Filed 10/2/13 P. v. Hall CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B237349

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA077726)
         v.

DEMAGEO HALL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Steven
R. Van Sicklen, Judge. Affirmed as modified.


         Law Offices of Allen G. Weinberg and Allen G. Weinberg, 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, Scott A. Taryle, Russell A.
Lehman, and Mark Weber, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Demageo Hall (defendant) challenges his murder and
attempted murder convictions, asserting instructional error and prosecutorial misconduct.
He also contends that the trial court erroneously described his sentence on the attempted
murder, and that he is entitled to seven more days of presentence custody credit. We find
no error in the instructions and no prosecutorial misconduct. We modify the sentencing
on count 2, but find that defendant has not shown he is entitled to additional custody
credit. We affirm the judgment as modified.
                                     BACKGROUND
Procedural history
       Defendant was charged in count 1 with the murder of Dante Nolan (Nolan) in
violation of Penal Code section 187, subdivision (a).1 In count 2, defendant was charged
with the attempted willful, deliberate, premeditated murder of Gregory Davis (Davis) in
violation of sections 664, subdivision (a), and 187, subdivision (a). It was further alleged
as to both counts that defendant personally used a firearm within the meaning of section
12022.53, subdivision (b); that he personally and intentionally discharged a firearm,
causing great bodily injury and death within the meaning of section 12022.53,
subdivisions (c) and (d); and pursuant to section 186.22, subdivision (b), that the offenses
were committed for the benefit of, at the direction of, or in association with a criminal
street gang with the specific intent to promote, further, or assist in criminal conduct by
gang members.
       The jury found defendant guilty of both counts as charged and found true the
special allegations. On November 17, 2011, the trial court sentenced defendant on count
1 to a term of 25 years to life in prison, plus a consecutive 25 years to life due to the
firearm enhancement. As to count 2, defendant was sentenced to a consecutive term of
15 years to life in prison, plus a consecutive 25 years to life for the firearm enhancement.
The court imposed mandatory fines and fees and awarded defendant 587 actual days of
presentence custody credit. Defendant filed a timely notice of appeal from the judgment.


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

                                              2
Prosecution evidence
       Davis and Nolan were shot sometime between midnight and 1:00 a.m. on
February 28, 2009, as they left a party on 107th Street near Normandie Avenue. The area
just west of Normandie Avenue was territory claimed by the Underground Crip gang.
The area east of Normandie Avenue was claimed by the Hoover Criminals gang, also
known as the Hoover gang or the Hoovers. Hoover gang members did not get along with
the Underground Crips, whom they called by the derogatory term “Ugly Girls” or
“U.G.’s” for short. Defendant was a member of a subset or clique of the Hoover gang.
       Davis testified he and Nolan had been invited to the party on 107th Street by his
nephew. They did not stay long as the attendees were in their 20’s, much younger than
Davis and Nolan. Davis was not a gang member, was not from the neighborhood of the
party, and did not know there was a gang rivalry in the area. As Davis was in the street
about to get into his car on the driver’s side, and Nolan was standing on the sidewalk
waiting to get in on the passenger side Davis saw a “Black kid” across the street, about 38
to 40 feet away. The kid, whom Davis identified in court as defendant, looked at them
and then fired a gun in their direction. Davis had an unobstructed view of defendant and
the street was brightly lit by streetlights. When detectives interviewed Davis in October
2009, he was able to select defendant’s photograph from a photographic lineup and
identify him as the shooter. Davis also identified defendant at the preliminary hearing.
       Davis was shot three times in the abdomen before he and Nolan turned and ran
back in the direction of the party house. Davis took cover under a truck parked in the
driveway of the house while Nolan tried to climb the fence. As Davis ran, he was struck
by five more bullets in his back, wrist, and thumb. As he hid under the truck with one
foot protruding, defendant approached and shot Davis again in his foot.
       Nolan was struck by three bullets. One of the bullets passed through his liver and
heart, killing him within minutes. Davis underwent surgery and remained hospitalized
for five weeks. At the time of trial, Davis remained in physical therapy, still suffered
from a bulging disc caused by a bullet strike near his spine, and attended a pain
management class.


