P. v. Brooks

Filed 12/2/09 P. v. Brooks CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

A jury convicted defendant Pharaoh Elisha Brooks of attempted willful, deliberate, and premeditated murder (Pen. Code, 664, 187),[1]residential burglary ( 459), and assault by means of force likely to cause great bodily injury ( 245, subd. (a)(1)). The jury also found true allegations of infliction of great bodily injury ( 12022.7, subd. (a)) as to each count.

On appeal, defendant contends that (1) insufficient evidence supported the attempted murder conviction, (2) the trial court erred in responding to the jurys request for a read back of testimony, (3) the jury should have been instructed on voluntary manslaughter, (4) CALCRIM No. 600 misinstructed the jury that it could infer that a direct step toward commission of murder indicated the requisite intent to kill, (5) the trial court abused its discretion in denying a continuance for defense counsel to locate a missing alibi witness, (6) the prosecutor committed misconduct by questioning witnesses about evidence not admitted at trial, and (7) the trial court should have stayed the sentence for burglary because it was part of an indivisible course of conduct in the commission of the attempted murder.

We shall order the sentence for the burglary conviction stayed pursuant to section 654. In all other respects, we shall affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

In December 2006, the San Joaquin County District Attorney filed an amended information charging defendant in count one with attempted willful, deliberate, and premeditated murder ( 664, 187), in count two with residential burglary ( 459), and in count three with assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). The information alleged that defendant personally inflicted great bodily injury ( 12022.7, subd. (a)). The information further alleged that a nonaccomplice had been present during the commission of the burglary ( 667.5, subd. (c)(21)), making the offense a violent felony.

Evidence adduced at trial showed that defendant and Mychal Lewis, Jr., had been friends for at least 13 years when they happened to run into each other at a shopping mall and at a mutual friends house on June 23, 2006. On both occasions, defendant and Lewis exchanged pleasantries and went about their separate ways. By all accounts, no one was aware of any current or past animosity between defendant and Lewis.

Sometime after 11:45 p.m. that night, Lewis arrived at the El Rancho Bar in Lodi. Upon arrival, he received a hug from his friend, Karen Sisneros. Sisneros was there with Melody Tucker. Sisneros and Tucker had been friends with defendant and Lewis for about three years.

Charles Thornburg, the security guard who was working at the El Rancho that evening, recalled seeing defendant there sometime that evening for a short time - arriving between 10:00 and 10:30 p.m. Tucker and the bartender did not remember defendant being at the bar that night. Sisneros was not asked about whether she saw defendant at the bar.

Sisneros, Tucker, and Lewis had a few drinks, spending an uneventful evening at the bar until it closed at 1:45 a.m. on June 24, 2006. They drove five minutes to Sisneross house and went to her bedroom.

Sisneros, Tucker, and Lewis relaxed and talked about Sisneross upcoming birthday. Sisneros was seated at her computer, Tucker was sitting on the edge of the bed, and Lewis stood near the bed. Lewis was looking at a photo album and had his back to the door.

About 10 to 15 minutes elapsed before defendant walked in with a silver baseball bat. Defendant had not been invited to Sisneross house, and she did not know he was coming over.

Defendant immediately hit Lewis in the head with the bat, causing him to collapse into Tuckers lap. Lewis was unconscious. Defendant appeared angry and continued to hit Lewiss head and back with the bat. For the next 30 to 90 seconds, defendant continuously rained hard blows on Lewis. Sisneros heard defendant say something about business before he ran out of the room.

Sisneros pulled Lewis off of Tucker, laid him on the ground, and put a pillow under his head. Sisneros turned Lewis on his side because blood was coming from his mouth. She then saw that he was bleeding all over. Sisneros called 911, and Tucker took over the call to explain the need for help. Sisneros then called Lewiss former girlfriend, Sara Gravelle, to tell her that she needed to come over quickly.

Gravelle arrived at Sisneross house shortly after the ambulance took Lewis to the hospital. Neither Sisneros nor Tucker initially told Gravelle or the police officer who first arrived at the scene what had happened other than that Lewis had been attacked with a bat. Sisneros and Tucker did not identify defendant to the police because they were afraid he would attack them too. Sisneros told the police officer only that the attacker was a black male, approximately 30 years old, and was wearing a dark t-shirt and jeans. Tucker told another officer that the attacker was six feet tall and weighed 210 pounds.

After the ambulance left Sisneross house, Gravelle and Sisneros drove to the hospital together. Sisneros then told Gravelle that defendant was the attacker.

Lewis arrived at the hospital in critical condition. He was in a coma and needed to be intubated to assist his breathing. Lewis had multiple skull fractures on the right side of his head. As a result, he was bleeding into his brain. Lewis was also bleeding externally from his face and right ear. Lewiss lung was bruised, and he had a lacerated liver.

