Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. FWV035496, Michael R. Libutti, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant Juan Miguel Romero guilty of (1) being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)—count 1); (2) falsely imprisoning a person for the purpose of protection from arrest or for the purpose of using the person as a shield (§ 210.5—count 2); and (3) false imprisonment by violence (§ 236—count 3).
All further references to code sections are to the Penal Code, unless noted.
As to all three counts, the jury found true the allegations that defendant (1) carried a firearm during the commission of a street gang crime (§ 12021.5, subd. (a)), and (2) carried a firearm with a detachable magazine or belt-feeding device during the commission of a street gang crime (§ 12021.5, subd. (b)). In regard to count 1, the jury found true the allegation that defendant committed the felony for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist the gang. (§ 186.22, subd. (b)(1)(A).) As to counts 2 and 3, the jury found true the allegation that defendant personally used a firearm during the commission of the felonies. (§ 12022.5, subd. (a).)
Defendant admitted suffering a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior convictions for which he served prison terms (§ 667.5, subd. (b)), and a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court sentenced defendant to state prison for a term of 30 years 8 months.
Defendant makes three primary contentions that contain a variety of sub-arguments. First, defendant contends that he was denied due process and a fair trial due to the cumulative prejudicial effect of prosecutorial misconduct, ineffective assistance of counsel, and trial court error. Second, defendant contends the trial court failed to properly instruct the jury concerning the firearm enhancements (§ 12021.5, subds. (a) & (b)) in counts 2 and 3. The People concede defendant is correct as to this second argument. Third, defendant asserts the trial court made a variety of sentencing errors. The People concede defendant’s sentencing arguments are correct. To the extent defendant’s trial counsel forfeited the arguments related to prosecutorial misconduct or sentencing errors, defendant alleges that he was denied effective assistance of counsel. We affirm in part and reverse in part.
Defendant also filed a Petition for Writ of Habeas Corpus with this appeal, which is disposed of by a separate order.
FACTUAL AND PROCEDURAL HISTORY
On August 20, 2005, an Ontario Police corporal and a detective were on patrol together in an unmarked police car. The corporal and the detective were assigned to the gang unit. While on patrol, the corporal recognized a white car that belonged to an associate of the Onterio Varrio Sur (OVS) gang. When the white car stopped, the corporal observed two males exit the car, one of which was defendant. Defendant and the other man walked towards a residence. The residence had two front doors: one door was for the main house and the other door was for an apartment unit.
The men stood at the front door to the main house and spoke to Margarita. The men asked Margarita if certain people lived at the house but Margarita did not know the people, and she did not know defendant or the other man.
The corporal and detective parked their car in front of Margarita’s residence, and walked towards the residence. As the corporal and the detective approached, defendant and the other man ran. The detective detained the man who was not defendant. The corporal recognized the man as an associate of the OVS gang.
The corporal heard the front door to the apartment unit close. Defendant entered the bathroom of the apartment unit, where the victim was using the facilities. The victim did not know defendant. Defendant told the victim that he was not going to harm him and instructed the victim not to say anything. Later during the incident the victim saw a gun in defendant’s hand.
The corporal banged on the door of the apartment unit and made several announcements for defendant to exit the residence but there was no response. The police removed the front door of the apartment unit, and then defendant said, “‘Stay back. I have a hostage. I have a gun.’” For two hours, the corporal and a sergeant spoke to defendant about surrendering. Defendant said that “he was on parole and he did not want to go back to jail, prison” because “he was facing a lot of time.” During the conversation, defendant identified himself as “Listo,” which was defendant’s OVS gang moniker. During the dialogue, defendant insisted on speaking with his girlfriend, M.R. The sergeant spoke to M.R. to determine if defendant was homicidal, suicidal, or under the influence of drugs.
Eventually, the S.W.A.T. team was called. After approximately five or six hours, defendant surrendered; however, prior to exiting the house, defendant “smoked something” and flushed a piece of paper down the toilet.
At trial, the defense attempted to convince the jury that defendant was too intoxicated on methamphetamine to form the intent necessary to commit the charged crimes.
DISCUSSION
I. CUMULATIVE EFFECT
Defendant contends he was denied due process and a fair trial due to the cumulative prejudicial effect of (1) prosecutorial misconduct; (2) ineffective assistance of counsel; and (3) errors by the trial court. We examine each claimed error, and, to the extent any error was committed, the associated prejudicial impact. The cumulative effect of any prejudicial impact will be analyzed after we review all of the alleged errors. (People v. Bell (1989) 49 Cal.3d 502, 534.)
A. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct by (1) deliberately presenting evidence about defendant’s immigration status, which had been excluded during pretrial motions; (2) deliberately presenting evidence about defendant’s prior convictions and uncharged offenses; (3) misrepresenting evidence during closing arguments; and (4) offering unsworn testimony during closing arguments.
The People contend defendant forfeited appellate review of all his claims of prosecutorial misconduct because defendant did not interject timely and specific objections, and did not request admonitions or curative instructions. We agree.
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.] [¶] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 820.)
We have reviewed the record and agree with the People that defendant forfeited his claims of prosecutorial misconduct. Defendant did not object to the various alleged acts of misconduct of which he now complains. It appears from the record that objections by trial counsel either during the testimony or argument would not have been futile gestures, and admonitions would likely have cured any feared harm.
B. Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective due to (1) not objecting to the instances of alleged prosecutorial misconduct listed ante; (2) calling M.R. as a witness without a plan for limiting the topics available on cross-examination; (3) not objecting to a variety of alleged errors during the cross-examination of M.R.; (4) not objecting to evidence concerning defendant’s prior offenses; (5) not objecting to various inadmissible hearsay statements; and (6) not requesting a limiting instruction regarding the evidence of defendant’s immigration status.
“‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶]... under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
1. Prosecutorial Misconduct
Defendant claims his trial attorney was ineffective because he did not object, on the basis of prosecutorial misconduct, when the prosecutor (1) presented evidence about defendant’s immigration status; (2) presented evidence about defendant’s prior convictions and uncharged offenses; (3) allegedly misrepresented evidence during closing arguments; and (4) allegedly offered unsworn testimony during closing arguments. Defendant argues that there could be no satisfactory explanation for his trial counsel’s failure to object to these alleged acts of prosecutorial misconduct. We address each of defendant’s arguments in turn.
a) Immigration Status
(1) Facts
In his written motions in limine, defendant’s “Motion In Limine No. 4” was to exclude any reference to defendant’s parole status, unless and until defendant testified. At the hearing on the motion, the initial evidence of concern was defendant’s statement when he was yelling out of the house—that he was committing the crime due to his concern of being returned to prison. The court remarked that, in defendant’s statement, defendant also expressed concern about his illegal immigration status. In its tentative ruling, the court stated that evidence of defendant’s parole status was more probative than prejudicial; however, the court felt the evidence of defendant’s immigration status would be more prejudicial than probative. The prosecutor expressed concern about excluding defendant’s immigration status from Dr. Gawin’s testimony. Dr. Gawin was defendant’s substance abuse expert. The prosecutor explained that there was a second statement made by defendant regarding his illegal immigration status included in a 2004 San Bernardino Police Department report, which Dr. Gawin relied upon in forming his expert opinion. The court again remarked that evidence of defendant’s immigration status would be more prejudicial than probative, but noted that the motion was directed to the prosecution’s case-in-chief, and that the court would have to reexamine the issue if defendant testified and mentioned his immigration status on direct examination.
(2) Discussion
Defendant contends his trial attorney was ineffective for not objecting on the basis of prosecutorial misconduct when the prosecutor presented evidence related to defendant’s immigration status, which defendant asserts the trial court excluded during pretrial motions. Specifically, defendant asserts his trial counsel should have objected when the prosecutor (1) read an excerpt from a report by Dr. Gawin, who was defendant’s substance abuse expert, because the excerpt revealed the possibility of defendant being deported; (2) questioned Dr. Gawin so as to elicit a response about defendant’s immigration status; and (3) questioned M.R. about defendant’s fear of being deported.
The trial court’s pretrial ruling was limited to the presentation of evidence regarding defendant’s immigration status during the prosecution’s case-in-chief. The objections defendant is claiming his counsel should have made would have occurred during the prosecution’s cross-examination of defense witnesses. Accordingly, defense counsel could not have made a meritorious objection on the basis of prosecutorial misconduct, because the prosecutor was not violating the court’s pretrial ruling. Consequently, defendant has not established that his trial counsel’s performance was deficient.
b)Prior Convictions and Uncharged Offenses
(1) Facts
During pretrial motions the court and parties discussed the felon in possession of a firearm charge. Defendant agreed to stipulate that he suffered three prior felony convictions so that his felon status did not need to be proven to the jury as an element of the charge. After defense counsel read the stipulation into the record, the court advised defendant as follows: “[D]epending on how other things go in the trial, prior convictions could be brought before the jury, even in spite or in light of this stipulation, do you understand?” The court went on to rule that if defendant testified, at least two of his prior convictions qualified as crimes of moral turpitude and could be used to impeach defendant. The prosecutor raised a concern about defendant’s criminal history being revealed during the testimony of Dr. Gawin, but defense counsel did not make a motion concerning the expert’s testimony.
During the direct examination of Dr. Gawin, defense counsel asked the doctor if he reviewed any material for the case. Dr. Gawin stated that he had reviewed “a substantial amount of material,” including “records of prior violations and charges” and “prior episodes of incarceration.” Defense counsel went on to ask the doctor if a person who had smoked “bowl after bowl” of methamphetamine would be capable of forming the requisite criminal intent for the charged offenses. Dr. Gawin stated such a person could not have the necessary criminal intent.
On cross-examination, the prosecutor asked Dr. Gawin if his report indicated that defendant did not have a significant history of violence towards others. Dr. Gawin testified that he did not see a history of substantial violence. The prosecutor then asked Dr. Gawin if he was aware of defendant’s 1996 robbery conviction, and the doctor stated he was not aware if violence was associated with the crime.
The prosecutor went on to reference a section of Dr. Gawin’s report in which Dr. Gawin wrote that defendant could “not see the basic realities of the [hostage] situation and simply give up without incident” due to his intoxication. The prosecutor then asked Dr. Gawin if defendant had a history of incidents where he fled from police. The prosecutor asked Dr. Gawin if, in 2003, defendant engaged police in a car chase while a child was in the car. Additionally, the prosecutor asked Dr. Gawin if, in 2001 and 1995, defendant fled from the police. Dr. Gawin stated there were multiple instances in which defendant ran from the police. The prosecutor asked Dr. Gawin if there was any evidence that defendant was under the influence of methamphetamine when he fled from police during the previous incidents. Dr. Gawin stated that there was no evidence of defendant being acutely intoxicated during the prior incidents.
