People v. Perez

Full title: THE PEOPLE, Plaintiff and Respondent, v. DAVID PEREZ et al., Defendants…

Court: California Court of Appeals, Fourth District, Second Division

Date published: Aug 16, 2007

No. E038140 (Cal. Ct. App. Aug. 16, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. DAVID PEREZ et al., Defendants and Appellants. In re DAVID PEREZ, on Habeas Corpus. E038140, E041633 California Court of Appeal, Fourth District, Second Division August 16, 2007

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FSB 038814, Douglas A. Fettel, Judge.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant Perez.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Ortiz.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lynne McGinnis and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Hollenhorst, Acting P.J.

In this consolidated appeal, defendants Hector Ortiz and David Perez appeal from judgments entered against them following jury convictions for first degree residential robbery of Juan Rosa Ortiz (Rosa).¹ (Pen. Code, § 211.)² The jury also found true the allegation that Ortiz personally used a knife in the commission of the robbery (§ 12022, subd. (b)(1)). In addition, Perez admitted he suffered a prior conviction for second degree burglary, and Ortiz admitted two prior convictions for robbery, one attempted robbery conviction, and a conviction for assault with means likely to cause great bodily injury.

1 Juan Rosa Ortiz is unrelated to defendant Hector Ortiz. Juan Rosa Ortiz will be referred to in this opinion by his middle name, “Rosa.” Defendants Hector Ortiz and David Perez will be referred to by their last names or collectively, as “defendants.”

2 Unless otherwise noted, all statutory references are to the Penal Code.

The trial court sentenced Perez to five years in prison, consisting of a four-year midterm for the robbery conviction and one year for the prison prior (§ 667.5, subd. (b)). Ortiz was sentenced to 28 years to life in prison, consisting of a 25-year-to-life term for the robbery conviction, a one-year term for the weapon enhancement, and two 1-year terms for two prison priors.

Ortiz contends in his appeal that there was insufficient evidence to support his robbery conviction; the trial court erred in denying his motion for a new trial based on juror misconduct; the trial court violated his due process and jury trial rights by denying his request for juror information; and, before Ortiz admitted his prior convictions, the trial court failed to advise him of his constitutional rights and the consequences of admitting his prior convictions.

Perez joins in Ortiz’s contentions and further asserts in his appeal the following contentions: There was insufficient evidence to support his robbery conviction; the trial court failed to sever sua sponte his trial from Ortiz’s trial; his trial attorney provided ineffective assistance of counsel (IAC) by not moving to sever his trial from Ortiz’s, by failing to object to several instances of prosecutorial misconduct, and by failing to object to reference to Perez’s parole status; the trial court erred in failing to instruct the jury not to consider evidence of Ortiz’s prior offenses and parole status against Perez; the trial court provided an incorrect aiding and abetting instruction; the prosecutor committed prejudicial misconduct; the totality of trial errors constitutes cumulative error; there was insufficient evidence to support Perez’s prior prison term enhancement; and the trial court wrongfully denied Perez a probation evaluation before sentencing him. Ortiz joins in Perez’s contentions as relevant to Ortiz.

We conclude there was no prejudicial error, other than as to imposition of Perez’s prior prison term enhancement (§ 667.5, subd. (b)) and Ortiz’s three prior felony conviction enhancements (667.5, subd. (a)(1)). Therefore, defendants’ sentences are reversed and remanded for trial of the enhancements, with resentencing only as to Perez’s prior prison term enhancement and Ortiz’s three prior felony conviction enhancements. In all other respects, Perez and Ortiz’s judgments are affirmed.

Perez also filed a petition for writ of habeas corpus, to be considered by this court with Perez and Ortiz’s appeals. Perez raises in his writ petition essentially the same IAC arguments raised in his appeal. Attached to his writ petition are a declaration by his appellate attorney and a certified mail, return receipt, signed by Perez’s trial attorney. In the supporting declaration, Perez’s appellate attorney states that he called and sent Perez’s trial attorney a letter requesting an explanation why trial counsel did not move to sever Perez’s trial. There was no response, other than return of the certified mail receipt. Perez’s writ petition is denied on essentially the same grounds as we reject his IAC contentions raised in his appeal.

1. Factual Background

Rosa and Ortiz were the only witnesses who testified at defendants’ trial. Rosa testified that, on March 11, 2003, about 10:00 p.m., defendants approached him as he was picking up after repairing bicycles in front of his apartment. Ortiz walked up behind Rosa, put a knife to his throat, pushed him against a wall, and told Rosa he was being held up and not to move. Rosa saw the two men while he was pushed up against the wall. Ortiz told Perez to get everything inside Rosa’s home. Perez then went inside Rosa’s apartment. Rosa’s two sons, who were three and four years old, were alone inside, watching television in the living room.

Ortiz pushed Rosa into the apartment at knife point. In the living room, Ortiz continued to hold a knife to Rosa’s throat and pulled his head back, forcing Rosa to look up at the ceiling. Meanwhile, Perez removed Rosa’s property from the apartment. When Rosa moved, Ortiz told him, “Don’t move, or I’ll kill you,” and asked Perez, “Do I kill him?” Perez said, “No.”

After defendants finished removing Rosa’s property, including two VCR’s, a drill, and a CD, they told Rosa, “Don’t follow us, or we’ll kill you, or don’t yell.” Then they ran away. Rosa told his neighbor he had just been robbed and called the police.

Rosa had seen Ortiz a couple days before, when he approached Rosa and tried to sell him meat. Rosa had never seen Perez before the robbery.

Rosa identified defendants in two six-pack photo lineups a week after the robbery. He also identified defendants during a preliminary hearing on June 30, 2003, and at trial in May 2004.

Ortiz testified he was released from prison in February 2003. He could not get a job after his release because he was participating in a month-long Star program for parolees. From the time of Ortiz’s release from prison until he was arrested on March 18, 2003, Ortiz lived with Perez, his nephew, at the home of his sister’s mother-in-law, Ofelia Pasillas. Pasillas’s home was on the same street as Rosa’s home. Ortiz acknowledged not having any money at the time, but his sister gave Pasillas money to pay for Ortiz’s food and for letting him live with her.

On the day of the robbery, March 11th, Ortiz claimed he had planned to take the day off from his Star class to take Pasillas to the doctor on the bus. That day, however, he discovered Pasillas’s appointment was on another day. Since his parole officer had already given him permission to miss his class, he decided to stay home.

Ortiz denied ever going to Rosa’s home and claimed he had never seen Rosa before. Ortiz denied ever selling meat. Ortiz also claimed that, at the time of the robbery, he and Perez would normally have been home, asleep.

2. Sufficiency of Evidence of Robbery

Ortiz and Perez contend that the evidence was insufficient to support their robbery convictions. We disagree.

In determining whether there was sufficient evidence, this court must determine “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] We view the whole record in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence to determine whether the record discloses substantial evidence. [Citations.] ‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)

Robbery is defined in section 211 as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.)

Defendants argue there was insufficient evidence because only a single eyewitness, Rosa, testified and eyewitness identification evidence is generally unreliable. In addition, Rosa’s testimony was inconsistent. Initially, Rosa testified that he had never seen Ortiz before the robbery. Then he testified he saw Ortiz two or three days before the robbery, trying to sell Rosa some meat. Ortiz asserts that Rosa’s identification testimony was also questionable because Rosa did not notice Ortiz’s tattoos on his head and arms, and testified Ortiz had one-half-inch long hair, whereas other evidence established Ortiz had a shaved head. Finally, Ortiz argues that Rosa testified he saw Ortiz briefly as defendants were running away, when Ortiz looked back at Rosa for a moment. Ortiz also notes that after the verdict, one of the jurors commented to the court that there did not seem to be enough evidence in the case.

Perez complains there was no physical evidence connecting him to the robbery. He claims the only evidence implicating Perez was Rosa’s testimony identifying Perez as one of the perpetrators, and the eyewitness identification was unreliable, particularly since Rosa did not have an opportunity to observe Perez. Perez also argues Rosa’s identification of Perez in a photo lineup was not reliable because it was not conducted properly and his photo was darker and larger than the other photos.

Despite these circumstances, there was sufficient evidence to support Ortiz and Perez’s convictions for robbery. Rosa positively identified defendants at trial as the perpetrators of the robbery. If accepted by the jury, that testimony alone is sufficient to support a conviction under Evidence Code section 411, which states: “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” The issues raised by Ortiz and Perez merely cast doubt on the identification. They were resolved adversely by the jury when it made its credibility determinations. As our Supreme Court has held, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony [was] physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.)

