this case raises the reasonable inference the prosecutor properly exercised his peremptory challenges in response to the dynamics of the jury selection process, and not on the basis of racial and/or gender bias. (See Batson, supra, 476 U.S. at p. 94 [the timing of the peremptory challenge is a valid factor to analyze in determining whether the reasons given by the prosecutor were pretextual].) The prosecutor had previously accepted the jury two times with Sandra B. on it before he peremptorily challenged her. If the prosecutor was filtering prospective jurors by race, presumably, he would have challenged her much earlier in the process.
On the other hand, the prosecutor was entitled to exercise a peremptory challenge due to a change in the jury’s composition. As our Supreme Court explained in People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221 (Johnson): “[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer’s position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain.” (Id. at p. 1220.)
Appellant also claims the trial court “abdicated its responsibilities of inquiry and evaluation under Wheeler and Batson” in crediting the prosecutor’s explanation. Johnson reaffirmed that when ruling on a Wheeler motion, the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. . . .’ [Citation.]” (Johnson, supra, 47 Cal.3d at p. 1216.) “But in fulfilling that obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom.” (Reynoso, supra, 31 Cal.4th at p. 919.) Given the appropriate deference we must extend to the trial court, we conclude the peremptory challenge was proper and there is no Wheeler error.
B. Exclusion of Impeachment Evidence
Appellant next argues the court committed reversible error by excluding evidence of specific instances of conduct to prove that Taylor had a propensity to lie. Specifically, appellant contends the court improperly excluded evidence that Taylor lied to a social worker about her cocaine use and that she also lied to a law enforcement officer about her alcohol consumption when he stopped her for driving under the influence. He argues, “[h]ere, evidence of Lena Taylor’s character for untruthfulness, especially evidence that she lied to a police officer, would have been relevant to cast doubt on Lena Taylor’s representations to police officers at the time of the alleged offenses.”
To impeach Taylor’s testimony at trial, appellant unsuccessfully sought to introduce evidence from two witnesses. The first witness was Christine Hoang, who was Taylor’s social worker in December 2004 and January 2005. The defense represented that Taylor had lied to Hoang about not using drugs because she tested positive for cocaine during those months. The second witness proffered by the defense was a police officer who had arrested Taylor for driving under the influence. During the arrest, Taylor told the officer that she had not been drinking, but her blood-alcohol test results showed a blood-alcohol level of .21 percent. The court excluded the testimony of both witnesses based on the failure to “articulate[] sufficient foundation.”
Appellant claims “the trial court’s erroneous exclusion of evidence of Lena Taylor’s lies . . . violated appellant’s right to confront witnesses against him under the Sixth Amendment of the United States Constitution.” However, as our Supreme Court has instructed, “not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 946; People v. Chatman (2006) 38 Cal.4th 344, 372.)
In this case, the court’s evidentiary ruling did not infringe on appellant’s constitutional rights. The court acted within its discretion by refusing to permit appellant, in effect, to conduct a trial within a trial on Taylor’s lies to authorities about her illegal drug and alcohol abuse, particularly in the absence of any evidence directly connecting the lies with her testimony at trial. A trial court must remain sensitive to the risk of using valuable judicial time in the proof of such collateral matters. “[I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler (1992) 4 Cal.4th 284, 296-297, fn. omitted.) Evidence Code section 352 “empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (Id. at p. 296.)
Moreover, we believe any error in excluding evidence of specific instances of Taylor’s conduct to challenge the truthfulness of her testimony at trial was harmless as it is not reasonably probable a result more favorable to appellant would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Taylor did not come before the court as a model of veracity. The father of her oldest child testified that, in his opinion, she was a habitual liar. He stated that she would lie if she didn’t get her way.