During closing argument, the prosecutor made the following statement: “And [Dr. Gawin] says, ‘Well, you know, the guy doesn’t have any history of violence.’ And the doctor either wasn’t being truthful when he wrote his report or he’s on a different planet than the rest of [us].”
(2) Discussion
Defendant asserts his trial counsel was ineffective for not objecting during (1) the cross-examination of Dr. Gawin when the prosecutor elicited testimony about defendant’s prior offenses, which allegedly went beyond the scope of the direct examination, and (2) closing arguments when the prosecutor mentioned defendant’s “‘history of violence.’”
First, as to Dr. Gawin’s testimony, Evidence Code section 1101 does not affect “the admissibility of evidence offered to support or attack the credibility of a witness.” (Evid. Code, § 1101, subd. (c).) In this case, the prosecutor was attacking Dr. Gawin’s credibility on the issue of whether defendant was too intoxicated to form the necessary specific intent by showing that Dr. Gawin was not providing a reasonable interpretation of defendant’s history. Accordingly, defendant’s trial counsel could not have raised a meritorious objection on the basis of prosecutorial misconduct; therefore, defendant has not shown that counsel’s performance was deficient.
Second, as to the prosecutor’s reference to defendant’s “history of violence,” the record shows that the comment was made in regard to Dr. Gawin’s testimony; the prosecutor was explaining that the testimony was not credible because Dr. Gawin said defendant does not have a “history of violence,” which the prosecutor disagreed with. Consequently, an objection on the basis of prosecutorial misconduct would not have been meritorious, because the comment simply reflected the prosecutor’s interpretation of the evidence. (See People v. Sims (1993) 5 Cal.4th 405, 463 [prosecutors have broad discretion to express their views of the evidence and inferences that may be drawn from the evidence].) In sum, defendant has failed to show that his trial attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms.
c) Misrepresentation of Evidence
Defendant contends his trial counsel was ineffective for not objecting during closing arguments when the prosecution allegedly misrepresented that (1) the police officers all agreed defendant was not under the influence of a drug at the time of the offenses, and (2) there was no reasonable indication that defendant was under the influence of a drug at the time of the offenses.
Defendant asserts the prosecutor mischaracterized the evidence because the detective testified that there was an initial discussion among the officers about whether defendant was intoxicated or just paranoid. Contrary to defendant’s position, the detective’s testimony does not contradict the prosecutor’s assertion that the officers agreed defendant was not intoxicated. The detective’s testimony only shows that there was a debate about whether defendant was intoxicated—there is nothing in the statement indicating that the officers concluded defendant was intoxicated.
In further support of his first contention, defendant cites the testimony of the sergeant who testified that he had asked M.R. if defendant was intoxicated. Defendant argues the testimony implies that there was “some kind of indication” that defendant was intoxicated. The sergeant’s testimony does not indicate that officers disagreed regarding defendant not being intoxicated, rather it merely reflected that the sergeant questioned M.R. about various possible issues when he spoke to her because defendant had taken a hostage. Accordingly, counsel was not deficient for not objecting on the basis of prosecutorial misconduct when the prosecutor argued that the officers agreed defendant was not under the influence of a drug at the time of the offenses.
Next, we address the second portion of defendant’s contention related to the prosecutor’s argument that “there’s no reasonable indication that this defendant was high.” In making this comment, the prosecutor was expressing his view that the evidence presented by the defense was not reasonable in light of the evidence presented by the prosecution. During closing argument, a prosecutor has broad discretion to express his view of the evidence and inferences that may be drawn from the evidence. (People v. Sims, supra, 5 Cal.4th at p. 463.) Accordingly, an objection on the basis of prosecutorial misconduct would not have been meritorious. Consequently, trial counsel’s performance did not fall below an objective standard of reasonableness.
d) Unsworn Testimony
(1)Facts Related to Defendant’s First Argument
During the sergeant’s direct examination the following exchange took place:
“[Prosecutor]: Did [defendant] ask you to call somebody?
“[Sergeant]: Yes.
“[Prosecutor]: Who?
“[Sergeant]: His girlfriend.
“[Prosecutor]: Okay. And did he give you a way of getting ahold of her?
“[Sergeant]: Yes.
“[Prosecutor]: And why did you call the girlfriend?
“[Sergeant]: He requested to talk to the girlfriend during this incident. I told him that I would get a hold of her. I called her on the cell phone.”
During cross-examination of the sergeant, the following dialogue occurred:
“[Defense Attorney]: Now, you indicated that you made contact with [defendant’s] girlfriend; is that correct?
“[Sergeant]: That’s correct.
“[Defense Attorney]: And he gave you the information to get ahold of her.
“[Sergeant]: Yes he did.”
During closing argument, the prosecutor made the following statements:
“And at one point, you heard testimony, I believe, from the sergeant on [the] scene. He said the guy wanted to talk to his girlfriend. ‘I tried to call her. And he gives me her phone number, her name, from memory.’ Now does that sound like a person who doesn’t know what’s going on? [¶] The defense would have you believe that this is some idiot inside who has no clue what’s going on that day. But when asked a question like, ‘What’s your girlfriend’s phone number?’ You know, ‘555-3324.’ Her name is such and such. ‘She ought to be home now.’ That’s a person who’s not oriented? That’s a person who doesn’t know what they’re doing? That’s ridiculous.”
