P. v. Bolton

Filed 1/20/09 P. v. Bolton CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.

William J. Capriola, 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, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

John Henry Bolton appeals from a judgment after a jury convicted him of first degree robbery and found true he personally used a firearm. Bolton argues the trial court erroneously denied his motion to suppress his prearrest statements because he was not advised of his Miranda[1] rights, the court erroneously admitted evidence of an uncharged robbery, the court erroneously admitted information found on two cellular telephones over his hearsay objections, and the prosecutor committed misconduct. None of his contentions have merit, and we affirm the judgment.

FACTS

Charged Robbery of Rufino Sim

At approximately 1:30 a.m., on June 23, 2006, Rufino Sim and his wife Christine Sim (Christine) left the Normandie Casino in Gardena after Sim had cashed out approximately $2,100 in chips. As they left the casino, Christine saw a white car leaving. When they stopped at an intersection near their Rancho Santa Margarita home, Sim noticed a light colored car to his right.

When they arrived at home, Sim stopped on the driveway so Christine could get out of their red Honda Accord. After she got out of the car, he drove the car into the garage. When he got out of the car, two African-American men armed with black semi-automatic guns pounced on him and pointed the guns at his head. One of the men stood near the back of the car, and the other man, who was approximately one foot away, said, Give me all the money. The man took Sims wallet, cellular telephone, and cash, while the man who was near the back of the car pointed his gun at Sim. The men ran away. Sim yelled to Christine that two black men had robbed him, and to get his gun and call 911. After Christine brought Sim his gun, he got into his car and attempted to find the men.

Sim saw a man standing next to a car at a nearby park, stopped, and saw another person sitting inside the car. When the man got into the car and drove away, Sim followed, and as he was driving, Sim stopped an Orange County Deputy Sheriff Tim Africano and told him the people in the car he was following had robbed him. Africano pursued the car and directed the cars driver to pull over. Africano approached the cars drivers side, and after speaking with the Caucasian female driver, and Caucasian male passenger, Africano let them go as they did not match Sims description of the robbers. Africano went to Sims home to speak with him.

Sim described the robbers as follows: the first suspect was a male black, approximately six-two, approximately 200 pounds, wearing a dark hooded sweatshirt, with the hood pulling [sic] over his head[] carrying a gun; and the second suspect, male black wearing a dark hooded sweatshirt[,] [d]idnt know if the hood was over his head[,] [c]arrying a black squared handgun. Sim told him he did not see their faces because they were covered with hoods.

Deputy Sheriff Cheryl Hodgson reviewed the Normandie Casino surveillance videos, including the July 4th video showing a white Pontiac Grand Prixs license plate number. After running the number through the DMV database, Hodgson obtained a search warrant for the car and the residence the vehicle was registered to. At some point, Hodgson showed Sim photograph lineups, but he was not able to identify the robbers.

When Hodgson and other officers executed the search warrant, they saw a woman, who identified herself as Boltons mother, walking towards the white Pontiac Grand Prix. Officers searched the car and found two black hooded sweatshirts, one size

5 XL and the other size 3 XL. Meanwhile, Deputy Sheriff Patrick Rich entered the apartment and found Bolton in one of the bedrooms. Officers found a broken

semi-automatic handgun, six bullets, two loaded magazines, and two empty gun boxes. They also found a silver cellular telephone, and a black Sprint Samsung cellular telephone.

Hodgson and Investigator Brian Sims went into the apartment and entered the bedroom. Hodgson asked Bolton, who was not under arrest, to sit on his bed. Bolton agreed to speak with them. He admitted the white Pontiac Grand Prix and sweatshirts were his, and he was at the Normandie Casino on June 23 and June 30. Bolton said he met his friend Shenardo there. Bolton initially said they did not leave together, but eventually admitted they left together in Boltons car. Bolton said he sold the guns that were in the empty gun boxes to a friend. He asked the officers whether they found $3,000 in the room that had come from the sale of a car. Bolton later said one half of that money was his, and the other half was his girlfriends. Bolton gave Hodgson his girlfriends cellular telephone number, and when she called the number, the call went to voice mail. Hodgson asked to look at Boltons silver Samsung cellular telephone to verify the number, and when she looked at the display screen, it said, Im rich bicth [sic]. The number Bolton had given him for his girlfriend was off by one digit. Bolton denied he was involved in any robberies. Both Hodgson and Rich asked questions during the interview, which lasted about one hour.