Taylor’s credibility was thoroughly tested by vigorous cross-examination at trial. Her credibility was obviously damaged as appellant was acquitted of six of the charged counts alleging crimes against her. The jury’s acquittal on numerous counts where Taylor was the complaining witness demonstrates that they did not engage in a wholesale acceptance of her testimony. While additional evidence of lying to her social worker and the police about her drug use may have been marginally relevant, it is most unlikely to have resulted in a more favorable verdict. (See People v. Bergschneider (1989) 211 Cal.App.3d 144, 165, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 1015, 1028; People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
C. Fear of Testifying
Appellant claims the “trial court abused its discretion when, over defense objection, it admitted inflammatory testimony by Lena Taylor’s neighbor, Jerold Serrell, speculating about the danger posed by appellant.”
During the prosecution’s opening statement, the prosecutor stated that the jury would hear testimony that Serrell was worried about his safety. The prosecutor stated, “I don’t know what he’s going to say when he gets in here because he’s scared [and,] better yet, I don’t even know if he’s going to show up, okay.” During the prosecution’s direct examination of Serrell, Serrell testified that he saw someone standing on the fence shooting into Taylor’s apartment, but he could not identify appellant as the shooter. The prosecutor asked, “Now, you don’t want to be here today, do you?” The witness assured him that he didn’t and acknowledged that he was afraid to testify. The prosecutor then asked: “And do you remember telling me that the reason why you didn’t want to come in and tell the truth about what you had seen was because if he would shoot into a woman’s house with kids present, then it would be nothing for him to shoot another black or a black male?” At this point, defense counsel objected to the prosecutor’s question, claiming that it was “improper, prejudicial and irrelevant.” After the court overruled the objection, Serrell answered, “Yes.”
On appeal, appellant argues that “[t]o the extent that the statement added anything to evidence of Serrell’s fear of testifying, it was unduly prejudicial. Rather than simply impressing upon the jury Serrell’s fear of testifying, the statement essentially elicited improper opinion evidence from Serrell about the shooter’s potential dangerousness. Furthermore, the statement turned on the assumption that the person Serrell was to testify against was indeed the shooter. In both of these respects, the statement introduced highly prejudicial speculation.”
We find no abuse of discretion in permitting Serrell to testify regarding his fear of testifying against defendant. Relevant evidence includes evidence related to the credibility of a witness. (Evid. Code, § 210.) Also, “evidence that a witness is afraid to testify is relevant to the credibility of that witness and therefore admissible. [Citation.]” (People v. Warren (1988) 45 Cal.3d 471, 481.) We also note that the reason for the witness’s fear is relevant to the issue of credibility. (People v. Feagin (1995) 34 Cal.App.4th 1427, 1433-1434.) It may be helpful to the jury’s assessment of a witness’s credibility to know why his trial testimony is evasive. (See People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588-1589.) Such evidence is admissible without the requirement of showing that the witness’s fear of retaliation is directly linked to the defendant, or that any threats against the witness were made by the defendant personally. (Ibid.; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450.)
For example, in People v. Guerra (2006) 37 Cal.4th 1067, several witnesses were allowed to testify that they were afraid of the consequences of testifying against defendant when they returned to Guatemala. (Id. at p. 1141.) In upholding the admission of this testimony, the Guerra court stated: “ ‘Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to the jury’s assessment of his or her credibility and is well within the discretion of the trial court. [Citation.] For such evidence to be admissible, there is no requirement to show threats against the witness were made by the defendant personally or the witness’s fear of retaliation is ‘directly linked’ to the defendant. [Citation.]” (Id. at pp. 1141-1142;People v. Avalos (1984) 37 Cal.3d 216, 232 [witness’s fear was caused only by nature and gravity of her testimony].)
In the present case, Serrell’s testimony regarding his fear of testifying was admissible because it was related to his credibility. (See Evid. Code, § 210.) Serrell’s fear of testifying illustrated “[h]is attitude toward . . . the giving of testimony” and could be considered by the jury in determining his credibility. (Evid. Code, § 780, subd. (j).)
D. Victim’s Mental Health Records
The trial court conducted an in camera review of Taylor’s mental health records to determine if they reflected any psychiatric or psychological issues that could assist the defense. (See People v. Reber (1986) 177 Cal.App.3d 523, 530-532, disapproved by People v. Hammon (1997) 15 Cal.4th 1117, 1123.) The trial court examined the records in camera to determine whether appellant’s right to confrontation outweighed Taylor’s right to privacy as reflected in the privilege protecting the confidentiality of the records. The court announced the records contained “nothing that is relevant to any of the issues in this case,” and ordered the record resealed.