(2)Discussion
Defendant contends his trial counsel was ineffective for not objecting on the basis of prosecutorial misconduct when the prosecutor allegedly offered his own unsworn testimony. Specifically, defendant asserts that the prosecutor told the jury that the sergeant said defendant gave the sergeant M.R.’s telephone number; however, the sergeant testified that defendant gave the sergeant “‘a way of getting a hold of [M.R.].’” The sergeant did not specifically testify that defendant gave him M.R.’s phone number. We disagree with defendant’s argument.
A prosecutor has broad discretion to express his view of the evidence and inferences that may be drawn from the evidence, during closing argument. (People v. Sims, supra, 5 Cal.4th at p. 463.) The sergeant testified that defendant gave him a way of getting in touch with M.R., and that the sergeant called M.R. on the sergeant’s cell phone. A reasonable inference to be drawn from that testimony is that defendant gave the sergeant M.R.’s telephone number. Accordingly, defense counsel was not ineffective for not objecting on the basis of prosecutorial misconduct.
(3) Facts Related to Defendant’s Second Argument
During the cross-examination of defendant’s gang expert, Steve Strong, the prosecutor asked Strong if he knew where defendant was in the few years preceding 2005, because Strong testified that he did not see anything indicating defendant was still an active gang member. Strong said that he was unaware of defendant’s whereabouts during the previous years. The prosecutor asked if gang members frequently leave the community. Strong replied that gang members leave if “they go to county jail or prison”; however, gang membership can be documented while a person is in prison, so the information would still be available.
During closing arguments the prosecutor made the following remarks: “And [defense] counsel indicated, ‘Well, [defendant] couldn’t [be] a gang member[,]’ [b]ecause the two gang officers involved only knew Negro, [and] the car, they didn’t know [defendant]. There hasn’t been any testimony about where [defendant] had been in the year or two before this incident took place. That’s not something that the officers testified about. All the officers can tell you [is] they weren’t aware of him at that time. We’ll leave it at that.”
(4) Discussion
Defendant contends his trial counsel was ineffective for not objecting on grounds of prosecutorial misconduct when the prosecutor allegedly alluded that the police officers were unaware of defendant prior to the charged offense, because defendant had been incarcerated, which defendant complains is a prejudicial criminal propensity argument.
The defense expert alluded to defendant perhaps being in prison or jail, but the prosecutor did not. The prosecutor’s statements do not include any reference to prison, jail, or the defense expert. Accordingly, an objection based on prosecutorial misconduct would not have been meritorious, and counsel was not ineffective for not raising such an objection.
e) Conclusion
In sum, we conclude defendant’s trial counsel was not ineffective for not making the various prosecutorial misconduct objections.
2. Calling M.R. as a Witness
Defendant essentially contends his trial counsel was ineffective for calling M.R. as a witness. Defendant contends that his trial counsel’s tactical decision to call M.R. to testify about defendant’s past drug use was unreasonable if trial counsel did not have a plan to limit the scope of the cross-examination so as to exclude damaging character evidence. We disagree.
During closing arguments, defendant’s trial counsel argued that M.R.’s testimony showed that defendant “was smoking bowl after bowl” of methamphetamine the day of the offense. Defendant’s trial counsel relied on M.R.’s testimony when arguing that defendant could not form the specific intent necessary for false imprisonment with the intent to use the victim as a shield or protection from arrest, because defendant was under the influence of methamphetamine. Defense counsel’s closing argument suggests a rational tactical purpose for calling M.R. as a witness. Consequently, ineffective assistance of counsel is not demonstrated.
Further, evidence about defendant’s prior bad acts, such as leading police on a car chase with a child in his car, were presented during the testimony of Dr. Gawin. Additionally, defendant stipulated that he was a felon, and the stipulation was read to the jury. Accordingly, defendant has not demonstrated that he was prejudiced by the character evidence elicited during M.R.’s testimony because evidence of other prior bad acts was also admitted.
3. Cross-examination of M.R.
Defendant contends his trial counsel was ineffective because during the cross-examination of M.R. he did not object to (1) questions on collateral matters that were asked solely to contradict M.R.’s prior testimony; (2) the prosecutor’s alleged misstatement of the evidence when he asked M.R. if the transcript of her interview with the police concerning a July 2005 domestic violence incident involving defendant, would be inaccurate if it reflected that she said defendant’s brothers were also gang members, because the transcript did not reflect such a statement; (3) the prosecutor’s alleged misstatement of the evidence when he asked M.R. if it was a correct statement that she had told an officer that defendant placed his right hand on a gun four times, because M.R. never said “right” and she said “three times”; and (4) the prosecutor playing a tape recording of M.R.’s statement to the police concerning the July 2005 domestic violence incident involving defendant. Defendant asserts that there could be no reasonable tactical explanation for his trial counsel’s failure to object. We disagree.
a) Collateral Matters
Defendant contends his trial counsel was ineffective for not objecting when the prosecutor asked M.R. about whether she spoke to police on July 1, 2005, and informed them that defendant was an OVS gang member and drug dealer, because those questions went beyond the scope of the direct examination.
