Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, No. NA077263. Charles D. Sheldon, Judge. Affirmed as modified as to Baston, and affirmed as to Burns.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Jason Burns.
Joseph S. Klapach, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Baston.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendants and appellants Jason Burns and Kenneth Baston were convicted by a jury of two counts of second degree robbery (Pen. Code, § 211) (counts 1 and 2), and one count of attempted second degree robbery (§§ 211, 664) (count 3). We reject defendants’ contentions. We will correct Baston’s sentence and affirm the judgments.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
This appeal involves two separate but similar incidents: (1) the January 8, 2008 second degree robberies of Brandon Golden (count 1) and Dionte Jackson (count 2); and (2) the January 14, 2008 attempted second degree robbery of Alex Ramos (count 3). Both incidents occurred near Narbonne High School in Harbor City and were committed by two African-American males in a black Ford Explorer. In both instances, the victims had understood the driver’s question, “‘Where are you from?’” to be a gang-related question.
Eyewitnesses Vincent Zamora and Brian Resnick provided police with the license plate number of the Ford Explorer that was used in the attempted robbery in count 3. By tracing the license plate number, Detective Katherine Petrash of the Los Angeles Police Department learned that the Explorer’s vehicle registration address matched that of defendant Burns. When Petrash interviewed Baston, he denied any involvement in the crimes but stated that he had been in the Explorer on January 15, 2008, the day after the attempted robbery in count 3.
As will be discussed later in this opinion, the vehicle registration information was not admitted for its truth, but to show the manner in which the police were led to identify Burns as a suspect.
Petrash showed a photo lineup containing the photos of defendants Burns and Baston to the victims (Golden and Jackson as to counts 1 and 2, and Ramos as to count 3) and witnesses (Zamora and Resnick as to count 3). As a result, two photographic identifications were made: (1) Golden identified Burns as the driver and Baston as the passenger in counts 1 and 2; and (2) Zamora identified Burns as the driver and Baston as the passenger in count 3. Jackson, Ramos, and Resnick made no photographic identifications.
At trial, Zamora made the sole in-court identification of defendants. Jackson did not testify. Although Golden, Ramos, and Resnick testified, they did not identify defendants at trial.
Although Zamora initially testified that Baston was the driver and Burns was the passenger in count 3, he later corrected himself and identified Burns as the driver and Baston as the passenger.
After Golden testified that the perpetrators were not in the courtroom and that defendants did not resemble the persons he had identified in the photo lineup, the prosecutor asked Golden to explain, to the best of his knowledge, what happens to “snitches” who inform on “gang bangers.” Golden replied that “[t]hey’re beat up or killed.” The prosecutor argued to the jury that Golden had failed to identify defendants at trial because of his fear of retaliation.
Golden had used the terms “gang banger” and “snitch” in his earlier testimony that: (1) the question “‘Where are you from?’” meant that the driver was “probably a gang banger” who wanted to know “if I was an enemy in his territory”; and (2) a “snitch” is one who “tattletales... about what should be hidden, a secret or isolated incident.”
The jury convicted Burns and Baston of second degree robbery on counts 1 and 2 and attempted second degree robbery on count 3. Burns received a 12-year sentence and Baston received a six-year sentence.
On count 1, the base term, Burns received the middle term of three years (§ 211, subd. (a)(2)), which was doubled to six years under the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), plus a five-year enhancement for a prior serious felony (§ 667, subd. (a)(1)). On count 2, Burns received a one-year consecutive sentence (one-third the middle term of three years). (§ 211, subd. (a)(2).) On count 3, Burns received a three-year concurrent sentence. (§§ 211, subd. (a)(2), 664.)
On count 1, the base term, Baston received the middle term of three years (§ 211, subd. (a)(2)), plus a one-year enhancement for a prior prison term (§ 667.5, subd. (b)). On counts 2 and 3, Baston received a one-year consecutive sentence (consisting of one year, or one-third the middle term of three years, under § 211, subd. (a)(2)).
DISCUSSION
I. Prosecutorial Misconduct
Defendants contend that the prosecutor engaged in several acts of misconduct during closing argument. For the reasons that follow, we conclude the contentions lack merit.