In People v. Hammon, supra, 15 Cal.4th at page 1119, the California Supreme Court held that a trial court is not required, at the pretrial stage of the proceedings, to grant discovery of privileged information in the hands of third-party psychotherapists. Thus, appellant actually received more discovery than the trial court was required to give him.
Appellant now asks U.S. to review the sealed medical records independently to determine whether the trial court's ruling was in error. Respondent agrees that we should review the records. The critical question is whether the records contain information that is favorable to the accused and material to the issue of guilt, and thus necessary for effective cross-examination of the prosecution witness. We have done so and agree with the court’s implicit finding that, given the contents of the records, appellant’s right to a fair trial did not outweigh Taylor’s right to privacy so as to require disclosure of the records to the defense.
E. Prosecutorial Misconduct
Appellant contends that various portions of the prosecutor’s arguments constituted misconduct. Prosecutorial misconduct consists of the use of deceptive or reprehensible methods to persuade a judge or jury. (People v. Dennis (1998) 17 Cal.4th 468, 522 (Dennis).) If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the jury, we consider how the statement would, or could have been, understood by a reasonable juror in the context of the entire argument. (Ibid.) No misconduct exists if a juror would have construed the statement to state or imply nothing harmful. (People v. Benson (1990) 52 Cal.3d 754, 793.)
A prosecutor may fairly comment on or argue any reasonable inferences from the evidence. (People v. Wharton (1991) 53 Cal.3d 522, 567 (Wharton).) “Harsh and vivid attacks on the credibility of opposing witnesses are permitted, and counsel can argue from the evidence that a witness’s testimony is unsound, unbelievable, or even a patent lie. [Citation.]” (Dennis, supra, 17 Cal.4th at p. 522.) However, a prosecutor may not suggest the existence of “facts” outside the record by arguing matters not in evidence. (People v. Benson, supra, 52 Cal.3d at p. 794; People v. Woods (2006) 146 Cal.App.4th 106, 113.)
In the prosecutor’s closing argument, he extensively discussed appellant’s alleged alibi and argued the witnesses who testified about the alibi were not credible. The prosecutor argued, “There is no reasonable doubt here. There is no other conclusion that you can reach based on the defendant’s case, based on what was presented to you by those defense witnesses. That’s not reasonable doubt. That testimony lacks all credibility. The defense was phony, false, fabricated and a work in progress.” (Italics added.)
On appeal, appellant argues that defense counsel misstated the law by suggesting the appellant was required to present affirmative evidence to demonstrate reasonable doubt. We are not persuaded by this argument, which infers too much from a single phrase taken out of context.
We find this case distinguishable from People v. Hill (1998) 17 Cal.4th 800, a case on which appellant heavily relies. In Hill, the prosecutor improperly shifted the burden of proof to the defendant when she explained reasonable doubt to the jury as follows: “‘[I]t must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.’ . . . There must be some evidence from which there is a reason for a doubt. You can’t say, well, one of the attorneys said so.’ (Italics added.)” (Id. at p. 831.)
Unlike Hill, the prosecutor in this case was not trying to explain to the jury the concept of reasonable doubt. Rather, as noted above, the prosecutor was simply commenting on the weakness of the evidence supporting appellant’s alibi. Seen in this light, there was not the same risk as in Hill that the jury would construe the prosecutor’s brief remark to mean appellant had the burden of proving reasonable doubt.
Appellant next objects to a segment of the prosecutor’s argument that was in response to the defense argument insinuating that Taylor’s testimony was scripted. In pertinent part, the prosecutor responded that if Taylor “had said something different from what she said on the date that these things happened, [defense counsel] would have showed you that. He didn’t. Appellant did not object to this statement.
On appeal, appellant claims this line of argument “improperly shifted the burden of proof to the defense, essentially asking the jury to presume Lena Taylor’s credibility . . . .” A review of the argument in its entirety reveals no misconduct. Comments on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the prosecution’s case are generally permissible. (People v. Medina (1995) 11 Cal.4th 694, 755.)
