Filed 5/8/14 P. v. Gidding CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038175
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR0901072)

         v.

ROBERT ANTHONY GIDDING,

         Defendant and Appellant.



         Defendant Robert Anthony Gidding was convicted by jury trial of robbery (Pen.
                                         1
Code, §§ 211, 212, subd. (a)), first degree burglary (§§ 459, 460, subd. (a)), three counts
of false imprisonment (§§ 236, 237, subd. (a)), and assault with a firearm (§ 245,
subd. (a)(2)). The jury also found true allegations that he was armed with a firearm
(§ 12022, subd. (a)(1)) in the commission of the robbery, burglary, and false
imprisonment counts, that he acted in concert and entered a structure in the commission
of the robbery (§ 213, subd. (a)(1)(A)), and that a non-accomplice was present in the
residence during the burglary (§ 462, subd. (a)). Defendant admitted that he had suffered
prior convictions and served a prison term for them (§ 667.5, subd. (b)), and the court
found true that one of his prior convictions was a strike (§ 667, subds. (b)-(i)) and a



1
         Subsequent statutory references are to the Penal Code unless otherwise specified.
serious felony (§ 667, subd. (a)). Defendant was committed to state prison for a term of
23 years.
       On appeal, defendant contends that (1) there was insufficient evidence to support
one of the false imprisonment counts, (2) the trial court erred in refusing to admit
additional portions of defendant’s jail telephone conversations under Evidence Code
section 356, (3) the prosecutor committed prejudicial misconduct, (4) the superior court
erred in denying his Pitchess2 motion, (5) the errors were cumulatively prejudicial, and
(6) the trial court violated section 654 by imposing separate punishments for the robbery
count, one of the false imprisonment counts, and the assault count because these counts
were against the same victim and were part of the same course of conduct. We conclude
that the trial court violated section 654 when it imposed a separate sentence for the
assault count, but we reject the remainder of defendant’s contentions.


                                 I. Factual Background
       Roberta Anna Mendoza, her boyfriend Francisco Rodriguez Hernandez
(Rodriguez), and her son Romero Enrique Castillo lived near Bixby Road at 2560 San
Juan Road, which is also known as Highway 156. Shortly after midnight on
May 31, 2009, Mendoza was awakened by a “heavy knock” on her front door. The bed
in which Mendoza and Rodriguez were sleeping was pushed up against the front door.
Mendoza looked out the window and saw a man outside dressed in black and wearing a
beanie. She also saw a “long, wide, spooky, ugly looking,” “big vehicle” outside her
home. Mendoza later that night identified defendant’s car as the one she had seen outside
her home. She unsuccessfully tried to awaken Rodriguez. Mendoza ran to another room
and looked out another window. From this window, she could see that there were four or
five men outside her home, all of them dressed in black. She believed the men were

2
       Pitchess v. Superior Court (1974) 11 Cal.3d 531.

                                             2
Hispanic based on their clothing although she could not see their skin. Mendoza went to
Castillo’s room and told him to get up and call the police.
       One of the men went around the back of the house and removed a window screen.
Before Castillo could call the police, one of the men kicked the front door open, shoving
back the bed in which Rodriguez was sleeping. One of the men fell on top of Rodriguez,
and Rodriguez began struggling with him. This man was “Mexican.” A second man hit
                                                  3
Rodriguez in the head with the butt of a pistol. One of the men tied Rodriguez up with a
plastic zip-tie, and the Mexican man told Rodriguez in Spanish not to move and not to
look at any of the other men. He shined a bright light in Rodriguez’s eyes the entire time
the men were there, so Rodriguez did not see any of the men besides the Mexican one.
The other men were speaking English.
       Mendoza heard a loud crash and a voice speaking English and saying “Don’t
move.” She also heard voices telling Castillo to put down the phone and lie down on the
floor or he would be shot. Castillo obeyed this order. The men tied his hands behind his
back with a plastic zip-tie and left him on the floor face-down. One of the men
repeatedly asked Castillo in English where the “money” and “valuables” could be found.
Castillo repeatedly responded that they had no money or valuables. Castillo could hear a
man talking to Rodriguez in Spanish. The men asked Castillo who else was in the house,
and he told them that his mother was there.
       Mendoza, who was “[a]ll curled up” hiding in a storage room, was “scared.” She
feared for her life. She heard one of the men yelling “[w]here the fuck is she?” The men
proceeded to go through the house with flashlights looking for her. They looked in the
storage room, but they did not discover her. The men took $80 out of Rodriguez’s wallet,




3
       Rodriguez had two “bumps” on his head from being hit with the pistol butt, and
his jaw was also injured in the struggle.

