Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. RIF138383 of Riverside County, Paul E. Zellerbach, Judge.
McDONALD, J.
Lorenzo Sams, Jr., (Sams) appeals a judgment following his jury conviction of one count of inflicting corporal injury on a cohabitant resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)) and one count of making a criminal threat (§ 422). On appeal, he contends: (1) the prosecutor committed prejudicial misconduct; (2) the trial court abused its discretion by denying his motion to dismiss one or both of the prior serious or violent felony conviction allegations under the three strikes law; and (3) the court erred by imposing concurrent one-year terms for his two prison prior convictions (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At about 11:00 a.m. on August 19, 2007, Riverside County Sheriff's Deputy Robert Mills was dispatched to a Moreno Valley apartment. Teresa Carr and Linda Sams (Linda) nervously answered the door and told Mills that Sams had attacked Carr with a knife and then left. Carr and Sams lived together and were engaged to be married. Linda is Sams's sister and had been living in the apartment for about two weeks.
Mills interviewed Carr and Linda separately. Carr told him that she and Linda had gone out to get lunch and returned to the apartment with food. Carr opened a bottle of brandy and Sams picked it up and began to "chug" it. When Carr asked him whether he was going to leave her any, they began to argue and Sams stated he was going to leave. She stated she needed to obtain some telephone numbers from his cellular telephone. Sams said "no" and grabbed his telephone from her. A struggle over the telephone ensued. Sams let go of it and then grabbed Carr by the shoulders and threw her onto the bed, pinning her shoulders down with his knees. Holding a knife, Sams stated: "Bitch, I will cut you." After putting down the knife, Sams punched and slapped Carr on her face about six to eight times. Sams picked up the knife again and swung it toward Carr's throat. She grabbed his hand to stop him from cutting her. During their struggle, Carr hit Sams on the face once or twice and scratched his chest. Linda entered the bedroom and told Sams to get off of Carr and that she had called the police. Carr grabbed Sams's knife and threw it across the room. Sams got off of Carr and chased Linda out of the bedroom. Sams then left the apartment.
Linda told Mills she heard Carr and Sams arguing and then heard Sams state: "I will cut you." Linda entered the bedroom and saw Sams on top of Carr, striking Carr's face with both hands. Linda left the bedroom, called 911, returned to the bedroom and saw Sams swinging a knife at Carr. Linda told Sams to get off of Carr and that she had already called the police. Sams then left the apartment.
Carr told Mills she had been injured and showed him injuries to her face, including bruises to her nose, jaw and forehead, and an abrasion on her cheek. Mills took photographs of her injuries. Both Carr and Linda told Mills they would be willing to testify against Sams in court.
Based on the description of Sams given to Mills by Carr and Linda, police found Sams about one-half mile away from the apartment. When Mills told Sams he was under arrest for assaulting Carr, Sams replied: "I am being arrested for what? I only slapped her once. Look at my face, she hit me, too."
An information charged Sams with one count of inflicting corporal injury on a cohabitant resulting in a traumatic condition (§ 273.5, subd. (a) (count 1)), one count of assault with a deadly weapon (§ 245, subd. (a)(1) (count 2)), and one count of making a criminal threat (§ 422 (count 3)). The information also alleged that Sams personally used a knife in the commission of counts 1 and 3 (§ 12022, subd. (b)(1)), that he had three prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)), and that he had two prison prior convictions (§ 667.5, subd. (b)).
At trial, Mills testified substantially as described above. However, Carr and Linda testified the incident occurred differently from the versions they gave to Mills. Carr testified she did not want to be in court and wished the charges against Sams would disappear. She and Sams had never ended their relationship. Since the incident, she had spoken with him in person and by telephone and had written letters to him. She testified the incident with Sams was a mutual physical altercation. Carr was drunk and upset that Sams had not come home the previous night. When he would not tell her where he had been, she pushed him and the altercation began. She recalled Sams "chugging" her brandy and the two of them struggling over Sams's cellular telephone. She denied Sams assaulted her with a knife and threatened to cut her, but admitted telling Mills that Sams stated: "Bitch, I will cut you." She testified Sams threw her onto the bed, but did not pin her down. However, she admitted she probably told Mills Sams pinned her down. She admitted she told Mills Sams had hit her on the face possibly six to eight times, but did so because she was upset with Sams, had recently lost her father, and had been in a car accident. She testified she probably told Mills Sams pulled out a knife while she was pinned down. However, she testified Sams had only used the knife that day to clean his nails. When they began arguing, she took his knife and threw it across the room. She testified her memory of the incident was bad because she was drunk at the time and had been in a car accident. She testified the bruises on her face were from the car accident about two months before the incident, but told Mills her bruises had been caused by Sams. She had not told Mills she had been in a car accident.