Appellant also claims misconduct in the prosecutor’s characterization of appellant’s alibi defense as “a work in progress. It just got thought up.” The prosecutor also argued that the “the defense is basically trying to fog this all up for you. That’s what they do. Send you on tangents.” Appellant argues the prosecutor’s argument impugned the integrity of defense counsel by suggesting that counsel knew appellant was fabricating evidence.
At this point, appellant objected, but the objection was overruled.
Contrary to appellant’s assertion, the prosecutor’s statements would not have led the jury to impute any impropriety to defense counsel. “An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) To provide a reference point, we find the prosecutor’s statements in this case are far less disparaging than statements found not to constitute misconduct. (People v. Breaux (1991) 1 Cal.4th 281, 305-306 [in closing argument prosecutor stated that attorneys learned in law school that if neither the facts nor the law favored their position, they should try to create confusion to benefit the defense]; People v. Williams (1996) 46 Cal.App.4th 1767, 1781 [in closing argument prosecutor stated that, because the facts were against the defendant, defense counsel had to “obscure the truth” and distract the jury in order “to manufacture doubt” where none existed].)
Appellant also contends the prosecutor improperly misled the jury regarding the character of both Jerome Taylor and Lena Taylor because the court had previously excluded evidence that would have proved that Jerome Taylor had a “shady” past and that Lena Taylor was a liar. In discussing Lena Taylor’s testimony, the prosecutor argued “[s]he has no reason to lie.” In discussing Jerome Taylor, he asked “why would he lie? He wouldn’t.” Again, no objection was made to this line of argument. We have examined the record and conclude the prosecutor’s remarks were merely responsive to defense counsel’s own arguments to the jury. In any event, the prosecutor may assure the jury of a witness’s apparent honesty or reliability based on matters in the record. (See People v. Padilla (1995) 11 Cal.4th 891, 945-946, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
During in limine motions, the court excluded any reference to prior arrests of Jerome Taylor that did not result in convictions. As discussed in an earlier section of this opinion, the court also excluded two specific instances of conduct proffered to show Lena Taylor’s character for dishonesty.
A review of the foregoing portions of the prosecutor’s argument leads U.S. to conclude that appellant has failed to establish a cognizable claim of prosecutorial misconduct. Additionally, assuming arguendo that any of the comments made during closing argument constitute prosecutorial misconduct, a timely objection and admonition would have cured any harm. (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 952; People v. Edelbacher (1989) 47 Cal.3d 983, 1030.)
Because we find the prosecutor’s remarks about which appellant complains did not prejudice his case, we necessarily reject his alternative contention that his trial counsel was ineffective for failing to object to and request admonitions to the jury regarding the alleged misconduct. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [ineffective-assistance claim requires not only a showing counsel’s performance was deficient but also a showing there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different]; People v. Williams (1997) 16 Cal.4th 153, 215; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) Indeed, “rarely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical. [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 678.)
The last instance of alleged misconduct did draw a defense objection and an admonition to the jury. In discussing the testimony of Jerold Serrell, the eyewitness to the events of March 22, the prosecutor argued: “And he says I can’t identify anyone. That’s what he says. He offers that up before anybody asked him that question. ‘I can’t identify anyone.’ Well, then why are you scared? Because he knows who did it. . . .” (Italics added.) Defense counsel objected and moved for a mistrial, stating, “He’s implying that the man would identify my client. There’s never been any evidence at all that he identified my client or was afraid of my client.”
The court overruled the objection, and admonished the jury: “Ladies and gentlemen, this is called closing argument for a reason, because the attorneys have a chance to argue the law and the facts. Remember that the lawyers don’t decide the facts. That’s your job exclusively. Consider this as argument. If you don’t agree or see it the way the attorneys argue, that’s your job and your responsibility.”
The prosecutor continued, “[Y]ou know, he never identified the defendant. He never came in here and said the defendant was the one that was out there. The inference can be drawn from his conduct and his testimony that maybe he does know. . . .” Defense counsel objected again, arguing, “That inference can’t be drawn.” The trial court overruled the objection, stating, “That’s up for the jury to decide.”
