Filed 5/1/15 P. v. Nowden CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B247050

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA365005)
         v.

FRED NOWDEN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Leslie A. Swain, Judge. Affirmed as modified with directions.
         William L. Heyman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and J.
Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Defendant and appellant, Fred Nowden, appeals his conviction for robbery
(3 counts), burglary, false imprisonment by violence (5 counts) and felon in possession of
a firearm, with prior serious felony conviction, prior prison term, and firearm
enhancements (Pen. Code, §§ 211, 459, 236, former 12021, 667, subds. (a)-(i), 667.5,
12022.5, 12022.53).1 He was sentenced to state prison for a term of 53 years.
       The judgment is affirmed as modified.
                                    BACKGROUND
       Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       1. Prosecution evidence.
       On November 19, 2009, Robert Durant, Sr. and his son, Robert Durant, Jr., were
living in Durant Sr.’s house on Dublin Avenue. That evening, Durant Jr.’s estranged
wife, Sarah Williams-Durant, and their two children were at the house to celebrate
Durant Jr.’s birthday.
       Around 8:30 p.m., the doorbell rang and Durant Sr., after seeing a young boy
through the window, opened the door. The boy said his mother had told him his bicycle
was at this house. Durant Sr. went back to confer with Durant Jr., who said there weren’t
any bikes at the house. When Durant Sr. returned to the front door, two men stuck a gun
in his face and pushed him inside. Defendant Nowden, another man and the boy entered
the house.
       Durant Jr. testified Nowden, whom he had never seen before, was wearing brown
shorts, brown high-top PF Flyer basketball tennis shoes, and a white tank top. Williams-
Durant testified Nowden was wearing brown-orange shorts, a white tank top, a baseball
cap, and high-top shoes. Neither man was wearing a mask or any kind of face covering.
Both men had guns and they ordered everyone to lie down on their stomachs and keep
their heads down.



1
       All further statutory references are to the Penal Code unless otherwise specified.

                                             2
       Durant Jr., who was sitting in the dining room under a big lit chandelier, stared at
the men when they first entered. Although he initially testified he stared at them “for a
second,” Durant Jr. later testified: “[F]rom when you[2] came in, I sat there and I stared
you in the face for a minute – for a while and . . . you did not want me to stare at you. So
I sat there because I was trying to figure out . . . who you were or why were you in my
house. [¶] So I sat in the chair for quite a period of time . . . staring at you and the other
guy. And then that’s when . . . the threats began and . . . you guys made us lay on the
floor, but I sat in the chair for quite some time staring at you and the other two guys.”
       Williams-Durant testified one of her children “was so nervous and upset” that he
“sat up against the wall and [Nowden] kept on telling him ‘I’m going to kill you if you
don’t get on the ground. I’m going to have to kill you.’ ” Williams-Durant managed to
get her son down on the floor. She testified she had gotten a good look at Nowden
because, while she was lying on her stomach, she happened to look up for maybe five
seconds and Nowden made eye contact with her from about three feet away. Nowden
told Williams-Durant to put her head down or he would kill her.
       Nowden bound Durant Jr.’s hands with zip-ties. Nowden told Durant Jr. it was all
his fault and they were going to kill him. Durant Sr. began complaining of heart pain.
       The other man and the boy took Durant Sr. to the master bedroom, where
Durant Sr. kept a safe in the closet. Durant Sr. opened the safe and the man took papers,
jewelry and a box of coins. Meanwhile, Nowden took cell phones from Williams-Durant
and Durant Jr., jewelry from Williams-Durant, and about $2,000 in cash that Durant Jr.
had in his pocket.3 Durant Sr. was brought back from the bedroom and forced to lie on
the dining room floor. He was crying and hyperventilating. The men zip-tied him and
took his wallet, phone and $20.



2
       Because Nowden represented himself at trial, witness testimony was often directed
at him personally.
3
       There is some dispute as to which perpetrator took which items from the victims.