Here, Rosa’s testimony implicating Ortiz and Perez is not physically impossible or inherently improbable. Rosa testified he saw defendants when they first approached him, and he saw Ortiz when Ortiz took him inside. Rosa also testified that he saw Ortiz’s face as defendants were running off and Ortiz looked back. In addition, Rosa testified he recognized Ortiz from when Ortiz attempted to sell him meat two or three days before the robbery. Rosa’s testimony is sufficient to establish that he observed Ortiz for identification purposes.

As to Ortiz’s argument that Rosa’s testimony was inconsistent, the record indicates this was not necessarily the case. For instance, the prosecutor asked Rosa if he knew or was familiar with Ortiz before the robbery. Rosa responded, “Yes, yes. Not from before, no. First time.” When the prosecutor asked if he meant it was the first time he saw Ortiz on March 11th, Rosa responded, “[T]he first time I saw him was one time when he went by asking if we wanted to buy meat” before the robbery. This testimony is not necessarily inconsistent. Rather, it indicates Rosa most likely misunderstood the prosecutor’s questions as to when Rosa first saw Ortiz the day of the robbery as opposed to the first time he ever saw Ortiz, i.e., several days before selling meat. Rosa was testifying in Spanish, with the aid of a Spanish interpreter.

As to Perez, Rosa testified that, by the time Ortiz ran off, Perez had already left with the stolen property. Rosa could not see Perez while he was taking property because Ortiz was holding Rosa, forcing him to look at the ceiling. Out of the corner of his eyes, he saw Perez moving around. Rosa acknowledged he did not see Perez very well but did see him well enough to identify him in the photo lineup. Rosa testified he was sure Perez was the second robber.

Rosa identified both defendants as the robbers at the preliminary hearing, at trial, and during a photographic lineup. Rosa also testified he was certain they were the perpetrators.

Ortiz and Perez argue that Rosa’s identification of Perez in a photo lineup was not reliable because it was not conducted properly and was suggestive. Perez complains that his photo in the lineup was significantly different from the others. His face was darker, more yellow than the others, larger, and perfectly centered. Based on our review of Perez’s photo lineup (exh. 3), we conclude the photo of Perez is not unduly suggestive. Although the skin tone is more yellow, the background is darker, and Perez’s head is a little larger, each of the photos differ in various ways and none of the differences in Perez’s photo necessarily implicate him as one of the perpetrators.

Defendants also complain that, when the investigator showed Rosa the photo lineups, the investigator asked Rosa, “Which one of them is it?” Defendants argue that this suggested that defendants’ photos were included in the lineups. But such question does not preclude the answer, “None of them.”

Furthermore, Rosa’s testimony indicates he was certain he had correctly identified both defendants as the perpetrators. Rosa testified he observed both defendants’ faces during the robbery. He also testified that he did not need help identifying defendants during the photo lineups because he knew their faces and the robbery was still fresh in his mind at the time of the photo lineups. Furthermore, apart from the photo lineups, there was evidence that at the time of the robbery, defendants lived together at the same residence and were related. Without being aware of this, Rosa identified both defendants as having committed the robbery.

Despite Rosa’s seemingly inconsistent testimony at times and Rosa not noticing Ortiz’s tattoos, which may have been covered by clothing and hair, Rosa’s testimony was sufficient to support the jury’s finding that defendants committed the charged robbery. Since the jury apparently found that Rosa was a truthful and credible witness, his testimony was sufficient to support defendants’ robbery convictions.

3. Juror Misconduct

Defendants contend the trial court abused its discretion in denying Ortiz’s motion for new trial based on juror misconduct, in which a juror conversed with Detective Preston. Preston had investigated the robbery and had been present during a portion of voir dire and for part of the testimony in defendants’ trial.

A. Procedural and Factual Background

On May 17, 2004, Preston was eating lunch at a shopping mall food court with another detective. Juror No. 9 approached Preston and asked him how many photos Preston had shown Rosa. Not realizing the case was still pending, Preston told the juror he had shown Rosa two sets of photographs with six photos each. Preston did not discover the jury was still deliberating until he asked juror No. 9 how the case went and the juror told him the jury was still deliberating. Preston immediately told his supervisor and the deputy district attorney about the conversation. The next day the jury returned guilty verdicts in the case.

After the verdicts, a juror told Ortiz’s attorney that the jury really wanted to know whether Rosa was shown more than one six pack for each of the defendants.

About a week after the verdicts, Preston gave the prosecutor a memo memorializing his conversation with juror No. 9. Defense counsel and the court were also informed of the conversation. At a hearing on May 28, 2004, Perez’s attorney told the court he intended to file a motion to obtain confidential juror information and request juror No. 9 to appear in court to be questioned. The trial court said a motion was not necessary. Counsel and the court agreed that initially only juror No. 9’s personal information would be released. Counsel also agreed that the parties’ counsel would interview juror No. 9 at the district attorney’s office. During the interview, juror No. 9 stated that he realized right after asking Preston about the photo lineups that he had done something wrong and therefore did not discuss his conversation with any jurors.

Perez intended to join Ortiz in bringing a motion for new trial, but due to the numerous continuances of the motion, on May 4, 2005, Perez told the court he no longer wished to delay sentencing and therefore wished to opt out of joining Ortiz in bringing a motion for new trial so he could be sentenced. The trial court noted that, even though Perez would not be bringing a motion for new trial, he could raise the same objections on appeal. Thereafter the court sentenced Perez and entered judgment in his case.

On July 18, 2005, Ortiz filed a motion for a new trial based on juror No. 9’s conversation with Preston. Perez provided a supporting declaration stating that Ortiz was not involved in the robbery, and that Perez had been involved in a dispute with Rosa over drugs. Because Rosa did not have money to pay for drugs Perez had delivered to Rosa, Rosa gave Perez items as collateral for payment of the drugs. Later, Rosa wanted the items back but Perez would not return them because Rosa did not have money to pay for the drugs. Also attached to Ortiz’s motion was defense investigator Robert Board’s report containing summaries of his interviews of three jurors, conducted almost a year after the verdicts.

On August 23, 2005, the court heard and denied Ortiz’s motion for new trial. The trial court found there was no juror misconduct and the conduct did not affect the verdict.

B. Applicable Law

In ruling on a motion for a new trial based on juror misconduct, “the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. (Evid. Code, § 1150.) If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these issues, and its rulings will not be disturbed absent a clear abuse of discretion. [Citations.]” (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704; see also People v. Garcia (2001) 89 Cal.App.4th 1321, 1338.)

In determining whether misconduct occurred, “‘“[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]” [Citation.]’” (People v. Garcia, supra, 89 Cal.App.4th at p. 1338, quoting People v. Majors (1998) 18 Cal.4th 385, 417, fn. omitted.) If defendants establish juror misconduct, “prejudice is presumed; the state must then rebut the presumption or lose the verdict.” (People v. Marshall (1990) 50 Cal.3d 907, 949, citing In re Stankewitz (1985) 40 Cal.3d 391, 396-402.) A presumption of prejudicial injury may, however, be rebutted by the record. (People v. Pinholster (1992) 1 Cal.4th 865, 925.)

C. Waiver

Perez argues he did not waive his juror misconduct challenge by opting out of Ortiz’s motion for new trial and proceeding with sentencing on May 4, 2005, after a year of continuances. Perez asserts that he was not required to bring his juror misconduct objection in the trial court before raising it on appeal. In addition, Perez argues that the trial court told Perez, when he requested the court to proceed with sentencing him, that Perez could raise his juror misconduct objection directly on appeal.

Since we conclude juror No. 9’s conversation with Preston was not prejudicial, we need not address the issue of waiver, although it appears there was no waiver. The record shows that Perez did not intend to waive or forfeit his juror misconduct objection. He asserted the objection in the trial court, but ultimately chose to forgo a trial court determination of the issue so as to avoid further delay in sentencing. Furthermore, the trial court informed him at the time that he could assert his objection on appeal.

D. Analysis

Defendants complain that juror No. 9’s conversation with Preston constitutes prejudicial juror misconduct because the information was extraneous to the evidence introduced at trial; while deliberations were pending, juror No. 9 spoke to a non-juror, Preston, about defendants’ photo lineups. Defendants note that, after entry of the verdict, jurors said they had concerns during deliberations regarding Rosa’s photo lineup identifications of defendants.

