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Filed 8/22/11 P. v. Rivas CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL LOPEZ RIVAS,

Defendant and Appellant.

A125179

(San Mateo County

Super. Ct. No. SC067683A)

Manuel L. Rivas (appellant) appeals from a judgment entered after a jury found him

guilty of second degree robbery (Pen. Code, § 212.5, subd. (c) 1

, count 1) and second

degree burglary (§ 460, subd. (b), count 2) and found as to both counts that he personally

used a deadly or dangerous weapon (§ 12022, subd. (b)). He contends: (1) the trial court

erred in denying his motion for acquittal as to the deadly or dangerous weapon

enhancements; (2) the trial court erred in failing to instruct the jury “on the requirements

for finding a gun is a deadly weapon” and in giving an “inapplicable” and “misleading”

instruction; (3) the trial court failed to properly respond to the jury‟s question; (4) the

prosecutor engaged in prosecutorial misconduct; (5) there was no substantial evidence

supporting the trial court‟s restitution order; (6) he received ineffective assistance of

counsel; (7) the trial court erred in imposing, rather than staying, a concurrent sentence for

the burglary conviction; and (8) there was cumulative prejudicial error. We agree, as the

Attorney General concedes, that the trial court should have stayed the concurrent sentence

1 All further statutory references are to the Penal Code unless otherwise stated.

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for the burglary conviction. We reject the remaining contentions and affirm the judgment

in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

An information was filed December 30, 2008, charging appellant with second

degree robbery (§ 212.5, subd. (c), count 1) and second degree burglary (§ 460, subd. (b),

count 2). The information alleged as to both counts that appellant personally used “a

deadly or dangerous weapon, to wit: a gun” (§ 12022, subd. (b)). On March 2, 2009,

following a hearing, the trial court denied appellant‟s motion to exclude statements he

made while in custody.

At a jury trial, San Mateo Police Officer Ralph Migita testified he was dispatched to

Secrets adult bookstore (Secrets) at 8:41 a.m. on March 6, 2005, to conduct a welfare

check on someone who was calling out for help from inside the store. When Migita

entered the store, he saw a customer who said “he was waiting with the clerk who had told

him that he had been robbed.” Migita spoke to the clerk, Edward Veluz, who “seemed

upset or nervous.” There was a surveillance system in the store but there was no recording

of the incident because the system was not operating at the time. Community Service

Officer Diana Scalzo collected evidence from the scene, including cellophane tape that

was used to tie the clerk‟s arms, a black plastic garbage bag, a roll of tape, a latex glove

that was found outside the front door, and a metal cash box. She tried to lift fingerprints

from the counter and the front door but was not able to find any usable prints.

Richard Airey testified he walked into Secrets between 8 and 8:30 a.m. on March 6,

2005, and noticed it was very dark. He said, “Hello,” and heard someone yell, “Help.” He

became scared, left, and called 911. Richard Lemoyne testified that when he walked into

Secrets between 8 and 9 a.m. on March 6, 2005, a young man was standing there with his

hands tied behind his back. The man was “fairly calm” but “real nervous” and said, “I‟ve

been robbed.” He asked Lemoyne to call the police but the man‟s cell phone did not work

and Lemoyne did not have a cell phone. Lemoyne helped cut some tape off the man‟s

wrists.

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Edward Veluz testified through a Tagalog interpreter that he was working at Secrets

in March 2005. On March 5, 2005, he received a phone call from someone he thought was

his manager, Jairo Arellano. Arellano sounded sick and told Veluz “[n]ot to put the final

drop in the safe” that day because he (Arellano) was sick and was going to make the

deposit himself the following day. At the end of his shift, Veluz followed the instructions

and placed the money on top of—rather than inside—the safe. On March 6, 2005, Veluz

arrived at work at 7:50 a.m. The surveillance system was not running because he had not

yet changed the videotape. Veluz testified, “I recall now that I removed the old videotape,

but the new videotape that I was going to put I was still having it rewound . . . .” He did

not tell the officer at the time of the incident that he was still rewinding the videotape. He

did not have a Tagalog interpreter with him when he spoke to the officer, and although he

tried his best to convey what had occurred, he was also “very nervous.” He acknowledged

he did not say anything at the preliminary hearing about rewinding the videotape, but also

testified that no one at the preliminary hearing asked whether the videotape was being

rewound. He acknowledged that at the preliminary hearing, he testified he had not

replaced the videotape because he was still counting money. Since the incident, he had

never again made the mistake of not putting in a new videotape on the surveillance system.

The first customer of the day, whom Veluz identified in court as appellant, walked

in about two minutes after Veluz opened the front door. Appellant grabbed an adult toy

and asked how much it was. Veluz saw appellant‟s face and was “face-to-face” with him

for a few seconds. After Veluz told him the price, appellant came up to the counter, took

out a gun, pointed it at Veluz‟s face, told him not to move, and “took the money.” Veluz

was “in shock.” Veluz testified the gun was “like it is a small one” that fit in one hand.

Prior to this incident, he had never seen a gun except on television or on police officers.

He saw the gun for “one second.” Veluz testified he knew what a semiautomatic gun was

and described it as follows: “It is a small gun, what they call this. I thought is it like a

re[v]olver, a small gun.” He did not know the difference between a semiautomatic gun

and any other type of gun. He did not recall what he told the police, except that “it was

like a small gun.”