The record does not reveal why trial counsel did not object to the prosecutor’s questions; however, counsel may have had a tactical reason for not objecting. Accordingly, we conclude that counsel was not ineffective.
Additionally, defendant has failed to show that he was prejudiced by the prosecutor’s cross-examination. Multiple law enforcement officers testified that defendant was in the presence of gang associates; defendant referred to himself by a gang moniker; defendant’s body was marked with gang tattoos; and defendant previously admitted being a gang member. Further, the evidence about defendant’s involvement with drug sales could be used to support the argument that defendant was a long time drug user that could not form the necessary specific intent. Accordingly, the prosecutor’s questions of M.R. did not prejudice defendant because (1) other evidence amply supported the finding that he was a gang member, and (2) the drug evidence could have been helpful to the defense.
b) Misstatements
Defendant contends his trial counsel was ineffective for not objecting to the prosecutor’s alleged misstatement of the evidence when the prosecutor asked M.R. if the transcript of her interview with the police, concerning the July 2005 domestic violence incident involving defendant, would be inaccurate if it reflected that she said defendant’s brothers were also gang members, because the transcript did not reflect such a statement. Defendant also asserts his trial counsel was ineffective for not objecting to the prosecutor’s alleged misstatement of the evidence when he asked M.R. if it was a correct statement that she had told an officer that defendant placed his right hand on a gun four times, because M.R. never said “right” and she said “three times.”
The record does not reveal why trial counsel did not object to the prosecutor’s remarks; however, it is possible counsel had a tactical reason for not objecting. Accordingly, we conclude that counsel was not ineffective.
Further, defendant has not demonstrated that he was prejudiced by the prosecutor’s questions. The prosecutor asked, “So if the transcript were to indicate that his brothers were also OVS gang members, that transcript is inaccurate?” M.R. responded, “Inaccurate.” Any misstatement by the prosecutor was clarified by M.R.’s response.
Next, during the cross-examination of M.R., the prosecutor asked, “If the officer stated that you told the officer that [defendant] placed his right hand on the gun approximately four times, the officer then would not be correct?” M.R. responded, “Correct.” Once again, any misstatement by the prosecutor was clarified by M.R.’s answer. Moreover, the jury was instructed to “not assume that something is true just because one of the attorneys asks a question that suggests it is true.” (CALCRIM No. 104.)
We conclude defendant was not prejudiced by his counsel’s failure to object because any misstatements by the prosecutor were cured by M.R.’s responses and the jury instruction.
c) Audio Recording
(1) Facts
During the cross-examination of M.R., the prosecutor asked her if she spoke to a police officer on July 1, 2005. M.R. said she spoke to the police, but she denied telling the officer that defendant was a gang member and drug dealer. After more questions, M.R. continued to respond that the transcript of her interview with the police was correct in some areas, but inaccurate in other areas. After M.R. confirmed and denied several statements on the tape, the following exchange took place:
“[Prosecutor]: So if that’s on the tape, that’s just wrong also?
“[M.R.]: Yes.
“[Prosecutor]: Was it your voice on that tape?
“[M.R.]: Yes, it is. But it’s not how you’re saying it.
“[Prosecutor]: Okay. So probably the best way to maybe explain this is to play the tape?
“[M.R.]: Yeah.”
The prosecutor then played a portion of the tape and distributed a transcript of the recording.
(2) Discussion
Defendant contends his trial counsel was ineffective for not objecting when the prosecutor played the audio recording of M.R.’s statement to the police.
Based on the record, trial counsel may have tactically chosen not to object to the tape being played because M.R., a defense witness, testified that the tape would help to explain her testimony. Counsel could reasonably have concluded that it would be a disservice to defendant to object to the prosecutor playing a tape that a defense witness claimed would provide insight into her testimony. Nevertheless, the record does not reveal counsel’s reason for not objecting, and therefore we conclude that counsel was not ineffective.
Further, defendant has not shown that he was prejudiced by the playing of the tape. Prior to the tape being played, M.R. had already testified that she told police defendant hit her, defendant used drugs, and that defendant carried a gun. Dr. Gawin testified about defendant’s prior crimes and attempts to flee from pursing police officers. Defendant stipulated that he was a felon, and multiple officers testified about defendant’s gang associations and gang tattoos. Accordingly, the audio recording, which included details of the domestic violence incident, statements about defendant being a gang member, comments about defendant carrying a gun, and hearsay statements about defendant “trashing” and shooting at his children’s mother’s house, was not prejudicial in light of all the other evidence related to defendant’s past offenses and gang affiliation.
We note that the entire tape was not played for the jury. The transcript reflects that the jury heard two pages of the 11-page transcript; however, since it appears the complete transcript of the recording was given to the jury, and the entire tape was admitted into evidence, we consider defendant’s arguments related to the complete recording.
4. Prior Offense Evidence and Hearsay
Defendant contends his trial counsel was ineffective for not objecting to various hearsay statements and prior uncharged offense evidence. We address each of defendant’s arguments in turn.
a) Sergeant’s Testimony
Defendant contends his trial counsel was ineffective for not objecting on grounds of hearsay when the sergeant testified that M.R. told him the Chino Centers were a “washed up gang” who “wouldn’t do anything” about defendant “walking around with his OVS stuff.”