                                              3
took his cell phone, and left. A few minutes later, at 12:24 a.m., Castillo called the
sheriff’s department.
       Deputy Sheriffs Richard Uribe and Mark Williams were promptly dispatched to
2560 San Juan Hollister Road. San Juan Hollister Road is a frontage road that parallels a
portion of San Juan Road/Highway 156 that is not near Mendoza’s home. Unfortunately,
the deputies were not told that the cross street for Mendoza’s home was Bixby. Instead,
they were directed to a different cross street near the “wrecking yard,” which is on San
Juan Hollister Road, not on Highway 156. This was four or five miles away from
Mendoza’s home. When Uribe was unable to find the address 2560 on San Juan Hollister
Road, he got out of his patrol car to check mailboxes near 2620 San Juan Hollister Road.
Williams joined him. They were both in full uniform and carrying rifles.
       The deputies could not find 2560, but Uribe saw “four to five silhouettes of people
running” by a driveway near 2620 San Juan Hollister Road. Uribe called out “Sheriff’s
office, Stop.” They did not stop. Additional uniformed deputies arrived, and one of the
deputies illuminated the area with a spotlight. A minute or two later, Uribe saw Joaquin
McKenzie, a Hispanic male wearing black clothing, walking up the driveway toward
him. Uribe ordered McKenzie to stop, and he did. One of the other deputies handcuffed
McKenzie and put him in a patrol car.
       Less than a minute later, Uribe and the other deputies saw defendant’s car coming
very slowly up the driveway. One of the patrol cars was partially blocking the driveway.
Williams recognized defendant as the driver and called out this information to the others.
Williams, who was just a few feet from defendant’s car, yelled “Sheriff’s office, Stop,
Sheriff’s office, Stop.” Uribe walked toward the car while identifying himself as
“sheriff’s office” and illuminating the inside of the car with his rifle’s light. Defendant
did not stop the car but instead suddenly accelerated toward Uribe.
       Williams realized that Uribe and the other deputies were in the car’s path, and he
started firing his rifle at defendant. Uribe tried to get out of the way of defendant’s car.

                                              4
When it was 10 feet from him, he fired two rounds from his rifle at the car’s windshield.
He fired four more rounds, targeting the front tires, before defendant’s car turned
eastbound on San Juan Hollister Road. Uribe heard the vehicle “bottom[ ] out” because
the right front tire was “blown.” He fired two more rounds at the back of the vehicle
hoping to disable it. Uribe took custody of McKenzie, and two of the other deputies
pursued defendant’s car.
       The deputies who remained at the scene of the shooting saw another car drive up
the driveway. The occupants of this car, Stan Helmhout and Kathleen Austin, were
briefly detained. They were released after it was determined that they were not involved
in the incident. Defendant’s car was soon found nearby, disabled and abandoned in the
middle of the road. The entire car, including the chrome trim and the license plate, had
been spray painted a “dull primered” black. Two weeks earlier, defendant’s car had been
stopped for expired registration tags, and his license plate had not been painted black at
that time. Black plastic zip-ties were found inside the car, but they were not as long as
the ones used to tie up Castillo and Rodriguez.
       Eventually, sheriff’s deputies arrived at Mendoza’s home. None of the victims
was able to describe the men who had invaded Mendoza’s home.
       The sheriff’s department issued a flyer with defendant’s photo on it to law
enforcement officers in the surrounding area. A Hollister police officer responding the
morning after the home invasion to a report of a suspicious person found defendant
sitting on a bench. He was wearing a black shirt, a black hooded sweatshirt, and black
jeans, and he had a bloody wound on his head. The officer asked defendant about the
wound, and defendant said he had gotten into a fight with his girlfriend, whom he refused
to identify. Defendant was arrested. After his arrest, defendant said that he would “talk
about the two events and the people involved” if the charges were changed to
misdemeanors. His offer was declined. Defendant also inquired about McKenzie. A



                                             5
few days later, a beanie and a pair of gloves plus a single glove were discovered near the
scene of the shooting.
       After defendant was arrested, he telephoned McKenzie from jail. The phone call
was recorded. Defendant told McKenzie: “All you have to do is go to talk to Stan, and
tell Stan that me and you were fucking there. Just have Stan say yeah they, they’ve been
with . . . they were there for fucking hours before . . . for fucking 3 or 4 hours right there
at Stan’s house.” McKenzie told defendant that Stan was “being kind of fucking bitched
up or something I don’t know.” Defendant responded: “Just go over with a fucking
chunk of cash.” “Yeah you need to go talk to him like right fucking now, please.” “Like
jump in your car and go explain to him that me and you had been with him for like 3 or 4
hours before the cops showed up.” “Let Stan know that I need him to say that I had been
parked there for like 3 hours.” “Please. And my car was parked there for 3 hours, and
whatever fucking old car they’re talking about, old black car that was involved in home
invasion, then that will be clear, because obviously it wasn’t mine. As long as Stan will
say nah, he’s been fuckin’, he’s been here for 3 hours.” McKenzie later spoke with
defendant and reported: “Stan said that you were over there smoking cigarettes for about
three hours with him.” Defendant responded: “Fuck yeah!”
       Defendant also called his mother from jail. He told her that “they’re telling me
that there was an old black car involved in a uh robbing a house. Armed
robbery . . . assault robbery or whatever. Like somebody robbed a house with guns.” His
mother asked “An armed robbery?” He replied “Yeah. No, that’s not what the charge is.
It’s uh, home invasion.” No one had mentioned guns to defendant at the time of his
arrest. He had initially been charged with attempted murder (with his car), robbery, and
conspiracy.