Appellant contends that these remarks in closing argument, when combined with the remarks in the prosecutor’s opening statement indicating that Serrell “saw [appellant] on top of that fence,” confirm that the prosecutor was intentionally signaling to the jury that Serrell had made an out-of-court identification of appellant. The harmful nature of this argument lies in its suggestion that the prosecutor possessed other information, not presented to the jury, that Serrell had identified appellant as the shooter. (People v. Benson, supra, 52 Cal.3d at pp. 794-795.)
Even assuming misconduct in the prosecutor’s argument implying that Serrell could identify appellant as the shooter, any such misconduct was nonprejudicial in light of the properly introduced evidence at trial. During Serrell’s testimony, he not only testified that he could not identify appellant as the shooter, but he testified on cross-examination that he had never purported to tell anyone the identity of the shooter. Serrell’s testimony on this point was uncontradicted at trial. Thus, the jury knew that Serrell had never identified anyone. Moreover, the jury was cautioned that counsel’s argument in this regard was not evidence and should not be considered as such. In light of the evidence and the court’s admonition to the jury, the prosecutor’s remarks could not have resulted in a “ ‘miscarriage of justice within the meaning of the Constitution.’ [Citation.]” (People v. Stewart (2004) 33 Cal.4th 425, 502.)
F. Multiple Punishment
In sentencing appellant, the trial court indicated it was the “intention of the Court that you serve a total sentence in the state prison consisting of 16 years and [4] months . . . .” In computing appellant’s sentence, the court imposed the aggravated term of four years on count 8, assault with a firearm against Lena Taylor (§ 245, subd. (a)(2)), and a consecutive one-year term for count 9, assault with a firearm against Jerome Taylor (§ 245, subd. (a)(2)). The court also imposed a consecutive aggravated 10-year term for the personal use enhancement attached to count 8. (§§ 12022.5; 1203.06.) In addition, appellant received a consecutive eight-month term for count 1, stalking (§ 646.9, subd. (a)) and another consecutive eight-month term for count 11, making criminal threats (§ 422).
Appellant disapproves of the sentencing scheme selected by the trial court by which he received consecutive terms for the stalking, and the criminal threat offense. He argued below, and contends on appeal, that the imposition of a separate sentence for the stalking conviction was error because the sentence should have been stayed under section 654.
Section 654 provides in pertinent part: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Section 654 applies in situations of multiple statutory violations produced by the same act or omission. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Because the statute is intended “to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]” (Ibid.) However, “[i]t is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.]” (Ibid.) If the offenses are merely incidental to one objective, “the defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]” (Ibid.) But if the defendant “harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he [or she] may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.)
The offense of stalking is committed when a person “willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.” (§ 646.9, subd. (a).) Thus, the harassment proscribed by section 646.9 consists of a series of acts that amount to a course of conduct. (See People v. McCray (1997) 58 Cal.App.4th 159, 168-170.) “The primary significance of defining a crime as a continuous course of conduct is that the jury need not agree unanimously that the defendant committed any particular act or acts; it need only agree unanimously that he or she engaged in the prohibited conduct.” (People v. Culuko (2000) 78 Cal.App.4th 307, 325; see People v. Zavala (2005) 130 Cal.App.4th 758, 769 [because the continuing course of conduct doctrine applies to stalking, no unanimity instruction was required]; accord, People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.)
In his reply brief on appeal, appellant asks that he be permitted to submit supplemental briefing on the trial court’s failure to instruct the jury, sua sponte, on unanimity. As this issue appears to be settled, no purpose could be reasonably served by additional briefing.
Appellant was convicted in count 1 of stalking Taylor between March 15 and March 22, 2004. Because the crime of stalking requires repeated acts, a single act otherwise meeting the definition of stalking will not suffice to support a conviction under section 646.9. Accordingly, appellant could not have been found guilty of stalking based upon his conduct on March 22 alone.