The record does not reveal why counsel did not object. Consequently, we conclude counsel was not ineffective. Further, multiple law enforcement officers testified that defendant was in the presence of gang associates; defendant referred to himself by a gang moniker; defendant’s body was marked with gang tattoos; and defendant previously admitted being a gang member. Accordingly, defendant has not shown that he was prejudiced by the admission of this hearsay statement, because there was other evidence supporting the finding that defendant was a gang member at the time of the offenses at issue in this case.
b) M.R.’s Testimony
Defendant contends his trial counsel was ineffective for not objecting when the prosecutor asked M.R., in regard to the audio recording, “Did you talk about homeboys coming and possibly harming you if you reported the crime [committed] by [defendant]?” M.R. responded, “Yes.” Defendant argues that his trial counsel should have objected on grounds that the question went beyond the scope of direct, involved hearsay, and was more prejudicial than probative.
The record does not reveal why trial counsel did not object; however, counsel may have had a tactical reason for not objecting. Accordingly, we conclude that counsel was not ineffective. Further, when asked who defendant’s “homeboys” were, M.R. said they were defendant’s friends. Accordingly, M.R.’s response did not indicate defendant’s gang involvement. Moreover, M.R. also testified that defendant hit her and carried a gun; and therefore, other parts of M.R.’s testimony also indicated that defendant was violent towards her. Consequently, defendant has not shown that he was prejudiced by his counsel’s failure to object.
c) Telephone Call
Defendant contends his trial counsel was ineffective for not objecting on the grounds of hearsay when the sergeant testified about his phone conversation with M.R. Specifically, defendant argues his trial counsel should have objected when the prosecutor asked, “[D]id you learn any information that was valuable to the situation from talking to her?... [¶]... [¶]... What did you learn about?” The sergeant replied, “That [defendant] didn’t use drugs, and that they didn’t have an argument or anything.”
The record does not reflect why counsel did not raise a hearsay objection. Consequently, counsel may have had a tactical reason for not objecting, and we cannot conclude that counsel was ineffective. Further, defendant has not demonstrated that he suffered prejudice. Multiple police officers testified that defendant was coherent and rational during the six-hour standoff. Accordingly, there was ample evidence that defendant was not intoxicated at the time of the offense. Therefore, we conclude defendant was not prejudiced by his counsel’s failure to object.
Defendant argues the statement was prejudicial because it preemptively impeached M.R.’s testimony regarding defendant smoking methamphetamine the day of the crime. We disagree. The testimony about M.R.’s inconsistent statements could have been presented after she testified, if counsel had raised a successful hearsay objection during the sergeant’s testimony. (Evid. Code, § 1235.) Accordingly, we find defendant’s argument that he suffered prejudice to be unconvincing because the evidence likely would have been admitted to impeach M.R. after she testified, if it had not been admitted beforehand.
5. Limiting Instruction
Defendant contends his trial counsel was ineffective for not requesting a limiting instruction that directed the jury to consider defendant’s immigration status only for the purpose of establishing his motive in fleeing the police, because during pretrial motions the trial court ruled that evidence of defendant’s immigration status would be inadmissible and prejudicial. Defendant argues that the tactical basis for counsel’s inaction could not be fear of highlighting the immigration evidence, because the issue was raised multiple times. Therefore, defendant asserts, his counsel was ineffective for not requesting the limiting instruction. We disagree.
“‘A reasonable attorney may have tactically concluded that the risk of a limiting instruction... outweighed the questionable benefits such instruction would provide.’ [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1053.) For example, a reasonable attorney may have concluded the limiting instruction would have suggested to the jury that defendant did have the specific intent to avoid arrest on immigration charges when he falsely imprisoned the victim. (See generally People v. Maury (2003) 30 Cal.4th 342, 394 [a limiting instruction might have suggested the evidence to be limited was strong].) Since defendant’s defense was that he did not have the requisite intent, a reasonable attorney may not have wanted to draw attention to this issue. In sum, on this record, we cannot conclude that there was not a legitimate tactical reason for trial counsel’s inaction.
Further, defendant has not shown that he was prejudiced by his counsel’s failure to request a limiting instruction. There was ample evidence that defendant was a gang member, carried a firearm, falsely imprisoned the victim, and had the specific intent to use the victim as a shield or to evade arrest. Accordingly, there is no reason to conclude that defendant was prejudiced by his trial counsel’s inaction.
C. Trial Court Error
1. Facts
During M.R.’s cross-examination, the prosecutor asked if it was true that she “told an officer in Chino on July 1, 2005[,] that [defendant] was a gang member.” M.R. said that, on the morning of her testimony, she had listened to a tape recording of her discussion with the officer and did not make such a statement. The prosecutor asked her if she made several other statements to the officer regarding defendant, and she denied making the statements. The prosecutor asked if the audiotape of the discussion was inaccurate, and she said that it was inaccurate. The prosecutor asked to introduce the tape and transcript. The defense did not object.
The transcript was distributed to the jury and a portion of the tape was played, which amounted to approximately two pages of the 11-page transcript. The prosecutor then questioned M.R. about her statements on the tape. On redirect examination, defendant’s trial attorney also asked about her statements on the tape and specifically referenced pages 2 and 5 of the transcript. On recross-examination, the prosecutor again asked about her statements to the Chino police officer, and specifically mentioned the “second to the last page” of the transcript.