                                               6
                               II. Procedural Background
       Helmhout testified at trial that he was awakened on May 31, 2009 after midnight
by loud noises outside his home at 2626 San Juan Hollister Road, which was on the same
driveway where the shooting took place. He opened the door and saw three Hispanic
men. One of the men was at Helmhout’s door begging to be let inside. The man called
Helmhout “Stan.” Helmhout thought he had met two of the men once before, but he did
not know their names. Helmhout refused to admit the man at the door and slammed the
door. When Helmhout continued to hear noises outside, he reopened the door, and the
men tried to force their way inside. Helmhout managed to close the door. Defendant was
not one of the men. Helmhout heard someone on the roof of his home, and he heard
gunshots. This made Helmhout nervous, so he and Austin got into his truck and drove up
the driveway until they encountered the sheriff’s deputies.
       The following day, one of the men who had come to Helmhout’s door returned
and asked for permission to retrieve his cell phone and a gun that he had dropped in some
nearby bushes. The man retrieved two items, including a cell phone, from the bushes.
Subsequently, Helmhout was visited by a man who asked him to falsely say that
defendant was “at my place playing cards” on the night of the shooting. Defendant was
Helmhout’s friend. Helmhout told the man that he would do so, but he later changed his
mind because he “didn’t want to get involved.”
       The jury found defendant guilty of all of the substantive counts and found the
associated allegations true. Defendant admitted that he had suffered the prior conviction
alleged to be a prior serious felony and strike and admitted the prison prior, but he did not
admit that the prior conviction qualified as a strike or as a serious felony conviction. The
court found that it did, and it denied defendant’s motion to strike the strike. The court
also denied defendant’s motion for a new trial. Defendant was committed to state prison
for a term of 23 years, which included consecutive sentences for the robbery, false
imprisonment, and assault counts. Defendant timely filed a notice of appeal.

                                             7
                                      III. Discussion
                              A. Sufficiency of the Evidence
       “The role of an appellate court in reviewing the sufficiency of the evidence is
limited. The court must ‘review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶] The same
standard applies to the review of circumstantial evidence. [Citation.] The court must
consider the evidence and all logical inferences from that evidence . . . . But it is the
[factfinder], not the appellate court, which must be convinced of the defendant’s guilt
beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute
its judgment for that of the [factfinder]. If the circumstances reasonably justify the
[factfinder]’s findings, the reviewing court may not reverse the judgment merely because
it believes that the circumstances might also support a contrary finding.” (People v. Ceja
(1993) 4 Cal.4th 1134, 1138-1139.)
       Defendant challenges the sufficiency of the evidence to support his conviction for
falsely imprisoning Mendoza. He claims that the required “general intent” was lacking
because the robbers “had no contact whatsoever” with Mendoza and did not know of her
presence in the house.
       “False imprisonment is the unlawful violation of the personal liberty of another.”
(§ 236.) False imprisonment is a felony where it is “effected by violence, menace, fraud,
or deceit.” (§ 237, subd. (a).) “[F]elony false imprisonment requires only general
criminal intent; that is, the defendant must intend to commit an act, the natural, probable
and foreseeable consequence of which is the nonconsensual confinement of another
person . . . .” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1399-1400.)
       The natural, probable and foreseeable consequence of the robbers’ acts was that
Mendoza would be nonconsensually confined. The robbers forced open the front door of

                                              8
her home in the middle of the night. They loudly threatened to shoot her son if he moved
and forced him to reveal her presence. After Castillo told the robbers that his mother was
in the house, the robbers loudly and visibly searched the small house for her. Since one
robber had gone around the back of the house and the rest had entered from the front,
they were aware of the size of the home and of its only exits. It was natural and
foreseeable that Mendoza, hearing that her presence was known to the robbers and that
they had threatened to shoot her son if he moved, would be forced to remain hidden in
fear that she would be found and shot.
       This evidence readily established that the robbers had the requisite general intent
to falsely imprison Mendoza. Since the robbers knew of her presence, sought her out,
and loudly threatened her son’s life if he moved, they were plainly conscious of the
nature of their acts and of the probable consequences for Castillo’s unseen but present
mother. (People v. Fernandez (1994) 26 Cal.App.4th 710, 718.) The evidence supports
the jury’s verdict on this count.