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After pointing the gun at Veluz, appellant told Veluz to lie on his stomach on the

floor with his hands behind his back. Appellant put tape around Veluz‟s arms and feet,

and Veluz was scared. Appellant then took the store keys from around Veluz‟s neck and

placed a black plastic bag over his head. Veluz heard two people speaking in Spanish,

then heard them lock the front door and take money and DVDs and turn off the lights. The

two people were in the store for five minutes or less. Veluz then heard the door unlock.

About five minutes later, Veluz heard someone else come into the store. Veluz said, “Help

me.” Later, another individual helped him take the tape off. The police arrived and Veluz

gave a statement. He told the police that over $600 dollars and about $300 in coupons

were missing after appellant left the store. “Maybe around 200” DVDs and the store‟s

wireless phone were also gone. Veluz worked with a sketch artist to create a picture of the

suspect‟s face. On October 28, 2008, a detective took him to a lineup where there were

approximately six individuals. Veluz told the detective he recognized appellant.

Veluz did not recall testifying at the preliminary hearing that “the person on the

[other] end of the phone said that the manager was sick.” Rather, he testified that the

manager called and said, “I‟m sick.” The caller “just said, Edward, do this, do that,” and

Veluz “really thought that it was [Arellano].” It was not proper procedure to leave money

outside the safe but he did so because Arellano told him to do so.

Francisco Romero testified he was the district supervisor of a chain of adult

bookstores, including Secrets, and oversaw the stores‟ day-to-day operations. Veluz was

an employee of Secrets in March 2005 and was still employed by the store at the time of

trial. Romero testified there was a main cash register in the store and a drawer below the

register that contained coupons that were worth a dollar each and could be used in the

arcade. There was a safe that was bolted to the floor. The store also had a surveillance

system, and the protocol for employees arriving in the morning was to get in at 8 a.m., lock

the front door, take out the previous day‟s surveillance tape, and put in a new surveillance

tape. Employees frequently failed to put in a new surveillance tape “right away when they

walk[ed] in.” Romero had forgotten to do so himself, and the protocol was also not

followed on March 6, 2005. At the end of a workday, employees were required to, among

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other things, place money that was brought into the store that day in the safe. Romero

testified he previously had an employee named Juvenal Vargas who was terminated in

December 2004 for falsifying his hours and for suspected embezzlement. Veluz and

Vargas worked together and knew each other.

Jairo Arellano testified he was the store manager of Secrets in March 2005. The

store had a video surveillance system that recorded 24 hours a day. Employees were

supposed to change the videotapes every morning but sometimes forgot to do so. Arellano

did not work on March 5 or March 6, 2005. He sometimes called Veluz with instructions

but did not call him on March 5 to tell him what to do with the money at the end of the

shift.

San Mateo Police Department Detective Brian Hedley testified he met with Veluz a

few times. Veluz was “very docile in his speaking manner. He was still very upset from

the actual robbery itself. He had some limited English capabilities, enough [for Hedley] to

actually speak with him and get information from him.” Veluz said he received a phone

call on March 5, 2005 from someone he thought was his manager. The manager asked him

to deviate from the normal operating procedure and to place that day‟s proceeds in a

different area. Veluz followed the instruction because he “was going along with what his

boss had told him to do.” Based on the circumstances of how the crime occurred,

including the fact that the caller was aware of the protocol regarding placing money in the

safe, Hedley believed the suspect was an associate or former employee of the store. He

learned there were two employees who were disgruntled or had been fired—Juvenal

Vargas and another individual. When Hedley created photographic lineups that included

photographs of Vargas and the other individual, Veluz identified both of them as former

employees who were not involved in the incident. At some point, Hedley received

information from the crime lab that fingerprints had been lifted from the cashbox and the

garbage bag that was used to cover Veluz‟s head. A latent print examiner testified that

appellant‟s fingerprint was found on the garbage bag and that Vargas‟ fingerprints were

found on the garbage bag and cashbox.

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San Mateo Police Officer Glenn Teixeira testified that appellant was apprehended

on July 9, 2008. Teixiera was assigned to interview appellant. He explained to appellant

what the allegations were and where the alleged crime had occurred. Appellant‟s first

response was, “For this charge, what are my options?” When Teixeira did not respond,

appellant said, “I don‟t know. I don‟t know,” then asked, “Am I looking at time?”

Appellant said, “I have been good since that day. I have my family together now, and a

baby on the way.” After the two engaged in “small talk,” appellant once again asked if he

was “looking at doing time.” Teixeira responded there were serious allegations involving

the use of a gun, to which appellant responded, “There was no gun.”

On October 28, 2008, Teixeira took Veluz to a live lineup. He read Veluz an

admonishment and asked him to look at six individuals to see if he could identify the

suspect. One of the instructions said, “do not call out a suspect‟s number or do or say

anything which might show you have identified someone in the line.” However, as soon

as the second person, appellant, stepped forward, Veluz said, “that‟s the guy.” Teixeira

testified there was no Tagalog interpreter interpreting the admonition into Tagalog for

Veluz.