When Hodgson returned to the police station, she inspected the black Sprint Samsung cellular telephone. The display stated, Im rich bitch[,] and 714-782-5772. . . . Vision user name R. Sim. 31, at Sprint P.C.[2]

An information charged Bolton with first degree robbery (Pen. Code,

211, 212.5, subd. (a))[3] (count 1), first degree residential burglary ( 459, 460,

subd. (a)) (count 2), and receiving stolen property ( 496) (count 3). As to counts 1 and 2, the information alleged Bolton personally used a firearm ( 12022.53, subd. (b)). The information also alleged that at the time of the offense, Bolton was released from custody on bail ( 12022.1, subd. (b)).

Before trial, on the prosecutors motion, the trial court dismissed count 2 and its related enhancement, and renumbered count 3 to be count 2. The trial court granted Boltons request to bifurcate the issue of whether he was on bail at the time of the offenses. The court also granted the prosecutors motion to admit evidence of an uncharged act committed June 30, 2006, to show identity and a common plan.

The prosecutor offered Sims testimony. Sim stated he got a good look at the man who went through his pockets. When the prosecutor produced the black cellular telephone found in Boltons bedroom, identified as exhibit No. 4, Sim, unable to turn the cellular telephone on, said it looked like the one stolen from him and his cellular telephone number was 714-783-5772. When the prosecutor asked Sim whether he could identify either of the men who robbed him, Sim identified Bolton, and said, Thats the person who go [sic] into my pocket, because hes only about a foot from my face. All Im looking at that time, trying to remember what he looked like. Its his eye. When the prosecutor asked Sim whether Boltons most striking feature was his eyes, Sim responded, Yes.

On cross-examination, Sim admitted he never saw the mens faces and he told Africano he did not see their faces.[4] Sim also admitted he never told officers one of the robbers had distinctive eyes. When pressed, Sim agreed with defense counsel he told Africano he saw the man in the park wiping something off his face, but insisted he did not say it was black paint. Sim explained he did not know how to turn on his cellular telephone because it was new; his son helped him.

On redirect examination, Sim said Boltons height and build were consistent with the person who robbed him. The prosecutor asked Sim to turn on exhibit No. 4, the cellular telephone. Over defense counsels multiple relevancy and hearsay objections, Sim said the display screen showed motorcycles and the words, Im rich bitch. Sim said he did not put those images or words on his cellular telephone. When the prosecutor revisited the issue of the robbers identity, Sim said: Its the eye that identify him, because Im looking at him one, two feet in front of me. Thats the only thing I keep looking at him all the time. But I cant explain that to the officer when they ask me. Sim said Bolton was the man who stood next to him and demanded his money.

On recross-examination, defense counsel raised the fact there were very few . . . black guys in the courtroom. Counsel stated, And you figured out I was the lawyer, right? Sim responded he did not know the person questioning him was the lawyer.

Over defense counsels objection, the prosecutor also offered the testimony of Roberto Altounian, who testified as follows: After having won approximately $3,500, Altounian cashed out about $6,500 in chips, and he left the Normandie Casino at 2:00 a.m., on June 30, 2006. He got into his Bentley, and drove to his home in Encino. As he was opening his front door, someone put a gun to his head and said, Give me the fucking money, mother fucker. Altounian said he would give him whatever the man wanted. A second man appeared, and they pushed him inside. The man who held the gun to Altounians head was tall and skinny, and the other man was [a] little bit taller than five feet, nine inches and chubbier. They were both wearing sweat shirts with the hoods pulled over their heads, but when the men went through his pockets he could see their faces. The men took Altounians money, credit cards, and cellular telephone, and left. Altounian described one of the men as a male black about six-one, 175 to 180 pounds, age 27, 28, with a black hooded jacket and dark pants[,] and the other man as a male black about six-one, 220 to 240 [pounds], 28 to 30 years old[.] The following week, Altounian viewed two photographic lineups. In one of the photographic lineups, he circled two photographs that looked like the man with the gun.[5] In the other, he circled two photographs of the chubbier man.