                                         B. Jail Calls
       Defendant contends that the trial court erred in excluding the remainder of his jail
phone conversations with McKenzie and his mother. He claims that these conversations
were admissible in their entirety under Evidence Code section 356.
                                      1. Background
       Defendant made a pretrial motion seeking admission of the remainder of his jail
calls, given that the prosecution intended to introduce excerpts from those calls. He
claimed that the entirety of the calls was required to be admitted under Evidence Code
section 356 “to place all the calls in context, particular[ly] with regard to defendant’s
conversation concerning the police shooting at him and almost killing him.” The
prosecution countered with a motion to exclude all statements by defendant. The defense
subsequently made an in limine motion to preclude the prosecution from introducing any

                                              9
part of the jail calls. The in limine motion also argued that the introduction of any part of
the jail calls would entitle the defense to introduce the entirety of the calls under
Evidence Code section 356.
       At a hearing on the defense motion to exclude the prosecution’s excerpts, the
defense claimed that the entirety of the calls would be admissible to show defendant’s
“emotional state.” The court did not immediately rule on the issue. Instead, the court
proceeded to consider the parties’ arguments about the admissibility of defendant’s
statement to his parole officer.
       The prosecutor sought admission of defendant’s statement to his parole officer that
he was at the shooting. The defense sought admission of defendant’s statement to his
parole officer that he was not at the home invasion. The court ruled that the admission
that he was at the shooting could come in but the denial that he was at the home invasion
could not. “Clearly that first part of the sentence is an admission: I was at the shooting.
But not at the home invasion. That’s not an admission. That’s an exculpatory statement.
That’s not subject to an exception to the hearsay rule.” Defendant’s trial counsel did not
contend that Evidence Code section 356 applied to the statement to the parole officer.
Instead, he argued that this statement was admissible as a business record or as a
statement against penal interest. The court rejected those claims. The court did not make
any ruling on the jail calls at that time, saying it needed “a little more clarity” on that
issue. “I will not rule on it now because I haven’t read it . . . .”
       At a subsequent in limine hearing, the court concluded that Evidence Code section
356 did not require the admission of any additional portions of the jail calls sought by the
defense. “[O]bviously, the whole area that deals with that [(what the prosecution was
introducing)] should come in to give it meaning. [¶] But I don’t think, just because
something is relevant, that the whole transcript comes in or ten paragraphs surrounding
the relevant parts. If there needs to be some clarification, yes. But I don’t think there



                                               10
needs to be any clarification here. What he says is self-contained and clear.” The
prosecution was thereafter permitted to play for the jury brief excerpts from the jail calls.
                                        2. Analysis
       Defendant begins by claiming that the trial court’s ruling was erroneously founded
on its belief that the issue “involv[ed] the distinction between an admission and an
exculpatory statement.” He misreads the record. The court’s statement about the
distinction between an admission and an exculpatory statement did not concern the jail
calls but the parole officer’s statements. The court’s ruling on the jail calls was made at a
different hearing and on a different basis.
       Defendant’s primary contention on appeal is that additional portions of the jail
calls were admissible under Evidence Code section 356. “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or writing is given in
evidence, any other act, declaration, conversation, or writing which is necessary to make
it understood may also be given in evidence.” (Evid. Code, § 356.) Because the defense
sought admission into evidence of additional portions of the conversations under
Evidence Code section 356, it was required to show that the additional portions were
“necessary to make [the prosecution’s excerpts] understood . . . .”
       “The purpose of Evidence Code section 356 is to avoid creating a misleading
impression. [Citation.] It applies only to statements that have some bearing upon, or
connection with, the portion of the conversation originally introduced. [Citation.]
Statements pertaining to other matters may be excluded.” (People v. Samuels (2005) 36
Cal.4th 96, 130.) “Section 356 is indisputably ‘ “subject to the qualification that the court
may exclude those portions of the conversation not relevant to the items thereof which
have been introduced.” ’ [Citations.] ‘The rule is not applied mechanically to permit the
whole of a transaction to come in without regard to its competency or relevancy . . . .’ ”

