Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR186781
RIVERA, J.
Defendant Romeo Lamar Malone appeals a judgment entered upon a jury verdict finding him guilty of making a criminal threat. (Pen. Code, § 422.) He contends on appeal that the trial court erred in failing to instruct the jury on unanimity, that the prosecutor committed misconduct, and that his admission of prior convictions was invalid because he was not properly advised of the penal consequences. We affirm.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
Defendant was originally charged by felony complaint with one count of exposing another to the human immunodeficiency virus (HIV) by engaging in unprotected sex with knowledge that he was infected with HIV (Health & Saf. Code, § 120291, subd. (a)) (count one), and one count of making a criminal threat (§ 422) (count two). After hearing testimony at a preliminary hearing, the trial court dismissed count one, ruling that there was insufficient evidence that defendant had acted with specific intent to infect the victim, as required by Health and Safety Code section 120291, subdivision (a). The information subsequently filed contained only one count, for violation of section 422. It further alleged that defendant had suffered a prior conviction of a serious or violent felony for which he had served a prison term (§§ 1170.12, subds. (a)-(d), 667, subd. (a)(1), 667, subds. (b)-(i), 667.5, subd. (b)), and that he had served prison terms for two other convictions (§ 667.5). At the outset of trial, defendant admitted the prior convictions.
Evidence at trial showed that defendant and the victim, Marchella Thomas, were in a romantic relationship between approximately May 2006 and the end of October 2006. During that time, he lived with her and her son. The relationship ended on October 27, 2006, when Thomas “kick[ed] [defendant] out.” Defendant was upset, and the two engaged in a heated argument, in which he called her a “bitch” and told her she needed to “shut up for [her] own good.” At one point he had a knife in his hand.
After that date, defendant left “threatening messages” on Thomas’s answering machine, and they spoke on the telephone on a couple of occasions. He accused her of taking money from his account. They also argued about jewelry that he had pawned for her but had not redeemed.
On approximately October 30, 2006, defendant left a voice mail message telling Thomas, “You’re going to die,” and that “somebody was going to pay” for the money taken from defendant’s account.
Thomas testified that she had defendant’s parole officer, Aaron Horsma, listen to the message sometime around Monday, October 30. Horsma testified that Thomas played for him a voice mail in which Malone said something like, “Somebody is going to do something to you,” “Something is going to happen to you,” or “Why are you doing this to me?” and that he advised her to report the call to the Vallejo Police Department. Thomas testified that on October 31, she had Detective Todd Tribble of the Vallejo Police Department listen to the message by calling into her voice mail, and he recorded the message. Tribble, on the other hand, testified that Thomas’s cousin Evelyn Threets tried to play the recording but was unable to do so. Thomas also testified that she gave a clerk at the Vallejo Police Department a copy of a threatening e mail defendant had sent to her. She believed Tribble would forward the e mail to the district attorney, and she destroyed the original. Tribble did not recall receiving the e mail.
During a telephone conversation on November 1, 2006, defendant told Thomas he would shoot her in her face, saying “Bitch, you are going to pay for what you are doing. I’m going to shoot you in your face. That’s sworn on my grandmother’s grave.” She took the threat seriously and was afraid, in part because she knew he had been in prison for shooting someone and that he had been involved in one other incident of shooting. Thomas had a speaker phone on during the call, and her cousin Evelyn Threets heard the words as well. Thomas had seen defendant with a gun in the past. Furthermore, defendant had punched Thomas in the mouth on a prior occasion.
Threets testified that Thomas had the telephone on a speaker phone, that Threets heard defendant say, “I promise you, I will get you, and I will shoot you in your face,” and that Thomas was afraid, crying, and shaking afterwards.
Detective Todd Tribble of the Vallejo Police Department questioned defendant on November 1, 2006. Defendant admitted he had been in an argument with Thomas that morning, and that he had said, “ ‘If you had did this shit to a Nigga in the streets, somebody would do something to you, and I’d like to see.’ ” He claimed his statement had not been a threat, but admitted he understood how someone could take it as such. He also acknowledged that he had had another telephone conversation with Thomas, and that he had been angry at the time.