                                             3
       Los Angeles County Sheriff’s Department Homicide Detective Richard Ramirez
investigated the shooting. The case remained unsolved for several months because of an
inability to obtain much information from Davis due to his medical condition. Detective
Ramirez arranged to have the case profiled on the television program “L.A.’s Most
Wanted” in early October 2009. Nolan’s mother, sister, and uncle appeared on the show
and appealed to the public for information. A photograph of Nolan was displayed during
the broadcast. The photograph showed Nolan in braids, the hairstyle he wore at the time
of his death.
       Not long thereafter, Sergeant Mark Marbach contacted Detective Ramirez with
information received from a paid “confidential reliable informant” (CRI), Hebert Zamora
(Zamora).2 Based upon Sergeant Marbach’s information, Detective Ramirez was able to
put together the six-pack photographic lineup from which Davis selected defendant’s
photograph.
       Zamora had been an 18th Street gang member since the age of 13 years and was
known as “Midget.” He later moved to the neighborhood that included the area claimed
by the 11 Deuce Hoover subset of the Hoover gang. Zamora testified he was able to
obtain information about Hoover gang members because he associated with some of them
and his mother-in-law had once associated with the Hoover gang. Zamora knew
defendant as a Hoover gang member whose moniker was “Tiny Snaps.” In October
2009, Zamora was driving around with defendant, “Bam Bam,” and “Tiny Box,” two
members of the 107 Hoovers, another subset of the Hoover gang. Defendant pointed out
a house on 107th Street near Normandie Avenue and said there had been a party there
awhile back; defendant told Zamora that when he saw two “Ugly Girls” walking out of


2     Although the reporter’s transcript contains multiple spellings of Zamora’s first
name, Zamora himself spelled it “Hebert” prior to his testimony. For several years
Zamora had provided Sergeant Marbach with information that proved reliable. He also
worked as a paid informant for several federal agencies. Prior to the preliminary hearing,
Zamora received a telephone call from a Hoover gang member who told him that “they”
knew that he had been working as an informant and would catch him and “smoke” him.
Sergeant Marbach arranged to have Zamora and his family relocated out of state.

                                            4
the house, “we had to shoot ‘em or whatever.” Defendant said that once the two men
were outside the house, he said, “Fuck Ugly Girls,” and started shooting.
       Defendant told Zamora he was with another “homeboy” who acted as a lookout at
the time, but defendant did not give a name. The homeboy waited at the corner watching
for the police while defendant shot the two men. Defendant then ran through an alley,
disposed of the gun, and walked back to the crime scene to watch the police taping the
area. Zamora testified it was a normal practice of gang members to go back to the scene
to determine whether the victim had died. It was also normal for gang members to brag
about committing such crimes as shootings, drug sales, and walk-up murders, because
they served to enhance the reputation of the perpetrator within gang, and to intimidate
neighborhood residents and rival gang members. Such crimes were known as “putting in
work” for the gang. Zamora testified that a gang member would not brag falsely because
other gang members would investigate and impose a “strike” on the member who
claimed to have committed someone else’s crime.
       Sometime later defendant complained to Zamora that the victim’s sister or mother
had made “a big deal out of the shooting” and she had to be stopped. The next day
Zamora contacted Sergeant Marbach. Defendant was arrested in early October 2009 for a
gang injunction violation while he was in the company of Kevin Adams and another man.
Later that month, while defendant was in custody, Detective Ramirez arranged to have
defendant placed near CRI Cleveland Ross (Ross), another Hoover gang member who
was also in custody. Just prior to placing defendant in the informant’s cell, Detective
Ramirez and his partner interviewed defendant and informed him he was suspected of
shooting Davis and Nolan. Defendant’s interview was recorded and played for the jury.
Defendant’s nearly five-hour conversation with Ross was also recorded and portions of it
were played for the jury.
       Before being placed near Ross, defendant gave his name, age, address and other
information to a deputy sheriff; he told the deputy that he was called “Slim” and
associated with “One Twelve Hoover.” When speaking to Ross, defendant said, “They
called me off to homicide. I don’t know -- Little Kevin . . . snitched on us.” Twice more


