Filed 8/27/13 P. v. Alphonso CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061986

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD235703)

ASA ANTHONY ALPHONSO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, George W.

Clarke, Judge. Affirmed as modified and remanded with directions.



         Tracy A. Rogers under appointment of the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
       In this domestic violence and rape case, a jury found Asa Anthony Alphonso

guilty of nine felony offenses against Michelle C.1 during two incidents as follows: two

counts of inflicting corporal injury on a cohabitant (counts 1 & 6: Pen. Code,2 § 273.5,

subd. (a)); two counts of false imprisonment by violence (counts 2 & 7: §§ 236 & 237,

subd. (a)); one count of assault with a deadly weapon (a knife) and force likely to cause

great bodily injury (count 3: § 245, subd. (a)(l)); one count of assault by means of force

likely to cause great bodily injury (i.e., suffocation) (count 4: § 245, subd. (a)(l)); one

count of attempting to dissuade a witness from reporting a crime (count 5: § 136.1, subd.

(b)(l)); one count of forcible rape (count 8: § 261, subd. (a)(2)); and one count of making

a criminal threat (count 9: § 422).

       In addition, the jury found true allegations that in committing the count 6 offense

of inflicting corporal injury on a cohabitant Alphonso personally used a deadly or

dangerous weapon (a lit cigarette) within the meaning of sections 12022, subdivision

(b)(1) and 1192.7, subdivision (c)(23). Alphonso admitted he had sustained three prior

prison term convictions (§ 667.5, subd. (b)) and two prior strike3 convictions (§ 667,

subds. (b)-(i)).


1     In the interest of protective nondisclosure, we will refer to Michelle C. by her first
name. We intend no disrespect.

2      Undesignated statutory references will be to the Penal Code.

3     "We use the term 'strike' to describe a prior felony conviction that qualifies a
defendant for the increased punishment specified in the Three Strikes law." (People v.
Fuhrman (1997) 16 Cal.4th 930, 932, fn. 2.)

                                              2
       At the sentencing hearing, the court denied Alphonso's motion for a new trial,

which was based on his claim of newly discovered evidence and also denied his motion

to dismiss one of his prior strikes. The court sentenced Alphonso for his count 8 rape

conviction to a prison term of 25 years to life, plus a consecutive term of three years for

the three prison priors, and to a consecutive term of 25 years to life for his count 3

conviction of assaulting Michelle with a deadly weapon and force likely to cause great

bodily injury, plus a consecutive term of three years for the prison priors. For each of the

remaining seven counts (counts 1, 2, 4, 5, 6, 7 & 9), the court imposed a concurrent term

of 25 years to life, plus three years for the prison priors. Thus, the court imposed a total

prison term of 50 years to life plus six years.

       Alphonso raises three contentions on appeal. First, he contends the court violated

his rights under the federal Constitution and committed reversible error during jury

selection when defense counsel made a Batson/Wheeler4 objection that the prosecutor

had used peremptory challenges to "eliminate[] every minority juror that's been on the

panel so far," and the court ruled the defense had failed to meet its threshold burden of

making a prima facie case of group bias discrimination. Second, he contends the court

prejudicially abused its discretion and violated his right to present a defense by denying

his motion for a new trial based on newly discovered evidence. Last, he contends his

sentences on counts 1, 2, 4, 6, 7 and 9 should have been stayed under section 654. We

modify the judgment to stay the execution of the concurrent sentences of 25 years to life,


4     Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler).
                                              3
plus three years, that the court imposed for Alphonso's conviction of counts 1, 2, 4, 6, 7,

and 9. In all other respects, we affirm the judgment and remand the matter with

directions.

                               FACTUAL BACKGROUND

       A. The People's Case

       Michelle testified that she met Alphonso through an online dating service as she

was going through a divorce, and they had an "off and on" two-and-a-half-year

relationship that ended in July 2011. The two were cohabitating at her apartment in

San Diego at the time the crimes were committed in this case. Alphonso was nice and

friendly when their relationship started, but he became verbally and physically abusive

over time. He accused Michelle of dating other people and called her names like

"[w]hore, slut, bitch, [and] stupid."

       Alphonso first used physical violence against her after about a year, when he

grabbed her arm in her bedroom, twisted her hand behind her back, and pushed her neck

and head forward, causing her head to hit a bench. Alphonso apologized, and Michelle

stayed with him because she believed he was sorry and would not do it again.

       Thereafter, for more than half a year, Alphonso verbally abused Michelle, but did

not physically abuse her. Although she tried to break up with him many times, she would

end up reconciling with him when he was nice to her.




                                             4
       After they broke up in February 2011, Alphonso sent texts and phone messages to

Michelle in which he threatened to ruin her by sending naked photographs of her to her

mother, children and family. He then posted naked photographs of her on Craigslist.

Michelle called the police and also called Craigslist to have them remove the

photographs. She reconciled with Alphonso about a month later because he apologized

to her, she loved him, and she hoped they could stay together. However, Alphonso

resumed the physical and verbal abuse.

       Michelle testified that Alphonso held her hostage in February 2011. She tried to

leave her apartment when Alphonso became very angry, but he grabbed her, pushed her

back inside, and locked the door. When she then tried to leave through the sliding glass

door, he again grabbed her, pushed her back inside, locked that door, shut the curtains,

turned up the music, and told her, "That's so nobody can hear you screaming." Michelle

stayed on the couch for several hours and did not call for help because Alphonso was

angry and violent, and she did not want to get hurt. Alphonso eventually calmed down

and apologized. Michelle did not call for help because she believed Alphonso would kill

her if she did so.




                                             5
Counts 1-5 and 9

       On July 19, 2011—the date of the first incident on which counts 1-5 were based in

this case5—Alphonso again held Michelle hostage, this time in her bedroom for nine

hours. She testified she had been sick and was lying down on her bed in the afternoon

when Alphonso arrived. He was angry that she was still lying down and accused her of

being up all night sleeping with other men. He yelled at her, spat on her, and called her

names. Michelle tried to escape through the door before Alphonso got too angry, but he

grabbed her, pushed her, told her to return to the bedroom, and locked the door.

Alphonso told her to stay on the bed and took her phone. When Michelle's mother called

her, Alphonso answered the phone and told her Michelle was a bad person.