                                              11
(People v. Williams (1975) 13 Cal.3d 559, 565.) An additional portion of a conversation
“may be excluded at the court’s discretion if it does not serve to clarify or explain” the
portion introduced by the adverse party. (People v. Von Villas (1992) 10 Cal.App.4th
201, 272 (Von Villas).) We review the trial court’s ruling on the admissibility under
Evidence Code section 356 of additional portions of the jail calls for abuse of discretion.
(People v. Parrish (2007) 152 Cal.App.4th 263, 274.)
       Defendant argues that the trial court’s ruling was an abuse of discretion because
the court’s reasoning relied on the lack of a need for clarification instead of the relevancy
of the omitted portions. We find no error in the trial court’s reasoning. Evidence Code
section 356 permits the introduction of additional portions of a conversation only where
the additional portions are shown to be “necessary to make [the admitted portions]
understood . . . .” (Evid. Code, § 356.) The trial court may exclude additional portions if
the additional portions do not “serve to clarify or explain” the admitted portions. (Von
Villas, supra, 10 Cal.App.4th at p. 272.) Thus, the lack of a need for clarification is a
valid basis for excluding evidence sought to be admitted under Evidence Code
section 356.
       The only remaining question is whether the defense established that the
prosecution’s excerpts from the jail calls required clarification. The first excerpt was
defendant telling McKenzie that he “would have stopped if I would have known it was
the fucking cops.” The second and third excerpts were the conversation between
defendant and McKenzie about McKenzie getting Helmhout to provide an alibi for
defendant and McKenzie. The fourth excerpt was defendant’s conversation with his
mother in which he revealed knowledge that the home invasion had involved guns and
“an old black car” and told his mother about his alibi. The fifth excerpt was defendant’s
conversation with his mother in which he told her that the “Mexicans” who had
committed the home invasion had been “running all around me” “with guns” in the
driveway before he drove away in his black car. The final excerpt was the conversation

                                             12
between McKenzie and defendant in which McKenzie told defendant that he had gotten
Helmhout to provide an alibi, and defendant replied “Fuck yeah!”
         Defendant claims that the exclusion of the remainder of the conversations “created
a false impression by removing the statements from their context.” As to the first
excerpt, he claims that his statement that he did not know it was the police when he failed
to stop his car needed to be clarified with his statements providing more detail about why
he did not think that it was the police. Defendant is under the mistaken impression that
this excerpt was admitted to show his consciousness of guilt. Not so. It was admitted to
show that defendant was the driver of the car, which was relevant to his connection to the
home invasion as the car was identified by Mendoza as having been outside her home
during the home invasion. The trial court could have reasonably concluded that
defendant’s alleged basis for his alleged lack of knowledge of the deputies’ identities was
not necessary to give meaning to his admission that he was driving the car.
         Defendant contends that the remainder of the excerpts from his conversation with
McKenzie needed to be supplemented with additional portions of the conversation in
which he complained about the lengthy sentence he faced. In his view, the omitted
portions would have clarified that he was not seeking an alibi because he was guilty but
because he feared a lengthy sentence. The trial court did not abuse its discretion in
concluding that the prosecution’s excerpts showing that defendant had made efforts to
produce a false alibi did not require clarification. The admission of defendant’s statement
that he feared a lengthy prison term would not have shown that he was not trying to
concoct a false alibi nor would it have clarified the nature of his attempt to create a false
alibi.
         Finally, defendant claims that additional portions of his conversation with his
mother were necessary to clarify the excerpts introduced by the prosecution. The
prosecution’s excerpts were limited to showing that defendant knew that the home
invasion had been committed by “Mexicans” with guns and had involved an “old black

                                              13
car.” The trial court could reasonably conclude that defendant’s additional statements to
his mother about the shooting, the charges and prison sentence he was facing, and his
alibi would have done nothing to clarify his knowledge of the connection between
Mexicans, guns, an “old black car,” and the home invasion, knowledge that only one of
the perpetrators would have had.
       Because the excerpts introduced by the prosecution were narrow and did not
involve the subject matter that was discussed in the remainder of the conversations, the
trial court did not abuse its discretion in rejecting admission of the remaining portions of
the jail calls under Evidence Code section 356.


                              C. Prosecutorial Misconduct
       Defendant contends that the prosecutor committed prejudicial misconduct that
warrants reversal of the judgment.
       “Under California law, a prosecutor commits reversible misconduct if he or she
makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either
the trial court or the jury, and when it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted. [Citation.]
Under the federal Constitution, conduct by a prosecutor that does not result in the denial
of the defendant’s specific constitutional rights—such as a comment upon the
defendant’s invocation of the right to remain silent—but is otherwise worthy of
condemnation, is not a constitutional violation unless the challenged action ‘ “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.” ’ ”
(People v. Rundle (2008) 43 Cal.4th 76, 157, disapproved on a different point in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It is only where the trial is fundamentally
unfair that we evaluate any error under the federal standard; otherwise, we apply the state
law harmless error standard of review. (People v. Adanandus (2007) 157 Cal.App.4th
496, 514-515.) Under the state law standard, reversal is required “only if, ‘after an