                                               3
       The robbers had taken some socks from Durant Jr.’s room, which the boy put on
his hands to use as gloves. They announced they were not leaving until Durant Jr. gave
them more money. Durant Jr. said he didn’t have any more. Getting a knife from the
kitchen, they threatened to stab Durant Sr. if Durant Jr. did not give them what they
wanted. They again threatened to kill Durant Jr., who said they didn’t have to shoot him
in front of his children.
       Just then Durant Sr.’s cousin, who had been staying at the house, returned home.
She arrived at the front door and opened it. The robbers panicked. The second man told
the cousin to come in and tried to grab her, but she fled once she saw he was armed.
Then the robbers fled, taking a blue duffle bag that belonged to Durant Jr. After getting
free, Durant Sr. ran across the street for help but someone had already called the police.
       Los Angeles Police Department Officer Sunny Sasajima responded to the 9-1-1
call. He spoke to the victims and put out a home-invasion robbery broadcast describing
two of the suspects as African-American men wearing white tops and dark pants, last
seen going north on Dublin Avenue.
       Officer Romulo Frias and his partner Jose Gonzalez happened to be on patrol that
night, driving east on Rodeo Road approaching 4th Avenue, at about 9:00 p.m. Frias saw
Nowden and two other people running across Rodeo. Nowden was carrying a dark duffle
bag and wearing a white shirt and dark pants. A second person was also carrying a dark
duffle bag. The third person was not carrying anything. When Frias stopped his patrol
car the three people stopped running, looked in his direction and immediately jumped
over a wall. Frias and Gonzalez pursued them on foot. No more than a minute later,
Frias heard a radio broadcast saying a burglary had taken place down the block on Dublin
Avenue and that the perpetrators had just left the crime scene. Frias concluded the people
jumping the wall were possible suspects in that crime, so he radioed for a perimeter to be
established.
       Officer Mike Santiago responded to Rodeo Road just west of 6th Avenue as part
of the perimeter force. A resident came out of 2529 Rodeo and said there was an intruder


                                             4
at the rear of his house. Santiago then saw Nowden run across Rodeo Road and south on
6th Avenue before losing sight of him.
       Officer Steven Carnevale and his search dog, Rex, were called to the scene. Their
search began about 10:00 p.m. At one point, Rex showed interest in a house at 3753 6th
Avenue. They left to search elsewhere, but returned to this house 30 minutes later. Rex
disappeared into a screened-in patio in the back yard and barked. Carnevale saw Rex
tugging at a human leg protruding from a cabinet. Nowden was ordered from his hiding
place and arrested. He was unarmed, there was blood on his shirt and his pants were torn.
He had lacerations on his hands. This was at about 1:00 a.m. Officer Frias came to the
location and identified Nowden as the man he had seen running across the street and
jumping over the wall.
       A patrol car brought Nowden to a command post which had been established at
3rd Avenue and Rodeo Road, about three or four blocks from where Nowden had been
apprehended, and two or three blocks from the Durant house. An officer testified this
command post was used “[b]ecause that is what’s considered a safer zone. Remember,
we’re looking for three suspects all presumed to be armed, so . . . we move you from that
spot and take you to a safer spot, more controlled spot for medical attention, which you
needed and for the show-ups.” Officers brought Durant Sr. and Durant Jr. to the
command post to have a look at him. Durant Sr. could not identify Nowden, but
Durant Jr. did. Williams-Durant arrived with another officer and she also identified
Nowden.
       In front of Durant Sr.’s house, police found a bag of blue pills which appeared to
be the drug Ecstasy. Durant Jr. identified a knife found at the foot of a wall in the back
yard of a house on the corner of 4th Avenue and Rodeo Road as the one the robbers had
taken from the kitchen. Also near this wall were a glove, two socks and a dark blue
duffle bag. A second duffle bag was found inside the back yard. Durant Jr. identified the
socks and one of the duffel bags as his own. Inside the duffle bags police found a large
amount of marijuana, two digital scales, and boxes containing clear plastic baggies. The
baggies appeared to match 20 baggies police found in one of the bedrooms of the Durant