Linda testified she did not want to be in court. Although she remembered Carr and Sams arguing, she denied she called police, or told Mills she heard Sams say he would cut Carr or saw him swing a knife at Carr. She recalled Sams using a knife to clean his nails.
The jury found Sams guilty on counts 1 and 3 and not guilty on count 2. It found not true the allegations he personally used a knife in committing counts 1 and 3. Sams admitted he had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)) and two prior prison convictions (§ 667.5, subd. (b)). The trial court imposed concurrent terms of 25 years to life in prison on counts 1 and 3 and imposed concurrent one-year terms for his two prior prison convictions.
Sams timely filed a notice of appeal.
DISCUSSION
I Prosecutorial Misconduct
Sams contends the prosecutor committed prejudicial misconduct that requires reversal of his convictions.
A
"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. 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. Furthermore,... when the claim focuses upon 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. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is re viewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447.) Therefore, to avoid forfeiture or waiver 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. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553.) 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. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
" '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]... ' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets warranted by the evidence." ' [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 567-568.) "A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.]... However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," [his or] her comments cannot be characterized as improper vouching. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 420-421.) Similarly, "[t]he prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence... [and] to argue on the basis of inference from the evidence that a defense is fabricated...." (People v. Pinholster (1992) 1 Cal.4th 865, 948.)
B
Sams asserts the prosecutor committed prejudicial misconduct by vouching for the credibility of Mills.
Background.
The prosecutor's redirect examination of Mills included the following questions and answers:
"Q.... Did Linda Sams tell you the things that you put into your police report?
"A. Yes, she did.
"Q. Okay. Would you lie?
"A. No.
"Q. And make something up?
"A. No.
"Q. About what a witness told you?
"A. No.
"Q. Do you have family?
"A. I do.
"[Defense counsel]: Objection. Relevance.
"THE COURT: Sustained.
"Q.... So, what you put in your police report was the truth?
"A. Correct."
Referring to Linda's earlier trial testimony that she never told Mills she saw Sams on top of Carr swinging the knife toward Carr's throat, the prosecutor asked Mills: "Do you remember Linda saying that she never told you that yesterday?" Mills answered: "I do." The prosecutor asked him: "Did Linda, in fact, tell you she saw [Sams] on top of [Carr] swinging the knife at her?" Mills answered: "She did." The prosecutor asked him: "Okay. And did you put that in your police report?" Mills answered: "I did." The prosecutor then asked: "Would you make that up and put that in your police report if she never told you that?" Mills answered: "Absolutely not."
Shortly thereafter, the prosecutor asked Mills: "So Deputy, would you make up anything in your report that's untrue? Would you put anything untrue in your report?" Mills answered: "No." The prosecutor asked him: "Do you have a lot to lose if you did?" Defense counsel objected to that question on grounds of relevance. The prosecutor responded that the question "[g]oes to credibility." The trial court overruled the objection. The prosecutor then rephrased his question: "Do you have a lot to lose if you were to put false information in your police report?" Mills answered: "If I made up statements that weren't true, I would have a lot to lose." The prosecutor asked him: "Okay. And what would you have to lose?" Mills answered: "My job." The prosecutor asked: "Okay. And do you support a family with your job?" Mills answered: "I do."
In closing argument, the prosecutor argued in part:
"Let's talk about Deputy Mills. Let's talk about his credibility. He doesn't even know [Sams]. He doesn't know [Carr]. He doesn't know [Linda]. He has no motive to come in here and lie on anyone. What did [Mills] say? He said he has got a family. He can't lie on someone[;] he has a family to take care of."
Defense counsel objected to that argument as "improper vouching." The trial court sustained her objection. The prosecutor then argued that Mills had no motive to lie, had no personal relationship with anyone in the case, and was telling the truth.
In Sams's motion for new trial, he asserted the prosecutor's questioning and closing argument constituted prejudicial misconduct. The trial court denied the motion for new trial, concluding Sams had waived the purported misconduct by not requesting an admonition at the time of the purported misconduct. The court further concluded it was not reasonably probable Sams would have obtained a more favorable result had the purported misconduct not occurred.
Analysis.