Lewiss emergency room physician believed he might die from the injuries. Due to Lewiss grave condition, he was air-lifted to Stanford Medical Hospital where he remained in a coma for 38 days.

After Lewis was transferred to Stanford Medical Hospital, Sisneros and Gravelle drove to Stockton to tell his family what had happened. They arrived at the home of Helen Jones. Although Jones was not a blood relative, Lewis referred to her as his aunt because he had lived with her for several years while growing up. When Jones learned that defendant - whom she had known for years as Lewiss friend - was the attacker, she urged Sisneros to tell the police.

At 10:55 p.m. that evening, Sisneros spoke with Detective Nick Welton of the Lodi Police Department. Sisneros appeared to be nervous and afraid while recounting the attack. She did not identify the attacker. After speaking with Jones, Sisneros called the detective back at 12:30 a.m. on June 25, 2006. Shortly after 1:00 a.m., Detective Welton met with Sisneros. She identified defendant as Lewiss attacker. Later that day, Tucker spoke with Detective Tim Fritz and identified defendant as the attacker.

At 6:00 p.m., Detectives Welton and Fritz searched defendants residence pursuant to a search warrant. Defendant was not home. Shortly thereafter, Detective Welton learned that defendant had driven to Chicago, Illinois. On June 29, 2006, defendant was arrested in St. Louis, Missouri, during the first scheduled stop of a bus traveling from Chicago to Reno, Nevada.

Defendant testified on his own behalf. He recounted seeing Lewis at the shopping mall and at a mutual friends house on the day before the beating. Defendant and Lewis talked amicably for a few minutes on both occasions. They were not fighting about anything.

Defendant explained that he worked until 11:00 p.m. on June 23, 2006, and could not have been at the El Rancho bar between 10:00 and 10:30 p.m. as Thornburg had testified. After getting off work, defendant drove straight home and arrived at his house between 11:20 to 11:30 p.m. His girlfriend, Diana Murray, was there. About five to 10 minutes after defendant arrived at home, his friends John McNabb and Christopher Ramirez came to his house. McNabb and Ramirez stayed for about an hour.

Around 12:30 a.m., defendant drove to Safeway to shop for groceries. Defendant returned home by 1:00 a.m. and made himself something to eat. He testified to being in bed by 1:30 a.m. on June 24, 2006.

Defendant woke up between 10:00 and 11:00 a.m. He went to work from 2:30 until 11:00 p.m. at his job as a licensed vocational nurse.

The following day, Murray awakened defendant to tell him that her mother was ill in Chicago, Illinois. Defendant called another nurse at work, saying that he needed to take time off for a family emergency. The same day, defendant began the drive to Chicago with Murray. While driving, defendant received a call informing him that Lewis had been attacked and that the police had searched defendants house. Defendant planned to drop Murray off in Chicago before returning to California to turn himself in.

After arriving in Chicago, Murrays brother bought a ticket under his own name for defendant to travel to Reno, Nevada. Defendant planned to have his father, who lived in Nevada, drive him to Stockton to turn himself in. However, defendant was arrested when the bus stopped in St. Louis, Missouri.

Defendants father and several of his friends testified that defendant had a reputation for kindness and nonviolence.

McNabb corroborated defendants testimony about being at home the night of the crime. McNabb estimated that he and Ramirez left defendants house shortly after midnight.

Ryan Schenone, who bartended at the El Rancho bar on the night of the attack, testified that he did not see defendant at the bar that evening.

In his closing argument, defense counsel urged the jury to conclude that defendant was not the person who attacked Lewis. To this end, counsel argued: Theres certainly, as I said in my opening, no dispute about whether [Lewis] was injured. He certainly was. [] Obviously the only - and certainly that is, um, a tragedy that that happened, . . . but the only issue for you here is whether theres any reasonable doubt about whether [defendant] did this, whether hes in fact guilty.

The jury convicted defendant on all counts and found true all enhancement allegations.

On April 1, 2008, the trial court sentenced defendant to state prison for an indeterminate life term with the possibility of parole on count one; a consecutive determinate term of four years (the mid-term) on count two; and a consecutive mid-term sentence on count three, which was stayed pending successful completion of the sentence imposed for count two. The court also imposed a consecutive sentence of three years pursuant to section 12022.7, subdivision (a), for a total determinate sentence of seven years.

Defendant timely filed a notice of appeal.

DISCUSSION

I

Sufficiency of the Evidence

Defendant argues the evidence showed no motive for the attack and that the act of bringing a baseball bat to Sisneross apartment does not indicate a premeditated intent to kill. Thus, he asserts the evidence was constitutionally insufficient to support a finding of attempted willful, deliberate, and premeditated murder. We disagree.