                                             5
house. Officer Frias testified the two duffle bags appeared to be the same bags he had
seen the suspects carrying when they ran across Rodeo Road. Inside a trash can in the
Durants’ driveway, police found a rusty handgun and a rusty magazine containing ten
rounds of live ammunition.
       2. Defense evidence.
       Nowden testified in his own defense. He claimed to be a drug dealer and testified
that at the time of the Durant home invasion he had been taking part in a drug transaction
elsewhere. He had made arrangements with a female friend, a fellow drug dealer, to
purchase marijuana from her business connections. Nowden drove in from Orange
County and was picked up by his friend. They were supposed to meet the sellers on
Rodeo Road and exchange duffle bags.
       His friend parked and they proceeded to walk down Rodeo Road. Nowden, who
was not armed, was carrying $45,000 and two scales in a black duffle bag. They
approached the sellers, two men and a woman, at about 8:45 p.m. The two men were
carrying nine pounds of marijuana in two blue duffle bags. Nowden asked the sellers if
they also had cocaine. They did not, but they did have Ecstasy pills which they offered to
include in the deal. They were all headed to a nearby carport to complete the transaction
when a police car suddenly approached, so the group dispersed. Nowden and his partner
put the scales in the bags with the marijuana and they ran, Nowden holding both duffle
bags. He jumped over a wall and stashed the bags behind a house facing Rodeo Road so
he could retrieve them later. Then he kept running. He hid behind a house and was
subsequently apprehended. He could not say how the duffle bags ended up on
4th Avenue.
                                    CONTENTIONS
       1. The trial court erred by admitting evidence of the in-field showup
identifications.
       2. There was prosecutorial misconduct.
       3. This court should independently examine the in camera Pitchess hearing.
       4. There was cumulative error.

                                            6
        5. Nowden’s sentence amounted to cruel and unusual punishment.
        6. Nowden is entitled to an additional day of presentence custody credit.
                                       DISCUSSION
        1. Evidence of the in-field showup identifications was properly admitted.
        Nowden contends his convictions must be reversed because the eyewitness
identifications of him at the in-field one-person showup were tainted and should not have
been admitted into evidence at trial. This claim is meritless.
               a. Legal principles.
        “ ‘In order to determine whether the admission of identification evidence violates
a defendant’s right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
identification.’ [Citation.] ‘We review deferentially the trial court’s findings of historical
fact, especially those that turn on credibility determinations, but we independently review
the trial court’s ruling regarding whether, under those facts, a pretrial identification
procedure was unduly suggestive.’ [Citation.] ‘Only if the challenged identification
procedure is unnecessarily suggestive is it necessary to determine the reliability of the
resulting identification.’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th 846, 901-
902.)
        The defendant bears the burden of showing an identification procedure was unfair
“as a demonstrable reality, not just speculation.” (People v. DeSantis (1992) 2 Cal.4th
1198, 1222.)
        “A ‘lineup’ is a relatively formalized procedure wherein a suspect, who is
generally already in custody, is placed among a group of other persons whose general
appearance resembles the suspect. The result is essentially a test of the reliability of the

                                               7
victim’s identification. [Citation.] The requirement of counsel’s presence encourages the
police to adopt regulations ensuring the fairness of such procedures. [Citation.] An in-
the-field showup, on the other hand, is generally an informal confrontation involving only
the police, the victim and the suspect. One of its principal functions is a prompt
determination of whether the correct person has been apprehended. [Citation.] Such
knowledge is of overriding importance to law enforcement, the public and the criminal
suspect himself. [Citation.] An in-the-field showup is not the equivalent of a lineup.
The two procedures serve different, though related, functions, and involve different
considerations for all concerned.” (People v. Dampier (1984) 159 Cal.App.3d 709, 712-
713.)
              b. Trial court ruling.
        The trial court denied Nowden’s motion to suppress the in-field showup
identifications on the ground he failed to demonstrate the procedure had been unduly
suggestive. The court characterized the identification procedure as nothing more than a
typical in-field, one-person showup. This included the usual factors that the eyewitnesses
had been brought to a location where Nowden was handcuffed and in the custody of
armed police officers, and the witnesses were asked if he was one of the people who had
invaded their home. The trial court pointed out that while three of the eyewitnesses
identified Nowden at the showup,4 Durant Sr. could not identify him, which tended to
show the procedure had not been unduly suggestive. The court concluded: “[T]here is
nothing . . . in the facts of this case which suggests to me that there is anything unduly
suggestive or prejudicial about this one person show-up.”