Even assuming juror No. 9’s conversation with Preston constituted juror misconduct, the misconduct was minor and any prejudice was rebutted by juror statements concerning the photo lineups. We find, upon review of the full record, it is not reasonably probable that defendant’s case was actually harmed by juror No. 9’s brief conversation with Preston. Juror No. 9³ stated he did not tell any of the other jurors about his conversation with Preston, and there is no indication in the record that it influenced his decision in the case.

3 In order to ensure anonymity, Board does not indicate whether the jurors are male or female. For this reason and for the sake of simplicity, we will refer to the jurors all as males, regardless of their actual gender.

In addition, according to Board’s investigative report, the other jurors who were questioned stated the photo lineups did not impact their findings of guilty. Juror No. 1 said that the photographs did not play any part in his finding of guilt. Juror No. 2 stated that initially there was some concern among several jurors concerning the darkness and lightness of the background of some of the photographs but this did not have any bearing on his finding of guilt. Juror No. 2 stated that, after hearing the evidence, there was no doubt in his mind as to guilt. Juror No. 3 stated that, as to the photographs, he had no reservations as to defendants’ guilt. Juror No. 3 said he made his decision after listening to all the evidence and had no doubt as to defendants’ guilt.

After interviewing the three jurors, Board concluded in his report that “the controversy of the previous Juror and the photographs had no bearing on these last three Jurors[’] guilty verdict.”

Under these circumstances, we conclude that any presumed prejudice arising from juror No. 9’s conversation with Preston has been rebutted by the record. The trial court thus did not abuse its discretion in denying Ortiz’s motion for a new trial, founded on juror misconduct.

4. Denial of Ortiz’s Request for Juror Information

Ortiz contends the trial court violated his constitutional due process and jury trial rights by denying his request for juror information, based solely on jurors’ objections to disclosure of their addresses and phone numbers. Code of Civil Procedure section 237, subdivision (d), provides that a juror’s records shall not be disclosed if the juror is unwilling to be contacted by the petitioner.

A. Procedural and Factual Background

During a hearing on May 28, 2004, the parties’ counsel and the court agreed to release only juror No. 9’s information. On June 25, 2004, after the parties interviewed juror No. 9, the court ordered the release of the other jurors’ confidential information to the defense for further investigation regarding juror No. 9’s conversation with Preston. On June 29, 2004, the trial court notified the parties that the jury commissioner had to be notified that juror information was being requested. The court further advised that the jury administration would notify the jurors and, if the jurors objected to being contacted, the matter would be set for a hearing.

In February 2005, Ortiz’s attorney filed a petition for an order disclosing personal juror information. The petition requested all jurors’ addresses and telephone numbers for purposes of interviewing the jurors under Code of Civil Procedure section 206, subdivision (b), and filing a motion for new trial based on juror misconduct. On the same date the petition was filed, the trial court granted it and ordered the jury commission to disclose to defense counsel the addresses and telephone numbers of each of the jurors. At the hearing on the petition, Ortiz’s attorney stated that two of the jurors had been interviewed but defense counsel wished to talk to the rest of the jurors.

In March 2005, the court noted for the record that it discussed the release of juror information with the parties’ counsel and that some of the jurors, who would not consent to the release of their personal information for purposes of being interviewed, had already spoken to the attorneys. The trial court further stated that it was going to preclude disclosure of the names and addresses of the 10 jurors who objected to disclosure in response to the jury administration’s inquiry. As to the four jurors who did not respond, the court stated it would furnish their names and addresses to defense counsel. One of the jurors was believed to have moved out of the state.

B. Applicable Law on Disclosure of Juror Information

Code of Civil Procedure section 206, subdivision (g) (section 206) provides: “Pursuant to Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.”

Code of Civil Procedure section 237 provides, in pertinent part: “. . . The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, . . .” (Id., subd. (b).)

If the trial court sets a hearing, “. . . Any affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition.” (Code Civ. Proc., § 237, subd. (c).) “After the hearing, the records shall be made available as requested in the petition, unless a former juror’s protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure . . ., or the juror is unwilling to be contacted by the petitioner.” (Code Civ. Proc., § 237, subd. (d).)

We review an order granting or denying access to jurors’ personal identifying information under the abuse of discretion standard. (People v. Jones (1998) 17 Cal.4th 279, 317, cert. den. 525 U.S. 932.)

C. Analysis

Ortiz contends Code of Civil Procedure section 237, subdivision (d), is unconstitutional as applied because it gave jurors an absolute, unreviewable veto power over Ortiz’s request for juror information, even though there was good cause for disclosure and no compelling interest against it. Ortiz asserts that his liberty interests and compelling interest in an untainted verdict far outweighed the jurors’ privacy interests in avoiding any minimal intrusion arising from the court providing their addresses and telephone numbers to defense counsel.

Ortiz fails to cite any compelling authority supporting his constitutional challenge to Code of Civil Procedure section 237, subdivision (d), as applied in this case. Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501, 511-513, cited by Ortiz, concerns media access to court proceedings. It does not concern disclosure of jurors’ addresses and phone numbers. The court in Press-Enterprise acknowledged that “The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain.” (Id. at p. 511.)

Lesher Communications, Inc. v. Superior Court (1990) 224 Cal.App.3d 774, 778-779 and Copley Press, Inc. v. Superior Court (1991) 228 Cal.App.3d 77, 85-87, also cited by Ortiz, concern the public’s right to access jurors’ responses to juror questionnaires. The courts in Lesher and Copley Press recognized the juror’s right to privacy and implemented protections to prevent disclosure to the media of sensitive juror information contained in the questionnaire responses. There was no holding that disclosure of a juror’s address and telephone number was required. In fact, the court in Copley Press noted that, “because of the hybrid nature of the questionnaire, certain information (e.g., telephone number, Social Security number, driver’s license number) is included that is essential for the determination of juror qualification and management of the jury system but is not properly part of voir dire, and public access to it is not warranted. Information of this type should be segregated from the other questions and not released to the public. [Citations.]” (Copley Press, supra, at p. 88.)

Contra Costa Newspapers, Inc. v. Superior Court (1998) 61 Cal.App.4th 862, 868, cited by Ortiz, permitted the press to contact jurors identified in public court records, whereas the instant case concerns the court’s disclosure of jurors’ addresses and phone numbers over the jurors’ objections to disclosure. In the instant case, the trial court did not order that the defense could not contact the jurors. Rather, in compliance with Code of Civil Procedure section 237, subdivision (d), the court refused to disclose the addresses and phone numbers of jurors who objected to disclosure of such information.

Finally, People v. Atkins (1988) 203 Cal.App.3d 15, 26-28 (Atkins), overruled on another ground in People v. Jones (1990) 51 Cal.3d 294, 322, is also inapposite. In Atkins, thedefendant moved for mistrial based on juror misconduct and requested the court to provide the addresses and telephone numbers of the jurors so that he could pursue his motion for new trial. The trial court denied the defendant’s request for juror information and motion for new trial. On appeal, the defendant argued that the trial court erred in denying his request for release of the jurors’ addresses and phone numbers. The defendant claimed this deprived him of a means to determine if there was juror misconduct. The People argued, among other things, that disclosure would constitute an invasion of the jurors’ privacy.

The court in Atkins, supra, explained that the right to privacy “is not absolute and may be abridged to accommodate a compelling public interest. [Citation.] ‘When the right to disclosure of information conflicts with the constitutional right of privacy, there should be a “careful balancing” of the “compelling public need” for discovery, against the “fundamental right of privacy.”’ [Citation.] ‘[T]he interest in ascertaining the truth in judicial proceedings has been held to be sufficiently substantial to justify disclosure of much confidential material, including communications to a psychotherapist.’ [Citation.]” (Atkins, supra, 203 Cal.App.3d at p. 26.)

The Atkins court, however, also noted that “‘The courts generally have concluded that the public interest in preserving confidential information outweighs in importance the interest of a private litigant in the absence of considerations involving life or liberty.’” (Atkins, supra, 203 Cal.App.3d at p. 27, quoting City & County of S.F. v. Superior Court (1951) 38 Cal.2d 156, 163.)