       During this incident, Alphonso kicked Michelle's leg, causing bruising and

swelling. He also hit her calf where he had recently tattooed his first name even though

she was reluctant to have him do so. The tattoo was infected, red and swollen. Alphonso

also hit her in the head and face with an open hand 20 to 30 times, hit her in the head with

the remote control, grabbed her hair and banged her forehead against the wall, and twice

cut off her breath by smothering her with a pillow. When Michelle went to the bathroom,

Alphonso grabbed her hair, took a knife out of a drawer, held it against her temple, and

told her to look at the knife because he was going to kill her with it. Alphonso also




5      The information charged Alphonso in counts 1 through 5 with corporal injury on a
cohabitant, false imprisonment by violence, assault with a deadly weapon, assault by
means of force likely to cause great bodily injury, and attempting to dissuade a witness,
respectively, and alleged he committed these offenses on or about July 19, 2011.
                                             6
threatened to kill her when she was on the bed. He restrained her by holding her arms

against the bed and sitting on her legs.

       After the ordeal, Michelle had bruises and lumps all over her forehead and

bruising around her eyes from being hit in the eye with the hard part of a stuffed animal.

She testified she did not leave after Alphonso calmed down because he threatened to kill

her if she left or tried to get help.

       The next day, Michelle cancelled her appointment with her therapist, Sandra

Gorchow, because Alphonso did not want Gorchow to see Michelle's bruised eye.

       Counts 6-9

       The second incident—on which counts 6-9 were based6—occurred on July 21 or

22 and lasted about six hours. Alphonso again accused Michelle of sleeping with other

men. She testified that when she saw him getting angry, she thought, "Here it goes

again." She did not try to leave, and she complied when Alphonso told her to get on the

bed. He told her he was going to burn her with cigarettes. He went outside to get the

cigarettes because she did not allow smoking inside the apartment. She could have

locked him out on the balcony when he went to get the cigarettes, but she did not do so.

Michelle testified that when Alphonso returned, he lit a cigarette, sat on the bed, grabbed

her legs, pulled them over to him, and "started burning [her] feet and upper—or lower

part of [her] right leg." He burned her eight times and it was very painful.



6      The information charged Alphonso in counts 6 through 9 with corporal injury on a
cohabitant, false imprisonment by violence, forcible rape, and making a criminal threat,
respectively, and alleged he committed these offenses on or about July 21 and 22, 2011.
                                             7
       Michelle also testified that Alphonso threatened to kill her "many times" that day.

He threatened to put a wet towel over her, tie her up, and let the cats eat her. He talked

about slashing her face, knocking her teeth out, peeling her fingernails back, and breaking

her fingers. Alphonso repeatedly hit her on the head with the remote control and with his

hand. Toward the end of the six-hour incident, Alphonso told Michelle he was going to

rape her, ordered her to remove her clothes, and then engaged in forcible sex with her,

causing her pain.

       Reporting of the Incidents

       A few days later, Michelle went to an appointment with her therapist. She put

makeup on her facial injuries so that her therapist would not see them, but she did not

cover up the cigarette burns. Michelle did not disclose the domestic violence to her

therapist because she knew the therapist would call the police; and Michelle feared

Alphonso would kill her.

       At the end of the session, the therapist suggested that she meet with Alphonso and

explain to him that it was appropriate for her to work with him and Michelle for couple's

therapy. Michelle texted Alphonso about meeting with the therapist, and she and her

therapist picked up Alphonso and drove him to Michelle's apartment to talk.

       When the three arrived at the apartment, the therapist started talking about couple's

therapy. The therapist testified that Alphonso "became exceptionally animated," angrily

paced around, and almost berated her. The therapist eventually told Michelle and

Alphonso she had to leave.



                                             8
       Michelle walked with her therapist to the therapist's car, started crying, and said,

"I'm not going to go back in there" or "I can't go back in there." The therapist told her to

get in the car, and she did. Alphonso approached the car and asked, "Why are you doing

that? Don't get in the . . . car. Why do you want her in the car? Where are you taking

her? We can talk." Alphonso was standing in front of the car and leaning on the hood.

When he moved to the side, the therapist drove the car away.

       After they drove away, Michelle started telling the therapist about what had

happened and said Alphonso would kill her if the therapist called the police. Michelle

showed her the bumps and bruises she had covered with makeup and the cigarette burns

on her ankle and foot. She had her therapist feel the bumps on her scalp.

       The therapist called 911 when Michelle went to the bathroom at a store. When

Michelle returned to the car, the therapist was still on the phone with the 911 dispatcher.

After the call, the two sat in the car until the police arrived. The therapist spoke with

them first, and then Michelle reluctantly spoke to them. The therapist testified that

Michelle appeared to be extremely fearful.

       San Diego Police Officer Steve Sdringola testified he responded to the 911 call.

Michelle initially did not want to talk to him. Officer Sdringola accompanied the two

women back to the victim's apartment. Michelle told him she and Alphonso had been

together for two and a half years and that in the last six months there had been at least 10

incidents of physical abuse by Alphonso. She told him in particular about the two

incidents on July 19 and July 21 or 22. However, she did not tell him that Alphonso had

raped her, and she made no mention of Alphonso's alleged threats to starve her and let her

                                              9
cats eat her, or break her fingers, or smother her with a wet towel, or slash her face. At

trial, Michelle indicated she did not provide as much information as possible to the

officer because she still feared Alphonso and she was protecting him both for his sake

and hers.

       Officer Sdringola testified he saw eight small, round, apparent burn marks on

Michelle's foot; and also saw raised bumps and bruising on her head. Another officer

photographed the injuries.

       A clinical psychologist with the San Diego Family Justice Center testified about

the cycle of abuse in domestic violence, which starts with the "honeymoon" phase,

proceeds to the tension-building phase, escalates to the acute battering phase and repeats.

To maintain power and control, batterers may engage in intimidation and emotional

abuse, may isolate the victim, may minimize or deny the abuse and blame others for their

own behaviors, may use children, and may use coercion and threats. As defense

mechanisms, victims may minimize, rationalize, or justify the abuse to stay in the

relationship. The psychologist testified it is difficult for victims of abuse to speak out

about sexual violence in the relationship.