4
       Durant Jr. and Williams-Durant identified Nowden at the showup and so did their
older son, who was 10 or 11 years old at the time. However, the child did not testify at
Nowden’s trial.

                                              8
              c. Discussion.
       Nowden contends the in-field showup was impermissibly suggestive. He argues
the witnesses were driven in police cars to the command post – a street lined on both
sides with police cars – where he was taken, handcuffed, from a police car by two
officers who showed him to the witnesses while spotlights were shined on him. He also
complains his white shirt was bloody and his pants were torn. He contends the entire
procedure was unnecessary and that it would have been “a simple matter, and of course a
much fairer matter, to put appellant’s photograph in a six-pack for viewing by the victims
the next day.” We disagree.
       The prosecution was not required to demonstrate there had been some special
necessity for holding the in-field showup. “Appellant contends, incorrectly, that single-
person show-ups are impermissible absent a compelling reason. To the contrary, single-
person show-ups for purposes of in-field identifications are encouraged, because the
element of suggestiveness inherent in the procedure is offset by the reliability of an
identification made while the events are fresh in the witness’s mind, and because the
interests of both the accused and law enforcement are best served by an immediate
determination as to whether the correct person has been apprehended. [Citation.] The
law permits the use of in-field identifications arising from single-person show-ups so
long as the procedures used are not so impermissibly suggestive as to give rise to a
substantial likelihood of misidentification. [Citation.]” (In re Carlos M. (1990)
220 Cal.App.3d 372, 387.) Here, the police had detained a possible suspect in an armed
home invasion case. As far as the police knew, all three suspects were at large in this
residential neighborhood. It was obviously important to determine as quickly as possible
if Nowden was one of the perpetrators.
       Nowden complains about the handcuffs and all the officers and patrol cars that
were present during the show-up. But such procedures have not been held to be unduly
suggestive. (See In re Carlos M., supra, 220 Cal.App.3d at pp. 386-387 [defendant was
handcuffed when viewed by victim]; In re Richard W. (1979) 91 Cal.App.3d 960, 969-
970 [defendant sat handcuffed in back of police car with officers standing around];

                                             9
People v. Craig (1978) 86 Cal.App.3d 905, 914 [defendants were inside police car and
officers stood around outside]; People v. Anthony (1970) 7 Cal.App.3d 751, 759, 764
[officers drove defendant and companion to crime scene in marked police vehicle,
handcuffed, and asked the witness “ ‘which was the one that came in’ ” and committed
the robbery]; People v. Gomez (1976) 63 Cal.App.3d 328, 335-337 [defendant stood
outside a patrol car, was handcuffed and accompanied by two officers].)
       The use of spotlights was understandable because this identification procedure
took place at 1:00 a.m., and Nowden fails to show how it rendered the procedure unduly
suggestive. (See United States v. Pickar (8th Cir.2010) 616 F.3d 821, 828 [showup not
unduly suggestive where defendant “was handcuffed and standing in front of a marked
police cruiser . . . between an officer in uniform and an officer in plainclothes, with one
of the officers shining a small flashlight in [his] face”].) Nor can we see how the
condition of Nowden’s clothing made the procedure unduly suggestive. Since no blood
had been shed inside the Durant home, we do not understand how the blood on his shirt5
would have signaled to the witnesses that he was one of the perpetrators. Nowden does
not suggest how his torn pants tied him to the crime scene, or how the sound of sirens
made the procedure unduly suggestive.
       Citing subsequent trial testimony from Durant Jr. and Williams-Durant,6 Nowden
questions whether the eyewitnesses had been given a standard admonishment before