On cross-examination, Altounian agreed he described the gunman as having tattoos on his arms. When made to stand up and roll up his shirt sleeves, Bolton had no tattoos on either arm.

The prosecutor offered the testimony of Peter Tulik, director of surveillance at the Normandie Casino. He testified concerning surveillance tapes recorded on the early morning hours of June 23. Tulik stated a tape showed Sim and Christine leaving the casino at 1:52:38 followed by a black male at 1:52:48. Another tape showed a red vehicle leaving the casino at 1:52:40 and a white Pontiac Grand Prix leaving the casino at 1:55:55. He also testified concerning a surveillance tape recorded on the early morning hours of June 30. Tulik said the tape showed Altounian leaving the casino at 2:12 followed by a black male at 2:13:35. A tape showed a Bentley leaving the casino at 2:13:33 and a white Pontiac Grand Prix leaving at 2:13:47. A tape from July 4 showed a white Pontiac Grand Prix leaving the casino; Tulik was able to read the license plate.

The jury convicted Bolton of count 1 and found true he personally used a firearm. The jury acquitted him of count 2 as the trial court instructed the jury it was an alternative charge to count 1.

After finding the on-bail enhancement to be true, the trial court sentenced Bolton to the middle term of four years on count 1, a consecutive term of 10 years on the firearm enhancement, and a consecutive term of two years on the on-bail enhancement.

DISCUSSION

I. Miranda

Bolton argues the trial court erroneously denied his motion to suppress the statements he made to Hodgson and Investigator Sims in his bedroom because he was in custody and the officers failed to advise him of his Miranda rights. We disagree.

A. Custodial interrogation

Miranda warnings are required as soon as a suspects freedom of action is curtailed to a degree associated with formal arrest. [Citation.] This determination presents a mixed question of law and fact. [Citation.] We apply a deferential substantial evidence standard to the trial courts factual findings, but independently determine whether the interrogation was custodial. [Citation.] [] Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: (1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning. [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspects freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were aggressive, confrontational, and/or accusatory, whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.] (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404,

fn. omitted (Pilster).)

Although the facts concerning the execution of the search warrant and questioning of Bolton are provided above, the prosecutor also offered the following evidence specific to the suppression motion.

After a total of 12 officers executed the search warrant and secured the apartment, Hodgson and Investigator Sims went into the apartment and entered the bedroom. They were wearing jeans, and polo shirts that had a badge logo on the front and said, Sheriffs Department on the back, and they both had holstered weapons. Hodgson asked Bolton to sit on his bed while she and Rich remained standing. Investigator Sims told Bolton he was not under arrest, but that he was being detained and he could not leave. Neither Hodgson nor Investigator Sims handcuffed Bolton, but Hodgson did not know whether the Direct Enforcement Team (the DET) handcuffed him upon entry of the apartment. Officers did not advise Bolton of his Miranda rights before questioning him. Bolton agreed to speak with them. The interview lasted between 45 minutes and one hour and was recorded on a tape recorder in Hodgsons purse. Bolton was not arrested that day.

In ruling on Boltons suppression motion, the trial court acknowledged Bolton was not free to leave. Relying on a case from this court,[6] the trial court explained that even if the DET initially handcuffed Bolton, this was not dispositive. The court stated officers told Bolton he was detained, not arrested, Bolton was not handcuffed during the questioning, he was in his bedroom, and officers did not arrest him. The court also explained the length of the detention did not transform it into an arrest, or its equivalent. The court concluded: So, I think this is kind of close in the sense that some force was used at the beginning, and that you have a lot of officers. And its not a brief conversation particularly. But it is a lawful detention . . . . And the court feels that Miranda was not required.