       The parties stipulated that Michelle mentioned for the first time at trial two

specific prior acts of domestic violence in which Alphonso pushed her, took her keys, and

pushed her against a wall.




                                             10
       B. The Defense Case

       Alphonso's defense was that Michelle was lying and he did not commit any of the

charged crimes. Two residents of the apartment complex where Michelle lived testified

they did not hear any loud arguments at the complex in July 2011. Also, a witness who

performs computer and telephone forensic evaluations testified that he examined phone

records for the month of July 2011 for a phone number assigned to Michelle. Michelle's

cell phone records indicated several calls were made from and received on her cell phone

on July 19, 21 and 22, including incoming and outgoing calls to her mother and sister.

                                      DISCUSSION

        I. OVERRULING OF ALPHONSO'S BATSON/WHEELER OBJECTION

       Alphonso first contends the court violated his rights under the federal Constitution

and committed reversible error during jury selection when defense counsel made a

Batson/Wheeler objection by asserting that the prosecutor had used peremptory

challenges to "eliminate[] every minority juror that's been on the panel so far," and the

court ruled the defense had failed to meet its threshold burden of making a prima facie

showing of group bias discrimination. We reject this contention.

       A. Background

       During voir dire—after the prosecutor exercised seven peremptory challenges to

excuse prospective jurors 9, 15, 11, 7, 22, 26, and 8 in that order—Alphonso's counsel

requested a sidebar conference. Outside the presence of the prospective jurors, defense

counsel complained that the prosecutor had used peremptory challenges to remove "every

                                             11
minority juror that's been on the panel so far." Defense counsel then stated: "Granted

that I don't have African[-]Americans or Hispanics, but I pretty much have one of

everything. They have pretty much all been removed by [sic] the panel. My client is not

a minority himself. The first p[ere]mptory was of Middle Eastern descent. The one

African[-]American was removed. The one Hispanic was removed. Right now

everybody that's basically left is Caucasian."

       The prosecutor, Claudine Ruiz, responded that she was a female Hispanic and that

she did not recall anyone's racial makeup except for the African-American juror,

prospective juror 11. The prosecutor stated, "I did not note any other juror as being

Hispanic."

       Defense counsel replied that prospective juror 8 was Hispanic. The court stated,

"My notes reflect that as I couldn't tell," and the prosecutor said, "I have no idea." The

court then indicated it would look at the prospective jurors' names, stating that "that's a

risky venture to begin with." The prosecutor agreed, stating, "Especially since we didn't

use the names at all, and I didn't look at the names."

       After noting that "[d]etermining ethnic origin by itself is frequently fraught with

mistakes," the court reviewed the prosecutor's use of peremptory challenges in the order

those seven challenges were made. The court stated that, based on the name "Sahba,"

prospective juror 9 "may well be . . . of Middle Eastern origin"; but then stated, "I'm not

sure that's a minority." The court found prospective juror 15 was a Caucasian male, and

prospective juror 11 was an African-American male. Next the court found prospective

juror 7 was a Caucasian female; prospective juror 22 "appeared . . . to be a Caucasian

                                             12
female"; prospective juror 26 "appeared . . . to be a Hispanic male," whose last name

"Rivera" "appear[ed] to be consistent with a Hispanic male"; and prospective juror 8

"appeared" to be a Caucasian or Hispanic male whose "last name of Caravantes would

appear to be of Hispanic origin." The court noted that Alphonso appeared to be

Caucasian and his last name "would be consistent with that."7 The court asked the

prosecutor whether she had anything to add to her previous comments, and the prosecutor

replied, "I guess, at this point, I'll wait."

       1. Ruling

       The court overruled the defense's Batson/Wheeler objection, finding there had not

been a "pattern of systematic exclusion of any minority." The court observed that "other

than the third peremptory challenge to [prospective juror] number 11, who we all agree is

African[-]American, all the rest are to some extent risky in terms of characterizing their

ethnic origin." The court noted that there was a pair of jurors with Hispanic surnames

that "appear[ed] to be consistent with [their] visual appearance," but then stated, "[A]t

this point, the court doesn't believe there's been a prima facie case made for the

systematic exclusion of individuals of any particular origin or group."

       B. Applicable Legal Principles (Batson/Wheeler)

       "Both the state and federal Constitutions prohibit the use of peremptory challenges

to remove prospective jurors based on group bias, such as race or ethnicity." (People v.




7      The probation officer's report states Alphonso is "White."
                                                13
Davis (2009) 46 Cal.4th 539, 582 (Davis), citing Batson, supra, 476 U.S. at p. 97 &

Wheeler, supra, 22 Cal.3d at pp. 276-277.)

       A rebuttable presumption exists that a prosecutor has exercised his or her

peremptory challenges in a constitutional manner, and the burden is on the objecting

defendant to demonstrate impermissible discrimination. (People v. Dement (2011) 53

Cal.4th 1, 19; People v. Cleveland (2004) 32 Cal.4th 704, 732 (Cleveland).)

       The California Supreme Court has explained that when the defense raises a timely

Batson/Wheeler challenge to the prosecutor's use of peremptory challenges, a three-stage

procedure applies: " 'First, the defendant must make out a prima facie case "by showing

that the totality of the relevant facts gives rise to an inference of discriminatory purpose."

[Citation.] Second, once the defendant has made out a prima facie case, the "burden

shifts to the State to explain adequately the racial exclusion" by offering permissible race-

neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is

tendered, the trial court must then decide . . . whether the opponent of the strike has

proved purposeful racial discrimination." ' " (People v. Riccardi (2012) 54 Cal.4th 758,

786, quoting Johnson v. California (2005) 545 U.S. 162, 168, italics added.)

       Regarding the first stage of Batson/Wheeler error analysis, the high court has

clarified that, "[t]o make a prima facie showing of group bias, 'the defendant must show

that under the totality of the circumstances it is reasonable to infer discriminatory

intent.' " (Davis, supra, 46 Cal.4th at p. 582, italics added.)




                                              14
          If the defendant meets his or her burden of making a prima facie showing of group

bias under this "reasonable inference" standard, "[t]he proper focus of a Batson/Wheeler

inquiry . . . is on the subjective genuineness of the race-neutral reasons given [by the

prosecution] for the peremptory challenge, not on the objective reasonableness of those

reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with

long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a

peremptory challenge to the prospective juror, sincerely exercised on that basis, will

constitute an entirely valid and nondiscriminatory reason for exercising the challenge."