5
       Nowden had apparently been injured resisting the police dog.
6
        Nowden cites Durant Jr.’s testimony that officers did not say anything at all to him
before he was taken to view Nowden, and Williams-Durant’s testimony that an officer
told her only that she was being taken to view a possible suspect. But this evidence was
not before the trial court at the time of its ruling on Nowden’s suppression motion and,
therefore, it is irrelevant. (See, e.g., In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18 [“As
the Attorney General observed in his briefs, subsequent to the suppression hearing (the
ensuing ruling of which we review here), Arturo testified at the jurisdictional hearing that
he in fact gave the registration document to the officer. This testimony was not before
the trial court at the time of the suppression hearing, and it is irrelevant to our inquiry
now; in reviewing the trial court’s suppression ruling, we consider only the evidence that
was presented to the trial court at the time it ruled.”]; People v. Jenkins (2000) 22 Cal.4th
900, 1007-1008 and fn. 23 [rejecting defendant’s reliance on trial evidence to overturn
                                             10
viewing him. He points out that at the suppression hearing there was no direct testimony
about this. The Attorney General, however, argues the “undisputed evidence at the
[suppression] hearing, based on the police reports, was that all three of the adult victims
received standard admonitions.” At the suppression hearing, the prosecutor told the trial
court that an arrest report described the in-field showup as follows: “Victim 1 [i.e.,
Williams-Durant] was advised of a field show-up admonishment. The officers conducted
a field show-up during which victim . . . positively identified [Nowden] as one of the
suspects and they [sic] describe what they saw him do. Victim 2 [i.e., Durant Sr.] same
process, but unable to identify the defendant and victim 3 [i.e., Durant Jr.], same
process.” Based on this evidence, the trial court assumed admonitions had been given.
We agree with the Attorney General that, “to the extent that no one testified regarding the
admonitions that is simply because no witness was asked that question by either party,
including appellant, who represented himself. Thus, any absence of information
regarding the issue at trial was the result of appellant failing to develop the record.”
       In any event, even if no admonitions had been given, Nowden has failed to cite
any authority holding that a particular admonition, or any admonition at all, must be
given prior to holding a one-person showup. As our Supreme Court has pointed out, “Of
course, ‘[a]nyone asked to view a lineup would naturally assume the police had a
suspect.’ ” (People v. Avila (2009) 46 Cal.4th 680, 699.) Nowden has failed to show the
police did or said anything to unfairly encourage the victims to identify him.
       Because we conclude the in-field showup here was not unduly suggestive, we hold
the identification evidence was properly admitted without having to reach the question of
the reliability of the resulting identifications. (See People v. Alexander, supra, 49 Cal.4th
at p. 902.)




trial court’s denial of motion to suppress evidence: “the trial evidence relied upon by
defendant was not before the trial court when it ruled on the motion to exclude [the
witness’s] testimony”].)

                                              11
       2. Prosecutorial misconduct.
       Nowden contends the prosecutor committed misconduct during closing argument
by incorrectly telling the jury that two other suspects had been arrested in this case. This
claim is meritless.
              a. Legal principles.
       “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 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.” ’ [Citation.] [¶]
‘ “[A] defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion – and on the same ground – the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety.
[Citation.]” ’ ” (People v. Riggs (2008) 44 Cal.4th 248, 298.) A defendant who fails to
object at trial “waive[s] any error or misconduct emanating from the prosecutor’s
argument that could have been cured by a timely admonition.” (People v. Wrest (1992)
3 Cal.4th 1088, 1105.)
       “ ‘ “[T]he prosecution has broad discretion to state its views as to what the
evidence shows and what inferences may be drawn therefrom.” ’ [Citation.]”
(People v. Welch (1999) 20 Cal.4th 701, 752.) “When we review a claim of prosecutorial
remarks constituting misconduct, we examine whether there is a reasonable likelihood
that the jury would have understood the remark to cause the mischief complained of.
[Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 689.) “To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the complained-of comments in an

