P. v. Winters

Filed 1/23/09 P. v. Winters CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant John Henry Winters seeks reversal of his convictions or, in the alternative, for an order staying the consecutive term imposed for his assault conviction and remanding the matter for resentencing, claiming prejudicial error on a variety of grounds. We affirm the judgment.

BACKGROUND

In February 2005, defendant was charged in an amended information with attempted premeditated murder in violation of Penal Code sections 187, subdivision (a), and 664;[1]first degree robbery in violation of section 211; first degree burglary in violation of section 459; receiving stolen property in violation of sections 496, subdivision (a); and unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a). It was further alleged that the first three counts were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1); that in the commission of the attempted murder, defendant personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a); and that defendant had suffered a prior conviction within the meaning of section 667.5, subdivision (b), 667, subdivision (e)(1), and section 1170.12, subdivision (c)(1), and had served a prior prison term within the meaning of section 667.5.

A trial of defendant and codefendant Robert Velazquez was subsequently conducted. Most of the charges against defendant involved his actions towards Zachary Walrod, who was 20 years old in late July 2004 when his parents went away for the weekend, leaving him home alone.

Guivis Testimony

Shawheen Guivi testified that he, Walrod, and a friend, Brian Valles, were walking at the Fremont Art and Wine Festival on Sunday, August 1, 2004, when Guivi observed a tattoo of a Fremont bell tower and the word Irvington on the back of a shirtless, short-haired man walking in front of him and wearing a nylon cap. Guivi and Walrod were pretty drunk, but not severely intoxicated; they were just kind of feeling good.

Guivi and Walrod met Guivis sister and her friend and walked together. His sister began arguing with a girl, and a man between 30 and 40 years old, wearing all red and pushing a baby stroller, walked by and said, slap that bitch. Guivi confronted him and they looked at each other, but then walked away. Some minutes later, Guivi, still with Walrod, saw the man again, now with a bunch of guys behind him, including the shirtless man and a man Guivi knew, Velazquez. Guivi and the man exchanged words. Out of nowhere, the shirtless man, who Guivi identified as defendant, punched Guivi in the mouth. The police immediately intervened and escorted Guivi, Walrod, and Valles out of the festival.

Guivi later went to Walrods house with others, including Valles, where they watched a movie and talked about what had happened. Guivi left by 8:45 p.m. because he had to work the next day.

Walrods Testimony

Walrod testified that, while at the festival with Guivi, he saw a man with a stroller in his late 20s or early 30s, probably wearing a red shirt; the man was accompanied by Velazquez, who Walrod had known since childhood. Walrod was making small talk with Velazquez when he noticed that Guivi was in a confrontation with a man who Walrod identified as defendant. The man was shirtless, had a shaved head and a moustache, a mean look, a bunch of tattoos, and was kind of puffed up, like he wanted to fight. The police arrived quickly and Walrod walked away with Guivi, Guivis sister, and the sisters friend.

It is unclear whether Walrod recalled seeing tattoos on defendant, or learned about them from Guivi, or both. He testified that in his brain he remembered an Irvington monument on defendants back, F.M.T. on his stomach, and South Side on his back. He also testified that he may have heard, or did hear, about the monument tattoo from Guivi at the festival. When pressed on cross-examination about his recollection of a South Side tattoo, Walrod said the monument meant South Side to him, then that he had just realized this during a lunchtime conversation with the prosecutor.

About 8:00 that evening, Walrod and a friend, Daniel Oden, were at his house watching television; Walrod had had a couple of shots, had been drinking at the festival, and may have smoked marijuana. After hearing some people walking towards his open garage, Walrod went to close the garage door, but realized people had already entered his house. He found four men and a woman in his front hallway, including Velazquez and defendant. They tried to act like it was cool; there was some conversation about beer, and they offered him one. Walrod recognized one of the men was the shirtless man he had seen at the festival. He told them they had to leave because he had to work the next day, and looked at Velazquez. Defendant took out a knife and pushed Walrod back onto a living room couch, got on top of him and held a knife to his neck.

While defendant held Walrod down in the living room, [p]eople started throwing stuff on the ground and pretty much looting. Someone repeatedly hit Walrod from behind with a blunt object and at least one other person punched him. Walrod did not keep his eyes open the entire time, closing them every time he got hit. He was held down on the couch for 5 or 10 minutes, during which time he heard noises everywhere in the house.