A

As the California Supreme Court has explained, In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.) We apply an identical standard under the California Constitution. (Ibid.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) (People v. Young (2005) 34 Cal.4th 1149, 1175.)

If the evidence reasonably supports the jurys findings, the opinion of a reviewing court that the circumstances might also reasonably support a contrary finding does not allow for reversal of the judgment. (People v. Abilez (2007) 41 Cal.4th 472, 504.)

B

Defendant contends the lack of evidence regarding motive or planning to attack Lewis should be exonerating, and relies on People v. Anderson (1968) 70 Cal.2d 15 (Anderson) to support his argument. In Anderson, the California Supreme Court considered the types of circumstantial evidence that can support a finding of premeditation for a first-degree murder conviction. (Id. at p. 25.) The high court explained that the following three categories of evidence can sustain a finding of premeditated murder: (1) planning, (2) motive, and (3) the nature and manner of the attack. (Id. at p. 26.) However, Andersons categorization does not provide a definitive analysis of whether evidence suffices to support a murder conviction. As the Supreme Court later explained, In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. . . . The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)

Defendant contends the evidence disproves any ill will toward Lewis or planning to kill. In so arguing, defendant dismisses the act of bringing a bat with him and committing a vicious attack as insufficient to prove attempted murder.

We reject defendants contention that carrying a baseball bat to an attack precludes a finding of planning sufficient for attempted murder. In this context, premeditated means considered beforehand, and deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [Citations.] The process of premeditation and deliberation does not require any extended period of time. (People v. Mayfield (1997) 14 Cal.4th 668, 767.)

Here, the evidence showed defendant brought the weapon with him because Sisneros did not keep a baseball bat in her house. Defendants first blow to Lewiss head landed with such force that the victim immediately collapsed in an unconscious state. Defendant continued to employ the bat over and over again in striking the defenseless victim in the head and on his back. Defendants training and work as a licensed vocational nurse meant that he understood the consequences of repeatedly hitting someone in the head with a metal baseball bat.

The vicious and sustained nature of the attack provided the jury with ample evidence to find defendant acted with a premeditated and deliberate intent to kill Lewis. That the planning or method of the attack was not complex makes no difference because the absence of protracted and elaborate planning activity is not fatal to finding sufficient evidence of premeditation . . . . (People v. Millwee (1998) 18 Cal.4th 96, 134.) As Lewiss emergency room physician testified, the victim could have died from the injuries. Instead, Lewiss multiple skull fractures helped prevent fatal brain swelling. It is a mere fortuity that defendant did not face murder - rather than attempted murder - charges.

The evidence does not need to show why defendant tried to kill Lewis in order to establish that the nature of the attack, combined with defendants medical knowledge, proved an intent to kill. One may kill with or without a motive and still be found to have acted with express malice. An inference of intent to kill drawn on evidence of a purposeful shooting with lethal force under all the attendant circumstances can support a conviction of attempted murder even without evidence of motive. (People v. Smith (2005) 37 Cal.4th 733, 741-742.) So too, evidence of repeated forceful blows to the head with a metal baseball bat supports an attempted murder conviction even in the absence of any indication of motive.

The evidence adduced at trial amply supported the jurys conclusion that defendant committed attempted willful, premeditated, and deliberate murder.

II

The Jurys Request for a Read back of Testimony

Defendant contends the trial court erred by failing to notify defense counsel of the jurys request for a read back of Tuckers testimony. Defendant also argues the court erred in failing to allow the jury to rehear Tuckers testimony. We shall reject the contentions.

A

After several days of deliberations, the jury began anew on March 4, 2006, when a juror was replaced. The newly constituted jury requested (1) a read back of Sisneross testimony as it related to whether she saw defendant at the El Rancho bar on the night of the crime, and (2) the date when Thornburg was interviewed by the police. Sisneross testimony was read to the jury, and the court provided the date on which Thornburg was interviewed.

Late that afternoon, the jury submitted a written request for a read back of Melody Tuckers [sic] testimony regarding seeing [defendant] at the bar the night of February[2] 23-24, 2006. Defendant was present in court and was represented by defense counsel - albeit substitute counsel because of trial counsels illness.

The reporter read back Tuckers testimony as instructed by the court and requested by the jury. During the read back, defendant and defense counsel were present along with the prosecutor.

At no time during or after the read back did defense counsel lodge any objection to the read back or the courts responses to the jurys requests.

B

Contrary to defendants contention, the record shows defendant was personally present and represented by defense counsel during the courts consideration of the read back request, the jurys rehearing of the testimony, and the courts later discussion of the matter after the jury departed. Also, contrary to defendants assertion, the record shows the trial court discussed the jurys requests for rehearing testimony by Sisneros, Thornburg, and Tucker with defense counsel and the prosecution. At no time did defense counsel object to the manner in which the trial court responded to the jurys requests.