                                             12
improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly
infer’ that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
               b. Background.
       During closing argument, the prosecutor pointed out that both Durant Jr. and
Williams-Durant had given the police very specific descriptions of Nowden’s clothing.
The prosecutor then said: “Now, the descriptions, as I said before, of all three suspects
were given prior to the defendant’s capture and clearly prior to the other suspects’
capture and it includes in that description brown shorts and brown shoes with the gun, so
make sure you take a look at that and the PF Flyers photographs.” (Italics added.)
       Nowden did not object to the italicized statement.
       Following his conviction, Nowden sought post-judgment discovery, asserting that
if other suspects had been caught he should have been informed. The trial court indicated
it had no idea what the prosecutor might have been referring to because there was no
evidence at trial that any other suspects had ever been arrested. The prosecutor arguing
the post-judgment motion was not the prosecutor who tried the case, but said he had
spoken with the trial prosecutor and been informed that all of the police reports had been
turned over to Nowden. The trial court instructed the current prosecutor to contact the
trial prosecutor and ask what he had been referring to when he made this statement.
       The current prosecutor subsequently reported back that the trial prosecutor
confirmed all police reports had been turned over and that there was nothing in the
reports to indicate any other suspects had been arrested. The trial prosecutor said the
disputed remark must have been a mistranscription because he could not recall having
said anyone other than Nowden had ever been arrested.
       The trial court considered this information to be “an offer of proof that there were
no other suspects apprehended; that it was either a mistranscription by the court reporter
or . . . that [the trial prosecutor] himself misspoke, but that . . . there were no other
suspects apprehended.” The trial court then denied Nowden’s discovery motion, adding:

                                               13
“If you have some evidence . . . other than [the prosecutor’s] off-hand statement in his
closing argument that there were other people apprehended in this matter, bring it to me
and I will further investigate it.”
               c. Discussion.
       Nowden’s prosecutorial misconduct claim has been forfeited because he neither
objected to the trial prosecutor’s statement nor asked for an appropriate admonition. (See
People v. McDermott (2002) 28 Cal.4th 946, 1001 [“Generally, ‘ “a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion – and on the
same ground – the defendant made an assignment of misconduct and requested that the
jury be admonished to disregard the impropriety.” ’ ”].) Although we would normally
bypass this problem in the interest of judicial economy (see People v. Turner (1990)
50 Cal.3d 668, 708-709 [merits addressed to forestall inevitable ineffective assistance of
counsel claim]), that course is unavailable here because Nowden represented himself at
trial. (See People v. Weber (2013) 217 Cal.App.4th 1041, 1057-1058 [self-represented
defendant must “ ‘follow the same rules that govern attorneys . . . and he will lose the
right to appeal his case on the grounds of ineffective assistance of counsel’ ”].)
       In any event, Nowden’s claim has no merit. It appears from the record the
statement was, at most, an innocent slip of the tongue by the prosecutor. Moreover, we
fail to see how it could have prejudiced Nowden. As the Attorney General points out,
Nowden “fails to establish how his defense of mistaken identity was harmed by an off-
hand comment about the capture of other suspects.” Nowden argues the misstatement
“would cause the jurors . . . to conclude that appellant’s account at trial of his actions . . .
was fabricated and that he was indeed the third suspect.” We fail to see the logic of this
argument. It was undisputed that three people had invaded the Durant home; we cannot
understand why a belief that two other people had been apprehended would cause a
reasonable juror to reflexively conclude Nowden must have been the third perpetrator.
       For all of these reasons, we reject Nowden’s claim of prosecutorial misconduct.




                                               14
       3. Review of in camera Pitchess hearing shows there was no error.
       Nowden requests review of the trial court’s ruling on his motion seeking discovery
under Pitchess v. Superior Court (1974) 11 Cal.3d 531. Review of the in camera hearing
by this court reveals no abuse of the trial court’s discretion. (See People v. Mooc (2001)
26 Cal.4th 1216, 1232.) The hearing was properly conducted; the custodian of records
described the records that were searched and the trial court described the nature of all the
complaints against the officers.
       Nowden asserts we must do more than merely review the transcript of the in
camera hearing “because the review should also encompass the sealed personnel files.”
However, although Nowden cites cases in which a court engaged in this kind of further
review, those cases did not hold such review was required. In People v. Guevara (2007)
148 Cal.App.4th 62, the appellate court remanded for a new Pitchess hearing because the
custodian of records had not submitted any documents from the officers’ personnel files
to the trial court, nor did the record reflect the trial court had looked at a sealed list of
documents the custodian had reviewed. (People v. Guevara, supra, 148 Cal.App.4th at
pp. 67-69.) In People v. Hughes (2002) 27 Cal.4th 287, 330, and People v. Samayoa
(1997) 15 Cal.4th 795, 826-827, it appears our Supreme Court merely reviewed
personnel files that had already been made part of the record on appeal.
       There was no Pitchess error.
       4. There was no cumulative error.
       Nowden contends that, even if harmless individually, the cumulative effect of
these claimed trial errors mandates reversal of his convictions. Because we have found
no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th
598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
       5. Nowden’s sentence did not constitute cruel and unusual punishment.
       Nowden contends his 53-year prison sentence constitutes cruel and unusual
punishment under the California and United States Constitutions. This claim is meritless.