(People v. Reynoso (2003) 31 Cal.4th 903, 924.) "All that matters is that the prosecutor's

reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the

sense of being nondiscriminatory." (Ibid.)

          The prosecutor's explanation need not rise to a level that justifies the exercise of a

challenge for cause. (People v. Williams (1997) 16 Cal.4th 635, 664.) "[A]dequate

justification by the prosecutor may be no more than a 'hunch' about the prospective juror

[citation], so long as it shows that the peremptory challenges were exercised for reasons

other than impermissible group bias and not simply as 'a mask for race prejudice.' "

(Ibid.)

          1. Standard of review

          When a trial court denies a Batson/Wheeler objection based on its finding that no

prima facie case of group bias was established, the reviewing court considers the record

of the voir dire and affirms the ruling if it is supported by substantial evidence. (People

                                                15
v. Jenkins (2000) 22 Cal.4th 900, 993.) The reviewing court "accord[s] particular

deference to the trial court as fact finder, because of its opportunity to observe the

participants at first hand." (Id. at pp. 993-994.)

       C. Analysis

       Having reviewed the record of the voir dire, we conclude substantial evidence

supports the court's ruling that the defense failed to meet its threshold burden under

Batson/Wheeler of making a prima facie case of impermissible group bias discrimination.

       We begin our analysis by noting that Alphonso faults the court for overruling his

objection to the prosecution's use of peremptory challenges to exclude four "minority

jurors" (prospective jurors 9, 11, 27 & 8),8 thereby suggesting that "minority jurors" is a

cognizable group for purposes of Batson/Wheeler error analysis. The California Supreme

Court has held that " 'people of color' " is not a cognizable group for purposes of

Batson/Wheeler. (Davis, supra, 46 Cal.4th at p. 583.) By parity of reasoning, "minority

jurors" also is not a cognizable group for purposes of Batson/Wheeler analysis.

       Jurors with Hispanic surnames, however, are a cognizable group for

Batson/Wheeler purposes "even when 'no one knows at the time of challenge whether a

particular individual who has a Spanish surname is Hispanic.' " (Davis, supra, 46 Cal.4th

at p. 584.)




8      As noted, ante, the record shows that when defense counsel made his
Batson/Wheeler objection, the prosecutor had also used peremptory challenges to exclude
three Caucasian prospective jurors (prospective jurors 15, 7 & 22).
                                              16
       Here, the prosecutor (Ruiz) stated during the sidebar conference that she did not

look at the jurors' surnames. The prosecutor also said she was Hispanic, and she did not

"recall anyone's racial make[]up" with the exception of prospective juror 11, whom she

identified as "the African[-]American." The prosecutor added that she "did not note any

other juror as being Hispanic." When defense counsel replied that Prospective Juror 8

was Hispanic, the prosecutor stated, "I had no idea."

       The court appeared to share the prosecutor's views, stating that—apart from the

prospective juror who they all agreed was African-American—"all the rest are to some

extent risky in terms of characterizing their ethnic origin." The court indicated it thought

prospective juror 26 could be Hispanic based on his surname; and stated that prospective

juror 8 "may be a Hispanic male" although the court's notes "reflect[ed] the person

appeared to be Caucasian or Hispanic."

       Significantly, the record shows that defense counsel only identified Prospective

Juror 8 as a Hispanic; he did not identify prospective juror 26 as a Hispanic.

       The California Supreme Court has explained that although the exclusion of a

single prospective juror may be the product of an improper group bias, " '[a]s a practical

matter . . . the challenge of one or two jurors can rarely suggest a pattern of

impermissible exclusion.' " (People v. Bell (2007) 40 Cal.4th 582, 598, first italics

added.)

       Given the foregoing record of the sidebar Batson/Wheeler proceeding and the

presumption that the prosecutor exercised her peremptory challenges in a constitutional

                                             17
manner (Cleveland, supra, 32 Cal.4th at p. 732), we conclude the court did not err in

finding Alphonso failed to make the requisite prima facie showing that it is reasonable to

infer that the prosecutor acted with discriminatory intent or purpose in using her

peremptory challenges to excuse prospective jurors 9, 11, 26, and 8. (See Davis, supra,

46 Cal.4th at p. 582.)

       In support of his claim that he did make the requisite prima facie showing, and

relying on Bell, supra, 40 Cal.4th 582, Alphonso faults the court for failing to consider

(1) whether the challenged jurors only shared the characteristic of membership in a

protected group, and (2) whether the prosecutor failed to engage the subject jurors in

more than "desultory voir dire" or to ask them any questions at all. Alphonso's reliance

on Bell is unavailing.

       In Bell, the California Supreme Court identified three nonexclusive9 types of

relevant evidence (which Alphonso refers to as "Bell factors") that a defendant may use

to establish a prima facie case for purposes of Batson/Wheeler error analysis: (1)

evidence that the prosecutor "has struck most or all of the members of the identified

group from the venire, or has used a disproportionate number of his peremptories against

the group"; (2) evidence that "the jurors in question share only this one characteristic—

their membership in the group—and that in all other respects they are as heterogeneous as



9       The nonexclusivity of the three types of relevant evidence mentioned in Bell is
shown by the high court's statement that,"[t]hough proof of a prima facie case may be
made from any information in the record available to the trial court, we have mentioned
'certain types of evidence that will be relevant for this purpose.' " (Bell, supra, 40 Cal.4th
at p. 597, quoting Wheeler, supra, 22 Cal.3d at p. 280.)
                                             18
the community as a whole"; and (3) evidence that "his opponent [failed] to engage these

same jurors in more than desultory voir dire, or indeed to ask them any questions at all."

(Bell, supra, 40 Cal.4th at p. 597.)

       Alphonso complains that "[n]o analysis of the Bell factors was undertaken" and

the court erroneously failed to consider any of the three types of evidence (discussed,

ante) identified in Bell. However, Bell does not require a trial court to consider the three

types of evidence in determining whether a defendant has satisfied his or her burden of

establishing a prima facie case. The language in Bell is permissive and only pertains to

the types of evidence on which a defendant "may" properly rely as proof of a prima facie

case for purposes of Batson/Wheeler error analysis.10 (Bell, supra, 40 Cal.4th at p. 597.)