For lack of objection, defendant has forfeited any appellate challenge to the trial courts handling of the jurys request for a read back of Tuckers testimony. (People v. Bohana (2000) 84 Cal.App.4th 360, 373.) Rather than object to the courts ruling on the read back of Tuckers testimony, defense counsel acquiesced to the courts response. Defendants claim of error is forfeited. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)

C

Even if defendant had not forfeited the issue regarding the jurys rehearing of Tuckers testimony, we would still find his argument to be meritless. Defendant contends the trial court disallowed the jury from hearing Tuckers testimony and then compounded the error by reporting there was no testimony regarding her seeing defendant at the bar on the night of the attack. The record refutes defendants contention.

During the afternoon session on March 4, 2006, the trial court and jury foreperson clarified the request for reading back the testimony of witnesses. The jury foreperson stated the desire to hear Tuckers testimony, and the court instructed the reporter to read back the testimony.

The record indicates the jury heard the portions of the testimony it wished to hear, including the part in which Tucker stated she did not see defendant the entire night of the attempted murder. After the read back, and outside the presence of the jury, the prosecutor noted the part of Tuckers testimony that had been read back included the portion in which she said she didnt see him at the bar, but I dont think that was [a] direct question. The prosecutors remark refers to Tuckers direct examination during trial in which she answered as follows:

Q. [Prosecutor] After the attack - okay, let me back up a little bit, Im going to strike that. [] Prior to [defendant] entering the bedroom

A. Uh-huh (affirmative).

Q. - did you expect [defendant] into the - in the home?

A. No, I hadnt seen him the whole night.

As both parties acknowledge in their briefs, this was Tuckers only answer touching on the issue of whether she saw defendant at the El Rancho bar on the night of the attack. For this reason, the court did not err in telling the jury that Tucker had not testified regarding whether she saw defendant at the bar that night.

Even if the trial courts response erred, the error would be harmless. The jury actually heard a read back of Tuckers testimony that she had not seen defendant prior to his attack on Lewis. Even if the courts response had been incorrect, it is not reasonably likely that the jurys verdict would have been any different absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

III

Request for Voluntary Manslaughter Instruction

Defendant contends the jury should have been instructed on attempted voluntary manslaughter. In the absence of any evidence of provocation, we affirm the trial courts refusal to give an attempted voluntary manslaughter instruction.

A

In a criminal trial, the court has a duty to instruct the jury on any offense necessarily included in the charged offense if substantial evidence supports a finding of the lesser crimes commission. (People v. Birks (1998) 19 Cal.4th 108, 112.) [A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (Id. at pp. 117-118.) This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. (Ibid.)

The trial court must instruct on lesser included offenses even in the absence of a request so long as a reasonable jury could find the evidence of the lesser offense persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645.) Conversely, even on request, the court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1215, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1008.) In assessing a claim of failure to instruct on a lesser included offense, we review independently the question whether the trial court failed to instruct on a lesser included offense. (People v. Cole, supra, at p. 1215.)

B

As the California Supreme Court recently explained, Manslaughter, an unlawful killing without malice, is a lesser included offense of murder. (People v. Koontz (2002) 27 Cal.4th 1041, 1086; see 192.) Although section 192, subdivision (a), refers to sudden quarrel or heat of passion, the factor which distinguishes the heat of passion form of voluntary manslaughter from murder is provocation. (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Rios (2000) 23 Cal.4th 450, 461 [certain mitigating circumstances will reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice (italics omitted)].) The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Lee, supra, 20 Cal.4th at p. 59.) [T]he victim must taunt the defendant or otherwise initiate the provocation. (People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v. Manriquez (2005) 37 Cal.4th 547, 583-584, (Manriquez).) The heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances. . . . (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) [I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter. (People v. Daniels (1991) 52 Cal.3d 815, 868.) (People v. Avila (2009) 46 Cal.4th 680.)

Although attempted voluntary manslaughter is a lesser included offense of attempted murder (People v. Heffington (1973) 32 Cal.App.3d 1, 11), the evidence adduced at trial failed to show any provocation that could support an attempted voluntary manslaughter conviction. As defendant elsewhere points out, none of the witnesses knew of any animosity between defendant and Lewis. Nor did any witness observe Lewis engage in provocation, taunting, or offensive behavior toward defendant at any time during their years of friendship. Nothing remotely approaching the sort of behavior that might inspire a homicidal rage in an otherwise reasonable person can be gleaned from the record.

Defendant imagines the jury could have found a basis for attempted voluntary manslaughter in the fact that he appeared angry at the time of the attack. Defendants anger, however, had no discernable cause. The only explanation for the attempted murder was some mumbling by the defendant about business.