                                             14
examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it
appears ‘reasonably probable’ the defendant would have obtained a more favorable
outcome had the error not occurred (Watson, supra, 46 Cal.2d 818, 836).” (People v.
Breverman (1998) 19 Cal.4th 142, 178.)
       Defendant accuses the prosecutor of improper “vouching.” At the beginning of
his opening argument to the jury, the prosecutor said: “You know, I got the greatest job
in the world. How many people can say my job is to do justice. That’s my job. You
were picked and you’re on this jury to help do that very thing, justice.” He began his
closing argument with the following: “The burden is mine. I’m not trying to shift the
burden. This is about doing justice.” Later, he said; “There’s an old adage -- I’m a big
boy. Seems like I’m a little upset here. I’m a little worked up. I apologize. I don’t like
to be personally attacked. It’s part of the job. I did defense work for many years myself
before I came here. [¶] There’s an old adage. If the facts are against you, attack the law.
If the law is against you, attack the facts. If the facts and the law are against you, attack
the cops, attack the prosecutor, attack anybody you can. That’s all they did.” “Think
about the stuff that he says. Listen. Because he wants to confuse you. He’s just doing
his job. I’m not going to put him down or call him a liar or throw stones at him or
dispute his integrity like he did to me. I don’t need to do that because I have the facts of
this case and the law on my side and on the People’s side.”
       Defendant asserts that the prosecutor’s comments to the jury about his job being to
                                                                                  4
“do justice” and his remarks about the “old adage” were prohibited vouching.


4
        Defendant also asserts that the prosecutor’s references to defendant’s trial
counsel’s argument that the robbers were “Mexicans” or “Hispanics” was somehow an
attack on defendant’s trial counsel’s integrity. We disagree. These remarks, and others
he mentions in this regard, were closely tied to the prosecutor’s argument that the jury
should be guided by the evidence. These remarks were not improper, and we cannot
imagine how the jury could have seen them as attacks on defendant’s trial counsel’s
integrity.

                                              15
“Impermissible vouching occurs when ‘prosecutors [seek] to bolster their case “by
invoking their personal prestige, reputation, or depth of experience, or the prestige or
reputation of their office, in support of it.” [Citation.] Similarly, it is misconduct “to
suggest that evidence available to the government, but not before the jury, corroborates
the testimony of a witness.” ’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1207.) “When,
as here, the claim focuses on comments made by the prosecutor before the jury, a court
must determine at the threshold how the remarks would, or could, have been understood
by a reasonable juror. [Citations.] If the remarks would have been taken by a juror to
state or imply nothing harmful, they obviously cannot be deemed objectionable.”
(People v. Benson (1990) 52 Cal.3d 754, 793.)
       While some of the prosecutor’s words were poorly chosen, he did not ask the jury
to disregard the evidence and instead rely on the prestige of his office in deciding the
case. The prosecutor’s remarks about his job being to “do justice” were not connected to
any exhortation that the jury should believe the prosecution’s witnesses or find defendant
guilty based on anything other than the evidence. Instead, these remarks were general
and amorphous. No reasonable juror would have viewed these remarks as implying
anything harmful to defendant. As to the “old adage” remarks, in People v. Breaux
(1991) 1 Cal.4th 281 (Breaux), the California Supreme Court found similar remarks were
not improper so long as they did not suggest that defense counsel was permitted to be
dishonest but only that the jury should rely on the evidence. (Breaux, at p. 306.) As in
Breaux, the prosecutor accused the defense of trying to “confuse” the jury, but the thrust
of his remarks was that the jury should focus on the facts and the law and ignore the
quibbles between the attorneys. Indeed, the prosecutor explicitly told the jury that
defendant’s trial counsel was “just doing his job” and asserted that he was not calling




                                              16
                                                               5
defendant’s trial counsel “a liar” or disputing his “integrity.” We are satisfied that the
jury would not have understood the prosecutor to be impugning the integrity of
defendant’s trial counsel.
       Defendant maintains that the prosecutor relied on matters outside the record when
he argued to the jury: “I’ll just let you realize this -- and I know that you probably do --
the defense didn’t want [the jail calls] to come in. I’m sure. You think he wants you to
know all those statements he made.” We agree that these remarks were improper as the
defense’s position on the admissibility of the jail calls was both not in evidence and
irrelevant. However, we see no possibility of prejudice. The prosecutor’s point was that
defendant’s concoction of an alibi was damaging to his defense. It is inconceivable that
the jury would not have reached that same conclusion in the absence of the prosecutor’s
inappropriate comments.
       Defendant asserts that the prosecutor made an argument to the jury that was an
attempt to shift the burden to the defense. The prosecutor argued that defendant was one
of the robbers and “was there” at the home invasion. He also argued that, even if
defendant only “drove them there,” he was still guilty as an aider and abettor. “He knew
where they were going and what they were going to do. He knew what his car was
designed to do. Now, as I said, that’s just a fallback because he was there. There’s no
evidence that he wasn’t.” Defendant claims that this last sentence was an attempt to shift
the burden to the defense. We agree that this remark was improper. But the record does
not reflect that the jury would have understood this isolated remark to encourage it to
shift the burden to the defense. The prosecutor explicitly told the jury, after this remark,
that “[t]he burden is mine. I’m not trying to shift the burden.” After arguments, the court