                                             5
in the conversation, defendant guessed that Kevin or “they” had snitched on him. Later,
defendant sang, “I love Hoover” and “Hoover loves me.” He also said, “The detectives
fucked up. They didn’t fingerprint me.”
       In April 2010, Sergeant Marbach told Detective Ramirez about another
incarcerated informant, a gang member known as “Kill Kill,” who had agreed to
cooperate in exchange for leniency in his case.3 Detective Ramirez briefed Kill Kill on
some of the facts of the shooting: that it had occurred in February 2009 on 107th Street
as two men, one wearing braids, walked out of a party. In order to stimulate a
conversation with the informant, Detective Ramirez told defendant that he had been
identified as a suspect in the shooting. The detective then had defendant placed in the
same cell as Kill Kill.
       A recording of defendant’s conversation with Kill Kill was played for the jury. At
the beginning of the conversation, defendant told Kill Kill he was “Baby Snap” and
“from 112 Street Hoover.” Defendant thought his “homies” might snitch on him and
said, “I know that nigger from UG that died. . . . His mama know my auntie.” Later,
when Kill Kill asked, “You sure didn’t nobody see you right?” defendant said, “I don’t
know, man. I do my shit in -- I don’t never -- do you feel me? I’m a type of foot type
nigger, you know.” This prompted Kill Kill to suggest he was a “JOB,” to which
defendant replied, “Do you feel me?” When Kill Kill suggested, “Look, one of the
niggers had braids, huh?” defendant confirmed, “Yeah.”
       Gang expert Detective White explained that “JOB” meant “jump out boy” and was
a term used for gang members who had been involved in several shootings, whether by
jumping from a car or shooting on foot. It was his opinion that defendant was a member
of the 11-Deuce Hoovers criminal street gang, based upon defendant’s admission to Kill
Kill, his documented contacts with law enforcement, and defendant’s gang-related


3      Kill Kill had been a CRI, but lost that status when he was charged with residential
burglary. He was not identified at trial but testified as “John Doe” when called by the
defense.


                                            6
tattoos. Detective White also testified regarding gang culture, giving his opinion that the
Hoover Criminals gang and its sets were criminal street gangs, whose members’ primary
activities included murder, attempted murder, assault, narcotics sales, weapons violations,
robbery, and graffiti-related vandalism. He presented certified records of several Hoover
gang members convicted of such crimes. Given hypothetical facts based upon the
evidence in this case, Detective White opined that the shooting of the victims in this case
was committed for the benefit of the Hoover Criminals gang.
Defense evidence
       The defense recalled Detective Ramirez, who testified that during an interview
Zamora said that defendant had been seated in the back seat when they discussed the
shooting. At trial, Detective Ramirez testified that Zamora said he had been in the front
passenger seat.
       Iris Garcia (Garcia) testified she lived in a second floor apartment on 107th Street
and was awake when the shooting took place. She heard gunshots, looked into the street,
saw a dark blue car with the front and rear windows open on the driver’s side, and saw
gunfire flashes emanating from the windows. She thought the car was a Mercedes Benz.4
After she saw a young man fall, the blue car left toward Normandie Avenue. Garcia gave
this information to a deputy sheriff on the scene that night and spoke to Detective
Ramirez by telephone in March 2010. Although there was a tree between her apartment
and the location of the shooting, Garcia denied that it blocked her view. She explained
that some branches had been removed from the tree.
       Deputy Roberto Reyes took Garcia’s initial report. He testified Garcia told him
she heard a gunshot, looked out her window, saw someone, and then she heard and saw
four or five more shots coming from a newer model dark blue Mercedes with tinted



4       Zamora testified that he owned a 1996 Mercedes Benz which he bought sometime
in 2008. Defense counsel argued in summation that Zamora owned a blue Mercedes and
suggest that he was the getaway driver for other gang members who shot Davis and
Nolan. Although Sergeant Marbach had testified that Zamora’s Mercedes was dark in
color, the actual color of his car was not in evidence.

