In re Shawn H.

Filed 2/1/08 In re Shawn H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge.

Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A juvenile wardship petition pursuant to Welfare and Institutions Code sections 602 and 777, subdivision (a)(2) was filed against Shawn H. (appellant) on December 27, 2006. Appellant was charged in count 1 with assault with a deadly weapon, a knife, in violation of Penal Code section 245, subdivision (a)(1).^[1] It was further alleged that the assault was a serious felony ( 1192.7, subd. (c)) and was committed for the benefit of, at the direction of, or in association with, a criminal street gang ( 186.22, subd. (b)(1)). Count 2 stated that (a) appellant had already been adjudged a ward of the juvenile court and placed on probation; (b) that the previous dispositions had not been effective in rehabilitating appellant in that he had violated the terms of his probation; (c) that the aggregate confinement time on six separate prior petitions totaled four years four months, less 371 days credit for time served; (d) that the petitioner intended to aggregate available confinement time; and (e) that appellant was in violation of his probation by committing the current offense.

A jurisdictional hearing began on February 27, 2007. The following day, at the end of the prosecutions case, the section 186.22 gang enhancement allegation was dismissed because the gang expert was unable to testify. The juvenile court subsequently found counts 1 and 2 true.

At the dispositional hearing, the juvenile court denied appellants motion to reduce the assault charge to a misdemeanor. Appellant was readjudged a ward of the court, ordered removed from his parents custody, placed in the Kern Crossroads Facility and continued on terms of probation until the age of 21. Previous probation terms were reinstated.

On appeal, appellant contends the court erred (1) by taking judicial notice of two prior juvenile adjudications for impeachment purposes; (2) by allowing impeachment of appellant through introduction of prior juvenile adjudications; (3) by admitting evidence of gang affiliation; and (4) by allowing the prosecutor to cross-examine appellant on his right not to incriminate himself. Appellant further contends he received ineffective assistance of counsel and asserts cumulative error. We find no prejudicial error and affirm.

FACTS

Tony Brooks, Justin Roby, and Trisha Harris are siblings.^[2] In the early morning hours of December 23, 2006, the three went with a friend, Jose Becerril, to appellants house after Trisha reported that somebody put a gun or somebody did something to her at a party there. According to Tony, Trisha had returned home with Jose and Tyresha Harris, another sister; Trisha told Tony someone had been beating up on her at appellants house. Tony did not know appellant or appellants twin brother, Nathan.^[3]

Tony did not see any injuries on his sister, but it did look like her shirt had been stretched or pulled. Tony said Trisha wanted to return to the party to bring home a cousin, Nichelle Osborn, who didnt have a ride. Tony, Justin, Trisha, and Jose drove to appellants house together. None of them was carrying a weapon.

When the group arrived at appellants, Tony and Justin went to the door and asked for Nichelle. The male who answered the door turned inside the house and called her name. Nichelle, who appeared to be drunk, walked out of the house, and she, Tony and Justin began walking back to the car.

As Justin and Trisha helped Nichelle to the vehicle, Tony noticed that Nathan had come out of the house and was making gang signs with his hands and yelling gang slogans. The male who had answered the door was with him. Nathan directed his comments to Trisha, saying [W]hat you know about that Eastside .

Tony, a coach and volunteer mentor at a local junior high school, was familiar with gang signs through his work there, and because he had a brother in prison who had been affiliated with the Eastside gang.

Nathan screamed these remarks in Trishas face when she pushed him away, and he pushed her back. Nathan then hit Trisha in the face; Justin grabbed Nathan and the two fought and fell to the ground. Tony tried to pull Justin from the struggle, and the male who had accompanied Nathan pulled Nathan away by the shirt. Justin told Trisha to get into the car when Nathan swiggled out of his shirt and charged at Justin. Nichelle ran back into the house, while Tony and Trisha tried to restrain Justin.