We conclude, as the People assert, that Sams waived any claim of prosecutorial misconduct by not requesting the trial court give an admonition to cure the purported misconduct. To avoid forfeiture or waiver on appeal of a claim of prosecutorial misconduct, a defendant generally must make a timely objection, make known the basis of his or her objection, and ask the trial court to admonish the jury. (People v. Brown, supra, 31 Cal.4th at p. 553.) Absent a timely objection and request for a curative admonition, an appellate contention of prosecutorial misconduct is re viewable only if an admonition would not have cured the harm caused by the misconduct or if either a timely objection or request for admonition would have been futile. (People v. Price, supra, 1 Cal.4th at p. 447; People v. Cole, supra, 33 Cal.4th at p. 1201.) Although Sams argues no admonition by the trial court could have cured the prejudice caused by the purported prosecutorial misconduct, we conclude the prosecutor's questioning of Mills and closing argument regarding his credibility were not so inflammatory or egregious that an appropriate admonition by the court could not have cured the purported misconduct or "unrung the bell." We presume the jury would have followed the trial court's curative admonitions or other instructions. (People v. Mayfield (1993) 5 Cal.4th 142, 179.) Furthermore, Sams does not persuade us that a request for a curative admonition would have been futile. The cases cited by Sams are in apposite to this case and do not persuade us to reach a contrary conclusion.
Assuming arguendo the prosecutor committed misconduct in questioning Mills and in arguing Mills was credible, we nevertheless conclude such misconduct was harmless error. Based on the nature and circumstances of the purported misconduct, we conclude that misconduct did not make Sams's trial fundamentally unfair or "infect[] the trial with such unfairness as to make [Sams's] conviction a denial of due process." (People v. Morales, supra, 25 Cal.4th at p. 44.) Because Sams's federal constitutional right to a fair trial was not violated, we do not apply the federal harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18. Rather, we apply the California standard for harmless error--i.e., whether, based on the totality of the evidence, it is reasonably probable a result more favorable to Sams would have occurred absent the purported prosecutorial misconduct. (People v. Castillo (2008) 168 Cal.App.4th 364, 386; People v. Watson (1956) 46 Cal.2d 818, 836.) Based on our review of the record, the evidence supporting Sams's guilt of the two offenses was strong. Mills testified regarding the consistent statements Carr and Linda made to him immediately after the incident. The jury viewed photographs of Carr's injuries. When Sams was arrested, he stated: "I only slapped her once." Furthermore, the trial court instructed that the jury must decide the issues based on the evidence presented at trial, and the jurors alone were to judge the credibility of witnesses. (CALCRIM Nos. 200, 222, 226.) We presume the jury followed those instructions. (People v. Mayfield, supra, 5 Cal.4th at p. 179.) We conclude it is not reasonably probable Sams would have received a more favorable result had the prosecutor not committed the purported misconduct. Therefore, the assumed prosecutorial misconduct was not prejudicial.
C
Sams also asserts the prosecutor committed prejudicial misconduct by engaging in histrionics and attacking his counsel's character.
Background.
At the beginning of the prosecutor's rebuttal argument after defense counsel's closing argument, the prosecutor applauded and stated: "That was a wonderful job by [defense counsel]. I have heard that before. It's classic. She has got to do that to try to do her job. Try to get [Sams] off, to try to do an O.J. Okay. [¶] I have heard these tactics before. She has done what some defense attorneys do when they are desperate, when the evidence is just totally -- [¶]... [¶] -- against them." The trial court then sustained defense counsel's objection and admonished the prosecutor to "[p]lease argue the evidence." The prosecutor argued Carr's testimony that she was mad at Sams because he was out all night was refuted by Linda's testimony that Sams was at home when she and Carr went out to eat that morning. Regarding Carr's testimony that she was to blame for the incident because she was jealous, the prosecutor argued: "They made that up in order to -- they want to try to blame herself [sic] in order for him to get off. Classic." Regarding defense counsel's argument that Linda was to blame for the incident, the prosecutor argued "that doesn't make sense."
The prosecutor continued his argument: "And then the one that I really liked, 'Blame the prosecutor.' Blame me for trying to do my job to get the truth out. What was the quote: 'I had a predetermined desire to convict.' It's classic." The prosecutor then applauded. The prosecutor argued it was not him, but Carr that humiliated herself on the stand by her nonsensical testimony. The prosecutor argued: "I had to flesh it out of her [i.e., Carr]. That's why we have a trial. And that's why attorneys get to ask tough questions. Because when you know someone is lying, you have got to get the truth out of them." Continuing that argument, the prosecutor argued: "So blame me for getting the truth out to all of you guys." The prosecutor argued defense counsel's argument that Carr, Linda, or the prosecutor was to blame was "all about distraction, trying to distract you from the truth." He continued: "That's why on voir dire I said, 'Can you be tricked easily?' Because I knew it was coming. I tried to prepare you at the beginning. You are not going to let it happen. I am not to blame for getting the truth out of her [i.e., Carr]. We know that her story was so convoluted it didn't make any sense."