During closing argument, the prosecutor argued the case on the theory appellant committed a series of acts during that time frame which constituted the offense of stalking Taylor: “Now, what are the facts that show stalking? Well, the defendant repeatedly harassed the victim. He harassed her on the 15th, he harassed her on the 16th, the 19th when he called her and threatened her on multiple occasions, and the 22nd when he shows up at her home, breaks the window and shoots into her bedroom. That’s harassing.”
On the other hand, appellant’s conviction for making a criminal threat was based on his conduct on March 22, 2004, when he told Taylor that he was going to kill her. Under these facts, it is clear that appellant’s conviction for making a criminal threat involved a criminal intent and objective separate and independent of that for which he was convicted of stalking.
Nevertheless, appellant claims that the court should have found section 654 applicable to the stalking count because the “convictions for both assault with a firearm and criminal threats was part of the course of conduct on which the stalking conviction was based.” Apparently, appellant argues that because the conduct for which he was convicted of stalking encompassed his conduct on March 22, he could not, under section 654, be sentenced separately for the threat he made against Taylor on March 22.
It is not at all clear that the jury necessarily used appellant’s conduct on March 22 to support the conviction for stalking. The stalking offense was based on numerous incidents over a period of four days, including appellant entering Taylor’s apartment without her permission, verbally and physically assaulting her, incessantly calling her on the telephone making threats, and accosting her in a hardware store parking lot. Whether a defendant harbored multiple criminal objectives is generally a question of fact for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) If there is no express finding on the issue in the record, a finding that the crimes were divisible is inherent in the judgment, and must be upheld if it is supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) Thus, appellant’s argument fails for additional reason.
Even if we were to assume that the events of March 22 were used by the jury to support the stalking conviction, it would not require staying his sentence for making a criminal threat on that occasion under section 654. Appellant’s argument ignores that “the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
While the overarching goal of most of appellant’s conduct (except the assaults themselves) was physical and mental intimidation of Taylor, each crime had its own separate objective which permitted the imposition of separate sentences. The criminal threat was a singular act intended to create fear in the victim at the time of utterance. Stalking, on the other hand, involves repeated acts intended to create an environment of prolonged intimidation and fear, arising from the crime’s repetitive nature. To hold that sentences must be stayed for one of these crimes under the facts of this case would be contrary to the policy behind section 654, which is to insure that a defendant’s punishment is commensurate with his or her culpability. (People v. Perez (1979) 23 Cal.3d 545, 552.) It would “ ‘reward the defendant who has the greater criminal ambition with a lesser punishment.’ [Citation.]” (People v. Harrison, supra, 48 Cal.3d at pp. 335-336.)
G. Cunningham Issue
At the sentencing hearing held on July 26, 2005, the court imposed the aggravated term on count 8, assault with a firearm against Taylor and the attendant personal use finding based on “a number of circumstances in aggravation under California law.” Specifically, the court cited the following factors: appellant used a weapon at the time of the commission of the crime (Cal. Rules of Court, rule 4.421(a)(2) ); the victim was particularly vulnerable (rule 4.421(a)(3)); the manner in which the crime was carried out indicated planning and sophistication (rule 4.421(a)(8)); appellant took advantage of a position of trust or confidence (rule 4.421(a)(11)); appellant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); and appellant’s performance on probation or parole was unsatisfactory (rule 4.421(b)(5)).
All further undesignated rule references are to the California Rules of Court.
With this court’s permission, appellant filed a supplemental brief contending that the aggravated sentences he received for count 8, assault with a firearm (§ 245, subd. (a)(2)) and the personal handgun use enhancement attached to that count (§ 12022.5) were improper under Cunningham, supra, 549 U.S. ___, 127 S.Ct. 856. In Cunningham, the United States Supreme Court held that the imposition of an upper term sentence under California’s determinate sentencing law (DSL), based on a judge’s finding by a preponderance of the evidence that circumstances in aggravation outweighed circumstances in mitigation, violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial. The high court also held that the middle term sentence is the statutory maximum a judge may impose under the DSL without the benefit of facts reflected in the jury’s verdict—that is, facts found true by a jury beyond a reasonable doubt—or admitted by the defendant.