At the close of the prosecution‟s case, appellant moved for a judgment of acquittal

as to the gun enhancements under section 1118.1, which the trial court denied. The trial

court also denied his motion to exclude mention of his prior bad acts. The defense called

Officer Migita to the stand. Migita testified that Veluz “was not positive” what time the

incident happened but “said he [thought] it was around 8:20 to 8:30.” On cross-

examination by the prosecutor, Migita testified he does not speak Tagalog and did not have

a Tagalog interpreter with him when he spoke to Velez. Migita further testified that Veluz

described “the handgun” as “a small silver semi-automatic handgun.”

During jury deliberations, the jury submitted two notes to the court. In its first note,

the jury asked whether the store key that was taken from Veluz‟s neck was “property

taken.” The trial court responded, “Any physical item of even slight value could be

considered „property.‟ ” In its second note, the jury requested a “[r]ead back of [Veluz‟s

testimony] about [the] sequence of events [on the] day of [the] robbery: what was said,

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heard, etc.” Before the trial court arranged the read back, the jury reached a verdict

finding appellant guilty as charged.

On April 22, 2009, appellant filed a motion for a new trial on the grounds that there

was insufficient evidence of gun use and that the prosecutor engaged in prosecutorial

misconduct. The trial court denied the motion. At sentencing, the trial court sentenced

appellant to three years in state prison—the mitigated term of two years on count 1, a

consecutive one year for the deadly or dangerous weapon use enhancement, a concurrent

mitigated term of 16 months on count 2, with an additional concurrent one year for the

deadly weapon use enhancement. The trial court awarded him 322 days in presentence

custody credits and ordered him to pay $880 in restitution to Veluz and $3,319.64 in

restitution to Secrets, jointly and severally with Juvenal Vargas.

DISCUSSION

1. Motion for Acquittal

Appellant contends the trial court erred in denying his motion for acquittal as to the

deadly weapon enhancements. We disagree.

“In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial

court applies the same standard an appellate court applies in reviewing the sufficiency of

the evidence to support a conviction, that is, „ “whether from the evidence, including all

reasonable inferences to be drawn therefrom, there is any substantial evidence of the

existence of each element of the offense charged.” ‟ [Citations.] „Where the

section 1118.1 motion is made at the close of the prosecution‟s case-in-chief, the

sufficiency of the evidence is tested as it stood at that point.‟ [Citations.]” (People v. Cole

(2004) 33 Cal.4th 1158, 1212-1213.) “We review independently a trial court‟s ruling

under section 1118.1 that the evidence is sufficient to support a conviction. [Citations.]

We also determine independently whether the evidence is sufficient under the federal and

state constitutional due process clauses.” (Id. at p. 1213.)

Section 12022, subdivision (b), provides, in pertinent part: “Any person who

personally uses a deadly or dangerous weapon in the commission of a felony . . . shall be

punished by an additional and consecutive term of imprisonment in the state prison for one

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year . . . .” “To find a section 12022, subdivision (b) allegation true, the fact finder must

[find] that the defendant himself intentionally displayed an instrument capable of inflicting

great bodily injury or death in a menacing manner during the crime. [Citation.]” (In re

Bartholomew D. (2005) 131 Cal.App.4th 317, 322; see People v. Chambers (1972) 7

Cal.3d 666, 672 [“use” established where the defendant pointed a gun at the victim and

demanded money].) “The fact that an object used by a robber was a „firearm‟ can be

established by direct or circumstantial evidence. [Citations.] [¶] Most often, circumstantial

evidence alone is used to prove the object was a firearm. This is so because when faced

with what appears to be a gun, displayed with an explicit or implicit threat to use it, few

victims have the composure and opportunity to closely examine the object; and in any

event, victims often lack the expertise to tell whether it is a real firearm or an imitation.

And since the use of what appears to be a gun is such an effective way to persuade a

person to part with personal property without the robber being caught in the act or soon

thereafter, the object itself is usually not recovered by investigating officers.” (People v.

Monjaras (2008) 164 Cal.App.4th 1432, 1435-1436.)

Here, Veluz‟s testimony that appellant pointed a gun at his face and told him not to

move before binding his arms and legs and robbing the store provided substantial evidence

of the enhancements to support the trial court‟s denial of the motion for acquittal.

Appellant asserts the evidence “was not substantial” because Veluz‟s testimony “as a

whole contained numerous inconsistent and nonresponsive answers” and because Veluz

had no prior experience with guns, saw the gun “only momentarily,” did not provide a

description of the gun other than stating it was small, and did not testify it was a real gun.

Appellant also points out that the gun was not discharged or recovered and that appellant

“unequivocally denied gun use” when he spoke to detective Teixeira. Section 12022,

however, does not require that the victim have any expertise in the identification of guns or

that the gun be discharged or recovered. Moreover, it was for the jury to determine

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Veluz‟s credibility in light of any “inconsistent and nonresponsive answers” he may have

given and in light of appellant‟s statement denying he used a gun.2

2. Jury Instructions

Appellant contends the trial court erred in failing to instruct the jury “on the

requirements for finding a gun is a deadly weapon” and by instructing the jury with

portions of CALCRIM No. 3145 that were “inapplicable” and “misleading.” As appellant

acknowledges, defense counsel did not object to the instruction, offered no additional

instruction, and approved of the instruction that was actually given. He has therefore

forfeited his claim. (See People v. Lewis (2001) 25 Cal.4th 610, 638.) Nevertheless,

because appellant‟s alternative claim of ineffective assistance of counsel is based in part on

this issue, we will address the contention on the merits.