                                               15
              a. Legal principles.
       “A punishment is excessive under the Eighth Amendment if it . . . is ‘grossly out
of proportion to the severity of the crime.’ (Gregg v. Georgia (1976) 428 U.S. 153, 173
[96 S.Ct. 2909, 2925].) A punishment may violate article I, section 17 of the California
Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks
the conscience and offends fundamental notions of human dignity.’ (In re Lynch (1972)
8 Cal.3d 410, 424 . . . , fn. omitted.) [¶] In determining whether a particular punishment
is cruel and/or unusual, courts examine the nature of the particular offense and offender,
the penalty imposed in the same jurisdiction for other offenses, and the punishment
imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277,
290-291 [103 S.Ct. 3001, 3009-3010]; In re Lynch, supra, 8 Cal.3d at pp. 425-427.)”
(People v. Alvarado (2001) 87 Cal.App.4th 178, 199.)
       Our Supreme Court has emphasized “the considerable burden a defendant must
overcome in challenging a penalty as cruel or unusual. The doctrine of separation of
powers is firmly entrenched in the law of California, and a court should not lightly
encroach on matters which are uniquely in the domain of the Legislature. Perhaps
foremost among these are the definition of crime and the determination of punishment.
[Citations.] While these intrinsically legislative functions are circumscribed by the
constitutional limits of article I, section 17, the validity of enactments will not be
questioned ‘unless their unconstitutionality clearly, positively, and unmistakably
appears.’ [Citation.]” (People v. Wingo (1975) 14 Cal.3d 169, 174, fn. omitted.) Federal
law is to the same effect. (See Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.Ct.
2680] [mandatory sentence of life without possibility of parole for possessing 672 grams
of cocaine did not violate Eighth Amendment].)
              b. Discussion.
       The trial court sentenced Nowden as follows. On count 1 (robbery), the court
imposed a high term of nine years, doubled to 18 years under the Three Strikes law, with
an additional 10-year firearm enhancement and an additional five-year prior serious
felony conviction enhancement, for a total of 33 years On counts 2 and 3 (robbery), the

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court imposed two consecutive terms of seven years and four months each, consisting of
one-third the robbery midterm doubled under the Three Strikes law, plus a firearm use
enhancement. On counts 8 and 9 (false imprisonment against the two child victims), the
court imposed consecutive terms of two years and eight months for each count, consisting
of one-third the midterms doubled under the Three Strikes law, plus a firearm use
enhancement. The court said it was imposing these consecutive terms because the crimes
involved separate threats of violence to separate victims, particularly vulnerable victims
(i.e., the young two children and Durant Sr., who was hyperventilating during the
incident), and a high degree of cruelty/callousness/viciousness.
       On count 4 (burglary) the court imposed and stayed a 14-year term. On counts 5,
6 and 7 (false imprisonment by violence against the adult victims), the court imposed and
stayed eight-year terms. On count 10 (possession of firearm by felon), the court imposed
and stayed a four-year term.
       Nowden’s total sentence came to 53 years.
       Nowden argues this sentence was disproportionate to his offense, which he
characterizes as “a 20-minute home invasion robbery with a gun, in concert with two
others, of three adults and felony false imprisonment of two children” in a situation
where “one (and possibly more than one) of the adult victims was, according to the
prosecutor, a criminal and that no one was physically injured during the incident.”
Nowden makes much of the fact the prosecutor acknowledged to the jury the evidence
seemed to show that at least Durant Jr., and possibly Durant Sr., too, were involved in
trafficking marijuana. But crimes against criminals are still crimes, at least where the
defendant has not successfully pursued a claim-of-right defense.7