                                             7
windows. She told him she saw the driver and a front passenger, both Black males, and
after the gunfire stopped, the car sped away eastbound.
         Defendant’s cousins Myiesha Hall (Hall) and Latrice Wilson (Wilson) testified
that in February 2009, they lived in the same apartment complex in San Bernardino, and
that defendant lived with Hall during all or part of February until after the first of March.
Both cousins testified that on February 28, 2009, during the time that defendant was
staying with Hall, Wilson gave a “smoke out” party that lasted from 8:00 p.m. until about
2:00 a.m. The two women remembered the date because Hall kept a calendar of events
and wrote “smoke out” on that date. Hall testified that she, defendant, Wilson, Renee
Hall, Tricia Lewis, and David Atkins attended the party.
         Hall was “100 percent certain” that defendant came to stay with her two weeks
before the end of February and she remembered he left at the beginning of March, on the
day of a memorial for her young cousin who had died in 2008. Hall’s ex-boyfriend,
Gregory Haynes, drove defendant from Los Angeles. Hall acknowledged that she told
the defense investigator in February 2011, that the memorial had taken place in Carson
on March 23, 2009. Hall denied knowing or telling the investigator that defendant was
known as Tiny Snaps or Baby Snaps, or saying, “Let’s just leave that part out” when the
investigator asked how many years defendant had used the name. Hall admitted she was
acquainted with Tiny Box and Bam Bam, both members of the 107th Street Hoover
Crips.
         Wilson also testified that defendant came to stay with Hall about two weeks before
the smoke out party and left during the first week of March. Wilson claimed she did not
know that defendant was a gang member, and did not learn that he had been accused of
murder until the defense investigator told her on February 8, 2011.5 Wilson explained
she did not contact law enforcement because she gave her information to the defense
investigator and there was nothing more she could do.




5        Defendant’s preliminary hearing had taken place in August 2010.

                                              8
        John Doe, the informant known as Kill Kill, testified he did not know Sergeant
Marbach or Detective Ramirez, never worked as an informant, and had no information
about this case. He claimed to have little memory of his conversation with defendant and
denied knowing it had been recorded.
        Ross also denied being an informant in this case. He admitted he was a member
of the 107th Hoover gang, but denied knowing defendant in 2009. Ross remembered that
while he was in jail, homicide detectives interviewed him and showed him an obituary
photograph. The detectives suggested that Ross had murdered the man in the picture, and
then placed Ross in handcuffs next to defendant. Ross denied trying to elicit information
from defendant or knowing anything about a murder on 107th Street on February 28,
2009. Although he remembered he and defendant had a conversation, he could not
remember what they discussed, and did not know the conversation was recorded.
Rebuttal
        Robert Gil (Gil), the defense investigator who interviewed Hall and Wilson on
February 8, 2011, testified that when he telephoned them a week before the interview,
both women were aware that defendant had been charged with murder. Hall said that
defendant came to stay with her toward the end of January or beginning of February
2009, and remained until the family memorial in Carson on March 23, 2009. Hall said
she knew Midget and that defendant associated with him. She acknowledged that
defendant was known as Baby Snaps in the past, but when the investigator asked how
long he was known by that name, she said, “Let’s just leave that part out.” Wilson said
defendant arrived in February, stayed one month, and attended both the birthday party for
Lavonte Mecan and the smoke out. She named five guests in addition to defendant and
Hall.
        Gil interviewed Garcia in Spanish in February 2011. Garcia said that she saw the
gunfire flashes from a dark blue Mercedes, but also said she saw the letters “BMW” on
the trunk as the car drove away. Garcia could not see into the car because of the tinted
window and she was unable to see how many people were in the car, or what they looked
like.