“ „ “ „It is settled that in criminal cases, even in the absence of a request, the trial

court must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are

necessary for the jury‟s understanding of the case.‟ [Citations.]” ‟ The court has a sua

sponte duty to instruct on defenses . . . . Yet this duty is limited . . . . „[The court] need not

instruct on specific points or special theories which might be applicable to a particular

case, absent a request for such an instruction.‟ ” (People v. Garvin (2003) 110 Cal.App.4th

484, 488-489.) Jury instructions must be considered in their entirety, and not in isolation.

(People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)

Here, the trial court instructed the jury as to the enhancements with CALCRIM

No. 3145, as follows: “If you find the defendant guilty of the crimes charged in Counts 1

or 2, you must then decide whether, for each crime, the People have proved the additional

allegation that the defendant personally used a deadly or dangerous weapon during the

2 The cases to which appellant cites in support of his contention are inapposite because in

those cases, the weapon used was recovered and determined not to be a real gun. (E.g.,

In re Bartholomew, supra, 131 Cal.App.4th at p. 326 [BB gun]; People v. Lochtefeld

(2000) 77 Cal.App.4th 533, 541 [pellet gun].) Here, there was no evidence that a toy

weapon or anything other than a real gun was used.

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commission of that crime. You must decide whether the People have proved this

allegation for each crime and return a separate finding for each crime. [¶] A deadly or

dangerous weapon is any object, instrument, or weapon that is inherently deadly or

dangerous or one that is used in such a way that it is capable of causing and likely to cause

death or great bodily injury. [¶] In deciding whether an object is a deadly weapon, consider

all the surrounding circumstances, including when and where the object was possessed,

where the person who possessed the object was going, and any other evidence that

indicates whether the object would be used for a dangerous, rather than a harmless,

purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an

injury that is greater than minor or moderate harm. [¶] Someone personally uses a deadly

or dangerous weapon if he or she intentionally displays the weapon in a menacing manner.

[¶] The People have the burden of proving each allegation beyond a reasonable doubt. If

the People have not met this burden, you must find that the allegation has not been

proved.”

Appellant claims the trial court failed to sua sponte instruct the jury that, “in order

to find that the gun was a deadly weapon, it had to find that the gun was designed to shoot

or had shooting capability.” “ „Any gun,‟ ” however, “ „may be a “dangerous” weapon

within the meaning of [section 12022] since it is capable of being used as a bludgeon.‟ ”

(In re Bartholomew D., supra, 131 Cal.App. at p. 322, italics added; see also People v.

Aranda (1965) 63 Cal.2d 518, 532 [“Any pistol, even a short one, may be a „dangerous‟

weapon . . . since it is capable of being used as a bludgeon. It is not necessary to show that

defendant intended to use it.”], superseded by statute on another ground as stated in People

v. Fuentes (1998) 61 Cal.App.4th 956.) “ „The words “dangerous or deadly” are used

disjunctively. “Thus, it is not necessary to show that the weapon is deadly as long as it can

be shown that it is dangerous. [Citation.]” ‟ ” (In re Bartholomew D., supra, 131 Cal.App.

at p. 322, quoting People v. Sherman (1967) 251 Cal.App.2d 849, 856-857.) The trial

court did not have a sua sponte duty to provide an additional instruction regarding the

gun‟s shooting capability.

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Appellant asserts the trial court erred in instructing the jury with portions of

CALCRIM No. 3145 that were “inapplicable” and “misleading.” First, he claims that the

sentence instructing the jury to “consider all the surrounding circumstances” in

determining whether a deadly weapon was used “is applicable only in cases where the

instrument is not a weapon as a matter of law and is capable of innocent uses,” not where it

is alleged that an actual gun was used. The allegation in this case, however, was that “a

deadly or dangerous weapon” was used. Although the prosecution alleged that the weapon

used was a gun, the primary defense to the allegation was that the object was not “an actual

gun.” It was therefore proper for the trial court to give an instruction that allowed the jury

to “consider all the surrounding circumstances” in determining whether the instrument—if

not an “actual gun”—was an instrument capable of causing great bodily injury or death.

(See People v. Guthrie (1983) 144 Cal.App.3d 832, 842 [giving of instruction proper

where the defendant is relying on a particular defense].)

Second, appellant claims that the section instructing the jury that “[s]omeone

personally uses a deadly or dangerous weapon if he or she intentionally displays the

weapon in a menacing manner” was “misleading because it permitted the jury to find that

the object appellant held was a deadly weapon because it was displayed in a menacing

manner.” Appellant asserts that CALJIC No. 17.16 should have been given instead

because it provides a better definition of personal use of a dangerous weapon. CALJIC

No. 17.16, however, provides a similar definition of personal use: “The term „personally

used a dangerous weapon,‟ as used in this instruction, means the defendant must have

intentionally displayed a weapon in a menacing manner.” We believe the section in

CALCRIM No. 3145 is just as clear in instructing the jury that the person must display the

weapon in a menacing manner in order to be charged with personal use of the weapon.

The instruction was not “misleading.”