The evidence showed no provocation by Lewis. Defendant testified that, on the day before the attempted murder, he twice met Lewis. Both at the shopping mall and at a mutual friends house, Lewis and defendant briefly exchanged pleasantries. That night, Lewis did not argue with anyone at the El Rancho bar. Although the bars security guard testified he had seen defendant at the bar that evening, the guard did not observe Lewis get into a fight with anyone. In short, the record is devoid of any provocation or taunting by Lewis on the night of the attempted murder.

Bereft of evidence supporting provocation, defendant turns to the prosecutors closing argument in an attempt to justify an attempted voluntary manslaughter instruction. A trial court's sua sponte duty to instruct on lesser included offenses arises, however, not from the arguments of counsel but from the evidence at trial. (People v. Barton (1995) 12 Cal.4th 186, 203.) Thus, the prosecutors reference to heat of passion in describing the extreme viciousness of the attack does not provide an evidentiary foundation for an attempted voluntary manslaughter instruction. Moreover, we do not see how the prosecutors argument that defendant was at the El Rancho bar on the night of the attack provides any basis for the manslaughter instruction. Defendants mere presence at the bar does not prove that he was provoked while there.

The total lack of evidence of provocation compels us to conclude that the trial court properly denied defendants request for an attempted voluntary manslaughter instruction.

IV

CALCRIM No. 600 (Attempted Murder Instruction)

The trial court instructed the jury pursuant to CALCRIM No. 600, as follows: The defendant is charged with attempted murder. [] To prove that the defendant is guilty of attempted murder, the People must prove that: [] 1. The defendant took at least one direct but ineffectual step toward killing another person; [] AND [] 2. The defendant intended to kill that person. [] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. (Italics added.)

Defendant contends the italicized sentence improperly suggested that evidence of a direct step established a conclusive inference of intent to kill.

We need not decide whether the italicized sentence correctly stated the law. For present purposes, we shall assume for the sake of argument that the italicized sentence was erroneous and should not have been included in CALCRIM No. 600. On this record, any error was clearly harmless beyond a reasonable doubt.

Although federal due process guarantees encompass a defendants right to have the jury properly instructed on each element of charged offenses, we must nonetheless affirm if the error is harmless beyond a reasonable doubt. (Carella v. California (1989) 491 U.S. 263, 265 [109 S.Ct. 2419, 105 L.Ed.2d 218]; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Here, we conclude the error is harmless beyond a reasonable doubt when considering the evidence of intent to kill adduced at trial and the parties arguments regarding defendants culpability.

Defendant argues that the subject sentence wrongfully allowed the jury to find that defendant intended to kill Lewis. However, the manner of defendants attack on Lewis supported a strong inference of an intent to kill. As we noted in part IB., ante, defendant swung a metal bat against Lewiss head with such force that the victim was rendered unconscious. Despite the victims immediate collapse, defendant continued to rain hard blows on Lewis. The blows were not haphazard or light but were delivered forcefully to Lewiss head and back. The force of the attack caused multiple fractures to his right temporal bone, mastoid bone, right skull base, right parietal bone, and occipital bone. The injuries were so severe that Lewis could have died rather than waking up from a coma more than six weeks later. Moreover, defendants training as a vocational nurse allowed him to appreciate the damage caused by blunt force attacks. The deliberate and repeated swings of a metal bat against the victims head supported a strong inference of an intent to kill.

At trial, defendant did not attempt to argue the attack failed to establish an intent to kill. Instead, his sole defense focused on proving that he was not the person who attacked Lewis. To this end, defendant testified to a sequence of events that placed him away from the scene of the crime. Specifically, defendant asserted that he was at home in bed when Lewis was beaten. Moreover, defendant called several witnesses to show that his nonviolent nature precluded him from engaging in the sort of vicious beating that nearly took Lewiss life.

During closing arguments, defense counsel did not argue that the attack failed to show an intent to kill. Instead, counsels only reference to the manner of attack came in the form of an acknowledgement that the beating and Lewiss injuries were a tragedy. Relying on defendants testimony about being at home during the attack, defense counsel urged the jury to conclude that some unknown person was the culprit. In short, defendants direct testimony and arguments focused exclusively on showing he was not the attacker.

The subject sentence in CALCRIM No. 600 was not relied upon or mentioned by either side during closing arguments. Although the prosecutor argued that the manner of the attack demonstrated an intent to kill, he did not quote or refer to CALCRIM No. 600 in order to support his argument. The prosecutor did not refer to any instructions in urging the jury to conclude that employing a metal bat repeatedly against Lewiss head clearly showed an intent to kill.

The evidence of the attack strongly indicated an intent to kill, which was not challenged by any defense evidence or argument. We are confident that the jury would have found an intent to kill even if the challenged sentence had not been included in CALCRIM No. 600. Any error in CALCRIM No. 600 was harmless beyond a reasonable doubt.