During defense counsel's closing argument, she argued the prosecutor had ridiculed and laughed at Carr, his own witness, and made her look silly and stupid. In rebuttal, the prosecutor argued: "We know that [defense counsel] was having late-night phone calls with [Carr]." Defense counsel objected on the ground that the prosecutor was arguing facts not in evidence. The trial court sustained her objection. The prosecutor then argued:
"[Carr] testified that she called [defense counsel] after her first day of testimony and spoke with her. The lovely court reporter can get that information back for you if you need it. I wonder what they talked about. Trying to prepare for the next day?"
The prosecutor also challenged Carr's testimony that her memory had been adversely affected by a prior car accident, arguing: "Remember [Carr] never showed us that photograph the first day of the alleged accident [sic]. The next day of testimony, when she got off the stand, she called [defense counsel] up. Then the next day, we have a picture, the photograph of a car. We don't know if it's -- this was [Carr's] car. [Carr] wasn't in an accident. But they brought this in here to try to explain her, quote, 'memory loss'; right?" The prosecutor then applauded. Defense counsel then objected on the ground it was improper. The trial court sustained her objection.
After the jury returned its verdict, Sams filed a motion for a new trial, arguing the prosecutor's closing arguments constituted prejudicial misconduct. In denying the motion, the trial court noted both the prosecutor and defense counsel--"to a certain extent"--acted inappropriately in attacking each other. The court also stated:
"Some of the defense [sic] arguments I don't think certainly constituted misconduct at all. Arguing to the jury that, 'Don't allow the defense to trick you or mislead you,' or... 'That's just a red herring,' those types of arguments I don't think constitute misconduct. I think that's legitimate argument on behalf of the People."
The court also concluded the prosecutor's closing argument attacking Carr's credibility was appropriate because "her testimony was certainly much more favorable to the defense than it was to the prosecution." However, regarding the prosecutor's "O.J." reference in closing argument, the trial court concluded the prosecutor's argument that defense counsel "was, quote, 'Trying to pull an O[.]J[.],' unquote, arguably does [constitute] misconduct on behalf of the prosecution. I think it's an inappropriate reference." Addressing another claim briefly raised in Sams's motion for new trial, the trial court stated:
"[W]ith respect to [the prosecutor's] looking at and nodding affirmatively or smiling at jurors when they asked questions helpful or beneficial to the prosecution, I think that's inappropriate. And as a matter of fact, at sidebar -- I recall at least on one occasion at sidebar, I basically told [the prosecutor] to knock it off, not do that, because I observed it and saw it."
In his motion for new trial, Sams argued: "[D]uring trial, when [a] juror asked questions, [the prosecutor] would look directly at the juror asking a question which seemed 'good' for the prosecution, smile and nod. These actions and comments were unprofessional and constitute[d] misconduct. [Citations.]"
In denying Sams's motion for new trial, the trial court concluded any prosecutorial misconduct was harmless because it was not reasonably probable Sams would have obtained a more favorable result had that misconduct not occurred.
Analysis.
We conclude, as the People assert, that Sams waived any claim of prosecutorial misconduct because he did not object to most of the instances of purported misconduct described above and, even when he did object to the other instances, he did not request that the trial court give an admonition to the jury to cure the purported misconduct. To avoid forfeiture or waiver on appeal of a claim of prosecutorial misconduct, a defendant generally must make a timely objection, make known the basis of his or her objection, and ask the trial court to admonish the jury. (People v. Brown, supra, 31 Cal.4th at p. 553.) Absent a timely objection and request for a curative admonition, an appellate contention of prosecutorial misconduct is re viewable only if an admonition would not have cured the harm caused by the misconduct or if either a timely objection or request for admonition would have been futile. (People v. Price, supra, 1 Cal.4th at p. 447; People v. Cole, supra, 33 Cal.4th at p. 1201.) Although Sams argues no admonition by the trial court could have cured the prejudice caused by the purported prosecutorial misconduct described above, we conclude the instances of purported prosecutorial misconduct described above were not so inflammatory or egregious that an appropriate admonition by the court could not have cured each instance of purported misconduct or "unrung the bell." We presume the jury would have followed the trial court's admonitions or other instructions. (People v. Mayfield, supra, 5 Cal.4th at p. 179.) Furthermore, Sams does not persuade us that an objection and/or request for a curative admonition would have been futile. The cases cited by Sams are in apposite to this case and do not persuade us to reach a contrary conclusion.