After defendant was arrested, he wrote several letters to Thomas. In one letter he wrote from jail, postmarked November 3, he told her, “ ‘Tell them you was mad over your [jewelry] like I was over my [$] and said too much.... They’re going to drag you into court and ruin both our lives over nothing.... You can fix, this, I can’t. We both have too much to lose. I ain’t mad no more; fuck the money, [jewelry], and whatever.’ ” Later in the letter, he wrote, “If you got any compassion in your heart, you’ll handle shit. If not,... I’m gonna do me, I guess. I’m going to have my lawyer talk, get a statement. Hopefully, you keep it real, and let, let [them] know you was mad about your [jewelry,] just fat-mouthed, you know, how to fix this so people know how to fix this, so please do it right.” In another letter written from jail, postmarked November 4, 2006, he said, “ ‘I beg you to take this off of me.... Please let these people know that this got out of hand, and I never did any of that shit that you were pressed by the parole to say, shit, cause you didn’t want... them. You don’t want them constantly harassing your home and child. [¶] The only other way for me to fight this is to [make] you look like a liar, and tell whatever I know but I just want it over.... On my momma’s life.... I know this shit went too far, but baby, I want it over. Please. No hard feelings. Nothing. I can’t tell you what to say, but if you fail to show or let them know I did [nothing] to you all, this goes away.... Please help me.... I’ve never asked anyone for help and I’ll do anything to pay you back.’ ”
In a letter dated November 8, 2006, defendant told Thomas that he had told his attorney she had probably been pressured to make her accusations against him through fear of the police and anger. He said that his only alternative was to “ ‘discredit her word by bringing up everything bad I know about her,’ ” and asked her “ ‘to take this away from me.’ ”
In another letter, dated November 9, 2006 defendant “ ‘beg[ged]’ ” Thomas to “ ‘spare [him],’ ” urging her either to recant her story, to say that she did not remember accusing him, or to say that the “ ‘threats, shit, was bogus.’ ” Later in the same letter, he said, “ ‘Man, I am sorry for all that has happened with us, and whatever harm I may have caused you. On my grandmother’s g[r]ave, if you help me out, I swear to do whatever you require till I’m dead.’ ” In at least one other letter, he asked her to recant her accusations.
Defendant testified that when he left a voice mail message with Thomas on October 31, 2006, he had been calling to ask about his bank account. According to defendant, when he tried to use an automatic teller machine, he found that his card was invalid, although he had funds in the account. Thomas had helped him to set up the account, and he called to ask her what had happened. In the message, he asked her why she had tampered with his money, and told her she would go to jail. He spoke with her on the telephone on November 1. During the conversation he called her a bitch approximately three times. She was “calling [him] some names,” and he hung up. She called back and asked him to go with her to retrieve her jewelry. He told her he was busy, and she swore at him. He hung up again, she called back, and they continued arguing. During the conversation, he told her, “ ‘If you had done this to a Nigga on the street, something would happen to you, and I would like to see,’ ” but he did not intend her to take the statement as a threat. He denied threatening to shoot Thomas in the face. He testified that he had not made any other phone calls to Thomas between the time their relationship ended and November 1, when he was arrested. He testified that when he wrote the letters to Thomas from jail, he was trying to convince her to tell the truth about what had happened.
II. DISCUSSION
A. Unanimity Instruction
Defendant contends the trial court erred in failing to instruct the jury that it must agree on which specific act violated section 422. The information charged defendant with committing one felony act of criminal threat, on or about November 1, 2006. According to defendant, the evidence showed at least two statements that could have been actionable under section 422—the statement made in the November 1 telephone call and the earlier message left on Thomas’s voice mail—and the jury should have been instructed that it must agree on which statement formed the basis of the conviction.
“When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.] The duty to instruct on unanimity when no election has been made rests upon the court sua sponte. [Citation.].” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado); see also People v. Thompson (1995) 36 Cal.App.4th 843, 850-851.) In such cases, the court must provide the instruction if the prosecution has not clearly communicated to the jury that it has elected to seek conviction only for one particular act. (Melhado, supra, 60 Cal.App.4th at pp. 1536, 1539.) We may look to the prosecutor’s arguments to the jury to determine whether there was an election. (See People v. Mayer (2003) 108 Cal.App.4th 403, 418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1454-1455.)