In balancing the privacy interests of the jurors against the defendant’s and public’s interests in ascertaining the truth in judicial proceedings, the Atkins court concluded the defendant’s interests in life and liberty outweighed the jurors’ privacy interests. The Atkins court explained: “There is a strong public interest in the ascertainment of the truth in judicial proceedings, including jury deliberations. The intrusion into the privacy of the jurors is minimal as they retain a clear right to refuse to talk to counsel and counsel has a duty not to harass or embarrass the jurors. (Rules Prof. Conduct of State Bar, rule 7-106 (D).) . . . In a criminal case there are questions of life and liberty involved. These considerations outweigh the limited and narrow intrusion of releasing the names and addresses of the jurors.” (Atkins, supra, 203 Cal.App.3d at pp. 27-28; emphasis added.)

Atkins, supra, 203 Cal.App.3d 15,is distinguishable from the instant case in that, here, the jury commissioner inquired as to whether the jurors objected to being contacted by defense counsel. As to those who objected, the trial court refused to release their personal information. The California Supreme Court in People v. Cox (1991) 53 Cal.3d 618, stated: “A criminal defendant has neither a guaranty of posttrial access to jurors nor a right to question them about their guilt or penalty verdict. Indeed, following what we may infer is a common practice, the court in this case informed the jury they were under no obligation to speak with counsel at the conclusion of the trial. [Citation.] That decision rests with the individual juror according to his or her inclination, which the defendant may not attempt to qualify.” (Id. at pp. 698-699; see also Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1095.)

We further note that Atkins, supra, 203 Cal.App.3d at,was decided before the Legislature amended Code of Civil Procedure section 237 in 1995. As noted in Townsel v. Superior Court, supra, 20 Cal.4th 1084, the purpose of amending Code of Civil Procedure section 237 was “to maximize juror privacy and safety, while retaining a criminal defendant’s ability to contact jurors after the trial if sufficient need is shown.” (Townsel v. Superior Court, supra, 20 Cal.4th at p. 1087; see also People v. Jefflo (1998) 63 Cal.App.4th 1314, 1321-1322, fn. 8.) Code of Civil Procedure section 237, as amended, maintains this balance by prohibiting disclosure of a juror’s personal information “if . . . the juror is unwilling to be contacted by the petitioner.” (Code Civ. Proc., § 237, subd. (d).)

We thus conclude Code of Civil Procedure section 237, as applied in the instant case, is not unconstitutional since the record establishes that, as to the 10 jurors who objected to disclosure of their personal information, the court appropriately refused to release the jurors’ phone numbers and addresses under Code of Civil Procedure section 237, subdivision (d).

We also reject Ortiz’s argument that there was no showing that the jurors were unwilling to be contacted by the defense. Ortiz asserts that the record merely indicates the jurors objected to the release of their personal information and this does not necessarily mean that the jurors are unwilling to talk about the case. Ortiz therefore urges this court to remand the case for a hearing to fashion a remedy that, in essence, allows the defense to talk to jurors while upholding the jurors’ privacy rights.

Based on our review of the record, it is sufficiently clear from the record that 10 jurors objected to the court releasing their addresses and telephone numbers to the defense. Remand, as requested, is unnecessary and inappropriate.

5. Defendants’ Prior Convictions Admissions

Ortiz contends his three prior conviction enhancements must be reversed and Perez contends his prison prior enhancement must also be reversed because the trial court did not advise defendants of their constitutional rights or the consequences of admitting their prior convictions.

The trial on defendants’ priors was bifurcated from the trial on the criminal charges. On May 11, 2004, before the trial on the criminal charges, defendants waived their rights to a jury trial on their priors. Before doing so, the court requested their attorneys to discuss the matter with defendants. Following a recess, Perez’s attorney informed the court that he had discussed the matter with Perez and Perez agreed to waive his right to a jury trial on his prior convictions. Ortiz stated he also understood he had a right to a jury trial on his prior convictions and was willing to waive his right.

A year later, on April 20, 2005, defendants appeared for a trial on their enhancements. The prosecutor informed the trial court that he believed defendants were willing to admit their priors as alleged in the information, subject to any motions for new trial. Perez’s attorney confirmed this was correct. Perez stated he understood that he would be admitting his prior conviction subject to the motion for a new trial. The court explained that this meant, “if the motion for a new trial is granted, the admission to the prior conviction would also be withdrawn, and you would be going back to trial on all the charges and the prior. . . . [¶] . . . [¶] . . . With that understanding, do you admit the prior conviction . . . ?” Perez replied, “Yes,” and his attorney joined in the admission. The court then asked Ortiz if he had heard what was just stated; “That you’re going to admit the prior convictions, but that admission would be subject to the motion that would be heard in a couple weeks to determine whether or not there would be a new trial, all right?” Ortiz responded, “Yes,” and then admitted each of his prior convictions.

Defendants complain that they were not advised of their Boykin rights or of possible increases in their sentences. Under both the federal and state Constitutions, before a court accepts a guilty plea a defendant must be advised of his rights to a jury trial and to confront witnesses against him and of the privilege against compelled self-incrimination. (Boykin v. Alabama (1969) 395 U.S. 238, 242 (Boykin); In re Tahl (1969) 1 Cal.3d 122, 132-133.) In California, the same rule applies to the acceptance of an admission of the truth of an alleged prior conviction. (In re Yurko (1974) 10 Cal.3d 857, 863.) In addition, a defendant must be advised of “those penalties and other sanctions imposed as a consequence of a finding of the truth of the allegation.” (Yurko, supra, at p. 860.)

The failure to properly advise a defendant of his rights and the sentencing consequences of admitting a prior conviction allegation is not reversible per se. (People v. Howard (1992) 1 Cal.4th 1132, 1177-1179 (Howard); People v. Witcher (1995) 41 Cal.App.4th 223, 227 (Witcher).) “The test is whether or not the record indicates that the admission was voluntary and intelligent ‘under the totality of the circumstances.’” (Witcher, supra, at p. 227, quoting Howard, supra, at p. 1178.)

Here, the trial court took an express waiver of the jury trial right but it failed to obtain specific waivers of defendants’ privilege against self-incrimination and confrontation rights before defendants admitted their prior convictions. The court also did not advise them of the sentencing consequences of their admissions. The court only advised defendants that their admissions would be void if they prevailed on their motion for new trial.

Citing Witcher, supra, 41 Cal.App.4th at pages 232-233, and In re Yurko, supra, 10 Cal.3d at page 863, defendants argue that, under such circumstances, this court must reverse Ortiz’s three prior felony conviction enhancements and Perez’s prison prior, and remand the case to the trial court to allow defendants to withdraw their prior conviction admissions. In Witcher, the court held the trial court erred in not advising the defendant of his privilege against compulsory self-incrimination or his right to confront his accusers, and did not inform the defendant of the penal consequences of admission of his prior convictions. (Witcher, supra, at p. 231.)

The Witcher court concluded that the Attorney General had not established that the defendant’s admission of his priors was voluntary and intelligent under the totality of the circumstances (Witcher, supra, 41 Cal.App.4that pp. 231, 233), and therefore reversed the defendant’s enhanced sentence and remanded for resentencing. (Witcher, supra, at p. 234.)

At oral argument on appeal in the instant case, this court requested supplemental briefing on whether the trial court’s failure to inform Ortiz of the sentencing consequences of admitting his prior convictions required reversal of his prior conviction enhancements. Perez’s attorney waived oral argument and was not present at the hearing. Perez’s attorney also has not provided supplemental briefing on the issue, although the sentencing objection was raised in his appellant’s opening brief. This may be because the issue as to Perez is essentially moot. In section 12 of this court’s decision, we reverse Perez’s prior prison term enhancement (§ 667.5, subd. (b)) on the ground there was insufficient evidence to support the prison prior enhancement.

Ortiz’s attorney and the Attorney General have provided supplemental briefing, as requested by this court. The Attorney General concedes in its supplemental brief that “the trial court should have advised appellant Ortiz of the penalties and other sanctions which could be imposed as a result of his prior conviction allegations. Accordingly, respondent agrees that the case should be remanded to the trial court so the People may retry the three prior serious felony conviction allegations [citations].”

We agree this court must reverse Ortiz’s prior conviction enhancements (§ 667, subd. (a)(1)) due to the trial court not advising Ortiz of the possibility that admitting his prior convictions might lead to increased sentencing.⁴ (Witcher, supra, 41 Cal.App.4th at pp. 232-233 and In re Yurko, supra, 10 Cal.3d at pp. 863-864.) The trial court failed to tell Ortiz that, by admitting his prior convictions, Ortiz faced an additional 15 years in prison (three five-year enhancements pursuant to section 667, subd. (a)(1)).