Here, it is clear officers did not arrest Bolton, and based on a review of all the factors, we conclude his freedom of action was not curtailed to a degree associated with a formal arrest. (Pilster, supra, 138 Cal.App.4th at p. 1403 [inquiry is whether a reasonable person [would] interpret the restraints used by the police as tantamount to a formal arrest?].)Although officers informed Bolton he was detained and could not leave, officers also told him he was not under arrest, and he was not handcuffed when they questioned him. And, Bolton agreed to answer their questions. Contrary to his contention there were 12 armed officers interrogating him, the evidence demonstrated Hodgson and Investigator Sims were the only officers in the room questioning him and their weapons were not drawn. The length of the detention was rather long, 45 minutes to one hour (see People v. Forster (1994) 29 Cal.App.4th 1746, 1753 [one hour and five minute detention relatively long]), but Bolton was sitting on his bed in his bedroom, not in a police station interrogation room. Additionally, there is no evidence either Hodgson or Investigator Sims were aggressive, confrontational, or accusatory, or pressured him into making a statement. There was no evidence the officers informed Bolton they considered him a suspect or a witness. Finally, officers did not arrest Bolton at the conclusion of the questioning. Therefore, the trial court properly denied Boltons motion to suppress the statements he made to Hodgson and Investigator Sims.

Although we conclude the trial court properly denied Boltons motion to suppress, we agree with the trial court this is a close case. The length of the detention was relatively long, and if other facts had been present, they could have transformed this detention into a constructive arrest. Although the questioning occurred in Boltons bedroom, we are unsure where he would have gone had the officers told him he was free to terminate questioning and leave. (People v. Leonard (2007) 40 Cal.4th 1370, 1401 [officers told defendant he was free to end questioning at any time and leave].) The officers conduct in this case came perilously close to transforming this detention into a constructive arrest requiring Miranda warnings.

II. Evidence Code section 1101, subdivision (b)-Altounian robbery

Bolton contends the trial court erroneously admitted evidence of the Altounian robbery because the evidence was unduly prejudicial and denied him his federal constitutional rights to due process and a fair trial. Not so.

Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code,  1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, Evidence Code section 1101, subdivision (b), allows the trial court to admit evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . plan . . . [or] identity . . .) other than his or her disposition to commit such an act. Other acts evidence is relevant where the other acts evidence and the charged offense are sufficiently similar. (People v. Ewoldt (1994) 7 Cal.4th 380,

401-402 (Ewoldt).) The least degree of similarity is required to prove intent, a greater degree of similarity is required to prove the existence of a common plan, and the greatest degree of similarity is required to prove identity. (Id. at pp. 402-403.) The highest degree of similarity requires the charged and uncharged offenses display a pattern and characteristics . . . so unusual and distinctive as to be like a signature. [Citations.][7] (People v. Carter (2005) 36 Cal.4th 1114, 1148 (Carter).)

Although other acts evidence might be relevant to prove a material fact other than a defendants criminal disposition, this evidence is subject to exclusion pursuant to Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at p. 404.) Evidence Code section 352 authorizes the trial court to exclude evidence if its probative value is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice. For purposes of Evidence Code section 352, prejudice means evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Heard (2003) 31 Cal.4th 946, 976.) We review a trial courts ruling under Evidence Code section 352 for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.)

After explaining the Sim robbery and the Altounian robbery bore characteristics so unusual and distinctive to be like a signature, the court concluded evidence of the Altounian robbery was not unduly prejudicial. The court explained the offenses were very similar and neither was more inflammatory than the other, and the evidence was admissible.

Here, Bolton does not appear to dispute evidence of the Altounian robbery bore the required degree of similarity to be admissible pursuant to Evidence Code

section 1101, subdivision (b).[8] Instead, his sole contention is admission of the evidence was unduly prejudicial pursuant to Evidence Code section 352 because of the potential spillover effect and that he was not convicted of the Altounian robbery and the jury might have been inclined to punish him for that offense by convicting him of the Sim robbery. As we explain below, the probative value of the Altounian robbery evidence outweighed any undue prejudice.

The Altounian robbery evidence was probative to the issue of a common plan and the identity of the perpetrators. Although there were minor differences, the two crimes shared distinctive characteristics. From the Normandie Casino, two

African-American men in a white Pontiac Grand Prix wearing oversized sweatshirts followed men who had cashed out a large amount of chips to their homes and robbed them, each robber playing a separate role. The perpetrators committed the robberies in the early morning hours, one week apart.