       Here, the record shows that during the sidebar conference, Alphonso's counsel

only relied on the first type of relevant evidence identified in Bell—evidence that the

prosecutor "ha[d] struck most or all of the members of the identified group from the

venire, or ha[d] used a disproportionate number of his peremptories against the group"

(Bell, supra, 40 Cal.4th at p. 597)—by arguing that the prosecutor had used peremptory

challenges to remove "every minority juror that's been on the panel so far." Defense

counsel did not rely on the second and third types of evidence identified in Bell. That the

court considered defense counsel's argument is implicitly shown by the fact that the court



10    Alphonso's reference to the types of relevant evidence identified in Bell—upon
which a defendant may properly rely as proof of a prima facie case of Batson/Wheeler
error—as "Bell factors" inappropriately suggests they are factors a trial court must
consider when conducting a Batson/Wheeler error analysis, such that failure to consider
them constitutes error.
                                             19
proceeded to review all seven of the prosecutor's peremptory challenges. We conclude

the court did not err by failing to sua sponte consider the second and third types of

evidence identified in Bell.

       In support of his claim that the court incorrectly concluded he had failed to make a

prima facie case, Alphonso discusses the voir dire responses of the excluded jurors, and

concludes that the only thing that set those jurors apart from the other jurors then on the

panel was their membership in a protected class. To the extent Alphonso is asking this

court to engage in a comparative analysis of the challenged jurors and those who were

then on the panel and ultimately served, we decline to do so because the court properly

determined that Alphonso failed to make a prima facie case of purposeful discrimination.

In People v. Bonilla (2007) 41 Ca1.4th 313—a "first-stage" Wheeler/Batson case in

which the trial court overruled the defendant's Wheeler/Batson objections after

concluding he had failed to make out a prima facie case that the prosecutor was engaged

in impermissible discrimination—the California Supreme Court upheld the trial court's

ruling and stated, "Whatever use comparative juror analysis might have in a third-stage

case for determining whether a prosecutor's proffered justifications for his strikes are

pretextual, it has little or no use [in a first-stage case] where the analysis does not hinge

on the prosecution's actual proffered rationales, and we thus decline to engage in a

comparative analysis." (Bonilla, at pp. 341, 350.) Here, the case before us is also a

"first-stage" Wheeler/Batson case and, as in Bonilla, comparative juror analysis "has little

or no use" because "the analysis does not hinge on the prosecution's actual proffered

rationales." (Id. at p. 350.)

                                              20
       Alphonso also complains that the prosecutor did not ask any questions of the

challenged jurors. However, that the prosecutor did not ask the challenged jurors

questions individually is of little importance because, as the Attorney General correctly

points out, the record shows the prosecutor was able to obtain information about the

jurors and observe their demeanor when the court and defense counsel questioned them.

(See People v. Dement, supra, 53 Cal.4th at p. 21.)

       We conclude the court properly determined that Alphonso failed to make a prima

facie case of Wheeler/Batson error; that is, a showing that under the totality of the

circumstances it is reasonable to infer that the prosecutor acted with discriminatory intent

when she used her peremptory challenges to excuse prospective jurors 9, 11, 26, and 8.

(See Davis, supra, 46 Cal.4th at p. 582.)

                          II. DENIAL OF NEW TRIAL MOTION

       Alphonso next contends the court prejudicially abused its discretion and violated

his constitutional right to present a defense by denying his motion for a new trial based

on newly discovered evidence. We reject this contention.

       A. Background

       1. Alphonso's motion in limine

       Alphonso moved in limine to be allowed to call Michelle's then-husband

(husband) to testify that she had previously made false accusations that her husband

abused her. At the hearing on the motion, defense counsel indicated Michelle and her

husband were still married, but they were separated and dissolution proceedings had been

ongoing for several years, and the husband would testify that he was in the United States

                                             21
Navy and that Michelle had falsely accused him—both to Navy authorities and in the

dissolution proceedings—of domestic violence against her and sexual abuse of their

child.

         The prosecutor acknowledged evidence of false allegations "can be admissible,"

but argued Michelle denied the allegations were false and opposed the admission of her

husband's testimony because it was more prejudicial than probative and it was "going to

be time-consuming." The prosecutor told the court there was a finding by the Navy

Advocacy Program that the husband "was, in fact, an abuser in one particular incident";

the prosecutor had just received "the majority of documents relating to this," and she did

not foresee this would be an issue in this case. She had also recently requested the family

advocacy file under the Freedom of Information Act, but she was not certain she would

receive the information before the trial began. Noting that Michelle and her husband had

been married for 27 years, the prosecutor stated, "In reading through the divorce

affidavits from both parties, there is a lot of meat on this bone."

         Defense counsel stated he intended to limit the scope of husband's testimony to

"the fact [Michelle] falsely accused him," and he would not seek to introduce evidence

about "who's a good parent and who's a bad parent" or whether the children did not like

to spend time with the victim. The court observed it was "in a bit of a vacuum,"

recognized the potential relevance of evidence that "any victim made what turned out to

be false accusation of domestic violence," and deferred ruling until the husband could be

examined at a separate hearing.



                                              22
       2. Evidence Code section 402 hearing and the court's ruling

       After the prosecution rested its case, and outside the presence of the jurors,

defense counsel reiterated that in 2007 Michelle falsely accused her husband of

physically and emotionally abusing her and sexually molesting their daughter. Defense

counsel acknowledged that if the husband were to testify the allegations were false, the

prosecutor would call Michelle to testify to the contrary.

       When the court stated that "we have some proceedings that occurred with the

United States Navy that at least at some point led to counseling of the [husband],"

defense counsel replied, "Yes." The court indicated it was inclined to exclude the

husband's testimony, stating it was "left with . . . a 'he said she said' " and there was

"some type of concession by the [husband] that something was going on, at least

inferentially, by his accepting the [Navy's] counseling program."

       The court then heard the testimony of the husband out of the presence of the jurors

at a hearing conducted under Evidence Code section 402. The husband, a retired Navy

Commander, testified he married Michelle in 1991 and they separated in 2007. They

started divorce proceedings in 2009, but the divorce was still not final. They were the

parents of a 17-year-old son and a 15-year-old daughter.