We have reviewed the prosecutor’s opening and closing arguments, and we have no doubt that he clearly communicated to the jury that he was relying only on the telephone conversation of November 1, 2006, in which defendant threatened to shoot Thomas in the face. In his opening, the prosecutor referred to the case as a simple, one-count case. He stated that on November 1, Thomas received a phone call from defendant asking, “How can you do this to somebody?”; that she later got a call in which Malone threatened her with the words, “I swear on my momma, you are going to lose your life, Nigga. I’m going to shoot you in the face”; and that Threets heard the threats on the speaker phone. This argument indicated clearly that defendant was accused of making a criminal threat in the telephone call that Threets heard.
This conclusion is reinforced by the prosecutor’s closing and rebuttal arguments. He opened his argument by pointing out that one of the elements of the crime was that defendant willfully threatened to unlawfully kill or cause great bodily injury to Thomas, and said, “I think there’s unrefuted evidence here that the defendant told her, ‘I swear on my momma,’ or, ‘I swear on my grandmother, I’m going to shoot you in the face.’ [¶] I think there’s no argument that that—the first element has been met; has been a threat to kill someone. Great bodily injury; shooting someone in the face.”
Later, in arguing that Thomas reasonably feared for her safety, the prosecutor argued that to make that determination, the jury should consider the surrounding circumstances, including the fact that defendant was angry with Thomas for kicking him out and making him homeless, that when they spoke on the telephone he would not tell her where he was, that she knew he had shot someone in the past, that he had told her he had a gun, that he had left messages that Horsma had heard, and that defendant had been violent with Thomas before. The prosecutor concluded, “All of those surrounding circumstances show that it was reasonable for Ms. Thomas to be in fear of this gentleman.” Thus, in arguing that the elements of the crime had been proven, the prosecutor relied on the November 1 telephone call in which defendant threatened to shoot Thomas in the face as the relevant threat, and pointed to the earlier telephone message as one of the surrounding circumstances that put Thomas in reasonable fear for her safety.
At various other points in his arguments, the prosecutor likewise made clear that the relevant threat was the one in which defendant swore “on [his] grandmother’s grave” that he would shoot Thomas in the face. For instance, the prosecutor argued, “Another telling thing is the language that Ms. Thomas [used to] describe[] this threat. ‘I swear on my momma’s grave.’ ” (Italics added.) In rebuttal, in arguing that Thomas’s version of events was credible, he said, “[T]he threat here is, ‘I’m going to shoot you in the face,’ and he didn’t make that threat till November 1st.” He went on to discuss defense counsel’s cross-examination of Thomas, stating that Thomas had been asked: “ ‘Why didn’t you call the police officers when he left that message at 2 o’clock in the morning threatening you?’ ” and going on to respond, “Well he hadn’t threatened to shoot her in the face yet. [¶] November 1st is when he threatened to shoot her in the face. [¶] When she received the actual threat, there was no doubt that was a threat; only then did she call the police officers; she wasn’t crying wolf.... The voice-mail message they were able to save was the ones which Horsma indicated were threatening in nature; threatening nature a couple of days before, culminating in the very nature of an actual threat. [¶] Those are the surrounding circumstances you should consider in whether or not that November 1st was an actual threat, and whether or not the November 1st call was actually made. [¶] Ms. Threets heard it. Ms. Thomas heard it. Detective Tribble saw her moments after it was made, and confirmed that she had the demeanor to support this was a threat.” (Italics added.) The basis of the charge was clear.
Defendant argues, however, that the prosecutor conflated statements defendant had made on different occasions and that as a result the jury considered more than one statement in determining his guilt. In his opening statement, the prosecutor told the jury that defendant had threatened Thomas by saying, “I swear on my momma, you are going to lose your life, Nigga. I’m going to shoot you in the face.” According to defendant, these words “you are going to lose your life” came from the voice mail message defendant left for Thomas around October 30, the word “Nigga” came from defendant’s own version of what he had told Thomas, and the rest of the statement was a variation on what Thomas testified defendant told her during the November 1 telephone call. Even if the prosecutor’s quotation of defendant’s threat was imperfect, we conclude that in context, there could be no doubt that he was relying on the November 1 telephone conversation as the relevant threat. Defendant also points out that the prosecutor argued to the jury that defendant had admitted leaving a message telling Thomas, “If you had did this shit to a Nigga in the streets, somebody would do something to you, and I’d like to see,” although in fact defendant admitted making that statement in his November 1, 2006, telephone conversation with her, not in a message. We see no possibility that this minor misstatement caused the jury any confusion about what statement was the basis for the prosecution’s case.