4 When trying Perez’s prison prior on remand, Perez’s admission of his prior felony conviction likewise should be set aside because Perez also was not properly advised of his constitutional rights and the sentencing ramifications arising from admitting the prior.

We conclude the trial court’s error in not properly advising Ortiz was prejudicial since there is nothing in the record establishing that Ortiz was told or knew of the sentencing consequences of admitting his prior convictions. (Witcher, supra, 41 Cal.App.4th at p. 227.) We accordingly reverse Ortiz’s sentence solely as to his prior conviction enhancements (§ 667, subd. (a)(1)), with directions that the trial court resentence him, after (1) permitting Ortiz to withdraw his prior conviction admissions and (2) allowing the People to try the three prior serious felony conviction allegations.

6. Joinder of Perez’s Trial with Ortiz’s Trial

Perez contends the trial court violated his right to due process by failing to sever sua sponte his trial from Ortiz’s. Perez argues that trying his case with Ortiz’s constituted fundamental unfairness to Perez because the joint trial resulted in voluminous evidence of Ortiz’s prior crimes; Ortiz alluded to Perez’s parole status; the jury was constantly reminded that defendants were related and living together at the time of the crime; and there was significantly weaker evidence against Perez than against Ortiz. In essence, Perez complains he was found guilty by association with Ortiz.

“Under section 1098, ‘[w]hen two or more defendants are jointly charged . . . they must be tried jointly, unless the court order[s] separate trials.’ In light of this legislative preference for joinder, separate trials are usually ordered only ‘“in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.”’ [Citations.] A trial court’s ruling on a severance motion is reviewed for abuse of discretion on the basis of the facts known to the court at the time of the ruling. [Citations.]” (People v. Box (2000) 23 Cal.4th 1153, 1195.)

An abuse of discretion may exist when: “(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1244.)

Perez argues that under People v. Chambers (1964) 231 Cal.App.2d 23 (Chambers), the court had a constitutional sua sponte duty to sever his trial from Ortiz’s. We disagree. In Chambers the defendant challenged joinder of his trial with another defendant. The court noted that the defendant had failed to raise the objection in the trial court and therefore, under normal circumstances, the defendant’s objection would be barred on appeal. However, because the Chambers court concluded that the joinder constituted fundamental unfairness in violation of the defendant’s rights to due process and a fair trial, the Chambers court considered the defendant’s objection on the merits. (Id. at p. 28.) “[A] reviewing court may reverse a conviction when, because of consolidation, ‘“gross unfairness”’ has deprived the defendant of a fair trial. [Citation.]” (People v. Ervin (2000) 22 Cal.4th 48, 69, quoting People v. Pinholster (1992) 1 Cal.4th 865, 933.)

In addressing the joinder challenge, the Chambers court concluded the trial court committed reversible error in joining the defendants’ cases based on the following factors: (1) the defendants were tried for separate and unrelated offenses; (2) there was voluminous evidence the codefendant committed acts of brutality unrelated to the defendant’s charges; (3) there was highly inflammatory character evidence as to the codefendant; (4) the evidence against the defendant was comparatively thin in relation to the massive quantum of prejudice-arousing evidence of brutality committed by the codefendant; (5) jury instruction directing the jury to disregard evidence adduced against one defendant alone was inadequate; and (6) the prosecution emphasized the moral partnership between the defendants and suggested the defendants slept together. The Chambers court concluded that, because much of the prejudicial evidence would not have been permissible had the defendant been tried alone, joinder of the defendants’ trials constituted prejudicial error leading to guilt by association. (Chambers, supra, 231 Cal.App.2dat p. 34.)

The instant case is distinguishable. The charges against Perez and Ortiz arose out of the same course of events and were based on the same underlying facts. Unlike in Chambers, supra, 231 Cal.App.2d 23, defendants were charged in the same felony complaint and information for committing the same offense, robbing Rosa. Most of the same factual issues and evidence applied to both defendants. Joinder of the trials thus promoted efficiency and avoided redundancy in trying the defendants separately. (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

Even if joinder of the trials may have resulted in admission of evidence that might otherwise not have been admitted in Perez’s trial, such evidence was minimal and not so prejudicial that severing defendants’ trials was required. The court could have reasonably concluded that the evidence as a whole was cross-admissible and that any “spillover” effect from trying charges against Ortiz was negligible as to Perez. The fact that evidence is admissible as to one defendant and inadmissible as to the other does not necessarily preclude a joint trial of the two defendants. As the court in Chambers noted, “Reported California decisions do not regard this circumstance as an ineluctable demand for separate trials.” (Chambers, supra, 231 Cal.App.2d at p. 33.)

Furthermore, Ortiz’s testimony concerning his criminal history did not constitute gross unfairness, since evidence of his involvement in the robbery and his relationship with Perez would have been admissible in Perez’s trial even if defendants were tried separately. In addition, the evidence was not any more inflammatory than the evidence that Ortiz and Perez committed the charged robbery.

The record also fails to show that the jurors were unable or unwilling to assess independently the respective culpability of each defendant or were confused by the instructions. (People v. Ervin, supra, 22 Cal.4th at p. 69.) Perez complains that the court failed to instruct the jury that it was to consider the evidence of Ortiz’s prior convictions only against Ortiz. But Perez did not object to the evidence or request such a limiting instruction. Furthermore, the trial court instructed the jury that “The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witness’s believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.” (CALJIC No. 2.23.) There is no reason to believe that the jury was unable to follow this instruction and considered Ortiz’s criminal history for a purpose other than for the sole purpose of determining his believability as a witness. Juries are presumed to follow the instructions given. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 148 (Van Winkle).)

Defendant also complains that the court instructed the jury that “You are to consider the evidence as to each of the defendants independent of the other. . . . In the attorney’s argument you heard that that does not mean you cannot consider the evidence as relating to each or both of the defendants, . . .” Defendant claims this instruction was misleading because it indicated that the jury should consider Ortiz’s convictions against Perez.

The instruction was not misleading when the jury instructions are considered as a whole and the particular instruction is considered in the context in which it was given. The instruction was given when the trial court was reading to the jury the possible jury verdicts and interjected: “I want to point out one thing, and emphasize it to you. You are to consider the evidence as to each of the defendants independent of the other. Each is entitled to your separate consideration. In the attorney’s argument you heard that that does not mean you cannot consider the evidence as relating to each or both of the defendants, but the verdict that is for each defendant is separate and apart, . . .”

It is sufficiently clear from this instruction that the trial court was reminding the jury that the defendants’ verdicts were separate and therefore the jury was to evaluate the evidence separately as to each defendant, but the jury could consider the same evidence as to each defendant. This was a general instruction which did not state that the jury could consider all evidence relating to Ortiz, such as his criminal history, against Perez as well.

Even though the evidence establishing Ortiz’s guilt was stronger than the evidence of Perez’s guilt, substantial evidence implicated Perez. Rosa testified as to both defendants that he saw them and was certain that they were both perpetrators of the robbery. Rosa identified both of them in photo lineups, at the preliminary hearing, and at trial, and had no reason to lie. The differing strength of the evidence against the defendants was not significant enough to constitute “gross unfairness.” We thus find no abuse of discretion, denial of due process, or other error in the court not sua sponte ordering severance of defendants’ trials.

7. IAC

Perez contends his trial attorney committed IAC by (1) failing to move to sever his case from Ortiz’s case, (2) failing to object to prosecutorial misconduct, and (3) failing to object to Ortiz’s testimony in which he mentioned that Perez had a parole agent.

A. Applicable Law

To establish constitutionally ineffective representation, defendant must show not only counsel’s deficient performance, but also prejudice i.e., a reasonable probability that a more favorable outcome would have resulted absent counsel’s failings. (People v. Lucero (2000) 23 Cal.4th 692, 728 (Lucero).) Without a showing of prejudice, we may reject defendant’s claim of IAC without determining the adequacy of counsel’s performance. (See People v. Brodit (1998) 61 Cal.App.4th 1312, 1333; citing People v. Sanchez (1995) 12 Cal.4th 1, 40-41.)

B. Severance

Relying on People v. Mitchell (1969) 1 Cal.App.3d 35, 39 (Mitchell), Perez contends his trial attorney provided ineffective assistance in failing to file a motion for severance. Because defendant fails to establish prejudice, we reject defendant’s claim. As we discussed above, with regard to sua sponte severance, it is unlikely the trial court would have severed the defendants’ trial.