V

Request for Continuance to Locate Alibi Witness

Defendant argues the trial court abused its discretion in denying a four-day continuance of trial to allow him to locate an alibi witness. We reject the argument.

A

Jury selection was scheduled to begin on Thursday, January 24, 2008. Before jury selection began, defense counsel requested that trial be postponed until after the weekend so that he could locate witness, Diana Murray. Defense counsel was worried because he was unable to reach her by telephone to confirm that she would arrive in time to testify. Counsel expected Murray to testify that she was at home with defendant until a half hour before the attack occurred. The defense also hoped to have Murray testify that defendant drove her to Chicago to visit her ailing mother, rather than to flee California.

Prior to the request for continuance, the defense did no more than mail her a subpoena and call her telephone number a few times. The trial court noted the weather in Chicago had been severe and wondered whether that explained the lack of service on Murrays telephone line. Defense counsel indicated that he would contact the telephone company to ascertain whether the problem was temporary.

The trial court denied the motion for a four-day continuance, noting that the 30 witnesses planned to be called by the parties meant that several weeks of trial were likely to occur before Murrays turn as a witness would arrive. Further, the court indicated that it would allow Murray to testify out of order in an effort to accommodate her. The prosecution agreed that Murray could be called out of order. Thus, the trial court denied the requested four-day continuance.

The defense made no later request for a continuance of trial to locate or accommodate Murray. Although defendant asserts the defense still had been unable to reach Murray at the time of closing arguments, the record does not support this assertion. The lack of testimony by Murray was discussed near the end of trial, but only in the context of defense counsels objection to the prosecutors question about an out-of-court statement by Murray. Defense counsel made no claim or showing that Murray was unavailable.

The defense rested without calling Murray as a witness.

B

Subdivision (e) of section 1050 provides, in relevant part: Continuances shall be granted only upon a showing of good cause. As the California Supreme Court has explained, When a continuance is sought to secure the attendance of a witness, the defendant must establish he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. (People v. Howard [(1992) 1 Cal.4th [1132,] 1171.) (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)

A trial courts denial of a motion for continuance is reviewed for abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at p. 1037.) An abuse of discretion will be found only when the trial court has acted in a manner that is arbitrary, capricious, or exceeds the bounds of reason. (People v. Beames (2007) 40 Cal.4th 907, 920.) Because the trial court has broad discretion in this respect, an order denying a continuance is seldom successfully attacked. (Ibid.)

Here, the trial court did not abuse its discretion in denying defense counsels request for a continuance. Although counsel asserted that Murrays testimony was necessary to establish an alibi defense, counsel failed to demonstrate due diligence in attempting to secure her testimony. When defense counsel requested the continuance, he had only placed a few phone calls to her after she had been mailed a subpoena. Defense counsel offered no other evidence of any other method of contact.

Defendant testified that, while in Chicago, he had been to the homes of Murrays mother, grandmother, and another unidentified relative. However, the record shows no efforts to reach Murray at any of those addresses even though her grandmothers house was a place where everyone usually is.

A mailed subpoena and a few phone calls do not establish reasonable diligence in attempting to locate a key witness. It has been said that the word diligence connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. (People v. Sanders (1995) 11 Cal.4th 475, 523.) Defense counsels failure to send even a follow-up letter to Murrays mailing address or to check whether her phone line was temporarily or permanently disconnected simply did not constitute diligence. Accordingly, the trial court did not abuse its discretion in denying the requested continuance.

VI

Prosecutorial Misconduct

Defendant contends the prosecutor committed four instances of misconduct by referring to evidence not admitted at trial. Although the prosecutor did cross-examine defense witnesses about matters not in evidence, we conclude the effect of the questioning did not result in prejudice to defendant.

A

Defendant first assigns misconduct to the prosecutors questioning of defense witness, John McNabb, who testified he had been at defendants house on the night of the attack. The prosecutor questioned McNabb as follows:

Q. . . . Now, according to Chris[topher Ramirez], he said that you stated [defendant] - that both of you stayed at [defendant]s for about an hour to an hour and a half, is that correct?

A. Yes.

[Defense counsel]: Object, it sounds like counsels testifying what Chris said. It was a little - question was vague.

THE COURT: Sustained.

[Prosecutor]: Q. Well, Christophers indicated [sic] to other - to other investigators that he may - you may have stayed there for longer than just 30 minutes. Is it possible that you stayed longer at [defendant]s house?

A. It could have been 45 or something like that, but it was not an hour and a half.

Q. No hour and a half?

A. No sir.

[Defense counsel]: Move to strike counsels testimony as to what Christopher told investigators.