Thomas actually testified that defendant told her in his recorded message, “ ‘You’re going to die,’ ” not “You are going to lose your life.” Horsma, who heard the message, recalled defendant saying something like “ ‘Somebody is going to do something to you,’ ” or “ ‘Something is going to happen to you.’ ”
We conclude the prosecutor clearly communicated to the jury that he sought conviction only for the threat made during the November 1, 2006, telephone call. Accordingly, we reject defendant’s contention that the court had a sua sponte duty to instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.
B. Improper Cross-Examination
As we have indicated, count one of the original complaint charged defendant with one count of exposing another to HIV by engaged in unprotected sex (Health & Saf. Code, § 120291, subd. (a)), and this count was dismissed at the preliminary hearing. Before trial, defendant moved in limine to exclude evidence of various matters, including evidence that he was required to register as a sex offender pursuant to section 290, that he was HIV positive, and that he was gay or bisexual, on the grounds that the evidence was irrelevant and extremely prejudicial. In oral argument, the prosecutor agreed that the evidence had nothing to do with the case, and the court ruled that it would be excluded, “unless somehow, he brings it up.”
While cross-examining defendant, the prosecutor asked questions about each of these topics, as shown by the following exchanges: “[Q.] And when you left [Thomas’s house], did you want to leave? [A.] Yes, sir. [Q.] It wasn’t Ms.—it wasn’t Ms. Thomas saying, ‘Get out of the house’? [A.] Not at all; not at all. [Q.] Why did you leave? [A.] I was failed by the relationship. [Q.] So it was your idea to leave. What was the reason why you left? [A.] I just answered your question: I was in a failing relationship. [Q.] You were what with the relationship? [A.] Fed up; tired. [Q.] Why were you fed up? [A.] Disgusted. [Defense counsel]: Object. Relevance. [The Court]: Overruled. He testified about it. [Defendant]: There were reasons. [Q.] Because she caught you with another man? [A.] Not at all. [Q.] It wasn’t because she came home and found you with another man and found wet spots on the bed? [A.] No, not at all. [Q.] It wasn’t because she kicked you out because she thought you were HIV positive and you didn’t tell her of that? [A.] Not at all. [Q.] You never told Ms. Thomas that you’re HIV positive, correct? [Defense counsel]: I’m going to object to relevance. [The Court]: Overruled. [A.] Yes, I did. [Q.] When? [A.] Um, can’t exactly recall. [Q.] After she kicked you out? [A.] Um, no. [Q.] What day did she find out you were HIV positive? Do you know? [A.] I can’t say. You would have to ask her that.” Upon further questioning, defendant testified that at some point during his relationship, he told Thomas he was HIV positive.
Later, the prosecutor questioned defendant about whether he had registered as a sex offender. In the course of being questioned about why defendant’s parole officer was looking for him on November 1, defendant said, “It doesn’t matter. Um, I abide by the terms of my parole. If he says, ‘Come in. I’m looking for you,’ um, I’m coming in.” The exchange continued: “[Q.] You abide by the rules of your parole? [A.] Yes, sir. [Q.] Is it your [rule] at parole to register as a sex offender? [A] Yes, sir. [Q.] Did you do that? [A.] Yes, sir. [Q.] So wasn’t one of your violations [of parole] to register—failure to register as a sex offender? [A.] Not exactly, but you have to—you have the gentleman sitting right next to you that you register with.”
Defendant contends that the questions about his sexual orientation, HIV status, and obligation to register as a sex offender violated the court’s order and constituted misconduct on the part of the prosecutor, that the evidence was inadmissible and prejudicial, and that as a result he did not receive a fair trial. “A prosecutor who improperly cross-examines a defendant in order to place inadmissible prejudicial evidence before the jury is guilty of misconduct. [Citations.] Improper questions that violate a previous ruling by the trial court are particularly inexcusable.” (People v. Johnson (1978) 77 Cal.App.3d 866, 873-874; see also People v. Bell (1989) 49 Cal.3d 502, 532 (Bell); People v. Wash (1993) 6 Cal.4th 215, 258.)