Assuming arguendo Sams did not waive this contention on appeal, we nevertheless conclude few of the above instances of purported misconduct during the prosecutor's closing argument constituted prosecutorial misconduct. The primary theme of the prosecutor's closing argument was the evidence overwhelmingly showed Sams's guilt of the charged offenses and defense counsel's closing argument attempted to divert the jury's attention from that overwhelming evidence. In so doing, the prosecutor argued defense counsel was doing her job in trying to get Sams acquitted and the jury should not be "tricked" by her closing argument tactics of trying to divert their attention. In so arguing, the prosecutor generally did not personally attack defense counsel or otherwise commit misconduct. A prosecutor is given wide latitude during closing argument and may vigorously argue provided it is fair comment on the evidence, including reasonable inferences from the evidence. (People v. Wharton, supra, 53 Cal.3d at pp. 567-568.) A prosecutor is not limited to "Chesterfieldian politeness" and may use appropriate epithets warranted by the evidence. (Ibid.) Similarly, a prosecutor may argue, "in colorful terms," that defense witnesses are not credible and/or a defense is fabricated. (People v. Pinholster, supra, 1 Cal.4th at p. 948.)
Nevertheless, we, like the trial court, conclude the prosecutor's unnecessary reference to the O.J. Simpson criminal trial (i.e., argument that defense counsel was trying "to do an O.J.") was inappropriate and constituted misconduct because the prosecutor apparently was attempting to inflame the jurors' passions by reference to that controversial trial. However, any prejudice caused by that vague and fleeting reference was minimized, if not eliminated, when the trial court sustained defense counsel's objection to that argument and the prosecutor was admonished to "argue the evidence."
Regarding the prosecutor's purported histrionics during closing argument, we likewise conclude they did not constitute misconduct. Although at various points during closing argument the prosecutor applauded in an apparent sarcastic response to defense counsel's closing arguments, sarcasm, whether verbally or physically expressed, is not barred from closing arguments. (Cf. People v. Pinholster, supra, 1 Cal.4th at p. 948; People v. Bell (1989) 49 Cal.3d 502, 538; People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Although such conduct (i.e., applauding) may appear in many circumstances to be unseemly conduct by a representative of the People, we cannot conclude that in this case it was prosecutorial misconduct. Contrary to Sams's argument, the jurors could not have reasonably inferred from the applause that the prosecutor was personally attacking defense counsel, but rather was using physical sarcasm to support his argument that they should not be tricked by her attempt to divert their attention from the strong evidence supporting Sams's guilt. (People v. Cash (2002) 28 Cal.4th 703, 732-733 [prosecutorial misconduct is shown only if there is a reasonable likelihood the jury understood the prosecutor's conduct in the purported improper manner].)
Likewise, we conclude the prosecutor did not commit misconduct in using the ambiguous term "they" in arguing Carr fabricated her trial testimony on how the incident occurred and in belatedly producing a photograph of the car accident (which accident purportedly explained her memory loss). It is unlikely the jury misunderstood the prosecutor's use of the term "they" as arguing defense counsel acted improperly either alone or in conjunction with Carr. Rather, it is likely the jury understood the prosecutor was attacking Carr's testimony and defense counsel's proper, but misguided (according to the prosecutor), closing argument. That closing argument by the prosecutor did not constitute misconduct. (People v. Cummings, supra, 4 Cal.4th at p. 1302, fn. 47; People v. Wharton, supra, 53 Cal.3d at pp. 567-568; People v. Pinholster, supra, 1 Cal.4th at p. 948; People v. Cash, supra, 28 Cal.4th at pp. 732-733.)
Regarding the prosecutor's argument that defense counsel had "late-night phone calls" with Carr, the trial court sustained defense counsel's objection to that argument as not based on the evidence, thereby effectively removing the argument from the record. To the extent Sams nevertheless contends on appeal that argument was misconduct, the prosecutor's mistaken use of the plural "calls," rather than the singular "call," could not be understood by the jury as misstating the evidence or attacking defense counsel. Immediately after the trial court sustained defense counsel's objection to that argument, the prosecutor corrected his argument and properly argued, based on the evidence, that Carr called defense counsel after her first day of testimony and asked how she did. In so doing, the prosecutor properly challenged the credibility of Carr, a prosecution witness, by showing her bias and also questioned the substance of that telephone conversation with defense counsel. Accordingly, that closing argument by the prosecutor did not constitute misconduct. (People v. Cummings, supra, 4 Cal.4th at p. 1302, fn. 47; People v. Wharton, supra, 53 Cal.3d at pp. 567-568; People v. Pinholster, supra, 1 Cal.4th at p. 948; People v. Cash, supra, 28 Cal.4th at pp. 732-733.)
On the second day of Carr's trial testimony, she admitted on cross-examination by defense counsel that she had called defense counsel the day before to inquire whether it was okay for her to still visit Sams. Carr further testified she asked whether she was doing "okay" and asked defense counsel how the trial was going so far. Carr testified they did not discuss her testimony during that call and defense counsel had told her to tell the truth.