Perez’s reliance on Mitchell, supra, 1 Cal.App.3d at p. 39, is misplaced. In Mitchell, two defendants were jointly tried and convicted of burglary. The appellant and codefendant were caught at the burglary scene by an officer. The appellant elected not to testify, whereas the codefendant testified. As a consequence, on cross-examination, it was revealed that the codefendant had been convicted of 29 felonies, primarily consisting of burglaries. The codefendant also testified that the appellant was his brother-in-law and they were reared in the same neighborhood.

On appeal, the appellant in Mitchell asserted IAC based on being represented by the same attorney who represented the codefendant and being tried jointly with the codefendant. The Mitchell court reversed the appellant’s conviction on the ground the appellant and codefendant’s interests conflicted and therefore appellant should have received representation by separate counsel. The Mitchell court noted that joint representation hampered defense counsel’s representation of the appellant due to the defendants’ conflicting interests. As a consequence, defense counsel did not call a witness favorable to the appellant because the witness’s testimony was inconsistent with the codefendant’s testimony. The Mitchell court concluded that most likely the appellant was found guilty by association, and that it was “conceivable” that, had the appellant been represented by separate counsel, his attorney would have moved for a separate trial. (Mitchell, supra, 1 Cal.App.3dat p. 39.)

The instant case is distinguishable, most significantly because Perez and Ortiz were represented by separate counsel. The primary issue addressed in Mitchell, supra, 1 Cal.App.3d 35, was joint representation, and how this detrimentally impacted the appellant’s representation. Furthermore, although there was evidence that Ortiz had convictions for two robberies and an attempted robbery, Ortiz’s criminal history was nowhere near as extensive as the codefendant’s criminal history in Mitchell.

In addition, in the instant case the record on appeal did not shed any light on why counsel acted or failed to act in the manner challenged. A “claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Perez in fact brought a writ petition for habeas corpus but his petition does not provide any evidence as to why his trial attorney did not move to sever. His trial attorney did not respond to any posttrial inquiries concerning representation of Perez during the trial. It is conceivable defense counsel did not move to sever because the chances of the court granting the motion were not good. We thus reject Perez’s IAC claim raised on appeal and in Perez’s writ petition because there was a rational, strategic basis for Perez’s trial attorney not moving to sever and there was no prejudice.

C. Prosecutorial Misconduct

Perez complains that his trial attorney committed IAC because he did not object to prosecutorial misconduct consisting of the prosecutor (1) asking the jury to “hold them [defendants] responsible for their actions” and (2) arguing Perez had a motive to rob because he lacked money.

In order to prove misconduct, defendants must establish that the prosecution’s behavior at trial went below the standard of behavior for prosecutors. Prosecutors are generally given wide latitude in arguing a case, and “‘“‘[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.”’” [Citations.]’” (People v. Hill (1998) 17 Cal.4th 800, 819.) The prosecution may generally be given wide latitude in argument, so long as the argument “‘“‘amounts to fair comment on the evidence, . . .’”’” (Ibid.)

If the prosecutors overstep the latitude given them within a case, they are guilty of misconduct. For misconduct to result in a reversal, it must have been prejudicial. In order for misconduct by the prosecutor to be prejudicial, the federal standard is it must “‘“so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”’ [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. [Citations.] [¶] Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.” (People v. Frye (1998) 18 Cal.4th 894, 969.) However, an objection need not be made if an admonition would not have cured the harm caused by the misconduct. (People v. Bradford (1997) 15 Cal.4th 1229, 1333.)

(1) Holding Defendants Responsible

Relying on People v. Mendoza (1974) 37 Cal.App.3d 717, 727 (Mendoza), Perez argues that his trial attorney committed IAC by failing to object to the prosecutor’s statement urging the jury during closing argument to hold the defendants responsible for their actions. The prosecutor told the jury at the conclusion of his closing argument: “You have a responsibility to determine what the facts are on March 11th. And if you want to let them go, you let them go, but I encourage you to hold them responsible for their actions. Find them guilty.”

Perez’s reliance on Mendoza, supra, is misplaced. In Mendoza, the court reversed based on numerous instances of prosecutorial misconduct, including the prosecutor improperly commenting on the defendant’s failure to testify. This was compounded by the court giving an instruction indirectly implying that the jury could consider the defendant’s failure to testify as evidence to prove an essential element of the offense. The prosecutor also repeatedly drew unjustifiable inferences from defendant’s conduct; dwelt on suppositions not reflected in evidence before the jury; and misstated the law by incorrectly informing the jury that a child molestation case required very little evidence. Finally, during closing argument the prosecutor asked the jury “‘to take Mr. Mendoza off the streets.’” (Mendoza, supra, 37 Cal.App.3d at p. 727.)

Here, unlike in Mendoza, supra,37 Cal.App.3d 717, the prosecutor did not comment on Perez’s failure to testify, and did not commit such numerous instances of misconduct. There was only one instance when the prosecutor made a factual statement not reflected in evidence (Perez lacked money); and the prosecutor did not suggest a particular type of punishment when he told the jury to “[h]old them [defendants] responsible for their actions.”

In requesting that the jury hold defendants responsible for their actions, the prosecutor did not overstep the wide latitude given counsel in zealously arguing his or her client’s case. Unlike in Mendoza, supra, 37 Cal.App.3d 717, the prosecutor’s statement at the end of closing argument, requesting the jury to hold defendants accountable, does not constitute prosecutorial misconduct because it was neither improper nor prejudicial.

(2) A Lack of Money

Perez argues that his trial attorney committed IAC by failing to object to the prosecutor’s statement during closing argument that defendants “had no money to pay for gas or bus fare.” Perez urges that this statement was prejudicial because it implied Perez had a motive to commit the robbery and there was no evidence supporting the argument.

Although Ortiz testified that, at the time of the robbery, he had no car or money to pay for bus fare, there was no evidence as to Perez’s financial state. Therefore the prosecutor’s statement during closing argument, that Perez lacked money, was improper because it was not founded on any evidence presented at trial.

Nevertheless, the prosecutor’s comment was not sufficiently prejudicial to constitute prosecutorial misconduct, and defendant’s attorney’s failure to object also was not sufficiently prejudicial to constitute IAC. The prosecutor’s statement was brief and innocuous. It was made in connection with arguing Ortiz’s guilt, not Perez’s, and was proper as to Ortiz. After stating “they had no money to pay for gas or bus fare,” the prosecutor did not argue that this provided defendants with motive to commit the robbery. Rather, the prosecutor proceeded to discuss Ortiz’s testimony and asserted that Ortiz was a lier. The prosecutor’s comment thus did not “infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” (Darden v. Wainwright (1986) 477 U.S. 168, 181.)

Neither of the brief, relatively innocuous statements made by the prosecutor during closing argument was sufficiently prejudicial, independently or cumulatively, to amount to a reasonable probability that a more favorable outcome would have resulted absent counsel’s failure to object. (Lucero, supra, 23 Cal.4th at p. 728.) Without a showing of prejudice, we may reject defendant’s claim of ineffective assistance without determining the adequacy of counsel’s performance. (See People v. Brodit, supra, 61 Cal.App.4th at p. 1333; citing People v. Sanchez, supra, 12 Cal.4th at pp. 40-41.)

Furthermore, whether to object to the statement that Perez did not have money was a tactical decision. Because trial counsel’s tactical decisions are accorded substantial deference, “failure to object seldom establishes counsel’s incompetence.” (People v. Hayes (1990) 52 Cal.3d 577, 621.) “In order to prevail on [an IAC] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Majors (1998) 18 Cal.4th 385, 403.)

In this appeal and in Perez’s writ petition, we cannot determine whether his trial counsel’s conduct, objectively considered, was deficient under prevailing professional norms, because the facts necessary to a determination of that issue are lacking. (People v. Cudjo (1993) 6 Cal.4th 585, 627.) The record on appeal and the writ petition shed no light on why counsel failed to object in the manner challenged. On the other hand, there is a rational tactical reason for not objecting. Objecting would have been disadvantageous to Perez in drawing attention to the remark. (People v. Padilla (1995) 11 Cal.4th 891, 958, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Defense counsel could have reasonably concluded that it was best not to object because the statement was brief and relatively innocuous as to Perez, particularly since it was made while arguing Ortiz’s guilt.