Walrod, hoping to get people in the back, to get them out of my face, out of the area, told defendant that his father had guns in the master bedroom, aware that the guns were disassembled. Defendant brought Walrod, still holding the knife to Walrods throat, into the master bedroom and forced him to lie on his back on the bed. Defendant laid on top of Walrod and held the knife to his neck, their faces 5 to 10 inches apart, for about 15 minutes as the others continued to rummage through the house and carried various items out to their vehicles. Walrod heard noise everywhere and crashing noises.

Defendant then stabbed his knife into Walrod's chest on the right side, a little below the shoulder, and said [s]omething to do with youre dead and time to die. Defendant pulled his hand back to stab Walrod again, but before he could do so, Walrod pushed him up, slammed him against a wall or door, and ran through the house to the outside. Walrod ran through backyards and jumped over at least two fences; defendant chased after him for a time, trying to grab his shirt before giving up the chase. Walrod discovered later that night that he was bleeding from his shoulder wound and a second stab wound in his lower back.

A few days later, he identified defendants photo from a police photo array. Most of all, he recognized defendants eyes, which were dirty looking. At trial, he had no doubt that defendant had stabbed him.

On cross-examination, Walrod was asked about various inconsistencies between his testimony and his early statements to police, such as his failure to identify defendant at the time. When confronted with inconsistencies, Walrod testified repeatedly that he did not recall his statements to the police. He also stated that he had not wanted to give the police a description of the people who had come into his house because he was still living there.

Odens Testimony

Daniel Oden, 16 years old in August 2004, testified that he, Walrod, and others, including Brian Valles, were at Walrods house on August 1, 2004 drinking, smoking marijuana, watching a movie, and talking. Oden went to Walrods house that Sunday night to have [Guivis] back because there had been a fight on Saturday at the festival. Oden was not part of a gang.

Oden, Walrod, and Valles were outside smoking cigarettes when two vehicles pulled up at the house, and approximately six people got out and approached them. Valles left, and Oden remained on the porch by himself for two or three minutes; he went inside after a man Oden did not know, who Oden identified as defendant, told him that he needed to come inside the house or leave.

One of the men in Walrods house gave Oden a beer and he drank it in about two minutes. Velazquez, who Oden had met at a party there the night before, was also in the house. Defendant asked Walrod where the "Afghan guy" was. An altercation then began, and defendant put a knife to Walrods neck and pushed Walrod back onto a living room couch. Defendant was wearing an undershirt and something on his head, and had a moustache.

Oden was sitting on a dining room chair. He testified that [t]he phones were ripped out of their sockets and the house was basically secured. Items of the house were beginning to be removed. One of the men punched him in the face. Defendant gave orders to the others, like [b]e quiet. Be careful, fingerprints. Stop making so much noise. Defendant instructed another man to check Oden's pockets and write down his name and information, which was done. One of the men brought Oden into the kitchen and told him not to move. Left alone, Oden heard loud crashing noises, and, at some point, a female yell, stop, John, or something like that. He heard a scramble for the door, the screen door open and close, and everything go silent; this was 15 minutes to an hour after the group had first appeared. He waited approximately five minutes, called out Walrods name, and went through the house looking for Walrod. The television was gone, along with everything of value in the living room. Everything was turned upside down, a computer was taken from the computer room, and there was blood on one of the mattresses in the back bedroom. Oden then walked home.

Oden did not cooperate with police because I didnt want to be sitting where I am right now, but identified defendant at the preliminary hearing. He had no doubt it was defendant who put the knife to Walrods throat.

Other Testimony

Walrod was treated at a hospital for multiple stab wounds and other injuries, and then released. He had a 0.21 blood-alcohol level and marijuana in his urine, but was alert and oriented in all spheres, and his memory was intact.

After Walrod recognized defendant's picture in a photo array, search warrants for defendants known addresses led the police to his girlfriends apartment, where defendant also lived. Police recovered several items taken from Walrods house, including a telescope, stereo components, a VCR, a computer monitor, a printer, and a television; items were identified as having been taken from the Walrods living room, computer room, and Zachary Walrods closet. Defendants girlfriends landlord, Glenn Kalvert, testified at trial that he had observed defendant, his girlfriend, and a man he thought was Velazquez, carry different items into the apartment the night of the Walrod burglary including a telescope, a television, a printer, and a guitar.