Finally, Sams argues the prosecutor committed misconduct when he apparently smiled and nodded affirmatively toward the jury when a juror who, by a written note, asked a question favorable to the prosecution. As described above, in denying Sams's motion for new trial, the trial court acknowledged the prosecutor's inappropriate conduct and stated it had, during a sidebar conference, admonished the prosecutor to refrain from such conduct. Assuming arguendo Sams did not waive a challenge to that purported misconduct by not objecting to it and requesting a curative admonition, we nevertheless decline to conclude this apparently fleeting single instance of inappropriate conduct constituted prosecutorial misconduct. Furthermore, the record does not reflect whether any of the jurors observed the prosecutor's conduct. Accordingly, based on the trial court's direct observation of that conduct and implicit conclusion that it was inappropriate but not misconduct, we defer to the trial court's conclusion that it did not constitute prosecutorial misconduct. In any event, Sams does not carry his burden on appeal to present a substantive argument showing such conduct constitutes prosecutorial misconduct.
D
Furthermore, assuming arguendo Sams did not waive his challenge to any of the instances of purported prosecutorial misconduct and that each instance constituted misconduct, we conclude those instances of misconduct, whether considered individually or cumulatively, did not deprive him of a fair trial. As noted above, a prosecutor's conduct violates the Fourteenth Amendment to the United States Constitution only "when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales, supra, 25 Cal.4th at p. 44.) Based on our consideration of the cumulative effect of the instances of purported prosecutorial misconduct, we conclude those instances did not infect Sams's trial with such unfairness that he was denied his federal right to due process of law. Although we strongly disapprove of the prosecutor's reference to the O.J. Simpson trial during closing argument, we cannot conclude it so infected Sams's trial with unfairness that he was deprived of due process of law. Accordingly, the harmless-beyond-a-reasonable doubt standard of prejudicial error under Chapman v. California, supra, 386 U.S. 18 does not apply to the instances of purported prosecutorial misconduct in this case.
Because Sams's trial was not unfair based on the instances of purported prosecutorial misconduct for purposes of the federal Constitution, we next consider whether those instances constituted prejudicial misconduct under California law. We may not reverse a judgment unless there is a clear showing of a miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Hill (1998) 17 Cal.4th 800, 844.) Under that standard of prejudice, prosecutorial misconduct or other trial error is harmless unless the defendant shows it is reasonably probable he or she would have obtained a more favorable result had the misconduct or other error not occurred. (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Bolton (1979) 23 Cal.3d 208, 214; People v. Watson, supra, 46 Cal.2d at p. 836; People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1260.) Considering the instances of purported prosecutorial misconduct asserted by Sams in this case, we conclude the cumulative effect of these instances of misconduct was not prejudicial and did not cause a miscarriage of justice.
Alternatively stated, it is not reasonably probable Sams would have obtained a more favorable result had the purported prosecutorial misconduct not occurred. The evidence of Sams's guilt of the two offenses was strong, despite the recantations by Carr and Linda. Furthermore, any prejudicial effect of the prosecutor's purported improper questions, closing arguments, or other conduct was limited by the trial court's instructions to the jurors that they were to decide the case based on the facts shown by the evidence and the prosecutor's arguments were not evidence. The court also instructed the jurors that they "alone must judge the credibility or believability of the witnesses," thereby reaffirming their duty to decide the case based on the evidence and not arguments of counsel (e.g., the prosecutor) regarding the credibility of witnesses (e.g., Mills). Furthermore, regarding those instances of purported improper questions to which the trial court sustained defense counsel's objections, the court instructed the jurors they were required to ignore those questions and disregard any testimony that it struck from the record.
The trial court instructed: "You must decide what the facts are in this case. You must use only the evidence that is presented in the courtroom.... [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence. The attorneys' questions are significant only if they help you understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asks a question that suggests it is true."
The trial court instructed: "During the trial, the attorneys may object to questions asked of a witness. I will rule on the objections according to the law. If I sustain an objection, the witness will not be permitted to answer, and you must ignore the question. If the witness does not answer, do not guess what the answer might have been or why I ruled as I did. If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose."
Finally, the prosecutor's vague and fleeting reference to the O.J. Simpson trial was not so inflammatory that we must conclude the jurors did not follow the court's instructions to decide the case based on the evidence and not on arguments of counsel. (Cf. People v. Zurinaga, supra, 148 Cal.App.4th at p. 1260 [prosecutor's improper references to victims of "9/11" was harmless error].) We conclude the instances of purported prosecutorial misconduct constituted harmless error and do not require reversal of Sams's convictions.