In considering defendant’s contention, we bear in mind that “ ‘[t]he 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.” ’ ” [Citations.] 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.” ’ ” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 960; see also People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
We first consider whether defendant forfeited his claim as to the questions about whether he was required to register as a sex offender. In general, a claim of prosecutorial misconduct is not preserved for appeal unless the defense makes a timely objection and requests an admonition to cure any harm. (People v. Frye (1998) 18 Cal.4th 894, 969-970 (Frye), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Noguera (1992) 4 Cal.4th 599, 638.) Defendant acknowledges that he did not object to the questions about whether he was required to register as a sex offender, but contends that the issue is nonetheless preserved for appeal because an objection would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) This is shown, he argues, by the fact that the trial court had overruled his earlier objections to the questions about his reasons for leaving Thomas’s house and whether he had told Thomas he had HIV. We disagree. In ruling on his earlier objection, the trial court had indicated that defendant opened himself to questions about the reasons his relationship with Thomas had ended when he testified that he left voluntarily and that he was fed up and tired of the relationship. Whatever the merits of this ruling, nothing in it indicates that it would have been futile for defendant to raise any proper objection to questions about his status as a sex offender.
We likewise reject defendant’s contention that he preserved the issue by making a post-trial motion for a new trial on this ground, among others. Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795, upon which he relies, does not support his position. Our Supreme Court there stated, “ ‘Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial.’ [Citation.] In addition to objecting, a litigant faced with opposing counsel’s misconduct must also ‘move for a mistrial or seek a curative admonition’ [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice [citation]. This is so because ‘[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.’ [Citation.]” (Italics added.) A posttrial motion for a new trial is not an adequate substitute for a timely objection accompanied by a request for either a mistrial or a curative instruction. In the circumstances, the issue of the propriety of the questions regarding defendant’s obligations as a sex offender is not preserved for appeal.
We now turn to the questions about defendant’s sexual orientation and HIV status. The Attorney General contends they were proper because defendant “opened the door” to those subjects. As the Attorney General points out, on direct examination, defendant was asked, “[T]he afternoon that Ms. Thomas kicked you out, that Friday, do you have the event in your mind? [¶] That Friday, October 27, when she kicked you out?” He responded, “Yeah, I remember that day.” Later, on cross-examination, the prosecutor asked defendant how he got to San Francisco “after Ms. Thomas kicked you out of the house,” and he replied, “Um, one, she didn’t kick me out of the house; I left on my own,” before answering that Thomas’s grandfather had taken him to San Francisco. Upon further questioning, he testified that it had been his idea to leave, and that he did not do so because Thomas told him to get out of the house. The Attorney General contends that defendant’s testimony on cross-examination that he left Thomas’s home voluntarily contradicted his earlier testimony on direct examination when he agreed that he remembered the day Thomas had kicked him out, and that the prosecutor could properly probe the contradiction by inquiring into the reasons Thomas told defendant to leave. Such questioning, according to the Attorney General, did not violate the trial court’s order because defendant himself raised the topic.
At the preliminary hearing, Thomas testified that her relationship with defendant ended when she found out he was bisexual, and that during their relationship defendant never told her he was HIV positive or that he had AIDS. She had come home one day in late October to find defendant with a man who appeared to her to be gay; in the bedroom she found part of a condom wrapper and a wet spot on the bed that appeared to be lubricant. Thomas packed defendant’s belongings and asked him to leave. Thomas later told Detective Tribble that he had HIV.
At the outset, we note that defendant raised no objection when the prosecutor began asking questions that clearly fell within the subject matter of the order excluding evidence of defendant’s sexual orientation and HIV status. Although he objected when asked why he was “fed up” with the relationship, he did not object when the prosecutor asked if the reasons he was disgusted were that Thomas had caught him with another man, that she had found wet spots on the bed, and that he was HIV positive. After these questions had been asked and answered without objection, defendant objected on grounds of relevance to a question about whether he had ever told Thomas he was HIV positive. As we have noted, to preserve a claim of prosecutorial misconduct for appeal, the defense must make a timely objection and request an admonition to cure any harm. (See Frye, supra, 18 Cal.4th at pp. 969-970.)