3. Jury’s Question

Appellant contends the trial court improperly responded to the jury‟s question.

Defense counsel‟s acquiescence to the court‟s response has forfeited the claim. (See

People v. Roldan (2005) 35 Cal.4th 646, 729 [failure to object upon the court stating its

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decision to respond to a jury‟s note waives any objection under section 1138], disapproved

on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We will

consider the claim on the merits, however, because appellant alternatively claims that

defense counsel‟s failure to object was ineffective representation.

Section 1138 provides: “After the jury have retired for deliberation, if there be any

disagreement between them as to the testimony, or if they desire to be informed on any

point of law arising in the case, they must require the officer to conduct them into court.

Upon being brought into court, the information required must be given in the presence of,

or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they

have been called.” “Where the original instructions are themselves full and complete, the

court has discretion under section 1138 to determine what additional explanations are

sufficient to satisfy the jury‟s request for information.” (People v. Solis (2001) 90

Cal.App.4th 1002, 1015.)

During deliberations, the jury submitted a note asking, “Is the key taken from

Veluz‟s neck considered as property taken (i.e. stolen)? Was this „property‟ as defined by

pg. 7 (Fifth line from top)[?]” At the hearing on the note, the trial court stated it had a

discussion with counsel regarding the question and had “sent in my response which I read

to counsel.” The response stated, “Any physical item of even slight value could be

considered „property.‟ ” Defense counsel asked the court to simply refer the jury back to

the instructions because he believed the instructions answered the question. The

prosecutor agreed that “pointing them back to a specific instruction was adequate” and also

stated the court could have simply answered “yes” to the question. The court stated the

jurors were apparently referring to CALCRIM No. 1600, the definition of robbery, which

provides in part, “The property taken can be of any value, however slight.” The court said

it could have simply referred the jurors back to the instruction but “did not think that that

would be very much assistance to them.” “In an attempt to assist them, I did write this

sentence, „Any physical item of even slight value could be considered property.‟ ” The

court noted both counsel had “stated they believe[d] it was a correct statement of the law.”

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The court “determined that that was the best most conservative but helpful response that I

can give to the jurors.”

The trial court properly responded to the inquiry by restating the relevant part of the

robbery instruction that had already been given to the jury. (See People v. Solis, supra, 90

Cal.App.4th at p. 1015 [“ „a court must do more than figuratively throw up its hands and

tell the jury it cannot help‟ ”]; People v. Beardslee (1991) 53 Cal.3d 68, 97.) Appellant

asserts the trial court should also have instructed the jury that the key “could not constitute

property to support the robbery charge without evidence that appellant intended to

permanently deprive the owner of it.” The record, however, shows the jury had already

been instructed that to find appellant guilty of robbery, it must find that appellant

“intended to deprive the owner of [the property taken] permanently.” Thus, it was

unnecessary to reiterate that instruction. The court‟s response was a correct statement of

the law, as counsel acknowledged, and adequately answered the jury‟s question.

4. Prosecutorial Misconduct

Appellant contends the prosecutor engaged in prosecutorial misconduct and points

out eight instances of alleged acts of misconduct. He acknowledges that defense counsel

did not object to many of the alleged acts but alternatively claims he was denied effective

assistance of counsel based on defense counsel‟s failure to object. None of the claims have

merit.

“ „Under California law, a prosecutor commits reversible misconduct if he or she

makes use of “deceptive or reprehensible methods” when attempting to persuade either the

trial court or the jury, and it is reasonably probable that without such misconduct, an

outcome more favorable to the defendant would have resulted. [Citation.] Under the

federal Constitution, conduct by a prosecutor that does not result in the denial of the

defendant‟s specific constitutional rights—such as a comment upon the defendant‟s

invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a

constitutional violation unless the challenged action “ „so infected the trial with unfairness

as to make the resulting conviction a denial of due process‟ [Citations.]” ‟ ” (People v.

Dykes (2009) 46 Cal.4th 731, 760.) “When the issue „focuses on comments made by the

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prosecutor before the jury, the question is whether there is a reasonable likelihood that the

jury construed or applied any of the complained-of remarks in an objectionable fashion.‟

[Citations.] A prosecutor is given wide latitude during closing argument. The argument

may be vigorous as long as it is a fair comment on the evidence, which can include

reasonable inferences or deductions to be drawn therefrom. . . . „A defendant‟s conviction

will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a

result more favorable to the defendant would have been reached without the misconduct.‟ ”

(People v. Harrison (2005) 35 Cal.4th 208, 244.)

a. Vouching

“A prosecutor is prohibited from vouching for the credibility of witnesses or

otherwise bolstering the veracity of their testimony by referring to evidence outside the

record. [Citations.] . . . However, so long as a prosecutor‟s assurances regarding the

apparent honesty or reliability of prosecution witnesses are based on the „facts of [the]

record and the inferences reasonably drawn therefrom, rather than any purported personal

knowledge or belief,‟ [the prosecutor‟s] comments cannot be characterized as improper

vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground in

People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)

Appellant contends the prosecutor improperly vouched for Veluz by stating Veluz

was “not a criminal,” “wasn‟t lying,” and “did not give testimony that should in any way

be seen as biased.” Appellant also challenges the prosecutor‟s statement that appellant‟s

booking photo and the picture the sketch artist created based on Veluz‟s description were

“in fact, the same people.” None of the statements, however, were vouching error because

they were based on the evidence and were in response to defense counsel‟s statements

attacking Veluz‟s credibility and implying he was the “inside man” who “claim[ed] to be a

victim in this case.” (See People v. Dykes, supra, 46 Cal.4th at p. 766 [defense counsel

opened the door to the prosecutor‟s comments on the same points].)