E
In his opening brief, Sams asserted that to the extent his claims of prosecutorial misconduct were waived based on his counsel's failure to object and/or request curative admonitions, he was denied his constitutional right to effective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668. However, in his reply brief, Sams concedes that if the instances of purported prosecutorial misconduct were not prejudicial, then "defense counsel did not provide inadequate representation." In so conceding, Sams in effect waives his ineffective representation contention in the event we conclude the instances of purported prosecutorial misconduct were harmless (i.e., show it is not reasonably probable Sams would have obtained a more favorable result had that purported misconduct not occurred). Because we concluded above the instances of purported prosecutorial misconduct were not prejudicial, we need not address Sams's claim of ineffective assistance of counsel. In any event, based on that same conclusion of harmless error, Sams cannot meet the second prong of the Strickland test for ineffective assistance of counsel (i.e., it is reasonably probable he would have obtained a more favorable result absent the purported deficient representation). (Strickland, at pp. 687, 694.)
II Denial of Motion to Dismiss Allegation of Prior Serious or Violent Felony Conviction Under Three Strikes Law
Sams contends the trial court abused its discretion by denying his motion to dismiss one or both of the prior serious or violent felony conviction allegations under the three strikes law.
A
The information alleged Sams had three prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)). Sams admitted he had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)).
On July 3, 2008, Sams filed a motion to dismiss at least one of the two prior serious or violent felony conviction (i.e., "strike") allegations under the three strikes law. His memorandum of points and authorities in support of that motion set forth the specific criteria a trial court must consider in exercising its discretion whether to dismiss a prior strike allegation under the three strikes law. In moving to dismiss at least one of his prior strike allegations, Sams argued the nature of his instant offenses and his background justified the court's exercise of its discretion to dismiss at least one of the prior strike allegations. The prosecutor filed his opposition to Sams's motion, arguing Sams's background and character did not place him outside the spirit of the three strikes law.
On October 3, the trial court heard arguments of counsel on Sams's motion to dismiss at least one of the prior strike allegations. The court initially noted it had read Sams's motion and the prosecutor's opposition to that motion. After hearing counsel's arguments and comments from Carr and Sams's family members, the trial court noted Sams's first criminal conviction was in 1975 when he was 20 years old. The court stated:
"[Sams's] criminal conduct really does primarily or substantially begin in 1990 when he starts picking up misdemeanor convictions for drug violations and possession of a knife. And then in 1991, he starts picking up the felony drug convictions. And then in 1992, the burglary -- in 1996, the burglary convictions. And then between 1992 and 1996, he picked up a felony grand theft conviction for which he was sentenced to prison.... [¶]... [¶]
"Then he is initially paroled November 29th, 2003. And you would think when someone gets sentenced to prison for ten years that that would kind of get the message across to someone that they shouldn't re offend.
"In Mr. Sams'[s] favor, he is now 55 years of age, and as we know,... he has a lot of medical issues and is in poor health."
The court noted Sams's numerous probation and parole violations over the years. The court also noted the probation officer's report stated that "had it not been for [Sams's prior] strikes, a prison sentence may not necessarily be the most just sentence."
The court also discussed the underlying circumstances of Sams's two prior burglary convictions. Addressing the instant offenses, the court noted they were crimes of violence and involved a knife. The court noted that although "there is shared responsibility for the commission of this crime[,]... the primary responsibility rests with Mr. Sams. He is the one [who] used physical force and violence against Ms. Carr." After the court's extensive discussion of the factors weighing in favor of and in opposition to the motion, the trial court concluded:
"So in weighing and balancing all of these factors in Mr. Sams'[s] favor, and again, admittedly, it's a close call, but based upon the nature and circumstances of the burglary convictions, based upon the nature of his ten-year prison sentence that he received in 1996, based upon his subsequent parole violations, and based upon the facts and circumstances of this case, I am going to deny the defense request to strike any of his strikes."
The court then proceeded with sentencing and imposed concurrent terms of 25 years to life in prison on counts 1 and 3 pursuant to the three strikes law.
B
Section 1385 allows a trial court on its own motion to dismiss, or strike, prior felony conviction allegations under the three strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) A trial court has discretion to dismiss an allegation that the defendant has a prior serious or violent felony conviction (or a true finding on that allegation) and is presumed to have acted properly in denying a defendant's request to dismiss the allegation and then sentencing the defendant under the three strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 376.) It is the appellant's burden on appeal to show the trial court abused its discretion and acted irrationally or arbitrarily in denying a request to dismiss a prior strike conviction allegation (or true finding thereon). (Ibid.) People v. Williams (1998) 17 Cal.4th 148 stated:
Section 1385, subdivision (a), provides: "The judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed...."
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, supra, at p. 161.)