Even assuming defendant’s objections were sufficient to preserve the issue for appeal—or that further objection would have been futile (see Hill, supra, 17 Cal.4th at p. 820)—we reject defendant’s contention. We agree that it is, at the very least, a stretch to conclude that defendant opened the door to the questions about his sexual orientation and HIV status by agreeing on direct examination that he “remember[ed] that day” that Thomas kicked him out. The point of his attorney’s line of questioning on direct examination was not the reason defendant left Thomas’s house, but whether he had a gun and whether he was waving a weapon as they argued on the day the relationship ended. However, any prosecutorial misconduct in asking questions about matters encompassed by the trial court’s exclusionary order is not a basis for reversal unless defendant suffered prejudice. (People v. Bolton (1979) 23 Cal.3d 208, 214; see also People v. Sandoval (1992) 4 Cal.4th 155, 184; Bell, supra, 49 Cal.3d at p. 534.)
We find no prejudice here. The evidence against defendant was strong. Thomas testified that defendant threatened to shoot her in the face on November 1, 2006, and her testimony was corroborated by Threets, who also heard the conversation. Defendant acknowledged arguing with Thomas and using words that might be interpreted as a threat. Tribble spoke with Thomas late in the afternoon of November 1, after Thomas and defendant had argued. He testified that she was shaking, crying, and fighting back tears as they spoke, and that she appeared very frightened. Moreover, Horsma heard earlier a telephone message that was threatening in nature. Finally, defendant’s letters to Thomas, particularly his statements that “ ‘this got out of hand,’ ” that “ ‘this shit went too far,’ ” and that he was “ ‘sorry for all that has happened with us, and whatever harm I may have caused you,’ ” conveyed an implication of guilt as well. The prosecutor’s line of questioning was brief, and we conclude it did not prejudice defendant.
Defendant argues that the questions implicated his federal constitutional rights because they amounted to unsworn testimony violative of his right to confrontation, and that, therefore, we should reverse the judgment unless the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 23-24.) He draws our attention to People v. Herring (1993) 20 Cal.App.4th 1066, 1076-1077, in which the Court of Appeal concluded that a prosecutor’s argument to the jury that the defense counsel “ ‘does not want you to hear the truth’ ” implied that he knew facts not in evidence, and violated the defendant’s Sixth Amendment right to confrontation and his right to effective counsel. We doubt that the prosecutor’s comments rose to the level of a violation of the federal constitution, but need not decide the issue because even under the Chapman standard, we find no prejudice.
In so concluding, we do not, either explicitly or implicitly, countenance the prosecutor’s actions.
C. Misconduct During Closing Argument
In closing argument, the prosecutor told the jury: “I submit to you that the break-up is a factor in whether or not you are going to believe Mr. Malone, and why Ms. Thomas had reasonable fear. [¶] And reasonable is this: If Mr. Malone is willing to risk killing her slowly when they’re on good terms, is it reasonable to believe that he’s willing to risk killing her quickly on bad terms?” Defendant’s attorney objected, moved to strike, and requested a cautionary instruction. After an unreported discussion at the bench, the court stated, “I will strike the reference to, ‘killing her softly,’ from the record. [¶] The jury should disregard that statement from the prosecutor. [¶] That’s not in evidence.”