A neighbor of the Walrods testified that on the evening of the incident, she heard yelling and screaming and breaking glass. She observed two vehicles at the Walrod residence, saw five to six people taking a lot of things down the driveway, and heard a female voice. She saw someone running fast away from the residence, chased by at least one person, and heard someone yell, get the motherfucker. She saw the people jump into their vehicles as well.

Defendant was subsequently apprehended on September 24, 2004, in a stolen car following a high-speed chase.

At trial, Barry Fowlie, a detective with expertise regarding Fremont street gangs, testified that defendant belonged to the Fremont Mexican Territory (F.M.T.) Norteno gang, was active with its Irvington subset, and had been previously convicted of assault for a 1998 incident, which we discuss further in part I, post.

Defense Witnesses

Defendant called an officer who interviewed Walrod on the night of the incident, who testified that Walrods breath smelled of alcohol, and stated his assailant had a South Side tattoo. Defendants grandmother testified that he came to live with her after his parole, that she usually went to bed early, by 8:00 p.m., and that defendant lived with her in the summer of 2004, including in the first week of August.

Defendants parole officer testified that he randomly visited defendant at his home, the last visit occurring in May, that the visits occurred any time between 6:00 a.m. and 10:00 p.m., and that defendant was home and available for each visit. He also testified that defendant had tattoos which were consistent with someone being called a Norteno, about the pressures on inmates to join prison gangs, and how defendant was a validated gang member in the prison system.

Defendant showed the tattoos on his back to the jury during opening statement for the defense. His trial counsel stated on the record: Written on the top of [defendants] back are the words East Bay, not South Side. And what is described is a clearly identified monument. You can look at it and see words in much smaller letters, Irvington. But what is prominent and what Zach Walrod remembered was South Side.

Verdict and Sentence

The jury acquitted defendant of attempted murder, but convicted him of the lesser included offense of assault by force likely to produce great bodily injury, and found he personally used a knife and inflicted great bodily injury. It convicted defendant on all other counts, but found none of the criminal street gang allegations to be true. The court sustained the allegations that defendant had been previously convicted of assault with a deadly weapon, a strike and a serious felony, served a term in prison, and had not been free of custody or free of the commission of a felony offense resulting in a conviction for five years thereafter.

At sentencing, the court found defendant was not eligible for probation, and sentenced him to 21 years, four months in prison, with an additional 19 years, four months of sentences stayed. Specifically, the court designated the residential burglary conviction (count three) as the principal count, imposing an upper term six-year sentence, doubled to 12 years because of defendants previous strike; imposed for the assault conviction (count one) a consecutive term of one year, also doubled, plus one year for the great bodily injury finding; stayed a consecutive term of four months for personal use of a deadly weapon; stayed sentences for the residential robbery conviction (count two), determined to be a six-year upper term, doubled, and the stolen property conviction (count four), determined as three years, also doubled; imposed a consecutive term of eight months, doubled to one year, four months, for the vehicle theft conviction (count five); and added a consecutive five-year term for the serious prior felony enhancement, and imposed and stayed a one-year prior prison term enhancement.

Defendant subsequently filed a timely notice of appeal.

DISCUSSION

I. Other Crimes Evidence

Defendant argues the trial court erred by admitting evidence that he committed a 1998 assault with a knife. This is incorrect.

A. Procedural Background

The court conducted an Evidence Code section 402 hearing on the admissibility of Fowlies testimony. The prosecution sought to present Fowlie as a gang expert who would help establish that defendants assault on Walrod was a part of his participation in a Norteno criminal street gang, the F.M.T. Among other things, the prosecution wanted Fowlie to testify about the gangs predicate offenses, including defendants conviction for assault with a deadly weapon based on a 1998 incident when he asked the victim if he was a Sureno and stabbed him in the neck with a knife, and later admitted to law enforcement personnel that he was a Norteno.