When the prosecutor moved to admit the entire audio recording into evidence defendant’s trial counsel objected on the basis that the complete tape was more prejudicial than probative.
a) Discussion
Defendant contends the trial court abused its discretion by admitting into evidence the audiotape of M.R.’s discussion with the police, regarding the July 2005 domestic violence incident. Defendant contends the audiotape was more prejudicial than probative because the portion of the tape that was not played during trial, but admitted at the close of evidence, contained “a litany of uncharged offenses, hearsay, and a detailed account of the domestic violence incident.”
“‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citations]. Evidence is substantially more prejudicial than probative (see Evid Code, § 352) if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome” [citation].’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
When balancing the probative and prejudicial value of the audiotape, the trial court found the audiotape to be probative “based on the rebuttal nature of that witness[, M.R.,] and on the issues of her credibility, and what she said [in] the way of reporting to police officers about gang involvement and being scared of the defendant.” The trial court remarked that it “did not see anything in the transcript or hear anything in the tape... that would show it is prejudicial to the extent [it would] outweigh the probative value of that.”
On cross-examination, M.R. testified that she did not tell the Chino police officer that defendant was a gang member. On the tape, M.R. said that defendant was a gang member. The trial court performed the proper balancing test and concluded that the probative value of the tape, as it concerned M.R.’s credibility, was greater than the prejudicial effect. The trial court’s decision was reasonable, and therefore, we cannot conclude that the court abused its discretion.
Next, to the extent defendant is arguing the trial court abused its discretion by not ordering redaction of the audiotape, we disagree for two reasons. First, the defense did not request a redacted tape, therefore the trial court had no reason to know the defense would want a redacted tape. Second, the beginning, middle, and end of the transcript were all discussed during M.R.’s testimony, therefore admitting the entire tape was essentially repetitive. Accordingly, we conclude the court did not abuse its discretion by not directing the trial court to redact the audiotape.
Further, defendant has not shown that he was prejudiced by the admission of the audio recording. Prior to the tape being played, M.R. had already testified that she told police defendant hit her, defendant used drugs, and defendant carried a gun. Dr. Gawin testified about defendant’s prior crimes and attempts to flee from pursing police officers. Defendant stipulated that he was a felon. Further, multiple law enforcement officers testified that defendant was in the presence of gang associates; defendant referred to himself by a gang moniker; defendant’s body was marked with gang tattoos; and defendant previously admitted being a gang member. Accordingly, the audio recording, which included details of the domestic violence incident, statements about defendant being a gang member, comments about defendant carrying a gun, and hearsay statements about defendant “trashing” and shooting at his children’s mother’s house, was not prejudicial in light of all the other evidence related to defendant’s past offenses and gang affiliation.
2. Cumulative Effect
“The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial.’ [Citation.]” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Thus far, we have concluded that defendant did not suffer any prejudice from the claimed errors. Accordingly, we conclude defendant was not denied due process and a fair trial as a result of the cumulative prejudicial effect of trial court and trial attorney error.
D. Enhancements
In counts 2 and 3, the jury found true the allegations that defendant carried a firearm during the commission of a street gang crime. (§ 12021.5, subds. (a) & (b).) Defendant contends these two enhancements, on each count, must be reversed because the jury was not instructed regarding the element of “during the commission of a street gang crime”; and therefore, the jury did not make a finding as to that element. The People support defendant’s argument. We agree.
A jury instruction that omits an element of an offense requires reversal unless the error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 502-503.)
When the trial court instructed the jury regarding section 12021.5, subdivisions (a) and (b), it omitted the element of “‘during the commission of a street gang crime.’” Accordingly, we conclude the court erred.
Next, we determine whether the court’s error was harmless beyond a reasonable doubt. The error will be deemed harmless, “if no rational jury could have found the missing element unproven.” (People v. Nicholson (2004) 123 Cal.App.4th 823, 833.)
In counts 2 and 3, the jury deadlocked on the allegation that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist the gang. (§ 186.22, subd. (b)(1)(A).) Due to the jury deadlocking on the issue of whether the crimes were committed as street gang crimes, we cannot conclude that no rational jury would have found the element unproven. Accordingly, we conclude the court’s error was not harmless beyond a reasonable doubt.
E. Sentencing Errors
1. Facts
The trial court sentenced defendant as follows: The court selected count 2, falsely imprisoning a person for the purpose of protection from arrest, or for the purpose of using the person as a shield (§ 210.5), as the principal term, and selected the upper term of eight years. Based on defendant’s prior strike conviction, the court doubled the term to 16 years. (§ 1170.12, subd. (c)(1).) Defendant was sentenced to the midterm of four years for the section 12022.5, subdivision (a), firearm enhancement, for a total sentence of 20 years. The court sentenced defendant to two years for the section 12021.5, subdivision (a), firearm enhancement, and three years for the section 12021.5, subdivision (b), firearm enhancement, but stayed the sentences.
As to count 1, being a felon in possession of a firearm (§ 12021, subd. (a)(1)), the court imposed a consecutive term of one year four months, which was doubled to two years eight months due to the prior strike, for a total term of 22 years 8 months. The court imposed a three-year term for the street gang enhancement, for a total sentence of 25 years 8 months. (§ 186.22, subd. (b)(1)(A).) The court sentenced defendant to two years for the section 12021.5, subdivision (a), firearm enhancement, and three years for the section 12021.5, subdivision (b), firearm enhancement, but stayed the sentences.