Appellant asserts the prosecutor vouched for all the prosecution witnesses,

particularly for Teixeira and Scalzo, “impugned the integrity of defense counsel for daring

to challenge their veracity,” “asserted a fact not in evidence (that Scalzo had been well

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trained),” and incited the passions of the jury “by referring to Scalzo‟s gender, age and

ethnicity and suggesting that the jury should not let the defense get away with „throw[ing]

[her] down.” He refers to the prosecutor‟s description of Scalzo as a “Hispanic woman in

her 40s that collects evidence” who was well-trained, and his argument that the jury should

not allow defense counsel to “stand up and throw someone down.” The prosecutor‟s

statements, however, were based on the evidence and not on the prosecutor‟s personal

belief in Scalzo or Texiera‟s honesty. Further, the prosecutor‟s brief description of Scalzo

was simply a way to reacquaint the jury with who she was out of the many police officers

who testified in the case, and his comment about her training was supported by her

testimony that she had collected evidence from “at least a hundred” crime scenes. There

was no attempt to inflame the passions of the jury, and the prosecutor‟s statement “did not

implore jurors to forego their independent assessment of the evidence and accept the

prosecutor‟s word that [the witnesses were] being truthful.” (People v. Frye, supra, 18

Cal.4th at p. 972.) There was no improper vouching.

b. Mischaracterization of evidence

A prosecutor‟s remarks are improper where they are “neither based on the evidence

nor related to a matter of common knowledge.” (People v. Bell (1989) 49 Cal.3d 502, 539

[no prejudice from claim that the prosecutor misstated facts in argument]; Donnelly v.

DeChristoforo (1974) 416 U.S. 637, 646-647 [94 S.Ct. 1868, 40 L.Ed.2d 431].) Appellant

contends the prosecutor “mischaracterized the evidence” on several occasions, “thereby

potentially misleading or confusing the jury.” We have reviewed all of appellant‟s claims

and conclude there was no mischaracterization of evidence, as “any inconsistency between

[the prosecutor‟s statements] and the evidence was inconsequential.” (People v. Dykes,

supra, 46 Cal.4th at p. 762.)

For example, appellant challenges the prosecutor‟s argument describing Veluz‟s

wrists and ankles as bound, as opposed to only his wrists. Veluz‟s own testimony was that

his wrists and ankles were bound. Lemoyne‟s testimony that he only recalled cutting the

tape around Veluz‟s wrists at most showed a conflict in the evidence. Appellant also

challenges the prosecutor‟s argument that the plastic bag that was placed over Veluz‟s

16

head was brought to the store by the robbers. The argument was properly based on the

testimony of the investigating officer that he found no similar garbage bags in the store.

Although the store manager testified that the plastic bag was already in the store, it was for

the jury to resolve any conflict on this point. Appellant also asserts the prosecutor

mischaracterized the evidence when he stated in opening that Airey, the first man who

entered Secrets after the robbery, was scared because his friend had been shot in a prior

robbery. At trial, Airey did not explain why he was scared and therefore did not testify

regarding his friend who was shot. The prosecutor‟s brief comment as to what he believed

Airey‟s testimony would include, however, was not misconduct because Airey merely

established the timeline for the robbery by testifying he ran from the store in fear and

called 911; the reason for Airey‟s fear had no bearing on appellant‟s guilt.

c. Facts not in evidence

Appellant challenges the prosecutor‟s argument that Veluz consistently told

“responding police officers,” “detectives” and “his manager” that Arellano had called the

day before the incident with instructions to leave the money outside the safe, because in

fact, the only evidence on the point “came from Detective Hedley who testified that Veluz

was clear that the caller had identified himself as [Arellano].” Appellant is correct that the

only person who testified that Veluz told him about the call from Arellano was Hedley.

Thus, the prosecutor‟s comments exaggerated the extent of Veluz‟s consistency. The jury,

however, was instructed that “[n]othing that the attorneys say is evidence” and that the jury

must—based only on “the evidence that was presented in the courtroom”—“decide what

the facts are in this case.” In light of the fact that Veluz was consistent on all issues critical

to appellant‟s guilt, there was no reasonable probability the jury was influenced by the

prosecutor‟s statement to appellant‟s detriment; thus, there was no reversible misconduct.