We conclude Perez failed to establish IAC in his appeal and writ petition based on his trial attorney’s failure to object to the prosecutor’s remark that Perez lacked money. The failure to object was not prejudicial and there was a rational tactical reason for not objecting.

D. Ortiz’s Testimony That Perez Was on Parole

Perez contends his trial attorney’s failure to object to Ortiz’s testimony revealing that Perez was on parole at the time of the robbery constituted IAC. During Ortiz’s testimony, Ortiz’s attorney asked him if he went to his Star class on March 18th. Ortiz responded: “March the 18th I was there all day in class and made it about 15 minutes before the class is over. My co-defendant’s parole agent came in there and said he wanted to speak to me. He said he didn’t know me and my co-defendant were living together and if we were related. . . . [T]he parole officers just surrounded me and told me to put my hands behind my back because I was under arrest . . . .” [Italics added.]

Perez complains that Ortiz’s testimony indicating that Perez had a parole agent was prejudicial because it revealed Perez had been convicted of a crime. Perez also complains that Ortiz testified that “[w]e’ve never taken a case to trial,” from which the jury could infer defendants had previously been charged with crimes. Perez had chosen not to testify and to bifurcate his guilt trial from trial of his prior convictions in order to prevent the jury from hearing prejudicial evidence of his prior conviction. Before trial, the court ordered that there would be no mention of defendants’ priors unless they testified. Despite these circumstances, Perez’s trial attorney failed to object to Ortiz’s reference to Perez’s parole agent. Perez’s attorney also failed to request the testimony stricken and request the court to admonish the jury to disregard the testimony.

We reject this IAC contention, raised both in Perez’s appeal and petition for writ of habeas corpus, because there is a rational, strategic reason for Perez’s trial attorney not objecting to Ortiz’s reference to Perez having a parole agent. (People v. Majors, supra, 18 Cal.4th at p. 403.) The statement was brief, relatively innocuous, and was inadvertently elicited by Ortiz’s trial attorney. Perez’s attorney’s failure to object was most likely “a conscious tactical decision and a sensible one at that, taken so as not to draw the jury’s attention to remarks that were, in context, fleeting.” (People v. Padilla, supra, 11 Cal.4th at p. 958.)

8. Instruction on Evidence of Prior Convictions

Perez contends the trial court erred in failing to instruct the jury not to consider evidence of Ortiz’s prior offenses and parole status against Perez.

During the trial, Ortiz testified that he pled guilty to two prior robberies, a prior attempted robbery, and an assault. He also testified he was released from prison and paroled in February 2003.

The trial court instructed the jury concerning evidence of Ortiz’s prior convictions, that “The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness.” (CALJIC No. 2.23.) The court rejected CALJIC No. 2.07, which explains: “Evidence has been admitted against one [or more] of the defendants, and not admitted against the other. [¶] At the time this evidence was admitted you were instructed that it could not be considered by you against the other defendant. [¶] Do not consider this evidence against the other defendant.”

Perez complains that evidence of Ortiz’s criminal history was prejudicial because Perez was associated with Ortiz, and the evidence showed Ortiz had a propensity to commit robberies and other crimes. The evidence of Ortiz’s criminal history risked the jury finding Perez guilty by association. Such character evidence, Perez argues, was inadmissible as to Perez under Evidence Code section 1101, subdivision (a). Perez asserts the jury therefore should have been admonished not to consider Ortiz’s criminal history in determining whether Perez committed robbery.

Perez adds that, although the court gave CALJIC No. 2.23, this instruction was insufficient. Compounding the problem, Perez argues, the court instructed the jury that: “You are to consider the evidence as to each of the defendants independent of the other. Each is entitled to separate consideration. In the attorney’s argument you heard that that does not mean that you cannot consider the evidence as relating to each or both of the defendants, but the verdict that is for each defendant is separate and apart, okay?” Perez claims this instruction encouraged the jury to consider evidence of Ortiz’s criminal history against Perez.

Finally, Perez argues that the instructional error was exacerbated by the prosecutor’s closing argument stating: “The evidence that Mr. Ortiz said can be used against Mr. Perez. You don’t have to compartmentalize it that way. You have to independently determine if the evidence establishes the guilt of each of them, but the evidence can be used for both of them [¶] Well, Mr. Ortiz got up on the witness stand, essentially admitted to being a career robber, three convictions for robbery, been to state prison for those. But he just got out of prison in February of 2003, that he lives in the neighborhood with his co-defendant, . . .”

The People argue Perez waived his objection to the trial court not instructing the jury on the use of the evidence of Ortiz’s prior convictions and parole status as to Perez. Perez forfeited, as opposed to having waived, his objection. Although the loss of the right to object on appeal because of the failure to object in the trial court “is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘“intentional relinquishment or abandonment of a known right.”’” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

Here, Perez’s attorney did not request the court to admonish the jury to disregard as to Perez Ortiz’s testimony concerning his criminal history. He thus did not preserve for appeal his instructional challenge: “If defendant believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions.” (People v. Dennis (1998) 17 Cal.4th 468, 514; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1189.) Perez’s failure to do so forfeits his instructional error claim in this court. (Dennis, supra, at p. 514; Rodrigues, supra, at p. 1189; People v. Ramsey (2000) 79 Cal.App.4th 621, 630.)

In any case, upon consideration of the jury instructions as a whole, we find there was no prejudicial error. The court gave the jury CALJIC No. 2.23, in which the trial court instructed the jury that the fact that a witness (Ortiz) has been convicted of a felony may be considered only for the purpose of determining the believability of the witness. It is not reasonably probable the outcome would have been any different had the court given CALJIC No. 2.07 or told the jury not to consider, as to Perez, evidence of Ortiz’s criminal record or parole status.

9. Instruction on Aiding and Abetting

Perez contends the trial court gave the jury an erroneous, ambiguous jury instruction which stated that the jury should find Perez guilty of aiding and abetting based on his failure to prevent the robbery. Perez claims the trial court therefore breached its fundamental instructional duty to provide the jury with accurate instructions on general principles of law.

Perez objects to the following instruction given to the jury: “A person aids and abets the commission of a crime when he or she, [1] with knowledge of the unlawful purpose of the perpetrator, and [2] with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [3] by act or advice, aids, promotes, encourages, or instigates the commission of the crime with knowledge that a crime is being committed and failure to prevent it, is aiding and abetting.” (Italics added.) (CALJIC No. 3.01.) The standard CALJIC form instruction and the copy of the written instruction given to the jury did not include the italicized portion of the verbal instruction given to the jury.

Perez argues that the instruction, as read to the jury, is misleading because it indicates the jury could find Perez guilty of aiding and abetting merely based on a finding that he knew Ortiz was robbing Rosa and did not prevent the robbery. Such circumstances are insufficient to support an aiding and abetting conviction. An individual cannot be convicted for merely failing to prevent a crime or for mere presence at the crime scene: “Such would merely be evidence to be considered along with other evidence in passing upon the question of guilt [citation]. The test is whether the accused, in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures [citations]. There must be proof that the accused not only aided the actor but at the same time shared the criminal intent [citation].” (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287.)

It appears from the record that the trial court, for some unknown reason, added the italicized language to the standard CALJIC instruction, CALJIC No. 3.01. Not only was there no objection to this additional language, but, in addition, the added language was not so misleading as to constitute a breach of the court’s fundamental instructional duty or prejudicial error, particularly since the written jury instruction given to the jury did not contain the italicized language and was clearly worded. It is unlikely the jury construed the verbal instruction as permitting an aiding and abetting conviction based solely on Perez’s knowledge of the robbery and failure to prevent it since the instruction stated other elements were required, including intent and an act or advice aiding, encouraging or instigating the commission of the crime.

Even assuming it was error to give the challenged instruction, we must examine the entire record to determine whether such error constituted prejudicial error requiring a reversal of the judgment of conviction. (People v. Cortez (1981) 115 Cal.App.3d 395, 407 (Cortez).) We must determine from the nature of the instructions and the tenor of the evidence, if it is not more reasonably probable that a result more favorable to Perez would have been reached, even if the challenged instruction had not been given. (Ibid.) In doing so, we conclude it is not reasonably probable that, had the aiding and abetting instruction been given without the italicized language, a more favorable result would have been reached.