Defendant objected to the admission of defendants 1998 assault, arguing the incident was not gang-related and, after the court rejected this argument, that the admission of the details would unduly prejudice defendant. Defendant offered to stipulate that he had a prior felony conviction for gang-related conduct, but the court found this offer insufficient:

[I]t is important for the jury to have anot to believe that it was gang related, but how was it gang related because he specifically says Sureno, this is a Norteno/Sureno conflict thats occurring here. [] I think . . . that the facts of that incident are important with respect to it being gang related, not simply that it was just gang related . . . . [] . . . [T]he District Attorney is certainly entitled to argue that . . . there is a pattern of criminal activity in which your clients been involved in this gang, has a pattern of criminal activity, and that thisin order to determine what his specific intent was on this present incident, . . . we have evidence that in the past . . . hes committed these acts for the purposes of furthering the gangs activities as indicated by the fact that this 1998, it is gang-related activity. [] So I think theyre entitled to know what thesome of the facts are with respect to that particular incident.

At trial, Fowlie testified as an expert in the investigation of gang-related crimes in the Fremont area. He stated that the F.M.T. was an umbrella Norteno gang with approximately 400 members that claimed the entire city of Fremont and had active subsets in the Niles and Irvington areas. The Irvington subset itself has subgroups, including the Southside Fremont, or SSF, subgroup. Fowlie testified about a 1999 stabbing by another F.M.T. member, which offense did not involve defendant, and then that defendant was an F.M.T. member in 1998 when he approached a man in Fremont, asked him whether he was a scrap (which Fowlie said was a derogatory term for a Sureno) and stabbed him. This incident led to defendants felony conviction for assault with a deadly weapon. Fowlie also testified that defendant and Velazquez were F.M.T. gang members in 2004. He also testified that certain of defendants tattoos (which Fowlie viewed in photographs stipulated by the parties as fairly and accurately depicting these tattoos as of the summer of 2004) added to his view that defendant was an F.M.T. gang member in August 2004. This included a stomach tattoo of the word Fremont, with the F, M, and T enlarged, the tattoo of the Irvington monument on his back, the tattoo Norteno pride written on the back of his neck, and the tattoo IRV on his left wrist.

B. Discussion

1. The Admissibility of the Evidence

Defendant argues that the trial courts admission of evidence that he committed a 1998 assault with a knife violated his state and federal due process rights, requiring reversal of the first four counts. This contention lacks merit.

Section 186.22, subdivision (b)(1), allows enhanced sentencing for any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. To qualify as a criminal street gang, an organization, association or group must, among other factors, engage in or have engaged in a pattern of criminal gang activity. [ 186.22, subd. (f).] A pattern of criminal gang activity means, the commission of, attempted commission of . . . or conviction of two or more listed offenses committed on separate occasions or by two or more persons. (Id., subd. (e).) (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426.) In addition, the group must have as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute. (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Assault with a deadly weapon is one of the statutorily listed offenses. ( 186.22, subd. (e)(1).)

Generally, issues about the admission of evidence do not implicate federal constitutional rights. (See Estelle v. McGuire (1991) 502 U.S. 62, 68-72.) Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)

Evidence Code section 352 provides that a court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Evidence is unduly prejudicial which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) We review the trial courts section 352 determinations pursuant to an abuse of discretion standard (ibid), and will not reverse unless they exceed[] the bounds of reason, all of the circumstances being considered. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

The trial court did not abuse its discretion when it determined that the details of defendants 1998 offense, i.e., that he knifed a person on the street after asking if the person was a scrap, were relevant evidence. The general information about this prior offense was relevant as a predicate offense regarding the F.M.T. gang, as defendants proposed stipulation at trial conceded. The court acted within its discretion when it admitted further details of the prior offense because the evidence was relevant to show whether defendant had committed the present assault for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).) Indeed, the prosecution argued at trial that defendant acted in concert with other gang members after a gang memberthe man dressed in red pushing the stroller at the festival (which Fowlie testified was a Norteno gang colorhad been challenged by Guivi, who was accompanied by Walrod. The defendant, using Velazquezs knowledge of where Walrod lived, sought to act for the benefit of his gang. While the jury rejected the gang enhancement allegations, the courts admission of the disputed evidence cannot be said to be without reason under these circumstances.[2]

Defendant cites the prohibition in Evidence Code section 1101, subdivision (a), against admission of character evidence to prove conduct, and cases which caution against the admission of other crimes evidence because of its inherently prejudicial nature and the potential for violating constitutional due process rights. However, defendant acknowledges that the trial court has discretion pursuant to Evidence Code section 352 to admit such evidence when its probative value outweighs its prejudicial effect. While arguing that the trial court could have accepted the stipulation or had the prosecution introduce a different predicate offense, defendant fails to explain why the trial courts ruling exceed[ed] the bounds of reason, all of the circumstances being considered. (People v. Stewart, supra, 171 Cal.App.3d at p. 65.)