When Nathan reinitiated the fight with Justin, Tony saw appellant come out of the house wearing a big black coat and a hat. Appellant grabbed Justin, and Tony could see that appellant had a knife in his hands and was sticking Justin under the arm with it. Tony said he saw appellant stab Justins side two or three times. When the second altercation occurred, 15 to 20 people came out of the house and observed.

After Justin was stabbed, Tony saw Nathan and appellant run into the house. Justin, who was bleeding heavily from his arm, was helped to the car. Police arrived. Tony identified Nathan and appellant as Justins assailants. Tony said that Nathan never made any gang signs or threats toward him but that Nathan did threaten to beat Trisha. Tony did not hear appellant do or say anything gang related.

Sheriffs Deputy Jeffrey Colbert arrived at the scene and described Justin as bleeding, Tony as upset, and Nichelle and Trisha as kind of frantic. Deputy Colbert entered appellants house where he recognized Nathan and appellant from prior contacts. Because they were twins, he could not distinguish the two, but one of them was wearing a black jacket and hat.

Inside the house, Deputy Colbert found a steak knife beneath the couch cushion where appellant, or the twin with the black, puffy jacket, was seated. The knife was just over 10 inches in length with a five and three-quarter-inch blade that tested positive for human blood. Nathan was found in a bedroom. He was not wearing a shirt and had numerous scratches on his back and arms.

When Sheriffs Deputy Zachary Bittle arrived on the scene, Tony told him an individual wearing a black jacket, black hat, and blue jeans stabbed Justin. Tony identified appellant as the person who stabbed his brother. Appellant was wearing a black jacket, black hat, and blue jeans when he was removed from the house. Nathan was not wearing a shirt when he was taken into custody.

The car and the area of the crime scene were searched, but no guns, shell casings or other weapons were found. No weapons were found on Justin, Tony, Trisha, Nichelle, or Jose.

At trial, Justin was not able to differentiate between Nathan and appellant, and he did not know for sure which twin had stabbed him. He did know that one of the twins, wearing a white T-shirt, had punched Trisha, and he then fought with him. As he tried to walk away, the twin removed his shirt and attacked him again. Justin then saw the other twin, wearing a black hat, run from the house with a knife in his hand. While someone else held him by the neck, the twin in the hat approached him from behind and stabbed him.^[4] Justin pushed his assailants off and the twins ran back into the house.

Trisha initially failed to appear as a witness and she expressed fear for her own safety if she testified. According to Trisha, when police first arrived at the scene, one of the twins told her its not over, which she interpreted as a threat. Trisha, who testified that she could not really tell the twins apart, did witness the stabbing, but she was unable to say which twin was holding the knife. She did admit that she had told police on the night of the stabbing that she had seen appellant strike Justin in an upper-cut motion, and she was able to tell the officers which brother struck her and which one had wielded the knife.

Jose testified that he stayed by the car when Justin and Tony went to appellants front door. When the fight started, it was between Justin and the twin without the shirt. The other twin, wearing a black cap and a dark-colored shirt or sweater, came running out of the house toward the fight. Jose did not see appellant with a knife.

Defense

Appellant testified in his own behalf that Trisha, Tyresha, Nichelle, and Jose showed up a little drunk on the night of the party. When Trisha and Tyresha argued, he asked them to leave. Trisha was angry at being asked to leave and said she would return with her brothers.

When they did return, Justin and Tony walked up to the house, and Justin had his hand near his pants like he had something for us to be scared. When Justin questioned who was talking shit to his sister, appellant explained that she had been drunk and wild. When Justin asked about Nichelle, appellant explained that she wanted to stay at the party with her boyfriend. Appellant then shook hands with Justin. Trisha was told to get back into the car, but she started yelling, running toward the porch and swinging all wild. In the process, Trisha hit appellants mother. Nathan jumped in front of his mother to protect her. Appellant thought Justin took this as a threat and reacted by attacking Nathan.

Appellant then called for help and was pulling Nathan from the fight when Justin pulled out a gun. Justin waved the gun in the air and asked who wants to get shot. Appellant claimed he and the others went back inside and his mother called the police.