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) 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 court or the jury.”’” (People v. Espinoza, supra, 3 Cal.4th at p. 820.)’ (People v. Samayoa (1997) 15 Cal.4th 795, 841.)” (People v. Hill (1998) 17 Cal.4th 800, 819.)
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.) Additionally, 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. (Ibid.)” (People v. Samayoa, supra, 15 Cal.4th at p. 841.) In general, “an appellate court reviews a trial court’s ruling on prosecutorial misconduct for abuse of discretion. [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
A. Golden’s Fear of Retaliation
During closing argument, the prosecutor attributed Golden’s failure to identify defendants at trial to his fear of retaliation, stating: “He knows what happens to snitches. He told you they get beat up. Bad things happen when you tell on people that you’re not supposed to. So he changed his testimony....” In this context, the prosecutor urged the jury to evaluate Golden’s credibility by considering “the existence or nonexistence of a bias, interest, or other motive. What is Brandon Golden’s interest in this case? He can tell you he wants to stay alive. He can tell you that much, ladies and gentlemen. And I can tell you that he is scared.” (Italics added.)
Defendants contend that the statement, “I can tell you that he is scared,” constituted improper prosecutorial vouching because it was based on evidence outside the record. Defendants argue that the misconduct was particularly egregious given Golden’s contrary testimony that he was not afraid to appear in court. In addition, in light of the prosecutor’s remark in his opening statement that he had spoken with Golden earlier “this morning,” defendants contend that the jury “knew that the prosecutor had spoken with Mr. Golden outside of court and had access to information that was not available to them.” For the reasons discussed below, we conclude that there was no improper prosecutorial vouching because the statement, “I can tell you that he is scared,” was based on inferences warranted by the evidence. (See People v. Anderson (1990) 52 Cal.3d 453, 479 [a prosecutor may offer an opinion on the evidence and inferences reasonably drawn from the evidence, rather than personal belief or knowledge].)
The Attorney General contends that the issue was not preserved for appellate review as a result of defendants’ failure to state a specific ground for the objection and request that the jury be admonished. (See People v. Brown (2003) 31 Cal.4th 518, 553 [“Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal unless such an objection would have been futile.”].) The record shows, however, that defense counsel’s timely objection was quickly overruled without comment, before any ground could be stated or request to admonish the jury could be made. Under these circumstances, the failure to elaborate on the ground for the objection and request an admonition are excused for lack of an opportunity to do so. (People v. Pitts (1990) 223 Cal.App.3d 606, 692.)
The record shows that immediately after the robberies in counts 1 and 2 were committed, Golden and Jackson reported the crimes to Los Angeles Police Officer Andrey Wilkins. Wilkins testified to the following. When the crimes were reported, Golden had appeared to be scared and in shock, which was in marked contrast with his demeanor at trial, where he “[s]eemed like he was pretty brave” and “like he wasn’t scared at all.” Also, when the crimes were reported, Golden had stated only that the driver had “simulated a gun” by touching his waistband, which was also in marked contrast with his testimony at trial, where he stated that he had punched the driver in the face, which had caused the passenger to pull out a gun and point it at him.
We conclude that the record reasonably supports the inference that Golden’s trial testimony contained false embellishments (he punched the driver and had a gun pointed at him) and denials (he was not afraid to testify in court) that were intended to enhance his appearance of bravery. When viewed in this light, Golden’s testimony that he believed defendants were gang members and that gang members retaliate against snitches reasonably supports the inference that Golden was afraid to identify defendants at trial.
In closing argument, the prosecutor argued Golden had embellished his testimony at trial: “That’s when Brandon Golden claims that, you know what? He was actually a tough guy on that day, and he took a swing at defendant Burns. And it was only after defendant Burns stood there and motioned over for defendant Baston to come over that he turned over or he actually let — he allowed these two to go through his friend’s pocket. Well, it’s the People’s position that is not exactly how things went down.... Ladies and gentlemen, it’s the People’s position that what really happened on January 8th 2008, is exactly what Brandon Golden told Officer Wilkins. The People believe that defendant Burns, who suddenly found a need to wear glasses, simulated that gun. It’s the People’s position that both Brandon Golden and Dionte Jackson were intimidated by their actions and for that reason, and for that reason alone, allowed both of those defendants to take the cell phone and Dionte Jackson’s cash. That’s it.... And that is a robbery.”