                                             9
       Sheriff’s Sergeant Dana Ellison identified defendant in court, and testified about
an encounter with defendant in March 2009. Defendant was in the company of three
others and gave his name as Jayveon Crumby and his gang affiliation as 5-Deuce Hoover.
He also gave a false birth date, height, and weight. Detective Ramirez presented two
booking photographs of defendant. The 2009 record named Jayveon Crumby, did not
bear a fingerprint, and recorded defendant’s height as five feet nine inches. Defendant’s
true name, a fingerprint, and his correct height of six feet appeared in the 2010 record.
       Detective Ramirez testified that he had never heard of Hall and Wilson until they
were first identified as witnesses for the defense in September 2011, shortly before trial.
When he interviewed them on September 16, 2011, Hall claimed that defendant had
stayed with her during January and February 2009, and they attended the smoke out party
together, along with about 12 other people. Hall denied that her boyfriend Greg attended
the party and claimed she could not recall Greg’s last name. Wilson told Detective
Ramirez that Hall and her boyfriend Greg arrived at the party together and that defendant
arrived alone. She could not remember what time they arrived.
       Detective Ramirez also testified he spoke to Garcia by telephone on March 6,
2010. She told him she saw a blue Lexus drive rapidly away from the location after the
shooting with two African-Americans in the car, who she could not see clearly enough to
identify. Shortly before trial Detective Ramirez took photographs of the crime scene
from Garcia’s window, including the tree which was in the same full and healthy
condition as it appeared in aerial photographs taken of the crime scene a few days after
the shooting.
                                      DISCUSSION
I. CALCRIM No. 372
       Defendant contends that the trial court erred in giving CALCRIM No. 372 over
defense counsel’s objection. CALCRIM No. 372 as given reads:
              “If the defendant fled immediately after the crime was committed,
       that conduct may show that he was aware of his guilt. If you conclude that
       the defendant fled, it is up to you to decide the meaning and importance of



                                             10
       that conduct. However, evidence that the defendant fled cannot prove guilt
       by itself.”

       Section 1127c requires a trial court give a flight instruction when there is evidence
of defendant’s flight. Defendant admitted to Zamora that he ran from the scene through
an alley after shooting the victims. Nevertheless, defendant argues that a flight
instruction should not be given in cases where the defense presents evidence of
misidentification or when the defendant’s identification is a contested issue. To support
his contention, defendant relies on “broad dictum” in People v. Anjell (1979) 100
Cal.App.3d 189, 199-201 (Anjell).6 Anjell and its progeny were overruled by the
California Supreme Court in People v. Mason (1991) 52 Cal.3d 909, 943, footnote 13
(Mason). (See also, People v. Pensinger (1991) 52 Cal.3d 1210, 1245; People v. Jones
(1991) 53 Cal.3d 1115 (Jones).) It is established that even when identity is contested, “it
is proper for the trial court to instruct on flight if ‘there is evidence identifying the person
who fled as the defendant, and if such evidence “is relied upon as tending to show guilt”
. . . .’ [Citation.]” (Jones, supra, at pp. 1144-1145, quoting Mason, supra, at p. 943; see
also People v. Pensinger, supra, at p. 1245.) The jury’s need to “‘know that it is entitled
to infer consciousness of guilt from flight and that flight, alone, is not sufficient to
establish guilt . . . does not change just because identity is also an issue.’” (Mason,
supra, at p. 943; § 1127c.)
       Here, the prosecution presented substantial evidence of defendant’s identity as the
shooter. Davis identified defendant in a photographic lineup, at the preliminary hearing,
and at trial. Confidential informant Zamora testified that defendant bragged about the
crime, showed him where it happened, indicated there had been a lookout, and said he
had run through the alley to dispose of the gun before returning to watch the police


6      The court in Anjell stated: “The fact that the perpetrators fled the scene of the
crime cannot warrant an instruction on flight where identity is a contested issue.” (Anjell,
supra, 100 Cal.App.3d at p. 199.) The court held that a flight instruction was improper in
the absence of substantial evidence of flight. (Id. at p. 201.)