(People v. Frye, supra, 18 Cal.4th at p. 976; People v. Medina (1995) 11 Cal.4th 694,

758.)3

3 Appellant also argues that the prosecutor‟s rebuttal remark that “[appellant] admits

knowledge of this statement” (italics added) improperly suggested to the jury that the

prosecutor had information regarding some “statement” appellant had made that supported

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d. Defense counsel’s integrity

Appellant contends the prosecutor attacked defense counsel‟s integrity when he

argued that defense counsel “chooses his words carefully and if you don‟t listen carefully,

they can be misleading.” “Although counsel have broad discretion in discussing the legal

and factual merits of a case [citation], it is improper to misstate the law or to resort to

personal attacks on the integrity of opposing counsel [citation].” (People v. Bell, supra, 49

Cal.3d at p. 538.) However, comments “ „aimed solely at the persuasive force of defense

counsel‟s closing argument, and not at counsel personally,‟ ” fall within the broad scope of

permissible comment. (People v. Dykes, supra, 46 Cal.4th at p. 772.) There was no

impropriety here because, “[t]aken in context, the prosecutor‟s remarks simply pointed out

that attorneys are schooled in the art of persuasion; they did not improperly imply that

defense counsel was lying.” (People v. Gionis (1995) 9 Cal.4th 1196, 1216.)

Appellant also complains the prosecutor opposed admission of the transcript of the

preliminary hearing, then argued that the four pages on which defense counsel relied to

support his inconsistency claim were taken out of context. When defense counsel raised

this concern below, the trial court found the prosecution‟s comments were “fair argument”

but offered to “send in a note [to the jury] to the effect that only the portions of the

preliminary hearing transcript that were admitted into evidence can be considered by the

jury. That there are legal evidentiary reasons why the remainder of the transcript would

not be available to them.” The prosecutor asserted his argument was proper comment on

the evidence and he objected to the proposed note. The court advised counsel that it would

only send a note if the parties agreed on its contents. Counsel did not do so. We agree

with the trial court that the prosecutor‟s comments were not misconduct “such as to deny

the defendant a fair trial [or] divert the jury from its proper role.” (People v. Visciotti

(1992) 2 Cal.4th 1, 83.) Any misconduct was not prejudicial. During Veluz‟s cross-

examination at the preliminary hearing, the court stated, “You‟ve asked confusing

a finding of guilt. The record supports the conclusion, however, that the prosecutor simply

misspoke when he used the word “statement,” and that there was no reasonable likelihood

the jury misinterpreted or misunderstood the remark in a way that was prejudicial to

appellant.

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questions that he‟s given conflicting and incoherent answers.” Had the entire transcript

from Veluz‟s preliminary hearing testimony been admitted, the prosecutor could have

attacked the defense theory regarding inconsistencies on the ground that any

inconsistencies were due to defense counsel‟s “confusing questions.” There was no

reversible misconduct.

e. Statement of personal belief in appellant’s guilt

Appellant contends “[t]he first three and one half paragraphs of closing argument

are stated as if they are the prosecutor‟s opinion that appellant is guilty.” “A prosecutor

may not give a personal opinion or belief as to the defendant‟s guilt if it will suggest to the

jury the prosecutor has information bearing on guilt that has not been disclosed at trial.

[Citations.] However, a prosecutor is permitted to offer an opinion on the state of the

evidence. [Citation.]” (People v. Frye, supra, 18 Cal.4th at pp. 975-976.)

The prosecutor‟s first three and one-half paragraphs of argument briefly

summarized the prosecution‟s view of the essential facts of the robbery. He stated, for

example, that Veluz heard the words, “ „Get down on the ground,‟ ” before appellant

“pulled the gun and shoved it right in his face just a couple feet away” and taped Veluz‟s

hands and ankles. These statements were proper comments on the state of the evidence.

The prosecutor‟s comment in rebuttal, “I would say . . . [appellant] is guilty of count 1,”

was likewise not misconduct, as he was simply stating his opinion, based on the evidence,

that appellant was guilty. There was nothing in the argument from which the jury would

have reasonably inferred that the prosecutor had information on guilt that had not been

disclosed at trial.

f. Shifting the burden of proof

Appellant contends the prosecutor improperly shifted the burden of proof by

arguing in rebuttal, “if there was someone out there that can point and say Edward Veluz

knows the defendant, the defense would have subpoenaed that witness and brought them

in.” Comment on the failure to call logical witnesses is proper. (People v. Wash (1993) 6

Cal.4th 215, 263.) As the trial court admonished the jury after overruling defense

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counsel‟s objection, “Both sides have the opportunity to bring in witnesses if they wish by

subpoena. The burden of proof remains on the prosecution.”

The jury was properly instructed that the prosecution had the burden of proving

every element of the case beyond a reasonable doubt. “The record does not demonstrate

that the prosecutor employed deceptive or reprehensible methods to persuade the jury, and,

in light of the entire record, there was no reasonable likelihood that the jury erroneously

construed the prosecution‟s burden of proof.” (People v. Samayoa (1997) 15 Cal.4th 795,

842.)

g. Inflaming the passions of the jury

Appellant contends the prosecutor improperly inflamed the passions of the jury

when he argued in rebuttal that defense counsel “would put anyone who touched this case

down,” including two police officers. The rebuttal, however, was a reasonable response to

defense counsel‟s argument that the police had “rush[ed] to judgment” and bungled every

aspect of the investigation. (See People v. Dykes, supra, 46 Cal.4th at p. 766 [defense

counsel opened the door to the prosecutor‟s comment on the same point]; People v. Bell,

supra, 49 Cal.3d at p. 536 [“defendant‟s criticism of the police investigation invited the

remark”].) The prosecutor‟s argument did not constitute misconduct.

h. Misstatement of the law

Appellant contends the prosecutor misstated the law when he argued, “If you

believe [Veluz], and everything points to [Veluz] being consistent and accurate about his

identification of [appellant], that alone is enough to prove this case. That alone is it.” He

asserts that the argument “invited the jury to conclude that if Veluz believed appellant had

a gun, that was enough to prove that appellant used a deadly weapon.” In light of our

conclusion above that Veluz‟s testimony constituted substantial evidence to support the

gun use enhancement, we also conclude that the prosecutor‟s argument was not a

misstatement of the law, and therefore did not constitute misconduct.