And the Altounian robbery evidence was not unduly prejudicial as this evidence would not tend to evoke an emotional bias against Bolton. As we explain above, the crimes bore distinctive characteristics, and therefore, the Altounian robbery evidence was no more inflammatory than the Sim robbery evidence. (Ewoldt, supra,

7 Cal.4th at p. 405.) The Altounian robbery evidence was not of such a nature as to inflame the jury to motivate them to use the evidence to punish Bolton.

Additionally, evidence of the Sim robbery and the Altounian robbery were two distinct and separate events, and there was no likelihood the jury would confuse the evidence. Finally, presentation of the evidence did not consume an undue amount of time. The evidence consumed only 30 pages of reporters transcript out of a total of

625 pages, and required only two additional jury instructions. And one of those instructions, Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 375, Evidence Of Uncharged Offense To Prove Identity Or Common Plan, instructed the jury on the limited purpose for which it could use the evidence. CALCRIM No. 375 instructed the jury it could not conclude from the evidence Bolton possessed a bad character or was disposed to commit a crime.

Finally, as to Boltons claim the potential spillover effect of the Altounian robbery evidence and that he was not convicted of the Altounian robbery required exclusion of the evidence, although both these factors are properly considered in a section 352 analysis, neither compels exclusion. (People v. Morton (2008)

159 Cal.App.4th 239, 246.) Because the evidence is highly probative and would not evoke an emotional bias against the defendant, and the court properly instructed the jury as to the proper use of the evidence, admission of the Altounian robbery evidence was proper. Since we have concluded the trial court properly admitted evidence of the Altounian robbery, Boltons claim admission of the evidence implicated his federal constitutional rights is similarly meritless.

III. Hearsay

Bolton argues the trial court erroneously admitted Sims and Hodgsons testimony concerning information on the cellular telephones because it was hearsay. Not so.

Evidence Code section 1200 states: (a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [] (b) Except as provided by law, hearsay evidence is inadmissible. [] (c) This section shall be known and may be cited as the hearsay rule. Evidence Code section 225 provides, Statement means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression. Evidence Code section 175 defines Person as a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity. We review a trial courts ruling on a hearsay objection for an abuse of discretion. (People v. Fields (1998)

61 Cal.App.4th 1063, 1067 (Fields).)

Bolton complains of three instances where the trial court admitted testimony over his hearsay objections. We will discuss each in turn.

First, during redirect examination of Sim, the prosecutor asked Sim to take exhibit No. 4, the black cellular telephone, and press and hold the red button that says N[.] The prosecutor asked Sim to explain what was on the telephones display. Defense counsel objected on hearsay and confrontation grounds. After the prosecutor indicated the evidence was not being offered for the truth of the matter asserted, the court overruled the objection. Sim said the screen showed motorcycles. The prosecutor asked Sim if he could read any other information on the display. Defense counsel again objected on hearsay grounds, and the prosecutor stated the evidence was not being offered for the truth of the matter asserted. Defense counsel objected on relevancy grounds, and the prosecutor stated it was being offered as circumstantial evidence of Boltons possession and whether or not it was his telephone. After defense counsel responded the prosecutor was seeking to offer the evidence for the truth of the matter asserted, the court overruled counsels objection. Sim stated the display said, Im rich bitch. The court again overruled defense counsels hearsay and confrontation objections. Sim said he did not put either the pictures or the words on the telephone.

Second, during direct examination of Hodgson, the prosecutor asked her whether there was any writing on exhibit No. 4. Hodgson replied it said, Im rich bitch. The date, time, menu, contact. The trial court overruled defense counsels hearsay objection. After navigating through the telephones various functions, the prosecutor asked Hodgson what is the information displayed on the screen when you press the my phone information button? The court again overruled defense counsels hearsay and confrontation objections finding these were simply words[] and not a statement. Hodgson stated the display read, 714-782-5772. . . . Vision user name

R. Sim. 31, at Sprint P.C.

Finally, Hodgson, during direct examination, testified that when Bolton gave her his girlfriends cellular telephone number, it did not work. Hodgson stated she asked Bolton for his silver Samsung cellular telephone to verify the number. When the prosecutor asked Hodgson whether there was anything memorable about the display screen, defense counsel objected on hearsay grounds. After the trial court overruled the objection, Hodgson replied it said, Im rich bicth [sic].