       In 2007 Michelle accused her husband of mental, sexual, financial, and physical

abuse, and the allegations were handled through the Navy arbitration system. The

husband learned during the dissolution proceedings that Michelle had reported to Child

Protective Services that he had sexually molested their daughter, but the matter had been

dismissed as unsubstantiated.

                                              23
       The husband testified Michelle falsely alleged he mentally abused her when they

got into arguments regarding the handling and care of their children. Her sexual abuse

claim was based on her belief they should not have sex when she was on medication. She

had been on various medications since 2000. Michelle alleged he had sex with her

without her consent when she was medicated. The husband denied he ever did so. He

said he initially refused her requests for sex when she first started taking the medications.

After she "got normalized" with the medications, he acquiesced and had sexual relations

with her.

       He also testified Michelle's financial abuse claim stemmed from his decision to

take over the family's bills after she failed to pay them on time and bounced checks. He

indicated he thought Michelle's physical abuse claim was probably related to her sexual

abuse claim and stated that "when the sexual one didn't pan out . . . she claimed again

later for physical abuse." The husband also testified about an incident in which Michelle

took the laptop he needed for work out of his car, they had a tug of war with the

computer, and, when she tired he took both her hands off the computer, put it in the car,

shut the door and left. He denied physically abusing her.

       The husband testified that after the third or fourth "episode of an allegation," he

asked the Navy mediators how he could bring it to an end. He was fearful it would hurt

his career and wanted to stop it before he was up for promotion to captain. The mediators

advised him he could take a 16-week course called the Cypress Men's Group. The

husband asked what he needed to do to get in the course, and the mediators told him that

if they found substantiation for a claim, they would recommend him for the group. He

                                             24
then substantiated the mental abuse claim by stating he probably did get angry and was

loud and that was probably stressful for Michelle. The husband thought she made

another allegation of mental abuse after he completed the program. Michelle never told

the police that he forced her to have sex or was violent with her.

       The husband acknowledged the Naval Advocacy Committee substantiated the

mental abuse claim in August 2007. He also testified that if Michelle said he kissed his

daughter on the back of her head when she was sleeping and patted her butt when she

was sleeping and awake, this would be true but he did not consider it to be sexual abuse.

He acknowledged that the Naval Family Advocacy committee contacted him because of

his alleged emotional abuse and controlling behavior and that the majority of the

interactions between Michelle and the committee revolved around these subjects.

       a. Ruling

       After the husband testified, the court excluded his testimony. The court stated that

although the husband was "a highly credible witness," his testimony "doesn't frankly

establish false allegations of any substance at all." The court added that it did not believe

the husband's testimony "would provide the jury with any relevant facts at this point,"

and found his testimony had "no probative value."

       3. Alphonso's motion for a new trial, the FAP records, and the court's ruling

       After the jury returned its guilty verdicts, Alphonso moved for a new trial based

on newly discovered evidence, namely, records obtained through discovery from the

Navy's Family Advocacy Program Case Review Committee's investigation (the FAP

records) that the prosecutor had requested at the start of the trial, which the prosecutor

                                             25
received and provided to the defense after the jury returned its verdicts. In his motion,

Alphonso asserted the FAP records were relevant to the issue of whether Michelle

previously had made false accusation of physical abuse because they showed that she had

alleged her husband punched her, threw her against a wall, and pushed and shoved her;

that she reported she did not have a car because she believed her husband would cut the

brake lines if she had one; that she accused her husband of sexual abuse; and that she

claimed he abused her an average of three times a month. Alphonso pointed out that the

husband, during his testimony at the Evidence Code section 402 hearing, testified he

never physically or sexually abused Michelle, but the court denied the defense request

that the husband be allowed to testify about these allegations.

       In her opposition to the new trial motion, the prosecutor argued the new evidence

was cumulative to the evidence produced in discovery and presented at trial.

Specifically, the prosecutor argued the family court records provided to defense counsel

before trial included a November 2009 declaration in which Michelle claimed her

husband had been violent with her in the past, the Navy found him guilty of domestic

violence, she stopped driving shortly after she got married because of her husband's

negative comments about her driving, she never drove again because of her husband's

comments about damage he had done to other people's cars when he became upset with

them, and her husband had a way of threatening her without actually doing so.

       The prosecutor also represented that in an April 2010 declaration Michelle stated

concern about her husband "inappropriately" kissing their daughter on the neck while the

daughter slept and tapping her daughter's buttocks when she walked near him. In

                                            26
addition, the prosecutor argued the husband's declarations described three domestic

violence allegations Michelle made to the Navy, only one of which was substantiated;

and in interviews with the defense the husband stated that Michelle had called Naval

Family Advocacy five or six times to complain he was being mentally abusive to her.

       In her opposition, the prosecutor also asserted that the "voluminous" FAP records

produced by the Navy covered the same information contained in the family court

records, the husband's statement, and his testimony. The prosecutor summarized the two

referrals to the Family Advocacy Program and stated that the FAP records indicated

that—in the first case, which was substantiated for emotional abuse—Michelle claimed

her husband would come into her room after she had taken her sleeping pills and have sex

with her without her consent; and, regarding physical abuse, she stated her husband had

hit her one time many years earlier.

       In the second case, which was not substantiated, Michelle spoke to a caseworker

who referred the case for investigation of ongoing emotional abuse and control. Michelle

told the caseworker that she lived in a separate home from her husband and that she

feared her home might be bugged because her husband repeated things that she had said

when he was not there. She said her husband controlled the finances at both homes and

used the children to monitor her activities. During the risk assessment with a clinical

provider, Michelle was asked for a history of abuse, and she responded that her husband

had "punched her, thrown her into walls, grabbed and pushed her and would then act as if

it were an accident (for example accidentally hitting her in the face with his elbow) or

completely deny that anything had happened." Michelle said the physical abuse occurred

                                            27
about three times a month and stopped when they separated 18 months earlier. She also

mentioned she feared that if she owned a car, her husband would do something to it, like

cutting the break lines. She said her husband had made statements in the past about what

he had done to other cars belonging to people with whom he was angry, like "they'll

never drive that car again[.]"