5. Restitution Order

Appellant contends there is no substantial evidence supporting the trial court‟s

restitution order “in the amount of $3319.64 to Secrets.” We disagree.

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“[A] victim of a crime who incurs any economic loss as a result of the commission

of a crime shall receive restitution directly from any defendant convicted of that crime.”

(§ 1202.4, subd. (a)(1).) Thus, “unless it finds compelling and extraordinary reasons for

not doing so,” the court in a criminal proceeding must require the defendant to make

restitution to a victim “in an amount established by court order, based on the amount of

loss claimed by the victim . . . or any other showing to the court.” (§ 1202.4, subd. (f).)

“ „The standard of review of a restitution order is abuse of discretion. “A victim‟s

restitution right is to be broadly and liberally construed.” [Citation.] “ „Where there is a

factual and rational basis for the amount of restitution ordered by the trial court, no abuse

of discretion will be found by the reviewing court.‟ ” ‟ ” (People v. Baker (2005) 126

Cal.App.4th 463, 467, 469 [“the standard of proof at a restitution hearing is by a

preponderance of the evidence”].)

Preliminarily, we note the claim is forfeited because defense counsel neither

objected to the restitution order at sentencing nor requested a separate restitution hearing to

present evidence to contest the order. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)

In any event, there was substantial evidence supporting the restitution order because it was

based on evidence presented at trial and appellant‟s probation report. The probation report

recommended, “Restitution to . . . Secrets . . . in the amount of $3,319.64, jointly and

severally with co-defendant Juvenal Madrid Vargas, payable through the Department of

Corrections . . . as directed.” The report stated the manager “submitted documentation

requesting a claim for restitution in the amount of $3,319.64,” which consisted of “a loss

of cash in the amount of $853.14, cash in a token drawer in the amount of $175.00,

coupons in the amount of $400.00 and 308 DVDs with a cost value of $1,891.50.” (See

People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [“as prima facie evidence of loss,

[the trial court] may accept a property owner‟s statement made in a probation report about

the value of stolen or damaged property”].) Further, the trial court heard testimony from

Veluz and Romero regarding their preliminary estimates of the amount of cash and the

number of DVDs that were stolen during the robbery. Romero agreed with Veluz‟s

account of the amount of cash taken and also testified the number of DVDs in the store

21

was accounted for every morning. Migita, the first police officer who arrived at the scene,

testified he saw cash boxes and four empty shelves where DVDs had been removed.

Photographs of the shelves were admitted into evidence. Appellant presented no contrary

evidence.

6. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, the defendant bears the burden of

showing that: (1) counsel‟s performance was deficient, falling below an objective standard

of reasonableness under prevailing professional norms; and (2) absent counsel‟s error, it is

reasonably probable that the verdict would have been more favorable to the defendant.

(Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052; 80 L.Ed.2d 674].)

Appellant contends that any forfeiture from defense counsel‟s failure to object to the

claims raised in this appeal regarding instructional error, prosecutorial misconduct, and

restitution, was the result of ineffective assistance of counsel. However, in light of our

conclusion that there was no error, or that any error was not prejudicial, we also conclude

that defense counsel was not ineffective for not raising objections on those issues.

7. Sentence

Appellant contends the trial court erred in imposing a concurrent sentence for

burglary. The Attorney General concedes, and we conclude, the trial court erred.

Section 654, subdivision (a), provides that “[a]n act or omission that is punishable

in different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision. . . .” “The purpose of the statute is

„to prevent multiple punishment for a single act or omission, even though that act or

omission violates more than one statute and thus constitutes more than one crime.‟

[Citations.]” (People v. Davey (2005) 133 Cal.App.4th 384, 389.)

At sentencing, after imposing the three-year term on count 1 and the enhancement,

the court stated: “As to Count 2, I will similarly impose the low term of 16 months

together with the special allegation . . . . But that count will run concurrent with Count 1.

And I will also find that that could be 654 and thus also could be stayed. But I‟m running

22

it concurrent at this time. Anything further, counsel?” Defense counsel did not object.

Here, the crimes charged in counts 1 and 2 arose from the same course of criminal

conduct—appellant‟s robbery of Secrets on March 6, 2005. The two crimes neither

targeted multiple victims nor served separate criminal objectives. We therefore reverse the

judgment to the extent the trial court did not stay the sentence on count 2.

8. Cumulative Error

Appellant contends there was cumulative prejudicial error. As we have rejected all

of appellant‟s contentions, with the exception of the contention involving sentencing, we

conclude appellant has suffered no prejudice, cumulative or otherwise.

DISPOSITION

The judgment is reversed to the extent the trial court did not stay the sentence on

count 2. The trial court is directed to issue a new abstract of judgment reflecting this

change and forward it to the Department of Corrections. In all other respects, the

judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.