It is unlikely Perez would not have been convicted of robbery. It is also not likely the jury convicted him based on a finding he was an aider or abettor. Perez was not charged as an aider and abettor and the evidence did not support such a finding. The evidence showed that Perez and Ortiz acted together in robbing Rosa. While Ortiz held a knife to Rosa’s throat, Perez removed items from Rosa’s home. After completing their objective of taking Rosa’s property, they both ran away with the property. Rosa identified Ortiz and Perez as the perpetrators who robbed him. Therefore any error in the version of the aiding and abetting instruction read to the jury was harmless. It is not reasonably probable that a more favorable result would have been reached had the challenged language in the instruction been omitted. (Cortez, supra, 115 Cal.App.3d at p. 407.)

10. Prosecutorial Misconduct

Perez asserts that during closing argument, the prosecutor committed misconduct by arguing that Ortiz “came in with a knife, because he’s been there, done it before.” The trial court overruled Ortiz’s counsel’s objection to the statement. Perez complains that Ortiz’s statement suggested that the jury could consider Ortiz’s prior convictions as evidence of Ortiz’s criminal character, in violation of Evidence Code section 1101, subdivision (a). Also, the statement suggested that the prosecutor knew undisclosed information regarding Ortiz’s prior offenses, i.e., that they involved robberies committed with a knife. Perez argues that, although the prosecutor’s statement concerned Ortiz, Perez has standing to object because the statement suggested he was guilty by association with Ortiz.

Even assuming, without deciding, that the prosecutor’s actions constituted misconduct amounting to a constitutional violation, under the federal Constitution, to be reversible, the misconduct must “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” (Darden v. Wainwright, supra, 477 U.S. at p. 181.) We cannot say the prosecutor’s statement, that Ortiz “came in with a knife, because he’s been there, done it before,” so infected Perez’s trial with unfairness as to constitute a denial of due process. The statement was directed at Ortiz, not Perez. As to its suggestion Ortiz had previously committed a robbery with a knife, Ortiz had already testified that he had pled guilty to two robberies, one attempted robbery, and an assault, and had just been released from prison less than a month before the charged robbery. Also, the court instructed the jury that it could not consider Ortiz’s criminal convictions for any purpose other than for the purpose of determining his credibility as a witness. (CALJIC No. 2.23.)

Furthermore, the trial court instructed the jury that “Statements made by the attorneys during the trial are not evidence.” (CALJIC No. 1.02.) The court also instructed the jury that “You must decide all questions of fact in this case from the evidence received in this trial and not from any other source.” (CALJIC No. 1.03.) Juries are presumed to follow the instructions given. (Van Winkle, supra, 75 Cal.App.4th at p. 148.)

In addition, there was substantial evidence establishing Perez’s guilt, including Rosa’s testimony identifying Perez as one of the perpetrators and evidence that, at the time of the robbery, Ortiz and Perez lived together, were relatives, and lived on Rosa’s street.

Under these circumstances, even assuming the prosecutor’s statement was improper, it is not reasonably likely that the jury inappropriately used it against Perez. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) In addition, the statement was insignificant in relation to everything else the jury considered. (Yates v. Evatt (1991) 500 U.S. 391, 403.) We thus conclude the statement was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

11. Cumulative Trial Error

Perez urges us to apply the cumulative error doctrine on the ground that the alleged trial errors had the cumulative effect of denying him the right to a fair trial. Based on our review of the record, we conclude there was no error warranting reversal, whether considered separately or cumulatively. (People v. Roybal (1998) 19 Cal.4th 481, 531.)

The premise behind the cumulative error doctrine is that, while a number of errors may be harmless taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236; People v. Cunningham (2001) 25 Cal.4th 926, 1009 [“‘[a] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error’”].) Even when evaluated collectively, any errors that occurred in this case were harmless. Perez was entitled to a fair trial, not a perfect one (Cunningham, supra, at p. 1009), and that is what he received.

12. Prior Prison Term Enhancement

Perez contends, and the People agree, there was insufficient evidence to support his one-year, prior prison term enhancement. (§ 667.5, subd. (b).) Perez argues that the only evidence provided in support of the enhancement was his admission to “the prior conviction in June of 2001 in San Bernardino County for burglary, second degree, a felony.”

In order to impose a prior prison term enhancement, “section 667.5 requires proof that the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed that term of imprisonment, and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” (People v. Elmore (1990) 225 Cal.App.3d 953, 956-957; see also § 667.5, subd. (b).)

Perez’s admission, provided during a posttrial hearing on his prior convictions, did not establish the second and third elements. Because Perez failed to admit to the enhancement or the enhancement’s second and third elements, there is insufficient evidence supporting the enhancement. Accordingly, Perez’s prior prison term enhancement is reversed and the matter is remanded for retrial of the enhancement.

13. Probation Evaluation

Relying on People v. Gotto (1955) 138 Cal.App.2d 165, 168 (Gotto), Perez asserts that he was wrongfully denied the benefit of a probation evaluation before sentencing. The People argue Perez waived his right to a probation report.

At the sentencing hearing on May 4, 2005, the trial court asked Perez’s attorney, Byron Congdon, if he wanted to waive a referral to probation. Congdon said Perez wanted to waive it. Perez was present in court and did not disagree. The court asked Congdon if he had discussed this with Perez. Congdon responded that he could calculate Perez’s credits and how long he had been in custody. The court asked Perez if he had been in prison before and Perez said he had. The court then stated that, if Perez wanted to waive a referral to probation, the court would sentence him that day. Congdon said that was fine, and added, “Well, he’s already been – they’ve already been referred to probation, I believe. No?” The court replied that Perez had not. Congdon said he would calculate Perez’s credits. The court then sentenced Perez. After sentencing, Congdon noted that, because Perez had been in prison before the sentencing hearing, he might be entitled to additional credits. The court ordered the matter referred to probation for computation of Perez’s credits.

Perez asserts that, because he was not advised of his right to a probation evaluation, any waiver of that right was invalid. Perez urges this court to reverse his sentence and remand the matter to the trial court for resentencing after completion of a probation report, if he is eligible for probation. If he is not eligible for probation, Perez asserts that the trial court should be allowed to exercise its discretion regarding referring Perez to probation for the purpose of determining if a mitigated prison term is appropriate.

Perez’s reliance on Gotto, supra, 138 Cal.App.2d 165, for this proposition is misplaced. There, the defendant, Gotto, and his attorney erroneously believed and told the court that Gotto was ineligible for probation because his codefendant was armed. The trial court also was erroneously informed that Gotto had been armed. Based on these factors, the court in Gotto held: “The court should have an opportunity to act in the matter, with a full understanding of the record, and with respect to either or both defendants, if found ineligible, to exercise its discretion pursuant to section 1203 concerning a reference of his case to the probation officer. [¶] There was, of course, no waiver of the right to apply for probation, inasmuch as defendants were not advised and did not know what their rights were, and could not have intended to waive rights as to which they were ignorant.” (Id. at pp. 168-169.)

Here, the record does not show that the court, Perez, or his attorney were misinformed concerning Perez’s probation eligibility or concerning whether Perez was armed during the robbery. At Perez’s sentencing hearing, the trial court indicated a willingness to refer Perez’s case to probation, with a full understanding of the record but did not do so because Perez’s counsel waived probation referral on Perez’s behalf (People v. Preyer (1985) 164 Cal.App.3d 568, 576; People v. Magee (1963) 217 Cal.App.2d 443, 475-476; People v. Tempelis (1964) 230 Cal.App.2d 596, 599-602), and Perez had previously made it clear he did not want his sentencing delayed any further.

Because Perez’s attorney waived Perez’s right to a probation referral on Perez’s behalf, the issue is waived on appeal.

14. The People’s Request for Correction of Ortiz’s Sentence

In the People’s respondent’s brief, the People urge this court to remand Ortiz’s case solely for the purpose of correcting his sentence due to the trial court forgetting to sentence him for his three prior conviction enhancements. (§ 667, subd. (a).) At sentencing, the trial court neglected to impose the mandatory five-year enhancements for each of the three enhancements. (People v. Askey (1996) 49 Cal.App.4th 381, 389.)

This issue is moot due to this court’s reversal of Ortiz’s three prior conviction enhancements.

15. Disposition

Perez’s sentence is reversed and remanded for trial and resentencing solely as to his prior prison term enhancement (§ 667.5, subd. (b)). Judgment is affirmed in all other respects. Perez’s writ petition is denied.

Ortiz’s sentence is reversed and remanded for trial and resentencing solely as to his three prior felony conviction enhancements (§ 667, subd. (a)). In all other respects, Ortiz’s judgment is affirmed.

We concur: Gaut, J. Miller, J.