Defendant contends this argument constituted prejudicial misconduct and that the judge’s admonition was insufficient to cure it, arguing that the prosecutor implied that he knew facts not in evidence, such as whether defendant and Thomas had had unprotected sexual relations, and that the trial court should have instructed the jury not to consider defendant’s HIV status and prior sexual relations with Thomas in considering his guilt. We reject these contentions. The only portion of the closing argument that might refer to defendant’s HIV status and sexual relations with Thomas was the prosecutor’s statement that defendant had risked “killing her slowly when they’re on good terms.” The trial court struck the reference from the record and admonished the jury to disregard it, and told the jury it was not in evidence. Later, the court instructed the jury that arguments of counsel were not evidence and that the jury should disregard testimony stricken from the record and not consider it for any purpose. We assume the jury followed these instructions and that any error was cured. (See People v. Dickey (2005) 35 Cal.4th 884, 914; People v. Jones (1997) 15 Cal.4th 119, 168, overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
Defendant argues, however, that the admonition was insufficient, because the court said the reference to “ ‘killing her softly’ ”—rather than “killing her slowly”—was stricken, and because the court did not strike the prosecutor’s entire remarks. We have no hesitation in concluding that the jury would not have been confused by the minor mistake in wording, and that it would have understood the instruction to apply to the whole of the prosecutor’s objectionable comment.
D. Validity of Admission of Prior Convictions and Prison Terms
As we have noted, defendant admitted the truth of the prior conviction and prison term allegations. He contends on appeal that his admissions were invalid because he was not advised of the precise penal consequences of his admissions. In particular, he contends that he was not advised that the base term would account for only two years of his total 11-year sentence and that the enhancements would account for the rest.
At the outset of trial, the court asked defendant’s counsel whether the three prior conviction allegations would be tried by the jury. Before admitting the priors, defendant consulted with his counsel, and signed a form indicating he understood and waived each of the constitutional rights he was giving up, and that the maximum term the court could impose based on his admissions was 14 years in state prison. The following discussion ensued outside the presence of the jury: “[Ms. Rios [defense counsel]]: Because he is admitting he has an attempted robbery from 1988. He does have—he has a sales case from 1990 that we just determined has not—was not a wash-out for Mr. Malone. [The Court]: Okay. [Ms. Rios]: And then he has a 12020 from 2003, and given the way that the prior are alleged in the complaint, there’s a serious-on-serious for five years, and then the strike is alleged to double the time on the criminal threats. [¶] It’s a maximum of 14 years. [The Court]: Okay. And that would be added to any conviction, any term, if he’s convicted of any other crime? [Ms. Rios]: The 14 years includes the time if he is convicted.... [The Court]: Okay. Mr. Mangoba? [Mr. Mangoba [the prosecutor]]: Just double check my sheet here; make sure. So the maximum penalty he could—the trilogy for 422 is 16, two, three, doubled; one strike is six; with the 667(a))(1) enhancement, that’s five years, so that’s 11, and then with the 667.5(b), three prison priors, that adds another three years. [¶] It would be 14 years. [The Court]: That’s what she’s calculated. [Ms. Rios]: Yes. [The Court]: Okay. All right, then. [¶] Mr. Malone, do you understand what’s going on? [The defendant]: Yes, sir. [The Court]: And to [sic] what we’re doing is eliminating the proof of your prior convictions from this jury so they won’t be going into that issue, and you’re admitting that you were convicted of these three felonies previously? [¶] [The defendant]: Yes, sir, I know. [The Court]: Okay. Now, you signed this form and initialed it. That’s—do you understand by doing that, you are giving up your right to the trial on those specific issues of the priors? [The defendant]: Yes, sir, I understand. [The Court]: Okay. And did you go over the form with your attorney? [The defendant]: Yes, sir, I did. [The Court.] And if you had questions, did she answer your questions? [The defendant]: Yes, sir, she did. [The Court]: Is there anything you want to ask me about this part of your trial? [The defendant]: No, sir.” The court then found that defendant had been fully advised of his constitutional and statutory rights to a trial as to the truth of the prior allegations, and that he had made a knowing and intelligent waiver of those rights. The court allowed him to withdraw his denial of those allegations, accepted his admissions, and found the allegations true.
The court sentenced defendant to a total of 11 years in prison. It imposed the mid-term of two years (§ 422), doubled to four years because of a “strike” allegation (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court also imposed a five-year enhancement for defendant’s prior serious felony conviction (§ 667, subd. (a)(1)), and consecutive one-year terms for two prior prison terms (§ 667.5, subd. (b)).
The prosecutor and the defense attorney agreed at the sentencing hearing that the “strike” offense could be used both as a strike to double the base term and as the basis for a five-year enhancement, but that it could not be used for an additional one-year prior prison term enhancement. The trial court imposed the mid-term sentence of two years rather than the aggravated sentence of three years. (§ 422.) Thus, defendant was sentenced to a total of 11 years, rather than the 14 years contemplated as the maximum term at the time he admitted the priors.