According to appellant, when officers came into the house, they asked him to sit down, so he asked the person sitting on the couch to move over. Appellant claimed someone else grabbed Justin, that he did not see a knife and did not stab anyone. Appellant admitted wearing a black hat that night.

Brenda Castillo was at the party but outside in the front yard; she had known the twins for two years. She claimed several people emerged from a car and started yelling. The twins came out of the house, and one of the males from the car hit Nathan. A fight ensued and the male then pulled a gun and said, [W]ho wants to get smoked. Brenda thought the person who pulled the gun was the same person who fought with Nathan. When someone yelled the cops are coming, she saw the person with the gun run to a neighbors house and throw something. She never saw anyone get stabbed and she did not see a knife. She claimed not to have spoken to the twins about the incident, but did discuss it with their mother a week later.

Appellants girlfriend, A.B., was also at the party. Her testimony about the fight was similar to Brendas. She claimed never to have seen appellant with a knife and said she did not see anyone get stabbed. She testified that she saw Justin pull a small silver gun and wave it around and that, when she tried to tell an officer about the man with the gun, he told her to shut up. A.B., 16 at the time of the incident, was arrested for being under the influence of a controlled substance.

On cross-examination, A.B. admitted that she had talked to Brenda and other friends about the incident. She denied there was any alcohol at the party, other than what Trisha and Nichelle brought with them. She did acknowledge that she had had marijuana at the party when she first arrived.

R.R. also attended the party. Her version of the incident was similar to that of Brenda and A.B. R.R. said she would not call herself Nathans girlfriend, but she would like to date him. She also claimed that officers told her to be quiet when she tried to talk to them at the scene.

Mrs. S., the mother of Nathan and appellant, said she arrived home to find a party underway and ordered Trisha and another girl to leave. Later Trisha returned to the house with others. She came running up to the house swinging her fists and hit Mrs. S. Justin then attacked Nathan, and others came out of the house and joined in the fight.

Mrs. S. testified that, after appellant was able to pull Nathan from the pile, Justin pulled out a silver gun and waved it in the air, asking [W]ho wants to get smoked? Mrs. S. then called 911, and the police arrived a few minutes later. Mrs. S. never saw appellant with a knife and did not see him stab anyone. She did admit that the bloody knife found in the couch looked like one of her steak knives, although she later testified that she was not entirely sure. Mrs. S. also claimed she tried to tell an officer her story, but he didnt want to hear anything we had to say.

DISCUSSION

1. Did the trial court improperly take judicial notice of appellants prior adjudications?

Appellant contends the juvenile court erred when it took judicial notice of appellants prior adjudications for petty theft and grand theft in April of 2004 for impeachment purposes without an offer of proof. We find no prejudicial error.

On cross-examination, the prosecutor questioned appellant about a prior juvenile adjudication for petty theft in April of 2004. Defense counsel objected on several grounds: Evidence Code section 352, that it was not a felony adjudication, that it was not a crime of moral turpitude, and that it was remote. The prosecutor argued that is a crime of moral turpitude and asked the court to take judicial notice of that, which the court said it would do. The court also stated that the offense goes to credibility only, and its not too remote.

The prosecutor then asked appellant if he had a misdemeanor juvenile adjudication for grand theft in April of 2004. Defense counsel made the same objection, and the juvenile court made the same ruling. Appellant asked if he could answer the question and stated that he didnt believe the adjudication was for a GTA, but that he was in the back seat of a car and they got me for joyriding. When the prosecutor stated she was asking about a robbery in which the appellant had admitted grand theft person, appellant replied that he didnt remember ever doing a robbery.

The prosecutor then asked the juvenile court to take judicial notice of the 01 petition. The court asked to take a look at the petition, and stated that it would take judicial notice of it, especially considering that Im the one who took the plea.

Appellant now claims the juvenile court erred because it did not comply with the provisions for taking of judicial notice found in Evidence Code sections 450 through 460. Evidence Code section 452 provides a list of [m]atters which may be judicially noticed, including [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (Evid. Code,  452, subd. (d).)