An appellant does not carry his or her burden on appeal by merely showing reasonable people might disagree on whether to dismiss a prior conviction allegation. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
C
We conclude Sams has not carried his burden on appeal to show the trial court abused its discretion by denying his motion to dismiss one or both of the allegations (the truth of which he admitted) that he had prior serious or violent felony convictions within the meaning of the three strikes law. Sams does not contend the trial court was unaware of its discretion under section 1385. Rather, he argues the court abused its discretion by relying solely on his criminal history without properly considering and weighing all of the Williams factors. In his opening brief, Sams argues: "From the trial court['s] comments, it is evident that the trial court rested its decision to deny [Sams's] motion to strike one [or] more of his prior convictions solely because of his criminal history, even though the present conviction involved a domestic dispute with [Sams's fiancée] during which the jury found he did not use a knife." We conclude the record, as described above, shows the trial court expressly considered and weighed all of the appropriate Williams factors in exercising its discretion to deny Sams's motion to dismiss at least one of the prior strike allegations and did not rely solely on his criminal history. Furthermore, contrary to Sams's assertion, his instant offenses were not "relatively minor" offenses, but rather were violent offenses resulting in corporal injury to Carr.
Although Sams argues his criminal history does not support a life sentence, the record shows the trial court considered and weighed his long criminal history and poor performance on probation and parole, together with the other Williams factors, before concluding Sams did not fall outside the spirit of the three strikes law and denying his motion to dismiss at least one of the prior strike allegations. Based on our review of the record and consideration of the same Williams factors, we cannot conclude the trial court abused its discretion by denying Sams's motion. Sams had a long criminal history and since 1991 his crimes had escalated from drug offenses to residential burglaries before he committed the instant violent offenses. Although he had been incarcerated and released many times, he nevertheless continued his pattern of criminal conduct. Accordingly, his prior prison terms were not effective in deterring him from committing additional crimes. Although, as Sams argues, he has certain characteristics that mitigate against a life term (e.g., his age of 55 years and poor health), we, like the trial court, conclude Sams poses a risk to society and falls within the spirit of the three strikes law. Therefore, although the trial court could have exercised its discretion in this case to dismiss one or both of the prior strike allegations, we conclude it did not abuse its discretion by declining to do so in the circumstances of this case. People v. Bishop (1997) 56 Cal.App.4th 1245, cited by Sams, is inapposite and does not persuade us to conclude otherwise.
III Sentencing Errors
A
Sams contends the trial court erred by imposing section 667.5, subdivision (b), one-year enhancement terms for each of his two prison prior convictions, to be served concurrently with the terms of 25 years to life imposed for counts 1 and 3. He argues, and the People agree, that because the trial court clearly decided he should not serve any additional time for the true findings on his prison prior conviction allegations, it should have stricken those findings rather than imposing enhancement terms to run concurrently with the terms imposed for counts 1 and 3. Section 667.5, subdivision (b), provides: "[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony...." (Italics added.) Case law appears to support the position of both parties that a trial court must either impose a consecutive one-year enhancement term for a section 667.5, subdivision (b), prison prior conviction allegation or strike that allegation pursuant to its section 1385 discretion. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Campbell (1999) 76 Cal.App.4th 305, 311; People v. Savedra (1993) 15 Cal.App.4th 738, 747; People v. Jones (1992) 8 Cal.App.4th 756, 758.) Langston stated: "Once the prior prison term [allegation] is found true within the meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]" (Langston, supra, at p. 1241.) By imposing a concurrent, rather than a consecutive, enhancement term for each of the prison prior conviction allegations, the trial court in effect expressed its decision that Sams should not serve an additional one-year term for each enhancement allegation and therefore should have stricken those allegations rather imposing concurrent enhancement terms. (Cf. People v. Jones, supra, at p. 758 [trial court should have stricken, rather than stayed, one-year enhancement terms].) Accordingly, the trial court erred by imposing concurrent one-year enhancement terms for each of the two prison prior allegations and should have instead stricken those allegations.
B
The People note the trial court also erred by imposing a term of 25 years to life for count 3, to be served concurrently to the principal term of 25 years to life imposed for count 1, because the court found counts 1 and 3 involved identical facts and circumstances. Section 654, subdivision (a), provides: "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...." Accordingly, the People argue, and Sams agrees, the trial court should have imposed, but stayed pursuant to section 654, a term of 25 years to life for count 3. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 [trial court acts in excess of jurisdiction and imposes an unauthorized sentence when it erroneously fails to stay execution of a sentence under section 654]; People v. Pearson (1986) 42 Cal.3d 351, 359-360.) An unauthorized sentence "is subject to judicial correction whenever the error comes to the attention of the reviewing court. [Citations.]" (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Accordingly, we correct the trial court's error by modifying the judgment to provide that the term for count 3 is imposed, but stayed pursuant to section 654.
DISPOSITION
The judgment is modified to provide that a term of 25 years to life for count 3 is imposed, but stayed pursuant to section 654, and the two section 667.5, subdivision (b), prior prison term allegations are stricken. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the modifications and shall forward a copy to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J. AARON, J.