With respect to the statements Im rich bitch, they were not offered for the truth of the matter assertedto prove Bolton was a rich bitch. Instead, the prosecutor offered these statements as evidence Bolton had dominion and control over the black cellular telephone Sim stated was similar to the cellular telephone stolen from him. Hodgson explained Boltons silver cellular telephone had the same phrase typed on its display, Im rich bicth [sic] as the black cellular telephone Sim said looked like the cellular telephone stolen from him. Neither People v. Hawkins (2002) 98 Cal.App.4th 1428, 1448 (Hawkins), where the court held a computers internal operations (as opposed to the output of statements placed in the computer by an out-of-court declarant) were not hearsay, nor his reliance on the prosecutors closing argument, which we will discuss anon, persuades us otherwise.

As to the cellular telephone number and Sims name on the black cellular telephones display screen, this information was not a statement. The information was not a written statement constituting hearsay evidence. It was merely words and numbers representing identifying information and therefore was admissible nonhearsay evidence. (Hawkins, supra, 98 Cal.App.4th at p. 1449; Fields, supra, 61 Cal.App.4th at p. 1070.)

Admission of Sims and Hodgsons testimony did not deny Bolton his right to a fair trial or due process. Finally, any claim his Sixth Amendment confrontation rights were violated is waived as it is not supported by any reasoned argument.

(Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793 [every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration].) Therefore, the trial court did not abuse its discretion in admitting the complained of evidence over Boltons hearsay objections.

IV. Prosecutorial misconduct

Bolton contends the prosecutor committed misconduct during closing argument when he referred to information on the cellular telephones for the truth of the matter asserted. As we explain below, the prosecutor did not commit misconduct.

During closing argument, the prosecutor stated Bolton had Sims cellular telephone. He argued: How do you know its the cell phone? Here is what Im trying to show you how all these pieces fit together. You know its the cell phone and theres no doubt about it because its the right make, its the right model. Its a Sprint phone. And its facet was on the pages of a book. As you flip into the pages it indicates under the area for my phone, the phone number. After defense counsel objected, and the trial court indicated the evidence was admissible and it had overruled counsels hearsay objection, the prosecutor continued: And the evidence you got is what? That in that phone the number, . . . Sim[s] number is there. And also an apparent e-mail address.

R. Sim at something dot net or something like that, okay? So his initials were there. His initial R and his last name Sim were also in that phones information. So, its the right phone, with the right number. And some information indicating its . . . Sim[s].

Later, the prosecutor returned to the information found on the cellular telephones. The prosecutor argued: What you also have [is] evidence of motive on those phones, what does it say? It says Im rich bitch. Whats he trying to do? He is trying to get money.

A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.] [Citation.] (People v. Parson (2008) 44 Cal.4th 332, 359.)

With respect to the prosecutors comments regarding the telephone number and Sims name, the trial court did not admit the evidence for a limited purpose despite the prosecutors assertion its not really for the truth of the matter[.] The court concluded the information were words and not a statement and, therefore, was not inadmissible hearsay. The prosecutors statement was a proper comment on the circumstantial evidence found on the black cellular telephones display screen found in Boltons room. As to the prosecutors comments concerning the phrase, Im rich bitch[,] the prosecutor did not argue this statement was true, that Bolton was a wealthy scold, but that Bolton committed the robbery because he hoped to acquire wealth. The prosecutors statement was a fair comment on the evidence, and was not misconduct. The prosecutors statements were not deceptive or reprehensible and did not render the trial unfair or deny Bolton due process.

V. Cumulative error

Bolton contends the cumulative effect of the errors requires reversal. We have concluded there were no errors, and therefore, his claim has no merit.

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.

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[1]Miranda v. Arizona (1966) 384 U.S. 436.

[2] Hodgsons testimony was admitted over defense counsels objections.

[3] All further statutory references are to the Penal Code, unless otherwise indicated.

[4] Sim is five feet, seven inches tall, and Bolton is over six feet tall.

[5] Apparently, these photographs were of different people.

[6]In re Joseph R. (1998) 65 Cal.App.4th 954, 961.

[7]Carter, supra, 36 Cal.4th at page 1148, further defines distinctive characteristics.

[8] The Attorney General concludes similarly.