THE COURT: Well. . . at this point Im going to deny the - overrule the objection.

[Prosecutor]: Q. So it could have been longer than just 30 minutes.

A. Um. . . It - it could have. I - I - it was two years ago, I . . . .

The prosecutor also asked McNabb about defendants purchase of a bus ticket from Chicago under someone elses name.

[Prosecutor]: So according to you, youre saying that hes a peaceful person, correct?

A. Yes, sir.

Q. And that he follows the law?

A. Yes, sir. Or as far as I believe. Hes a frequent in the church, and all that. I mean . . .

Q. Do you know why [defendant] then would use a different name to purchase bus tickets when he was transferring from St. Louis to

[Defense counsel]: Im going to object as speculation and beyond the scope of the direct.

THE COURT: Sustained. [] Next question.

Although defense counsels objection was sustained, he did not request the jury be admonished.

Defendant next focuses on the prosecutors questioning of Donald Brooks (defendants father) about defendant using someone elses name to purchase the bus ticket. The prosecutor engaged in the following cross-examination:

Q. Did you know that when he acquired the bus tickets he used a a different name?

A. No.

[Defense counsel]: Im going to object, hes calling for speculation, basis and knowledge. And counsels also testifying about hearsay.

THE COURT: Overruled.

THE WITNESS: No. I did not know.

Defendant also assigns error to the prosecutors asking defendant - who testified on his own behalf - about a statement Murray had made to the prosecutions investigators.

Q. Why is it then when our investigator spoke with Diana Murray she indicated to us on June

[Defense counsel]: Objection.

THE COURT: Excuse me, one moment.

[Defense counsel]: Objecting because Counsel is about to testify to hearsay.

[Prosecutor]: The question isnt even out, Judge.

THE COURT: I think the objection otherwise is well taken, if it does call for hearsay, it appears to.

[Prosecutor]: Q. According to Ms. Murray she said she didnt know where you went out that night. Did you go to Safeway that night?

[Defense counsel]: Same objection.

THE COURT: Sustained.

[Defense counsel]: Ask that it be stricken.

THE COURT: Stricken.

Defendant argues these four instances of cross-examination by the prosecutor violated his federal and state constitutional rights.

B

The California Supreme Court has explained that a prosecutor commits misconduct by asking a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means. [Citation.] For a prosecutor's question implying facts harmful to the defendant to come within this form of misconduct, however, the question must put before the jury information that falls outside the evidence and that, but for the improper question, the jury would not have otherwise heard. (See People v. Warren (1988) 45 Cal.3d 471, 481 [describing the gist of the misconduct as implying in the question facts [the prosecutor] could not prove].) (People v. Earp (1999) 20 Cal.4th 826, 859-860, italics omitted.)

Misconduct by a prosecutor violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Even if the misconduct does not render the trial fundamentally unfair, it nonetheless violates the California Constitution if it amounts to the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Hill, supra, at p. 819, quoting People v. Espinoza (1992) 3 Cal.4th 806, 820.)

We agree with defendant that the prosecutor improperly referred to statements by Ramirez (who did not testify) in questioning McNabb about how long he had been at defendants house on the night of the attack. Nonetheless, we agree with the Attorney General that the error was harmless. The prosecutor sought to show that McNabbs estimate of a half-hour stay at defendants house could have been mistaken. McNabb acknowledged that he and Ramirez could have been at the house for as long as 45 minutes - longer than he initially allowed.

Although improperly referring to out-of-court statements made by Ramirez, the prosecutors questioning of McNabbs time estimates did yield a concession by McNabb that his initial estimate could have been different. Moreover, a longer time estimate by McNabb did not hurt the defense because defendant himself testified that McNabb and Ramirez stayed for about an hour. After they departed, defendant admitted he left his house to go shopping at Safeway at about 12:30 a.m. McNabb was unaware of what defendant did after he and Ramirez left. It was after defendant left his house that the attack on Lewis occurred. The length of McNabbs stay at defendants house did not address the main issue regarding where defendant went after he left his house. McNabbs testimony did not foreclose defendants opportunity to travel to Sisneross house to attack Lewis.

The second claim of misconduct focuses on a question regarding defendants purchase of a bus ticket under another name. The trial court sustained defendants objection to the question. Defense counsel, however, did not request an admonition. Because an admonition would have cured any harm, the point is not preserved for review. (People v. Price (1991) 1 Cal.4th 324, 485; People v. Miller (1990) 50 Cal.3d 954, 1001.)

Defendant next assigns error to another question by the prosecution regarding knowledge of defendants use of a false name while traveling by bus. The question constituted misconduct only if the prosecutor sought to use the question to introduce evidence he was otherwise unable to prove. (People v. Earp, supra, 20 Cal.4th at p. 860; People v. Warren, supra, 45 Cal.3d at p. 481.) The prosecutor was able to secure an admission by defendant that he bought the bus ticket under another name. There was no error or prejudice resulting from the jury hearing about the fact of defendants travel under a false name when he himself admitted it. (Ibid.)