Specifically, defendant argues that the 1998 incident failed to show in any relevant way that the commission of the current offense was gang-related. The incidents were not particularly similar[.] This argument is incorrect; although only the 1998 incident involved defendants reference to scrap, both incidents arguably involved defendants commission of assault with a deadly weapon for the benefit of his criminal gang.

Defendant also argues that even if the 1998 incident was relevant to proving defendants assault of Walrod was gang-related, there was no reason to divulge that he used a knife to stab the victim, which prejudicial fact could not possibly establish a gang-related link to the current offense. We think the court reasonably decided that the details of the 1998 assault were relevant to showing defendants assault of Walrod was done with the specific intent to promote, further or assist in criminal conduct by gang members, i.e., to commit assault with a deadly weapon. Furthermore, Fowlies testimony was not particularly inflammatory, as he only briefly testified about a limited set of details, which arguably involved a less disturbing incident than the present one.

2. Harmless Error

Even if we assume for the sake of argument that the trial court erred by admitting the 1998 assault evidence, it was harmless error under either the federal or state standards. (Chapman v. California (1967) 386 U.S. 18, 24 [federal]; People v. Watson (1956) 46 Cal.2d 818, 836-837 [state].) Given the overwhelming evidence that defendant assaulted Walrod, the error was harmless beyond a reasonable doubt. Guivi, Walrod, and Oden testified with great clarity regarding defendants conduct leading up to, and including, his assault of Walrod.

Defendant seeks to raise doubts regarding this evidence. In his briefing, he points out certain inconsistencies, such as between Walrods trial testimony and initial statements to the police, and raises questions about the witnesses drinking, drug use, character, and/or legal difficulties. None of this explains the overwhelming evidence pointing to defendant as Walrods assailant. It is apparent that the witnesses were reluctant at first to disclose all they knew to the police, and there was no evidence that any were impaired in their perceptions when they observed defendants actions. Walrod and Oden were very certain that defendant was the man who put a knife to Walrods throat, and Walrods identification of defendant from a photo array a few days after the incident was compelling. There was no evidence that Walrod, Oden, or Guivi had any reason or opportunity to fabricate their testimony. Also, other evidence corroborated their accounts: the items taken from the Walrod residence were found in the apartment of defendants girlfriend, the girlfriends landlord testified that defendant and his girlfriend, with Velazquez, brought such items into the apartment the night of the assault, and a neighbor of Walrod testified that she saw Walrod run out of his house chased by someone, as Walrod described.

Defendant also argues that the jury considered this a close case based on its requests for readbacks, and its deliberations over three separate days for apparently 8 to10 hours. Defendant ignores the fact that the jury considered numerous counts and enhancements, regarding two defendants, and that its deliberations rejected the attempted murder and gang enhancement charges. In this context, their deliberations were not particularly lengthy, nor did any aspect of it indicate doubts that defendant committed the crimes alleged in the first four counts.

In short, there is no merit in defendants contentions that the trial courts purported error admitting evidence of the 1998 assault was prejudicial.

II. The Prosecutors Closing Argument Remarks

Defendant next argues that the prosecutor committed two instances of prejudicial misconduct in his closing argument. These arguments also fail.

A prosecutor may not encourage the jury to infer guilt from a failure to testify, or suggest that a defendant has a duty or burden to produce evidence or prove innocence, but may fairly comment on defendants failure to produce evidence and argue any reasonable inferences from the evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1340, People v. Wharton (1991) 53 Cal.3d 522, 567.) It is well established . . . that the rule prohibiting comment on defendant's silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Medina(1995) 11 Cal.4th 694, 755.)

Defendant first points to the prosecutors comment, after referring to defendants grandmothers testimony, that although other adults lived in defendants home, and perhaps were awake after 8:00 p.m. on the night in question, no one else was called to say what defendant had been doing later that evening. After defense objections were overruled, the prosecutor stated that certain people could have been called, such as other family members, brothers, sisters, mothers, and stated, that leaves something for you to wonder as well.

Defendant argues that these comments were effectively about defendants failure to testify. We disagree. They were about the defense failure to call logical third-party witnesses who might shed light on defendants whereabouts if he had not stabbed Walrod. They did not refer, expressly or impliedly, to defendants failure to testify and, therefore, were permissible.