Before a court accepts an accused’s admission of a prior felony conviction, the defendant must be advised of and waive three constitutional rights—the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. (In re Yurko (1974) 10 Cal.3d 857, 863, fn. 5; People v. Mosby (2004) 33 Cal.4th 353, 359-360.) If the record does not reveal complete advisements and waivers, the reviewing court examines the record of the entire proceedings to assess whether the admission was intelligent and voluntary in light of the totality of the circumstances. (Mosby, supra, 33 Cal.4th at pp. 360-361.)
In addition, “[a] defendant who admits a prior criminal conviction must first be advised of the increased sentence that might be imposed. (In re Yurko, [supra, 10 Cal.3d at p. 864]; People v. Karis (1988) 46 Cal.3d 612, 650.) However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. (In re Yurko, supra, 10 Cal.3d 857; People v. Wright (1987) 43 Cal.3d 487, 494-495; People v. Walker (1991) 54 Cal.3d 1013, 1022.) Consequently, when the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing. (Walker, supra, at p. 1023.)” (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.) Furthermore, because the advisement of the penal consequences of an admission is not constitutionally mandated, “ ‘an uninformed waiver based on the failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused.’ [Citation.]” (Walker, supra, 54 Cal.3d at pp. 1022-1023.) To show prejudice, the defendant must demonstrate that it is reasonably probable he would not have entered the plea or admission if he had been told of its consequences. (Id. at p. 1023.)
Defendant does not argue that he was not advised of his constitutional rights, but only that he was not properly advised of the penal consequences of his admissions. The Attorney General points out, and defendant does not dispute, that defendant did not raise this argument below. By failing to do so, he forfeited the issue. (Walker, supra, 54 Cal.3d at p. 1023.)
In any case, the record shows that defendant was aware of the consequences of his admissions. Before admitting the priors, defendant spoke with his counsel and signed a form indicating he knew that as a consequence of his admission he could receive a maximum prison term of 14 years. While defendant was present in court, the prosecutor explained to the court the sentence that would result from the enhancements. When the trial judge asked defendant if he understood what was going on, he replied that he did. In the circumstances, it appears to us that defendant was adequately advised of the penal consequences of admitting the priors. In any case, he has made no attempt to show that it is reasonably probable he would have not made the admissions if he had received more explicit advice. (Walker, supra, 54 Cal.3d at pp. 1022-1023.)
We are not persuaded otherwise by People v. Witcher (1995) 41 Cal.App.4th 223 (Witcher), upon which defendant relies. Before admitting priors there, the defendant was not advised of and did not waive his privilege against compulsory self-incrimination and his right to confront his accusers, and was never informed of the penal consequences of his admissions. (Id. at p. 231.) During the colloquy between the court and the defendant before the defendant admitted two of the priors, the trial judge told the defendant that the only right he would be giving up would be requiring the district attorney to prove the prior convictions to the jury. The defendant told the court that he “really [didn’t] understand” but that he was taking his attorney’s advice. (Id. at p. 229.) The Court of Appeal concluded that defendant was not advised of his privilege against self-incrimination and his right to confront the witnesses against him with respect to the prior convictions, and that any implied waiver of those rights could not be said to be knowing and voluntary. Although in the course of reaching its conclusion, the Court of Appeal noted that the Attorney General had not even discussed the effect of the failure to advise appellant of the consequences of his admission, its holding was based on the lack of advisement of the defendant’s constitutional rights. (Id. at p. 233.)
For that reason, Witcher is inapplicable here. As we have discussed, our Supreme Court has ruled that—unlike the uninformed waiver of specified constitutional rights, which renders an admission involuntary—an uninformed waiver based on the court’s failure to advise the accused of the consequences of an admission “ ‘requires that the admission be set aside only if the error is prejudicial to the accused,’ ” and in any event “the error is waived absent a timely objection.” (Walker, supra, 54 Cal.3d at pp. 1022-1023.)
In the circumstances, we reject defendant’s contention that his admissions should be set aside.
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P.J. SEPULVEDA, J.