       The prosecutor also argued Alphonso 's new trial motion should be denied because

(among other things) impeachment evidence does not provide a basis for a new trial.

       a. Ruling

       At the hearing on the new trial motion during the sentencing proceeding, the

parties agreed to submit four pages of the voluminous FAP records to the court under

seal. After listening to the parties' arguments, the court ruled that defense counsel had

exercised due diligence, but "to a large extent" the material was cumulative to what was

previously available to both counsel, and the resolution of what happened between

Michelle and her husband starting years earlier was just not "that probative to the issues"

in the case. The court stated it was "confident there [was] no reasonable probability that

had this information been available and even had it been presented to the jury that it

would have resulted in a different result." Accordingly, the trial court denied the new

trial motion.

       B. Applicable Legal Principles

       " ' "The determination of a motion for a new trial rests so completely within the

court's discretion that its action will not be disturbed unless a manifest and unmistakable

abuse of discretion clearly appears." ' [Citations.] ' "[I]n determining whether there has

                                             28
been a proper exercise of discretion on such motion, each case must be judged from its

own factual background." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)

           Although granting or denying a motion for new trial on the ground of newly

discovered evidence is a matter that lies within the sound discretion of the trial court, in

ruling on such a motion the court considers whether (1) the evidence, and not merely its

materiality, is newly discovered; (2) the evidence is not merely cumulative; (3) the

evidence would render a different result probable on retrial of the cause; (4) the moving

party could not with reasonable diligence have discovered and produced it at trial; and (5)

the facts have been shown by the best evidence of which the case admits. (Delgado,

supra, 5 Cal.4th at p. 328; accord, People v. Howard (2010) 51 Cal.4th 15, 42-43.)

           C. Analysis

           Here, we cannot say the court abused its broad discretion by denying a new trial.

Assuming for purposes of discussion that the other factors discussed in Delgado, supra, 5

Cal.4th at page 328 are satisfied, Alphonso has not shown, and cannot demonstrate, a

reasonable probability the newly discovered evidence would result in a different result on

retrial.

           "[W]hen a defendant makes a motion for a new trial based on newly discovered

evidence, he has met his burden of establishing that a different result is probable on

retrial of the case if he has established that it is probable that at least one juror would

have voted to find him not guilty had the new evidence been presented." (People v.

Soojian (2010) 190 Cal.App.4th 491, 521.)



                                               29
       Here, Alphonso asserts in a conclusory fashion, without addressing the strong

evidence of his guilt presented at trial, that "[i]t is highly likely—certainly more than

probable—that at least one juror would have been [sic] entertained a reasonable doubt

that [Michelle's] reports of [Alphonso's] alleged attacks were believable, after hearing the

testimony of a 'highly credible' (the trial court's words) former Navy officer about her

prior false claims." We disagree. Michelle's trial testimony regarding Alphonso's

conduct was corroborated not only by the testimony of Michelle's therapist Sandra

Gorchow and Officer Sdringola, but by the photographs that another officer took of the

injuries Michelle suffered when Alphonso burned her with a cigarette.

       Specifically, Gorchow testified that after Michelle, who was scared, started telling

her in the car about what had happened, Michelle showed her both the bruises she had

covered with makeup and the cigarette burns on her ankle and foot, and she also had

Gorchow feel the "raised bumps" on her scalp. Gorchow testified she called 911 after

Michelle got out of the car and went into the bathroom at a store.

       Officer Sdringola, who responded to that call, also corroborated Michelle's

testimony by testifying that Michelle told him about what had happened during the two

incidents. Officer Sdringola testified he saw eight small, round, apparent burn marks on

Michelle's foot and also saw raised bumps and bruising on her head. He stated that

another officer photographed the injuries.




                                             30
       Due to the strength of the victim's testimony, as corrobated by the testimony of

Gorchow and Officer Sdringola and the photographic evidence of her injuries, we

conclude Alphonso has failed to meet his burden of showing it is probable that at least

one juror would have voted to find him not guilty had the new evidence been presented.

Accordingly, we reject Alphonso's claims that the court abused its discretion and violated

his constitutional right to present a defense by denying his motion for a new trial.

                      III. SECTION 654 (COUNTS 1, 2, 4, 6, 7 & 9)

       Last, Alphonso contends the concurrent terms of 25 years to life plus three years

the court imposed for each of his convictions of counts 1 (inflicting corporal injury on a

cohabitant), 2 (false imprisonment by violence), 4 (assault by means of force likely to

cause great bodily injury (i.e., by suffocation)), 6 (inflicting corporal injury on a

cohabitant), 7 (false imprisonment by violence) and 9 (making a criminal threat) should

have been stayed under section 654. We agree.

       A. Background

       As previously noted, Alphonso committed the nine offenses of which he was

convicted in this case during two incidents. He committed counts 1 through 5 during the

first incident on July 19, which Michelle testified lasted about nine hours, and he

committed counts 6 through 8 during the second incident on July 21 or 22, which lasted

about six hours. According to the information, the commission of count 9 (making a

criminal threat) spanned both incidents.



                                              31
         At the sentencing hearing, the court stated, "I do not believe Penal Code section

654 bars punishment for any of [the nine counts], but my sentence is not going to include

additional consecutive time for each of the crimes." The court explained that it "d[id] not

believe sentence on any count is barred by Penal Code section 654 inasmuch as each act

represented a separate violation—or separate act committed against the victim in this

case."

         The court sentenced Alphonso to 25 years to life in prison for his count 8 rape

conviction plus three years for his prison priors, and a consecutive term of 25 years to life

for his count 3 assault with a deadly weapon conviction plus three years for his prison

priors. For each of the remaining counts—counts 1, 2, 4, 5, 6, 7 & 9—the court imposed

a concurrent sentence of 25 years to life plus three years. Thus, the court imposed a total

prison term of 50 years to life plus six years.

         B. Applicable Legal Principles

         Section 654, subdivision (a) provides in 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."

         Section 654 "precludes multiple punishment for a single act or omission, or an

indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591), and ensures

the defendant's punishment will be commensurate with his or her criminal culpability

(People v. Kramer (2002) 29 Cal.4th 720, 723). If a defendant suffers two convictions

and punishment for one is barred by section 654, that section requires the sentence for

                                              32
one conviction be imposed and the other be imposed and then stayed. (People v. Deloza,

at pp. 591-592.)