Defendants argue that the inference is unwarranted because the record is devoid of any evidence of their actual gang status or of any threats that had been made against Golden. We are not persuaded, however, that the inference must fail in the absence of such evidence. In our view, the evidence of Golden’s state of mind—his belief that defendants were gang members and that gang members retaliate against snitches—reasonably supports the inference that Golden was afraid notwithstanding his testimony to the contrary. Under the facts of this case, we construe the prosecutor’s statement, “I can tell you that he is scared,” to be a fair and relevant comment on the evidence presented at trial.
“‘“Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid. Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481.) Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) It is not necessary 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 for the evidence to be admissible. (People v. Green (1980) 27 Cal.3d 1, 19-20 [testimony witness was afraid to go to jail because defendant had friends there relevant to witness’s credibility].)” (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.)’ (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.)
The prosecutor’s remark in his opening statement regarding his pretrial conversation with Golden does not compel a different result. As there was nothing to suggest that the topic of the pretrial conversation was Golden’s fear of retaliation, the jury was unlikely to associate the pretrial conversation with the disputed remark made in closing argument about Golden’s fear of retaliation. In any event, there is no reasonable probability that the absence of the disputed remark would have led the jury to reach a more favorable verdict. (See People v. Wallace (2008) 44 Cal.4th 1032, 1071 [applying Watson standard of prejudicial error to prosecutorial misconduct claim].)
People v. Watson (1956) 46 Cal.2d 818, 834.
B. Defense Counsel’s Integrity
During closing argument, Baston’s attorney Stephen Bollinger stated: “This is going to be the last you are going to hear from the defense. The People are going to have a chance to rebut what we have said. So if you hear us object, we’re speaking to you. We’re telling you that they’re not telling you the whole thing. But it’s their burden to prove it... to you beyond a reasonable doubt.” (Italics added.)
The prosecutor argued in rebuttal that Bollinger’s statement, “So if you hear us object, we’re speaking to you,” showed “the type of respect that Mr. Bollinger has for the law.” (Italics added.) After the trial court overruled a defense objection, the prosecutor explained that, contrary to the notion that defense attorneys speak to the jury through objections, the jury would be instructed not to consider the court’s rulings on objections. When defense counsel later objected to a different part of his argument, the prosecutor remarked, “Counsel is talking to you again.”
On appeal, defendants contend that the prosecutor impugned Bollinger’s character and integrity by implying that he had no respect for the law. Defendants also argue that the prosecutor committed misconduct by remarking, “Counsel is talking to you again.” We disagree that the remarks constituted misconduct.
The Attorney General contends that the issue was not preserved for appellate review because no request was made to admonish the jury. (See People v. Brown, supra, 31 Cal.4th at p. 553.) The record shows, however, that the objection was quickly overruled before such a request could be made. Under these circumstances, the failure to request an admonition is excused for lack of an opportunity to do so. (People v. Pitts, supra, 223 Cal.App.3d at p. 692.)
When the prosecutor’s remarks are read in context, it is clear that they were intended to address the obvious discrepancy between Bollinger’s statement that defense counsel would be “speaking to” the jury through their objections and the jury instruction that prohibits a jury from speculating as to the reasons for an objection. In this case, the jury received CALJIC No. 1.02, which states: “If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection.” (Italics added.) The prosecutor’s remarks were consistent with CALJIC No. 1.02 and did not constitute misconduct.
In addition, defendants contend that the prosecutor’s reference to a courtroom scene in the movie “My Cousin Vinny,” was misconduct in that he told the jury “in effect, that everything the defense counsel had told them was ‘bullshit.’” The record fails to support the contention. The prosecutor referred to the courtroom scene in response to Bollinger’s argument that his client, like the dog in a story told by Bollinger, was the victim of circumstantial evidence. In this context, the prosecutor described a courtroom scene in which a defense attorney had berated a prosecutor for lying. The prosecutor explained that as a prosecutor, he was bound by the law and precluded from using the language in the movie, “[b]ut here’s what I can tell you: There are facts to back up the People’s position about why you shouldn’t believe what those defense attorneys told you.” It was not misconduct for the prosecutor to argue that the facts did not support the defense arguments.