                                               11
process the crime scene. When told he was going to be charged with murder, defendant
told his cellmate that Kevin must have snitched on him. A flight instruction was thus
proper and required. (Jones, supra, 53 Cal.3d at pp. 1144-1145.)
       Defendant contends that the California Supreme Court’s analysis is unpersuasive
and should be rejected in favor of Anjell’s dictum, because the instruction required the
jury to assume that he was the perpetrator. We have no authority to do as defendant asks.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover,
defendant’s contention is without merit. A reasonable juror following the instruction
could not logically find that defendant fled, without first finding that it was the defendant
who fled. (Mason, supra, 52 Cal.3d at p. 943.)
       Defendant also contends that the instruction impermissibly allowed the jury to
infer from his flight that he had committed the offense. Similar claims have been rejected
by our high court, which has made clear that such an instruction does not create a
mandatory presumption or require the jury to draw inferences. (See People v. Loker
(2008) 44 Cal.4th 691, 706; People v. Mendoza (2000) 24 Cal.4th 130, 180-181.)
       Finally defendant argues that allowing the jury to infer guilt from flight
improperly undercut his alibi defense -- that he was with his cousins in San Bernardino
on February 28, 2009. It was the ample evidence of defendant’s identity as the shooter,
not defendant’s flight that undercut his alibi. The instruction did not require, but merely
permitted an inference that flight from the crime scene by the person identified as
defendant demonstrated an awareness or consciousness of guilt. We conclude the
instruction was correct and properly given.
II. Improper argument
       It is defendant’s position that the following argument by the prosecutor was
improper and violated defendant’s right to due process: “Mr. Nolan and Mr. Davis were
two people who were not part of that world. They were there for a party. But because of
the battlefield that gang members have made in our cities and our neighborhoods, Mr.
Nolan lost his life and Mr. Davis almost lost his life. That is because of this battlefield
that -- [defense objection overruled] -- because of this battlefield that these gang


                                              12
members have made of our cities and our neighborhoods. Mr. Davis, when he decided to
be truthful and cooperate with the police, and tell the truth every time he was asked to do
so, took a step towards taking back the streets from the gang members.”
       After this statement, the trial court immediately overruled another defense
objection, finding the argument “goes to motive”; the prosecutor then concluded her
opening summation.
       Respondent argues defendant has forfeited the issue by not stating the ground of
his objections in the trial court or requesting an admonishment. (See People v. Lopez
(2013) 56 Cal.4th 1028, 1073.) There is no forfeiture however, where a request would
have been futile or the court immediately overruled the objection, giving defendant no
opportunity to request an admonition. (See People v. Hill (1998) 17 Cal.4th 800, 820-
821.) Defendant contends this rule applied to preserve the issue. Regardless, we find no
misconduct.
       A prosecutor’s improper remark does not violate the federal constitution unless it
is so egregious that it infects the trial with such unfairness as to make the conviction a
denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819; see also Darden v.
Wainwright (1986) 477 U.S. 168, 181.) Otherwise, misconduct violates state law only if
the prosecutor has used deceptive or reprehensible methods to attempt to persuade either
the court or the jury. (Hill, supra, at p. 819.)
       Defendant claims the remarks were intended to prey on jurors’ fear of gangs and
to exploit their fear by encouraging a guilty verdict in order to protect the community.
An argument that is calculated to excite prejudice or passion is improper, and “‘[a]
prosecutor may not urge jurors to convict a criminal defendant in order to protect
community values, preserve civil order, or deter future lawbreaking.’” (People v. Redd
(2010) 48 Cal.4th 691, 743, fn. 25, quoting U.S. v. Monaghan (D.C. Cir. 1984) 741 F.2d
1434, 1441-1442.)
       An occasional colorful metaphor easily understood as such is not misconduct.
(See People v. Cole (2004) 33 Cal.4th 1158, 1202-1203 [torture by burning compared to
Spanish Inquisition].) Further, is not reasonably probable that the jurors construed