       Generally, whether a course of conduct is indivisible for purposes of section 654

depends on the intent and objective of the defendant, not the temporal proximity of the

offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were

incident to one objective, then punishment may be imposed only as to one of the offenses

committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Garcia (1995)

32 Cal.App.4th 1756, 1780-1781.)

       The question of whether a defendant harbored multiple criminal objectives is a

question of fact for the trial court to decide. (People v. Coleman (1989) 48 Cal.3d 112,

162.) A trial court's determination that a defendant held multiple criminal objectives will

be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996)

13 Cal.4th 622, 730-731.)

       C. Analysis

       As a preliminary matter, we note that Alphonso does not challenge under section

654 the punishments the court imposed for (1) his count 3 conviction of assault with a

deadly weapon (a knife) and force likely to cause great bodily injury, which he

committed during the first incident; (2) his count 8 conviction of rape, which he

committed during the second incident; or (3) his count 5 conviction of attempting to

dissuade a witness (Michelle) from reporting a crime, which spanned both dates.

       We conclude that (1) with respect to the first incident, section 654 bars execution

of the concurrent prison terms the court imposed for Alphonso's convictions of counts 1

                                            33
(inflicting corporal injury on a cohabitant), 2 (false imprisonment by violence), and 4

(assault by means of force likely to cause great bodily injury (i.e., by suffocation)); (2)

with respect to the second incident, section 654 bars execution of the concurrent prison

terms imposed for Alphonso's convictions of counts 6 (inflicting corporal injury on a

cohabitant) and 7 (false imprisonment by violence); and (3) section 654 also bars

execution of the concurrent prison term imposed for count 9 (making a criminal threat),

which spanned both incidents.

       We reach these conclusions because the record shows the criminal acts Alphonso

committed during each incident were part of an indivisible course of conduct; during

each incident—as the prosecutor argued to the the jury—he acted with the same objective

of asserting control and "ownership" of Michelle; and sufficient time elapsed between the

two incidents to afford him an opportunity to reflect on his criminal conduct before

renewing his criminal intent. Regarding Alphonso's intent and objective during those

incidents, the prosecutor argued as follows during her closing arguments:

          "And that ultimate betrayal that the person who loves you isn't
          supposed to hurt you, isn't supposed to hurt you in this way, any way
          they can to make sure that they control you, that you stay in the
          relationship, that you continue to provide all of the things
          [Alphonso] had become accustomed to: Not just [Michelle's]
          companionship, but her home, her money, her body, her actions.
          Everything about [Michelle] was his. He took ownership of her. He
          put his name on her leg. He branded her with cigarettes—cigarette
          burns. Not only was he controlling her and make sure she would not
          go against him, never tell, never put him in jail, but he was telling
          everyone who would see her that she belonged to him and no one
          else. [¶] These are the counts in this particular case; there's nine of
          them." (Italics added.)



                                             34
       Our conclusion that the record shows Alphonso's criminal acts during the first

(July 19) incident constituted one indivisible course of conduct with a single objective

finds support in the prosecutor's statement to the jury that:

          "We know this was at the end of a long period of time when
          [Michelle] had been forced to remain in a room, berated, yelled at,
          accused almost in interrogation style where [Alphonso] is accusing
          her of infidelity, trying to force her to admit being unfaithful to him;
          yelling at her; calling her all kinds of names; spitting on her—
          spitting in her face; slapping her; hitting her 20 to 30 times on the
          head with a hand, with a remote, banging her head in the wall."

       The prosecutor's rebuttal closing arguments that "it's almost impossible to give a

blow-by-blow over a nine-hour period" and that "much of the behavior was repetitive"

also demonstrate the continuous, indivisible nature of Alphonso's conduct on July 19.

       The following closing argument by the prosecutor supports our conclusion that the

record shows Alphonso's criminal acts during the second incident (July 21 or 22) also

constitute one indivisible course of conduct, but temporally separated from the first

incident in such a way as to afford Alphonso an opportunity to reflect on his behavior and

renew his intent:11 "[T]he second day she was held for six hours against her will, told

not to move, not to look him in the eye the whole time, not to leave . . . ."




11     " 'Under section 654, "a course of conduct divisible in time, although directed to
one objective, may give rise to multiple violations and punishment. [Citations.]"
[Citations.] This is particularly so where the offenses are temporally separated in such a
way as to afford the defendant opportunity to reflect and to renew his or her intent before
committing the next one, thereby aggravating the violation of public security or policy
already undertaken.' " (People v. Andra (2007) 156 Cal.App.4th 638, 640, quoting
People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
                                             35
       The separate punishment imposed for Alphonso's count 9 conviction of making

criminal threats during both incidents is also barred under section 654 because the record

shows that in committing those criminal acts Alphonso acted with the same intent and

objective. Michelle testified that, during the first incident, Alphonso threatened to kill

her when she was on the bed. She also testified that, during the second incident,

Alphonso threatened to kill her "many times" that day. By instilling fear in Michelle

through the use of these threats, Alphonso acted in furtherance of his objective to control

her.

       In sum, with respect to the first incident, the judgment must be modified to stay

under section 654 the execution of the concurrent sentences the court imposed for

Alphonso's convictions of counts 1, 2, and 4. That section does not bar execution of the

sentences imposed for his convictions of counts 3 and 5. As to the second incident, the

judgment must be modified to stay under section 654 the execution of the concurrent

sentences imposed for his convictions of counts 6 and 7. Execution of the sentence

imposed for his conviction of count 8 is proper. In addition, the judgment also must be

modified to stay under section 654 the execution of the concurrent sentence imposed for

Alphonso's conviction of count 9. In all other respects, the judgment is affirmed.




                                             36
                                      DISPOSITION

       The judgment is modified to stay under Penal Code section 654 the execution of

the concurrent sentences of 25 years to life plus three years the court imposed for each of

Alphonso's convictions of counts 1, 2, 4, 6, 7, and 9. As so modified, the judgment is

affirmed. The trial court is directed to amend the abstract of judgment to reflect this

modification of the judgment and to forward a certified copy of the amended abstract to

the Department of Corrections and Rehabilitation.


                                                                       NARES, Acting P. J.

WE CONCUR:


HALLER, J.


AARON, J.




                                             37