In any event, it is not reasonably probable that in the absence of the disputed remarks, the jury would have reached a different verdict.
C. References to the District Attorney’s Office
During rebuttal argument, the prosecutor stated: “Now, in large part when I was thinking about it, you essentially now have the power of a District Attorney. What is that power? Well, ladies and gentlemen, the D.A.’s office is not about filing any case that the police bring us. The D.A.’s office is not about putting innocent people in prison. It’s not about that, ladies and gentlemen. If there is not sufficient evidence to file a case, to take a case to trial, and so on and so forth, the D.A.’s job is to dump that case, to let those guys go free. Think about that. Obviously the flip side is if those guys are believed to be guilty, we go after them. That’s the power that you have in your hands, ladies and gentlemen. You have the power to do right, and you have the power to do justice. Now, you have to think about that in terms of all of the evidence that has been presented before you. And in coming to that decision, what do you have to do? You have to look at everything before you.... You really need to consider all of the evidence in front of you.” (Italics added.)
On appeal, defendants contend that the prosecutor engaged in misconduct by: (1) arguing that the district attorney’s office would not have filed charges or prosecuted this case unless it believed in defendants’ guilt; and (2) “inviting the jury to abandon its role as an independent trier of fact and to act, instead, like a prosecutor.” (See, e.g., People v. Kirkes (1952) 39 Cal.2d 719, 723-724; People v. Bain (1971) 5 Cal.3d 839, 847.)
The Attorney General argues defendants forfeited their claim by failing to object because a timely admonition would have cured any harm. Defendants assert they had no obligation to object, citing People v. Alverson (1964) 60 Cal.2d 803, 808 (Alverson), wherein the Supreme Court stated that when a prosecutor, in the summation to the jury, expresses a personal belief that a defendant is guilty, “such an argument is not only improper, but constitutes misconduct, is prejudicial and requires a reversal, even though not objected to by the defendant, and even though no request to admonish the jury to disregard it has been made.” This view is no longer accepted.
In People v. Green, supra, 27 Cal.3d 1, the Supreme Court discussed the doctrine upon which cases like Alverson relied. It noted the general rule was that if a defendant failed to object to a prosecutor’s alleged improper remarks, the “defendant is deemed to have waived the objection and the point cannot be raised on appeal.” (Green, supra, at p. 27.) The court traced the genesis of an exception to the general rule to the case of People v. Berryman (1936) 6 Cal.2d 331 that expressed, “[t]he belief that a failure to object to prosecutorial misconduct is excused when the misconduct ‘contributed materially to the verdict.’” (Green, supra, at p. 28, quoting Berryman, supra, 6 Cal.2d at p. 337.) The Green court questioned whether such an exception should continue to exist and concluded “Berryman and its progeny should no longer be followed. Rather, the initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected [citation]; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution. [Citations.]” (27 Cal.3d at p. 34; accord, People v. Stewart (2004) 33 Cal.4th 425, 498 [because the statements were “not objected to below, and because a timely admonition would have cured any harm, th[ese] claim[s] may not be asserted on appeal”].)
We have little difficulty determining that the harm caused by the prosecutor’s comments would have been cured by a timely admonition by the trial court. As such, defendants’ contention is forfeited. Even assuming misconduct, there was no prejudice. Despite defendants’ assertion to the contrary, the case against them was not weak. As to each of the incidents, there was a witness who identified defendants as the perpetrators. The similarities of the offenses—the location, the use of a Ford Explorer, and the manner in which the victims were addressed by the identical statement, “Where are you from?”—and the fact that the crimes took place six days apart further buttressed the identifications. In light of that evidence, the prosecutor’s remarks, accompanied by the portion that followed (which we have italicized) asking the jury to render its decision by considering “all of the evidence in front of you,” and tempered by the court’s repeated instruction to the jury that statements of counsel during the trial are not evidence, did not result in a miscarriage of justice.
II. Evidentiary Error
Defendants contend that the trial court erred in admitting evidence regarding: (1) gang membership and fear of retaliation; (2) Baston’s previously undisclosed statement that he was not involved in the crimes in this case but was in the Explorer on the day after the attempted robbery in count 3; and (3) the Explorer’s motor vehicle registration address. We are not persuaded.