Defendants last assignment of misconduct pertains to the prosecutors reference to an out-of-court statement made by Murray. Defense counsel objected and asked that the question be stricken. The court sustained the objection and ordered the question stricken. However, defense counsel did not ask that the jury be admonished. For lack of request for admonishment, defendant has forfeited any claim of prejudice arising from the improper question. (People v. Earp, supra, 20 Cal.4th at p. 860.)

C

As part of the argument regarding prosecutorial misconduct, defendant argues that his attorney rendered ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. (Williams v. Taylor (2000) 529 U.S. 362, 390-391 [120 S.Ct. 1495, 146 L.Ed.2d 389].) Further, the defendant must show that the deficient performance prejudiced the defense. (Ibid.)

Defendants claim of ineffective assistance does not refer to the failure to request an admonishment of the jury after improper questioning, but instead concerns a lack of objection to the prosecutors closing argument. Specifically, defendant focuses on the following argument by the prosecutor: Where is Ms. Murray? The one person, their one person that can save [defendant] right now is Diana Murray. Is [sic] where is she? Shes a logical witness. She is the one person that can tell us, We had chicken wings that night. That morning. We went to Chicago. We took this route. We took these hotel rooms. Shes the one person. And according to [defendant], they were really close, he was thinking of marrying her. They were girlfriend and boyfriend. She was living with him. She moved from Chicago to San Joaquin County.

Defendant argues that defense counsel should have objected to the prosecutors argument because Murray was an unavailable witness. Not so. The defense never established that Murray was unavailable.

As we explained in part VA., ante, defense counsel stated he was unable to reach Murray prior to trial. By making only a few phone calls to her after mailing a subpoena, defense counsel did not demonstrate anything more than cursory efforts to secure Murrays testimony. The record is devoid of efforts to reach Murray at any of the three houses in Chicago belonging to her family members. Defendants failure to demonstrate that Murray was unavailable meant that it was appropriate and permissible for the prosecutor to comment on the failure to call her as a defense witness. (People v. Ford (1988) 45 Cal.3d 431, 447.) Lacking a basis for objecting to the prosecutions comment on the defenses failure to call Murray as a witness, counsel was not ineffective for failing to object.

The record demonstrates no prejudice to defendant resulting from the prosecutors cross-examining of defense witnesses regarding evidence outside the record or due to defense counsels failure to object to the prosecutions comment on the failure to call Murray as an alibi witness. The questions and closing argument that defendant challenges as misconduct all focused on events before and after the attack on Lewis. Thus, the evidence that it was defendant who brutally beat Lewis in front of Sisneros and Tucker was not undermined. Defendants argument thus cannot succeed for lack of prejudice.

VII

Imposition of Consecutive Sentence for Burglary

Finally, defendant argues the trial court erroneously imposed a consecutive sentence for count two (burglary), when the sentence should have been stayed pursuant to section 654. The Attorney General agrees that section 654 bars consecutive sentencing on the burglary count because the objective of the burglary was to commit assault with a deadly weapon or to kill Lewis. We shall order that the sentence for burglary be stayed.

Section 654 provides, in relevant part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. The section precludes imposition of multiple punishments for conduct that violates more than one criminal statute but which constitutes an indivisible course of conduct. (People v. Perez (1979) 23 Cal.3d 545, 551-552.) Section 654 serves to match a defendant's culpability with punishment. (Id. at p. 551.)

Defendant was convicted of attempted murder in count one and of burglary in count two. Both offenses arose from defendants attacking Lewis with a baseball bat in Sisneross house. The evidence showed that defendant entered Sisneross bedroom and immediately began to beat Lewis. After hitting Lewis for 30 to 90 seconds, defendant ran out. The evidence shows no other objective by defendant other than to kill Lewis.

Lacking any evidence of multiple, independent objectives by defendant when he entered Sisneross house, the sentence for burglary must be stayed under section 654. (People v. Perez, supra, 23 Cal.3d at p. 551.)

DISPOSITION

The judgment is modified by staying service of the sentence imposed for count 2 (burglary). Consequently, defendants total determinate sentence is three years, which is consecutive to his indeterminate sentence of life in prison with possibility of parole. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a certified copy of the same to the Department of Corrections and Rehabilitation.

SIMS , Acting P. J.

We concur:

HULL, J.

BUTZ , J.

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[1] Undesignated statutory references are to the Penal Code.

[2] The jury clearly meant to refer to June 23-24. It correctly indicated the June dates on the second part of the request for a read back of Thornburgs testimony.