Evidence Code section 453 provides that the trial court shall take judicial notice of any matter specified in section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the requests, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

And Evidence Code section 455 provides, in pertinent part:

With respect to any matter specified in Section 452 that is of substantial consequence to the determination of the action: [] (a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity, before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.

According to appellant, there is nothing in the record demonstrating that the prosecutor furnished the juvenile court with sufficient information to enable it to take judicial notice of the matter. (Evid. Code,  453.) The prosecutor, according to appellant, offered no reference to the pleadings so as to direct the court to the appropriate court records of the purported adjudications. Appellant contends the 2001 petition^[5]to which the prosecutor and juvenile court referred merely contained allegations not sufficient to establish an adjudication of guilt. Appellant argues the petition did not include any record of a plea as to either of the two theft offenses.

Respondent contends first, and we agree, that appellant has waived any claim of error relating to the request for judicial notice by failing to object in the trial court. Waiver will be implied where the defendant fails to bring the alleged error to the trial courts attention either by timely motion or objection. (People v. Partida (2005) 37 Cal.4th 428, 434.) An appellate court generally will not consider procedural defects or erroneous rulings where an objection could have been but was not presented to the [trial] court by some appropriate method . (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)

Appellant claims no waiver occurred because he had no meaningful opportunity to object. We disagree. Even though the juvenile court took judicial notice before addressing defense counsels objections on other grounds, the prosecutor immediately followed with a second question about a prior adjudication, and defense counsel again made the [s]ame objection, also without mentioning a violation of Evidence Code section 452 or 455.

Second, we agree with respondent that, in any event, no error occurred. The 01 petition, states, in relevant part, despite appellants claim to the contrary, that appellant did admit the April 7, 2004, petty theft and the April 22, 2004, misdemeanor grand theft. The juvenile court specifically asked to take a look at the petition before taking judicial notice of it.

Finally, we agree with respondent that if error occurred, it was not prejudicial. It is reasonable to assume that the juvenile court had appellants prior criminal history in the courts file, which it viewed during the proceedings. The juvenile court was certainly aware that appellant was already adjudged a ward of the court, as alleged in count 2 of the petition, for petitions filed on April 7, 2004, May 5, 2004, August 23, 2004, January 5, 2005, February 14, 2006, and February 27, 2006. A court record dated December 27, 2006, and attached to the petition stated that appellant was on formal probation. And subsequently appellant admitted at trial committing a 2004 petty theft and a 2006 misdemeanor possession of a vehicle.

In determining appellants guilt, the juvenile court did not make any reference to appellants prior adjudications. Rather, in a detailed analysis, it made its credibility determination based on the witnesses demeanor and believability and the extent to which their testimony was corroborated by other evidence. The juvenile court specifically stated that it had listened carefully to the evidence, that it was not able to find beyond a reasonable doubt that Nathan committed a battery, that it disbelieved the testimony about a gun at the scene, that the knife found at the scene was the instrument used to stab Justin, and that there was direct testimony that appellant came out of the house with the knife.

For these reasons, the juvenile court accepted Tonys version of events and determined beyond a reasonable doubt that appellant committed assault with a deadly weapon, a knife. If any error occurred, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

2. Did the trial court err when it permitted appellant to be questioned on his prior adjudications?

Following the juvenile courts judicial notice of prior adjudications for misdemeanor petty theft and misdemeanor grand theft, the prosecutor questioned appellant about an April 2004 admission to a petty theft and a February 2006 admission to misdemeanor possession of a vehicle. Appellant now contends the juvenile court erred in allowing appellant to be impeached by the four prior, non-felony, juvenile adjudications. Appellant specifically contends [t]here is nothing in the record demonstrating that the court consciously exercised it[s Evidence Code] section 352 discretion or that it exercised that discretion soundly. And, although appellant concedes that defense counsel did not object to questions concerning the third and fourth adjudications, he claims any such objection would have been futile. We disagree with appellants attempt to excuse his lack of objection. In any event, even if we did not find waiver, we would find any error harmless.