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “In applying this standard, the court is given wide discretion to determine relevance under the code. [Citation.] The appellate court should reverse only when a prejudicial abuse of discretion has occurred. [Citation.]” (DePalma v. Westland Softward House (1990) 225 Cal.App.3d 1534, 1538.)
In general, “questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (See Evid. Code, § 353; People v. Welch (1972) 8 Cal.3d 106, 114-115; People v. De Santiago (1969) 71 Cal.2d 18, 22.) The contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’ (Coy v. Superior Court (1959) 51 Cal.2d 471, 473.)” (People v. Rogers (1978) 21 Cal.3d 542, 548.)
A. Gang Membership and Fear of Retaliation
Defendants did not object at trial when Golden testified that the question, “‘Where are you from?’” meant that the driver was “probably a gang banger” who wanted to know “if I was an enemy in his territory.” Nevertheless, defendants contend on appeal that Golden’s testimony should have been excluded because: (1) there was no evidence of their actual gang status; and (2) the probative value was outweighed by the prejudicial effect. We conclude, however, that the issue was forfeited because no objection was made below. (People v. Rogers, supra, 21 Cal.3d at p. 548.)
In any event, the contention lacks merit. The prosecutor did not elicit the disputed testimony in order to prove defendants’ gang membership, but to show that Golden was intimidated as a result of his belief that defendants were gang members. Obviously, Golden was competent to explain his understanding of the question, “‘Where are you from?’” The record fails to support defendants’ assertion that Golden’s testimony either lacked foundation or was unduly prejudicial. (See People v. Sanchez, supra, 58 Cal.App.4th at pp. 1449-1450.)
When Golden was asked, “What happens to snitches as far as involvement with gang bangers, to the best of your knowledge,” defendants objected that the question was improper for lack of foundation. The trial court overruled the objection, stating, “I’ll allow it if he has knowledge.” Golden then responded, “They’re beat up or killed.”
Defendants argue on appeal that Golden’s response should have been excluded for lack of foundation as there was no evidence of their actual gang status or that any threats had been made against Golden. We are not persuaded.
As we previously stated, the relevant issue was not defendants’ actual gang status, but whether Golden was afraid to testify. “‘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.’ (People v. Burgener [(2003)] 29 Cal.4th [833,] 869; see Evid. Code, § 780, subd. (f) [jury may consider the existence or nonexistence of a bias, interest, or other motive in determining a witness’s credibility].) 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. (Burgener, supra, at p. 869.) 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. (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588.)” (People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142.)
B. Baston’s Previously Undisclosed Statement
On the last day of trial, the prosecutor sought to introduce Baston’s previously undisclosed statement that he was not involved in the crimes in this case, but was in the Explorer on the day after the attempted robbery in count 3. Defendants objected that the statement was inadmissible because it was not produced before trial. (§§ 1054.1, subd. (b), 1054.7.) The trial court overruled the objection, stating that the discovery statute does not apply to unrecorded oral statements.
Defendants contend on appeal that a defendant’s unrecorded oral statements are subject to discovery, citing People v. Campbell (1972) 27 Cal.App.3d 849, 855-858. The Attorney General apparently concedes this point by arguing only that any error was harmless.
We conclude that even if Baston’s unrecorded oral statement was subject to discovery, its admission was not prejudicial in light of the additional strong evidence linking defendants to the crimes, including the identifications made by Zamora and Golden. It is not reasonably probable that, but for the admission of Baston’s statement, the jury would have reached a different result. (People v. Watson, supra, 46 Cal.2d at p. 834.)
C. The Explorer’s Vehicle Registration Address
Detective Petrash testified that by tracing the Explorer’s license plate number, she was able to determine that the Explorer’s vehicle registration address matched that of defendant Burns. Defendants contend that the vehicle registration address was inadmissible under the hearsay rule. The contention lacks merit.
The trial court overruled the hearsay objection on the ground that the vehicle registration address was not being offered for its truth, but to show the manner in which the police had identified Burns as a suspect. Defendants argue on appeal that the prosecutor nevertheless improperly “used the truth of the fact of the registered owner’s address to connect the Ford Explorer to” defendants. Defendants point out that in closing argument, the prosecutor relied on the registered address when he stated: “You have a black Ford Explorer being used in both robberies. You have a license plate taken off that Ford Explorer. It happens to be registered right around the corner from where these robberies took place. You have this one defendant, defendant Burns, who has the same address as that black Explorer’s registration.”