Defendant also claims certain prosecutorial comments during rebuttal were improper. The defense had argued that the prosecution and police did not do a lot of things that could have dispelled reasonable doubt, which led to the following exchanges during rebuttal:

PROSECUTOR: Ms. Kingston was talking about the various things that may not have been done. No DNA, no fingerprints found, why werent the items fingerprinted, how about live lineups, police procedures, various things to basically throw you off. In any investigation, more can always be done. Our system is an adversarial system. That means that the People have a lawyer, each of these gentlemen has a lawyer. If they wanted a live lineup in 2004

MS. KINGSTON: Objection, Your Honor. Doyle.

THE COURT: The jury should disregard the comment. Go on, counsel.

PROSECUTOR: If they wanted the items fingerprinted, they could have fingerprinted them.

MS. KINGSTON: Objection, Your Honor. Doyle error.

THE COURT: Come to the bench, please.

(Whereupon, the discussion was held off the record.)

PROSECUTOR: It's a two-way street, things can be done.

MS. KINGSTON: Objection, Your Honor. Doyle error.

THE COURT: Jorors should disregard the statement.[3]

Defense counsel then requested that the court cite the prosecutor for misconduct and instruct the jury regarding that misconduct. She moved for a mistrial, and in the alternative, asked for a five-minute rebuttal, in particular because it was not a two-way street. I don't have those burdens. The court found that the prosecutors two-way street remark had to do with both sides having legal representation, not any defense burden of proof and, regardless, that since the jury had been told to disregard the remarks and would again be instructed on the Peoples burden of proof, there was no danger of any juror believing the defense had any burden of proof.

The next day, the court instructed the jury that it is the burden of the People to prove the defendants guilty beyond a reasonable doubt as to each element of each crime and offense that's been charged and that burden never shifts to the defense. And so notwithstanding some comments that . . . you may recall have been made during closing arguments . . . , the burden does not shift to the defendant to prove anything in this case.

Defendants arguments do not overcome the presumption that a jury directed to disregard an attorney's comment by the court does so. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.) Thus, we conclude that the trial courts quick directives and thorough instruction cured any problem that might have been caused by the prosecutors brief comments. This, along with the overwhelming evidence against defendant, which we have already discussed, establish that any error was harmless beyond a reasonable doubt. (See People v. Carter (2005) 36 Cal.4th 1215, 1267.)

III. The Consecutive Sentence for Assault

Defendant argues the trial court erred by sentencing him to a consecutive term for his assault conviction, rather than staying this term pursuant to section 654. This also lacks merit.

A. The Sentencing Hearing

At the sentencing hearing, the trial court stated that section 654s stay requirement applied to the burglary and robbery because they were one continuous course of criminal conduct. The court then stated:

However, this is not true as to the assault. In my view with respect to the evidence while the robbery was underway, Mr. Winters forced Mr. Walrod to his parents bedroom after Mr. Walrod volunteered that there was a gun stored in that bedroom. While there, for no apparent reason, Winters stabbed Walrod in the shoulder, told him it is time to die. At this point Walrod jumped up and freed himself from Winters. He ran out of the bedroom and through the house and straight through a closed screen door.

In the course of his flight he encountered a fence that he had to climb over to get away. Its his testimony that at the fence he realized Winters was nearby or right behind him or beside him and that there was a slight struggle, but Walrod was able to get over the fence at which point Winters apparently did abandon his chase.

Later at the hospital Mr. Walrod realized he had a second stab wound which he believed it may have been sustained at the fence. Its clear that the stabbings were committed well after the robbery was underway and they were not incidental to either the burglary or robbery and not committed to achieve the objectives of those offenses. This assault was a separate criminal act and thereforea separate criminal act and does not come within the purview of section 654.

The defense argued that section 654 precluded the trial court from imposing a consecutive sentence for the assault conviction because, among other things, the first thing [Winters] does is, you know, pulled Mr. Walrod with a knife. The court then further explained its thinking: I understand that the knifeputting the knife at the neck of somebody is part of the robbery clearly, but I think the evidence is pretty clear that the stabbings dont occur until much later when the robbery is well underway. In fact, one of the stabbings may have occurred after the robbery had been basically completed and the people weremost of the valuables were in their car and were ready to leave, so I dont think it is incidental in being a one continuous course of conduct, and thats my analysis.