Reversal of a defendants conviction is warranted only if the trial courts error in admitting evidence has resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The question is whether it is reasonably probable that admission of a defendants prior adjudications adversely affected the outcome of the trial. (People v. Castro (1985) 38 Cal.3d 301, 319; People v. Watson, supra, 46 Cal.2d at p. 836.)

As observed above, the evidence of appellants guilt was overwhelming. We cannot say it is reasonably probable appellant would have received a more favorable verdict had evidence of his prior convictions not been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.) Any error in admitting some or all of the evidence of appellants prior adjudications thus was harmless.

3. Did the trial court err in permitting questions about appellants gang affiliation after the gang enhancement allegation was dismissed?

Following its case-in-chief, the prosecution moved to dismiss the section 186.22, subdivision (b)(1) gang enhancement allegation as to both appellant and Nathan. During cross-examination of appellant, the prosecutor asked appellant if he and his brother were associated with TWK, a gang which purportedly associated with the Eastside gang. Defense counsel objected on relevance and Evidence Code section 352 grounds, noting that the gang enhancement allegation had been dismissed. The juvenile court overruled the objection, finding the issue relevant as it still goes to the situation or the conflict between [Nathan] and [Trisha] outside and her perception of what was going on and others perception and so on.

The prosecutor then asked appellant if he and his brother were associated with the TWK gang and whether the gang had hand signs. Appellant denied the TWK was a gang and asserted it was instead a group of friends whom he hung out with who pretty much tag. Appellant denied that any hand signs were associated with the group. Appellant was also asked about several photos showing Nathan making an E or Eastside hand sign.

Appellant contends the juvenile court erred when it allowed the prosecutor to question appellant about his gang affiliation after the gang enhancement allegation had already been dismissed. We find no prejudicial error.

The court has broad discretion in determining relevance of proffered evidence but lacks discretion to admit irrelevant evidence. (People v. Scheid (1997) 16 Cal.4th 1, 14.) The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial courts decision exceeds the bounds of reason. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) In Olguin, the court explained that [e]vidence of gang activity and affiliation is admissible where it is relevant to issues of motive and intent [citations], and, while admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias. [Citation.] (Ibid.) We agree with the juvenile courts ruling here that the evidence was probative of intent and motive.

In any event, any error in admitting the evidence of appellants gang affiliation was harmless. Contrary to appellants characterization, the evidence of his guilt was strong. Moreover, the juvenile court was not likely unduly swayed by this brief questioning about appellants gang affiliation. In light of the record before us, we conclude it is not reasonably probable that appellant would have received a more favorable result had the gang evidence not been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.)

4. Was appellants right to silence abridged by the prosecutor in closing argument?

Appellant contends that the prosecutor, during cross-examination of appellant as well as during closing argument, infringed his right to silence. Appellant claims this was Griffinerror. (Griffin v. California (1965) 380 U.S. 609 (Griffin).)

The first statements to which appellant objects occurred in cross-examination of appellant, during the following colloquy:

[Prosecutor:] And on the night of this incident when you were questioned by the police, specifically Deputy Bittle, you did not tell him the story that youre telling us now?

[Appellant:] I tried to tell him, maam.

[Prosecutor:] Okay. Isnt it true that you just kept saying, how come you arrest me for some bullshit charge?

[Appellant:] No, its not true, maam.

[Defense Counsel]: Your Honor, Im going to object at this point. This is improper questioning. It shifts the burden of proof. The minor has a constitutional right to remain silent during all phases of the investigation of the crime, and its improper for the prosecution to comment on that.

The Court: Only if hes in custody, and only if its focused on him. I dont have facts to find that. [] The answer will stand. Ill overrule the objection for the time being.