                                              13
“taking back the streets” as an exhortation to ignore the evidence and the court’s
instructions. The prosecutor made clear she was not asking that of the jurors.
Immediately after the trial court overruled defendant’s second objection to this statement,
the prosecutor said: “Mr. Davis did his part as a citizen of our community. And it’s now
your turn to do yours. And your duty is to objectively and rationally look at each piece of
evidence. And it’s also to follow the law as it’s been given to you, regardless of how you
feel about the law.” (Italics added.)
       Moreover, a single comment of this sort is not misconduct unless it formed the
basis of the prosecutor’s argument, considered as a whole, and resulted in prejudice. (See
People v. Wash (1993) 6 Cal.4th 215, 262.) Defendant objected to this one remark only,
which came after unobjectionable argument over more than 30 pages of reporter’s
transcript. Following the defense summation, the prosecutor argued nearly half that long
without a defense objection. Similar isolated comments have been found not to amount
to misconduct. (See, e.g., Id. at pp. 261-262 [“‘make a statement’”]; People v. Lang
(1989) 49 Cal.3d 991, 1041 [“your opportunity” to “have a voice in your community”];
People v. Adanandus (2007) 157 Cal.App.4th 496, 511-512 [“your verdicts . . . can
restore order” and “restore justice to that street”]; People v. Escarcega (1969) 273
Cal.App.2d 853, 862-863 [“make an example of defendant” and reverse society’s
permissive trend].)
       The prosecutor’s remarks in this case were no worse than others cited and we find
no misconduct. Assuming however, the argument amounted to misconduct, it was
harmless. Defendant contends the applicable standard of review is that of Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman), under which federal constitutional error
requires reversal unless it was harmless beyond a reasonable doubt. Not all improper
remarks result in a denial of due process, and “it ‘is not enough that the prosecutors’
remarks were undesirable or even universally condemned.’ [Citation.]” (Darden v.
Wainwright, supra, 477 U.S. at pp. 181-182.) A single improper comment in a lengthy
argument does not render a trial fundamentally unfair under the federal constitution,
which would require a Chapman analysis; instead it is reviewed under the standard of


                                             14
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Bordelon (2008) 162
Cal.App.4th 1311, 1323; see People v. Pensinger, supra, 52 Cal.3d at p. 1250.) Under
the Watson standard, prosecutorial misconduct is harmless unless there is a reasonable
probability that the error affected the outcome. (Bordelon, supra, at p. 1324.)
       As the comment was brief, made at the close of the initial argument, and easily
recognizable and discounted as hyperbole, it is unlikely to have affected the outcome.
(See People v. Sandoval (1992) 4 Cal.4th 155, 184; People v. Poggi (1988) 45 Cal.3d
306, 340.) Further, the trial court instructed the jurors not to let bias, sympathy, or public
opinion influence their decision, and said: “You must follow the law as I explain it to
you, even if you disagree with it. If you believe that the attorneys’ comments on the law
conflict with my instructions, you must follow my instructions.” The court also told the
jury: “Nothing that the attorneys say is evidence. In their opening statements and closing
arguments, the attorneys discuss the case, but their remarks are not evidence. . . . Only
the witnesses’ answers are evidence.” Because there was a single arguably improper
comment, such instructions were sufficient to attenuate any prejudice. (See People v.
Cash (2002) 28 Cal.4th 703, 733; People v. Hughey (1987) 194 Cal.App.3d 1383, 1396.)
We conclude that a more favorable result for defendant would not have been reasonably
probable here in the absence of the prosecutor’s comment, thus any error in overruling
defendant’s objections was harmless.
III. Ambiguous sentence
       Defendant contends the trial court erroneously stated his prison sentence on count
2 as 15 years to life plus 25 years, for a total of 40 years to life, rather than as a life term
with a 15-year minimum parole eligibility period as required by section 186.22,
subdivision (b)(5), plus 25 years for the firearm enhancement.7 He claims that the
sentence must be restated.