5
       Defendant complains that these statements by the prosecutor were an example of
“a rhetorical device in which the statement suggests the opposite of its explicit meaning.”
We find no basis in the record for a conclusion that the jury would have understood the
prosecutor to mean the opposite of what he said.

                                             17
explicitly instructed the jury that the prosecutor bore the burden of proof and told the jury
to follow the court’s instructions and disregard anything contrary said by the attorneys.
Under these circumstances, the jury could not have understood the prosecutor’s remark to
authorize it to shift the burden to the defense.
       Defendant contends that the prosecutor improperly asked the jurors to put
themselves in the positions of the victims. The prosecutor argued to the jury that the
victims were credible because they had always been consistent, including on cross-
examination. “They didn’t waiver [sic]. Imagine if you were the victims, the lay people
in this whole thing. How tough it was to sit in front of somebody you thought did
something that brutal to you and testify. You saw Ms. Mendoza break down a little bit. I
think Mr. Castillo did too. [¶] Why would they come forward and why would they put
                                                                     6
themselves through this? This happened the way they said it did.” The prosecutor’s
point was that the victims’ emotional responses and consistency during their testimony
supported their credibility. While his “[i]magine if you were the victims” comment was
improper, the jury would not have understood this remark, in context, as asking them to
place themselves in the victims’ shoes but simply as pointing out that the victims’
demeanor in court demonstrated their credibility not the opposite.
       Defendant also argues that the prosecutor engaged in “badgering and abusive
behavior” toward defendant’s trial counsel that constituted misconduct and rendered the
trial fundamentally unfair. He concedes that much of this conduct occurred outside the
jury’s presence, but he argues that even that conduct infected the trial proceedings with



6
        The prosecutor made a similar comment in his rebuttal argument when he was
again defending Mendoza’s credibility. “He’s going to sit here and say, How could she,
why would she -- how would you feel? This poor woman was robbed in her own house.”
The substance of this comment asked the jury to view Mendoza’s demeanor while
testifying in the context of the trauma that she was required to remember. It did not ask
the jurors to see themselves as the victims of the crimes.

                                              18
unfairness. We disagree with the premise. The prosecutor did indeed make comments
outside the presence of the jury that were intemperate, but none of those comments
infected the proceedings with any unfairness because the trial court maintained control of
the proceedings at all time. As the trial court noted at the hearing on the motion for a
new trial in connection with the defense claims of prosecutorial misconduct: “Both sides
made some comments that, in retrospect, probably should have been modified slightly,
but none of it amounted to prosecutorial misconduct, and none of it impaired a fair trial in
          7
the case.” We agree.
       Defendant also challenges as misconduct some of the prosecutor’s interjections in
front of the jury. During defendant’s trial counsel’s cross-examination of Mendoza, he
repeatedly asked her to estimate how much time passed between the men leaving the
house and Castillo’s call to the police. Mendoza repeatedly stated that she was unable to
say. After several questions, the prosecutor interjected: “That’s been asked a few times,
Your Honor. She’s really struggling with it.” The court overruled the objection.
Moments later, defendant’s trial counsel asked Mendoza to look at a transcript to see if it
refreshed her recollection. The prosecutor interjected: “I’m going to object for a sec.
Can we clarify for the witness that it is a transcription by the defense. I’ve had no
opportunities to --” The court responded: “Let’s not get into that. I think she
understands that it’s purported to be a transcript . . . .” The prosecutor replied: “That’s
more accurate. It’s purported be a transcript of the . . . .” Later in defendant’s trial
counsel’s cross-examination of Mendoza, the prosecutor again intervened when



7
       Later in the hearing on the new trial motion, the prosecutor, defendant’s trial
cocounsel, and defendant began talking at the same time. The prosecutor said: “I’m
speaking to the court now. Whether it’s one year or 23 years of experience, you should
know to shut up and let the other person speak.” Defendant’s trial cocounsel responded
with a comment about “civility,” and the trial court said “stop it right now.” This
exchange is demonstrative of the trial court’s control of the proceedings.