With regard to count 3, false imprisonment by violence (§ 236), the court imposed one-third of the midterm of two years, which was doubled for the prior strike, but the court stayed the sentence pursuant to section 654. The court also stayed the sentences for the firearm enhancements. (§§ 12022.5, subd. (a), 12021.5, subds. (a) & (b).)
As to defendant’s three prior convictions that resulted in prison terms (§ 667.5, subd. (b)), the court imposed and stayed one-year sentences. The court imposed a consecutive five-year term for the prior serious felony conviction (§ 667, subd. (a)(1)), which created a total sentence of 30 years 8 months.
2. Discussion
a) Full Consecutive Sentences
Defendant contends the trial court erred by imposing full consecutive sentences for the substantive crime and gang enhancement in count 2, because it is a subordinate term. The People support defendant’s argument. We agree.
When a person is convicted of two or more felonies, “[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (§ 1170.12, subd. (a).)
As to the substantive offense in count 1, the court imposed the lower term of one year four months, which was doubled to two years eight months. We conclude this was an error, because the sentence should have been one-third of the midterm. The midterm for the offense is two years. (§§ 12021, subd. (a)(1), 18.) One-third the midterm would be eight months, which would be doubled to 16 months, or one year four months.
As to the gang enhancement, the court imposed a full midterm of three years. (§ 186.22, subd. (b)(1)(A).) We conclude this was an error, because the sentence should have been one-third of the midterm, doubled for defendant’s prior strike. One-third the midterm is one year, which would be doubled to two years.
b) Prior Convictions
Defendant contends the trial court erred by imposing a one-year sentence for the prior conviction that resulted in a prison term (§ 667.5, subd. (b)), and a five-year sentence for the prior serious felony conviction (§ 667, subd. (a)), because both enhancements were based on the same prior conviction. The People support defendant’s argument, and assert the trial court also erred by staying the sentences for the other two prior convictions that resulted in prison terms (§ 667.5, subd. (b)), because those sentences cannot be stayed. Defendant concedes the People are correct. We agree.
We begin by addressing defendant’s contention.
“[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (People v. Jones (1993) 5 Cal.4th 1142, 1150.)
In this case, the prior serious felony enhancement (§ 667, subd. (a)(1)) was based on a June 17, 1996, robbery conviction (§ 211), and that same prior conviction was used as a basis for the section 667.5, subdivision (b), enhancement. Since both enhancements were based on the same prior offense, and one of the enhancements was a section 667 enhancement, we conclude the trial court erred by imposing both sentences.
The rule regarding section 667.5 sentences is that they are “mandatory unless stricken.” (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Accordingly, it was not sufficient for the trial court to have stayed defendant’s sentence for the section 667.5 enhancement; the enhancement must be stricken.
Next, we address the People’s contention that the two other section 667.5 enhancements should not have been stayed, because the sentences are mandatory unless stricken. We agree with defendant and the People that the sentences cannot be stayed. (People v. Langston, supra, 33 Cal.4th at p. 1241.)
c) Custody Credits
Defendant contends the trial court erred by (1) finding the actual time defendant spent in custody was 758 days, rather than 782 days, and (2) miscalculating defendant’s worktime credit. The People support defendant’s argument. We agree.
When a defendant has been in custody, all days spent in custody must be credited to his period of confinement. (§ 2900.5, subd. (a).)
Defendant was taken into custody on August 20, 2005. Defendant was sentenced on September 25, 2007, and October 10, 2007. August 20, 2005, to August 19, 2006, is 365 days. August 20, 2006, to August 19, 2007, is 365 days, which totals 730 days. August 20, 2007, to September 25, 2007, is 37 days, which totals 767 days. On October 10, 2007, the court recognized that it failed to sentence defendant for one of the firearm enhancements in count 3 (§ 12022.5, subd. (a)). The court imposed and stayed a four-year term for the enhancement. September 26, 2007, to October 10, 2007, is 15 days, which totals 782 days. Accordingly, when defendant was sentenced on October 10, 2007, his actual time in custody was 782 days.
Defendant’s worktime credits were calculated as a percentage of his custody credits, therefore they were also miscalculated. Defendant’s worktime credits should be 15 percent of his actual time spent in custody. (§ 2933.1.) Fifteen percent of 782 days is 117 days; 782 days plus 117 days is 899 days. Accordingly, as of October 10, 2007, defendant’s total credits should have been 899 days.
DISPOSITION
The enhancements in counts 2 and 3 under section 12021.5, subdivisions (a) and (b), are reversed.
As to count 1, defendant’s sentence for the section 12021, subdivision (a)(1), offense is modified to be 16 months, and the sentence for the section 186.22, subdivision (b)(1)(A), enhancement is modified to be two years.
As to defendant’s section 667.5, subdivision (b), enhancements, the trial court is directed to strike the prior conviction that is based on the June 17, 1996, section 211, conviction (case No. FWV09575). As to the two other section 667.5, subdivision (b), enhancements, the sentences are reversed, and the trial court is directed to either impose sentences or strike the prior convictions.
As to defendant’s custody credits, the award of presentence custody credits is modified to award 782 days of actual custody credit and 117 days of worktime credit, for a total presentence custody credit of 899 days.
In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., McKINSTER, J.