The defense argued that, if the courts analysis were correct, the jury would have convicted defendant of attempted murder. The court responded that whatever the jurys thinking on the attempted murder charge, [t]hats a separate objective that is formed when those stabbings occur. They are not necessary or incidental to a robbery and they occur well within thewell after the robbery is already commenced.

B. Discussion

The trial courts conclusion that defendants assault of Walrod was not incidental to the robbery or burglary was supported by substantial evidence. Therefore, section 654s restriction did not apply to the sentence for this assault.

Section 654 states in relevant part 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

Section 654s protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Thus, it bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective. (People v. Lewis (2008) 43 Cal.4th 415, 519.) It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [] If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison, supra, 48 Cal.3d at p. 335.) Whether a defendant did in fact have multiple objectives is generally a question of fact for the trial court, and its decision will be upheld on appeal if supported by substantial evidence. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.)

Substantial evidence supported the trial courts conclusion that the stabbings were not incidental to the robbery or burglary. These other crimes were well under way and their objectives were not furthered by them. Walrod testified that when defendant first stabbed him, defendant had subdued him for more than 15 minutes, and numerous items had been removed from the house. Walrod only fought back and escaped after defendant stabbed him, thereby putting the robbery/burglary participants in more jeopardy than if defendant had not done so. The second stabbing occurred in the midst of a chase through the neighborhood that would appear to be contrary to the objectives of the burglary/robbery, since the chase threatened to expose something criminal was taking place that otherwise was not obvious to neighbors. Furthermore, the court carefully distinguished between defendants threatening Walrod with the knife so that the burglary/

robbery could proceed, and his stabbing of Walrod.

Defendant makes a number of unpersuasive arguments. He argues that there was no evidence that he entered the Walrod house for any reason other than theft, and that his assaultive conduct toward Mr. Walrodto keep Mr. Walrod from subverting the robberywas part and parcel of the robbery, but this ignores the circumstances surrounding the stabbing that the court relied upon. He argues that the fact that the stabbings occurred while the robbery was still going on indicates that they were incidental to that robbery and [defendants] intent to have the robbery succeed by preventing Mr. Walrod from thwarting it, but [i]t is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. (People v. Harrison, supra, 48 Cal.3d at p. 335.) Finally, he argues that if the jury had found defendants assaultive conduct to have a separate objective, it would have convicted him of a more serious offense than just an assault, such as the charged attempted murder. We fail to see the logic of this argument. The jury could conclude defendant did not intend to murder Walrod when he stabbed him, regardless of the acts relationship to the robbery and burglary.

IV. Lack of a Unanimity Instruction

Defendant next argues that the trial court committed prejudicial error and violated his state and federal constitutional due process rights by not instructing the jury that it had to unanimously agree on which of defendants acts constituted burglary. This is incorrect.

Section 459 provides in relevant part that [e]very person who enters any house [or] room . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. Defendant does not contend that the federal Constitution require that juries unanimously convict a defendant, but, quoting, Johnson v. Louisiana, that a substantial majority of the jury are to be convinced. (Johnson v. Louisiana (1972) 406 U.S. 356, 366 (conc. opn. of Blackmun, J).) Californias Constitution does require a unanimous jury verdict in a criminal case. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) This requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree the defendant committed.  (Ibid.) Thus, when applicable, a trial court has a sua sponte duty to instruct the jury that it must unanimously agree on which act constitutes the charged offense. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) However, [a] unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct. (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)

Defendant argues that the prosecution introduced evidence from which the jury could have concluded that he engaged in two separate burglaries, namely that he entered Walrods house either with the intent to steal or to murder or assault Guivi, and entered the master bedroom of the house with the intent to steal a gun from that room or assault Walrod. He also points out that the prosecutor discussed in his closing argument that if the jury found that defendant entered the Walrod house without the intent to commit theft, but instead just to kill Guivi, he nonetheless entered other rooms of the house, such as when he brought defendant to the master bedroom, with that intent.