On July 19, 2007, after this case had been argued and submitted, the California Supreme Court issued its decisions in People v. Black (2007) 41 Cal.4th 799 (Black); People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).) After these cases became final, we vacated submission and requested and obtained supplemental briefing from the parties regarding the effect of Black and Sandoval on this appeal.
In Black, our Supreme Courtconcluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) The court added that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ [Citation.]” (Ibid.) Because “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law, “if one aggravating circumstance has been established in accordance with the constitutional requirements . . . the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Id. at p. 813, fn. omitted.)
Applying those conclusions to the facts before it, Black noted that the United States Supreme Court “consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Black, supra, 41 Cal.4th at p. 818.) The court held that the defendant’s criminal history alone rendered him eligible for the upper term sentence, stating “defendant’s criminal history and the jury’s finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence . . . .” (Id. at p. 820.)
In the present case, as in Black, appellant’s constitutional right to a jury trial was not violated by the imposition of the upper term for count 8 because at least two aggravating factors cited by the trial court were established by means that satisfied the requirements of the Sixth Amendment––appellant’s performance on probation and parole was unsatisfactory and the victim was particularly vulnerable.
In support of the trial court’s finding that appellant’s prior performance on probation or parole was unsatisfactory, a probation report indicated that appellant had suffered seven probation revocations and three parole violations during his adult criminal history. Appellant claims it was constitutionally impermissible for the trial court to rely on this factor because “with respect to the probation report’s information about appellant’s alleged probation revocations and parole violations, this information was not before the jury.” (Underscoring in original.)
Black held, contrary to appellant’s argument in the present case, that the Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black, supra, 41 Cal.4th at p. 819.) Illustrative of this interpretation, the Black court held the aggravating factors of numerous or increasingly serious prior convictions were within the prior conviction exception. The Black court explained that findings of increasing seriousness “require consideration of only the number, dates, and offenses of the prior convictions alleged,” and these types of determinations were “ ‘quite different from the resolution of issues submitted to a jury,’ ” and more appropriate for a court. (Id. at pp. 819-820.)
The trial court’s finding regarding appellant’s poor performance on probation and parole falls squarely under the prior conviction exception as interpreted in Black. The determination that appellant’s prior performance on probation or parole was unsatisfactory can be made from official records related to his prior convictions and does not require the court to make subjective factual determinations about appellant’s past criminal conduct. (See People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [appellant’s poor performance on parole].) This factor alone rendered appellant eligible for the upper term.
The trial court also cited another reason for imposing the upper term—the vulnerability of the victim. The trial court’s use of this factor was supported by the jury’s verdict. As to count 8, the March 22 assault with a firearm, the jury expressly found beyond a reasonable doubt that the victim was particularly vulnerable. Because the jury expressly made this finding, the trial court did not violate Cunningham by using this factor to aggravate appellant’s sentence.
We reject appellant’s claim that his “sentence for an aggravated crime, where the aggravated crime was not charged [in the charging documents] violated appellant’s right to notice and due process under the Sixth and Fourteenth Amendments.” As appellant acknowledges, during the trial, the prosecutor submitted a document entitled “Aggravated Term Notification,” which alleged factors in aggravation including victim vulnerability. Certainly this document apprised defense counsel of the trial court’s sentencing choices and placed him on notice that victim vulnerability was a possible factor the court could consider in aggravation. (See People v. Gonzalez (2003) 31 Cal.4th 745, 754 [due process satisfied where the parties are able to anticipate the trial court’s sentencing choice and its reasons, such as through a presentence probation report].)
Therefore, we conclude that at least two of the aggravating factors cited by the trial court were established by means that satisfied the requirements of the Sixth Amendment, in accordance with Black. Accordingly, we find that appellant suffered no Sixth Amendment violation by the trial court’s exercise of its discretion in selecting the upper term. While appellant claims the California Supreme Court’s decision in Black “is inconsistent with the United States Supreme Court’s express holding in the Cunningham case” and was “wrongly decided,” we are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV.
Disposition
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.