                                              19
defendant’s trial counsel was asking Mendoza whether she had made certain statements
during the 911 call. The prosecutor said: “My objection, I kind of let it go for a while,
but he’s really just testifying as to what he thinks the evidence should be. He laid no
foundation with her, et cetera.” The court overruled the objection. None of these
interjections amounted to misconduct. The prosecutor’s colloquial style was
inappropriate, but the trial court intervened in each instance and overruled his objections.
       The same is true as to other instances that defendant asserts constituted
misconduct. During the prosecutor’s direct examination of the sheriff’s deputy who had
interviewed the victims, the following colloquy occurred. “Q. You say there was a light
being shined in his eyes? [¶] A. Yes, there was a flashlight or some type of light. [¶]
MR. VERTNER [defendant’s trial counsel]: Your Honor, this is direct examination. [¶]
THE COURT: It’s leading. [¶] MR. PALACIOS [the prosecutor]: Sorry, Your Honor.
[¶] THE COURT: Be careful of the leading. [¶] MR. PALACIOS: Sure, Your Honor.
I just wanted to save some time.” This exchange again demonstrates that the prosecutor
was prone to colloquial interjections, but it does nothing to demonstrate misconduct.
       We find no significant misconduct that could possibly have prejudiced the
defense.


                                   D. Pitchess Motion
       Defendant asks us to examine the reporter’s transcript of the superior court’s
review of Uribe’s personnel record to determine whether the superior court erred in
denying his Pitchess motion. Because the appellate record lacked a transcript of that
review, we asked the superior court to prepare a settled statement regarding its review. It
has done so, and we have reviewed that record, which is fully adequate to afford
meaningful review. The superior court did not err in denying defendant’s motion.




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                                E. Cumulative Prejudice
       The prosecutorial misconduct was neither individually nor cumulatively
prejudicial.


                                      F. Section 654
       Rodriguez was the victim of the robbery count, the assault count, and one of the
false imprisonment counts. The court imposed separate terms for the assault and false
imprisonment counts consecutive to the term for the robbery count. Defendant claims
that the court violated section 654 in doing so because all three counts were committed
with the same intent and objective.
       “The initial inquiry in any section 654 application is to ascertain the defendant’s
objective and intent. If he entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.”
(People v. Beamon (1973) 8 Cal.3d 625, 639.) “ ‘The defendant’s intent and objective are
factual questions for the trial court; [to permit multiple punishments,] there must be
evidence to support a finding the defendant formed a separate intent and objective for
each offense for which he was sentenced. [Citation.]’ ” (People v. Coleman (1989) 48
Cal.3d 112, 162.) “A trial court’s express or implied determination that two crimes were
separate, involving separate objectives, must be upheld on appeal if supported by
substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.)
       Ordinarily, section 654 precludes the imposition of separate punishment for an
assault that is incidental to the perpetration of a robbery. (People v. Ridley (1965) 63
Cal.2d 671, 678.) However, “a separate act of violence against an unresisting victim or
witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found
not incidental to robbery for purposes of section 654.” (People v. Nguyen (1988) 204

                                             21
Cal.App.3d 181, 193.) Here, the robbery, the assault, and the false imprisonment were
acts of violence against Rodriguez, but the facts do not reflect that he was an “unresisting
victim.” Rodriguez testified that he was struggling with a robber who was on top of him
when another robber hit him in the head with the gun, and one of them then tied him up.
The first man shined a bright light in Rodriguez’s eyes the entire time the men were there
so that Rodriguez would not be able to identify the robbers.
       Substantial evidence supports the trial court’s implied finding that the robbery and
false imprisonment counts had separate intents and objectives, but we can find no
evidence to support the trial court’s implied finding that the assault had an objective that
was separate from both the robbery and the false imprisonment. The robbery was
intended to obtain money and valuables. The false imprisonment was intended to prevent
Rodriguez from identifying the robbers and from summoning assistance after they left.
The light could not have been continuously shined in Rodriguez’s eyes if he had not been
tied up. Because the objective of the false imprisonment was distinct from the objective
of the robbery, separate punishments could be imposed for these two counts. The same
cannot be said with regard to the assault. The purpose of the assault was to overcome
Rodriguez, who was struggling with one of the robbers, so that he could be tied up,
thereby preventing him from interfering with the robbery, identifying the robbers, and
summoning assistance after the robbers left. These objectives were the same as those
underlying the robbery and the false imprisonment. We can find no evidence in the
record to support a finding that the assault had some other separate objective.
Accordingly, the trial court should have stayed the sentence for the assault count under
section 654. We will direct it to do so on remand.




                                             22
                                    IV. Disposition
      The judgment is reversed. On remand, the trial court is directed to stay under
section 654 the sentence imposed for the assault count and resentence defendant
accordingly.




                                        _______________________________
                                        Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.




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