Defendants arguments ignore the evidence, contained in Walrods and Odens testimony, that the group with defendant began looting after he put his knife to Walrods neck and pushed him back onto the living room couch, and that they did so throughout the house. Walrod testified that, when he found the group in his hallway, he began explaining to them they had to leave, at which point defendant suddenly jumped him, put a knife to his neck, and forced him back on the living room couch. Then, [p]eople started throwing stuff on the ground and pretty much looting. Walrod told them about the guns in the master bedroom to get people in the back, to get them out of my face, out of the area. He was held down on the couch for 5 to 10 minutes, during which time he heard noises everywhere in the house; later, he heard crashing noises from the bedroom. Oden testified that after defendant asked about the Afghan guy, an altercation began, and defendant put a knife to Walrods throat and he was pushed back onto the living room couch. Then, phones were ripped out of the sockets and the house was basically secured, and items of the house were removed. After he was moved to the kitchen, Oden heard loud crashing noises, and later observed that items were taken from the living and computer rooms. There were items recovered from defendants girlfriends apartment that had been taken from Walrods living room, computer room, and his closet. That defendant moved Walrod at knife point from one room to another during the course of this conduct and pursued the guns in the master bedroom, does not alter that this evidence indicates defendant and his companions acted in one continuous course of conduct from the moment defendant jumped Walrod, within minutes of entering the house. Their explosion into action supports only one conclusion: that they intended to loot the house from the moment they entered it. There was no evidence to the contrary. The prosecutors suggestion to the jury that it could also find a burglary had been committed based on defendants entry of the bedroom was argument only. Moreover, there was no evidence that defendant entered the house only to kill Guivi. While Oden testified that defendant asked where Guivi was just before he jumped Walrod, his doing so does not somehow undermine that he intended to loot the house; indeed, there was no evidence that defendant even waited for an answer before the looting commenced. Therefore, defendants unanimity argument lacks merit.

Assuming for the sake of argument that the trial court erred, the error was undoubtedly harmless given this evidence, whether evaluated under the federal or state standards for harmless error. (Chapman v. California, supra, 386 U.S. at p. 24 [federal]; People v. Watson, supra, 46 Cal.2d at pp. 836-837 [state].) Defendant argues that the jury could have determined that he entered Walrods house without a felonious intent. Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. (People v. Curry (2008) 158 Cal.App.4th 766, 783.)

V. Other Sentencing Issues

Defendant also argues that two of the courts sentencing decisions deprived him of his constitutional right to a jury trial as protected by Cunningham v. California (2007) U.S. 549 U.S. 270 (Cunningham). Both arguments lack merit.

At the sentencing hearing (prior to issuance of Cunningham, supra, U.S. 549 U.S. 270), the trial court sentenced defendant to the upper term of six years, which it doubled to 12 years due to the prior strike, for his burglary conviction. In doing so, the court affirmed its tentative ruling to base the upper term on two particular aggravating factors, they being that defendant acted with a high degree of viciousness, cruelty, and callousness, and committed a crime that was carried out in a manner that indicates planning, sophistication, and professionalism. At the hearing, the court also repeatedly referred to defendant's prior felony conviction, which it relied upon to double defendant's sentence pursuant to section 1170.12, subdivision (c)(1). However, the court did not refer to it when it listed the aggravating factors upon which it based the upper term sentence.

Under Cunningham, supra, U.S. 549 U.S. 270, the courts reliance on the two aggravating factors it mentioned constituted error. However, this error was harmless because beyond a reasonable doubt, . . . the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury. (People v. Sandoval (2007) 41 Cal.4th 825, 838.) It was undisputed that defendant had a prior felony conviction, had served time in prison, and that the present offense was committed while he was on parole. Therefore, the jury certainly would have found that he was a recidivist who had served time in prison and had failed on parole. (See Cal. Rules of Court, rule 4.421(b)(3) & (4).)

Regarding the consecutive sentence, our Supreme Court has held that Cunningham, supra, U.S. 549 U.S. 270, does not apply to such sentencing. (People v. Black (2007) 41 Cal.4th 799, 822-823.) Defendant concedes this is the case, and that we must follow this directive pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. We do so.

DISPOSITION

The judgment is affirmed.

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Lambden, J.

We concur:

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Haerle, Acting P.J.

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Richman, J.

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[1] All statutory references herein are to the Penal Code unless otherwise indicated.

[2] In light of our ruling, we do not address the other arguments made by the People regarding the admissibility of the evidence.

[3] The court gave its directives apparently because it was concerned the comments suggested the defense should have investigated the case and developed the evidence, implicating Doyle v. Ohio (1976) 426 U.S. 610, 618.