7
       “The claim-of-right defense provides that a defendant’s good faith belief, even if
mistakenly held, that he has a right or claim to property he takes from another negates the
felonious intent necessary for conviction of theft or robbery. At common law, a claim of
right was recognized as a defense to larceny because it was deemed to negate the animus
furandi, or intent to steal, of that offense. (See 4 Blackstone, Commentaries 230
(Blackstone).)” (People v. Tufunga (1999) 21 Cal.4th 935, 938.) In the usual claim-of-
right cases there is some facially legitimate reason for asserting a good faith belief in the
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.      Nowden downplays the severity of his criminal record, arguing he has never
before been sent to prison. However, he acknowledges that, as an adult, he has
committed 13 misdemeanors and 2 felonies. And while some of the misdemeanor
convictions were for relatively minor offenses, the felony convictions were for grand
theft person (1993) and assault with a semi-automatic firearm (2001).
       Citing People v. Dillon (1983) 34 Cal.3d 441, Nowden argues his sentence was
disproportionate to his offense. But there is no just comparison. Dillon killed a man who
had been guarding a marijuana crop which Dillon and his friends were trying to steal.
The trial evidence proved Dillon was an extremely immature 17-year-old who reacted
emotionally “by denying the reality of stressful events and living rather in a world of
make-believe.” (Id. at p. 483.) Dillon had fired his .22-caliber rifle out of fear and panic
as the victim was advancing on him with a shotgun. Thus, Dillon killed the victim as “a
response to a suddenly developing situation that [Dillon] perceived as putting his life in
immediate danger.” (Id. at p. 488.) The Dillon case has almost nothing in common with
Nowden’s crimes.
       Nowden complains the sentence is not commensurate with the severity of the
offense because a conviction for first degree murder with use of a knife would have
resulted in a sentence of only 26 years to life. But the length of Nowden’s sentence was
driven by the fact there were multiple victims (five in all, including two young children
and an ailing elderly man), and there had been a mandatory doubling of his prison terms
under the Three Strikes law.
       Nowden argues his sentence is the functional equivalent of life without possibility
of parole because he was 38 years old at the time of sentencing. However, his sentence is
not unconstitutional just because it may effectively be one for life without possibility of


right to another’s property. (See People v. Marsh (1962) 58 Cal.2d 732, 737 [trial court
improperly excluded evidence defendants’ belief in curative power of electrical apparatus
was based on information from doctors and scientists]; People v. Russell (2006)
144 Cal.App.4th 1415, 1429-1431 [trial court improperly denied claim-of-right
instruction where defendant testified he believed motorcycle had been abandoned].)

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parole. (See People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [sentence of 115
years plus 444 years to life not unconstitutional]; accord People v. Ayon (1996)
46 Cal.App.4th 385, 396, disapproved on other grounds by People v. Deloza (1998)
18 Cal.4th 585, 600, fn. 10 [240 years to life]; People v. Wallace (1993) 14 Cal.App.4th
651, 666-667 [283 years]; People v. Huber (1986) 181 Cal.App.3d 601, 633-635
[106 years]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [129 years].)
       Nowden’s sentence did not constitute cruel and unusual punishment.
       6. Correction of presentence custody credit calculation.
       Nowden contends he is entitled to an additional one day of presentence custody
credit. The Attorney General properly concedes this claim has merit. “A sentence that
fails to award legally mandated custody credit is unauthorized and may be corrected
whenever discovered. [Citation.]” (People v. Taylor (2004) 119 Cal.App.4th 628, 647;
see also People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [“The failure to award an
adequate amount of credits is a jurisdictional error which may be raised at any time.”].)
       Nowden was arrested on November 20, 2009, and sentenced on February 8, 2013.
The trial court awarded him 1,176 actual days of presentence custody credit, but the
correct calculation is 1,177 days. The parties agree he was entitled to a total of 1,353
days of total presentence credit.




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                                    DISPOSITION
      The judgment will be modified to reflect that Nowden was entitled to one
additional day of presentence custody credit. As modified, the judgment is affirmed.
The trial court is directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.


We concur:




                    ALDRICH, J.




                    LAVIN, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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