The second statement to which appellant objects was made by the prosecutor during closing argument when she argued, after noting that Tonys testimony in court was consistent with his statement on the night of the incident and, in contrast, that the defense witnesses must have practiced their stories:

And then lastly, you have [appellant], who has several priors for theft-related, moral turpitude crimes, and who also had the benefit of being here in court, did not provide that same story to the police that night but was able to provide that story to this Court after having the benefit of hearing all of the testimony.

No objection was made to this statement.

The Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, and article I, section 15 of the California Constitution assure a criminal defendant of the right to remain silent in the face of criminal charges. (U.S. Const., 5th Amend.; Cal. Const., art, I,  15; see also Evid. Code,  940.) As a corollary to these rights, error occurs whenever the prosecutor comments either directly or indirectly upon the defendants failure to testify in his or her defense or urges the jury to infer guilt from the defendants silence. (Griffin, supra, 380 U.S. at p. 612; People v. Bradford (1997) 15 Cal.4th 1229, 1339; see also Evid. Code,  913, subd. (a).)

Here, of course, appellant did testify. Therefore, despite appellants claim to the contrary, no Griffin error occurred.

Instead it appears that appellant is arguing that his silence on the night of the incident was protected by his right to remain silent after being Mirandized (Miranda v. Arizona (1966) 384 U.S. 436). (See Doyle v. Ohio (1976) 426 U.S. 610, 617 (Doyle).) In Doyle, the United States Supreme Court stated, We hold that the use for impeachment purposes of petitioners silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. (Doyle, supra, at p. 619.) Doyle holds that the prosecution may not, consistent with due process and fundamental fairness, use postarrest silence following Miranda warnings to impeach a defendants testimony at trial. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.) But Doyle does not apply to a defendants pre-Miranda silence, whether such pre-Miranda silence is prearrest (People v. Earp (1999) 20 Cal.4th 826, 856-857) or postarrest (People v. Delgado (1992) 10 Cal.App.4th 1837, 1841).

Here, as appellant points out, Deputy Bittle was asked at trial whether he had an opportunity to interview appellant on the night of the incident, to which Bittle replied, I tried to, but he invoked. But there is no definitive evidence in the record whether this statement meant that appellant had been given his Miranda warning.

In any event, we find any Griffin or Doyle error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) The Chapman test is generally applicable to error under the United States Constitution  [citation]. (People v. Neal (2003) 31 Cal.4th 63, 86.) Appellant was positively identified as the individual who stabbed Justin. The knife was subsequently found right beneath the couch where he had been sitting. Moreover, it was a judge and not a jury who considered the facts of the case. The juvenile court was not likely unduly swayed by this brief questioning or comments made by the prosecutor. On this record, we hold that any error was harmless beyond a reasonable doubt.

5. Did appellant receive ineffective assistance of counsel?

Appellant contends he was deprived of effective assistance of counsel because counsel failed to raise timely objections when appellant was questioned about his misdemeanor adjudications and when the prosecutor alluded to appellants silence during closing argument. Appellant asserts that, if his claims of error have been waived, relief should be granted on alternate grounds that counsels omissions constituted ineffective assistance of counsel. As we have rejected appellants claims based on the lack of prejudice, we necessarily conclude that this alleged deficient performance caused no prejudice and cannot support a claim of ineffective assistance of counsel. (See People v. Hart (1999) 20 Cal.4th 546, 623-624.)

6. Was there cumulative error?

In conclusion, appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellants claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)

DISPOSITION

The judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

GOMES, Acting P.J.

_______________________________

KANE, J.

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^[1]All further statutory references are to the Penal Code.

^[2]We will refer to everyone by first name to avoid confusion.

^[3]Appellant and Nathan were tried together.

^[4]On cross-examination, Justin said the twin he first struggled with was wearing a black hat and the twin who stabbed him was shirtless.

^[5]Appellant refers to a 2001 petition but, at trial, the prosecutor asked the court to take judicial notice of the 01 petition, which we find in the record labeled ABBREVIATED POST-DISPO REPORT Petition JW103489-00 & 01.