We conclude that there was no hearsay violation. The hearsay rule precludes “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Given that the Explorer’s vehicle registration address was not offered to prove the vehicle’s correct registration address, but to show what had led the police to identify Burns as a suspect, there was no violation of the hearsay rule.
To the extent that the prosecutor relied on the vehicle registration address in his closing argument, the issue was forfeited by the failure to object and request that the jury be admonished. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) In any event, there is no reasonable probability that without the prosecutor’s statement, the jury would have reached a different result. (People v. Watson, supra, 46 Cal.2d at p. 834.)
III. False Implication
Defendants argue that the trial court erroneously failed to correct a false implication that defense counsel had tried to deceive Zamora at the preliminary hearing. During the attempted robbery in count 3, one of the eyewitnesses wrote down the Explorer’s license plate number on a piece of paper (the paper that was later given to the police). According to Zamora’s preliminary hearing testimony, the number was written by Resnick, but according to Zamora’s trial testimony, it was written by Zamora. During cross-examination, defense counsel asked Zamora about this discrepancy and showed the paper to Zamora. After examining the paper, Zamora identified the handwriting as his own and testified that he had been mistaken at the preliminary hearing.
On redirect, the prosecutor inquired whether either defense attorney had shown the paper to Zamora at the preliminary hearing. Over defense counsel’s objection, Zamora testified, “No.”
Defendants contend on appeal that the trial court erred in failing to dispel the false implication that they had sought to mislead Zamora at the preliminary hearing by not showing him the paper, which they did not possess at the time. Defendants objected below that because they did not receive the paper until May 14, they could not have shown it to Zamora at the March 12 preliminary hearing. Defendants requested that the trial court admonish the jury “that discovery was not turned over regarding [the paper] until May 14.”
The trial court invited defense counsel to prepare a written statement of “what you think I should tell the jury, and if I think I should, I will tell them at the midday break.” However, because the record does not indicate whether defense counsel followed through with this request, it is possible that the lack of an admonition is attributable to defendants’ failure to comply with the trial court’s request. Given that defendants bear the burden on appeal of establishing prejudicial error (Cal. Const., art. VI, § 13), we could reject this contention on this ground alone.
Moreover, we disagree that a false implication was created by the prosecutor’s inquiry regarding whether Zamora had testified at the preliminary hearing without being shown the paper. There was nothing in the question or response that would have led a reasonable jury to infer that defense counsel had sought to mislead Zamora at the preliminary hearing. In any event, there is no reasonable probability that, but for the prosecutor’s question, the jury would have reached a different result. (People v. Watson, supra, 46 Cal.2d at p. 834.)
IV. Cumulative Error
In light of our rejection of defendants’ contentions, the doctrine of cumulative error (see People v. Sturm (2006) 37 Cal.4th 1218) does not apply to this case.
V. The Trial Court Imposed an Unlawful Sentence
As we noted above, Baston was sentenced to six years in state prison. In arriving at that sentence, the trial court imposed a consecutive one-year term for the attempted second degree robbery in count 3. This was error. The sentence for attempted second degree robbery is “imprisonment in the state prison.” (§ 213, subd. (b).) The triad for imprisonment in the state prison is 16 months, two years, or three years. (§ 18.)
An unauthorized sentence is reviewable “regardless of whether an objection or argument was raised in the trial and/or reviewing court.” (People v. Welch (1993) 5 Cal.4th 228, 235.) As it is clear the trial court intended to sentence Baston to six years by imposing consecutive sentences on counts 2 and 3, we will modify the sentence for count 3 to comport with the correct statutory term. Thus, the sentence for count three will be one-third of the middle term of two years, which is eight months. His aggregate sentence will be five years, eight months.
DISPOSITION
The judgment with respect to Baston is modified to reflect a consecutive sentence of eight months in the state prison for count 3. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. The judgment with respect to Burns is affirmed.
We concur: WILLHITE, Acting P.J., MANELLA, J.