7        The punishment for premeditated attempted murder under section 664, subdivision
(a), is “life with the possibility of parole” with a minimum term before parole eligibility
of seven years. (See § 3046, subds. (a)(1) & (a)(2); People v. Salas (2001) 89
Cal.App.4th 1275, 1280.) Pursuant to section 186.22, subdivision (b)(5), the gang

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       A sentence under section 186.22, subdivision (b)(5), is not unauthorized simply
because the trial court used the shorthand, “15 years to life”; or because the court refers
to the total term as “40 years to life” when also imposing a 25-year firearm enhancement.
(People v. Villegas (2001) 92 Cal.App.4th 1217, 1228-1229; see People v. Montes (2003)
31 Cal.4th 350, 361, fn. 14 [“The question of whether such a characterization is
appropriate is not before us and we express no opinion on the matter”].)
       Here, the trial court stated: “As to count 2, the attempted murder count, the court
is going to impose a total of 25 years to life calculated as follows: the attempted murder
along with the gang allegation is a 15 years to life sentence. An additional 25 years is
added to that pursuant to the 12022.53(d) allegation, as to that count. So as to count 2,
it’s a total of 40 years to life.” It appears the court’s initial statement that the term would
be 25 years to life was most likely a misstatement which the court corrected to 15 years
to life but failed to do so expressly. Nevertheless, as respondent agrees with defendant,
and since the possibility exists that the court meant to impose an enhancement under
section 186.22, subdivision (b)(1)(C), we modify the judgment to eliminate any
ambiguity.
       It also appears the court’s reference to the gang allegation and its failure to clarify
its mistake or mention the 15-year minimum parole eligibility period led the clerk to state
erroneously in the minutes that the sentence of 15 years to life was imposed “as enhanced
by the 186.22(b)(1)(C) Penal Code allegation.” The abstract of judgment sets out the
sentence on count 2 as 15 years to life, but because it makes no mention of section
186.22, subdivision (b)(5), or a minimum parole eligibility period, it is ambiguous. The
minutes and the abstract of judgment should be corrected accordingly.




finding increases the minimum parole eligibility period to 15 years. (People v. Johnson
(2003) 109 Cal.App.4th 1230, 1239.) The 15-year minimum parole eligibility period “is
imposed in lieu of the determinate enhancement under [section 186.22,] subdivision
(b)(1), not in addition to it. [Citation.]” (Ibid.)

                                              16
IV. Presentence custody credit
       Defendant claims he is entitled to six additional days of presentence custody
credit. Defendant was given 587 days, the number of actual days in custody as
represented by defense counsel at the time of sentencing. Now defendant claims he was
arrested April 1, 2010, and was in custody until sentencing on November 17, 2011, a total
of 596 days. Respondent contends defendant is entitled to only one additional day
because he was arrested initially due to a gang injunction violation and the murder
complaint was not filed until April 9, 2010. We find no support in the record for either
contention.
       Defendant contends that the pre-conviction probation report (prepared in October
2010) shows that he was arrested in this case on April 1, 2010, and that the report does
not indicate that he was in custody for any other reason at that time. Defendant is
mistaken. The probation report does in fact state an arrest date of April 1, 2010, on pages
2 and 10. However, on page 5, the report states, “The defendant was later arrested while
in custody in Los Angeles County Jail on an unrelated matter.”
       Presentence custody “credit shall be given only where the custody to be credited is
attributable to proceedings related to the same conduct for which the defendant has been
convicted.” (§ 2900.5, subd. (b).) Whenever the possibility exists that duplicate credit
might be given, the defendant has the burden to establish that his custody related to the
same conduct for which he has been convicted. (People v. Bruner (1995) 9 Cal.4th 1178,
1193, 1194) A showing of strict causation is required. (Id. at p. 1180.) Thus, the
defendant must show “he could have been free during any period of his presentence
custody but for the same conduct that led to the instant conviction and sentence.” (Id. at
p. 1195.) Defendant is not entitled to credit for time which is wholly unattributable to the
case in which he was convicted, even when the unrelated case is dismissed, resulting in
no credit. (See People v. Huff (1990) 223 Cal.App.3d 1100, 1105.)
       Respondent refers to discussions during a pretrial hearing regarding when
defendant’s right to counsel attached. Detective Ramirez testified he presented the case
to the district attorney for filing on April 7, 2010. Both counsel stipulated the prosecutor


                                             17
signed the complaint containing the instant charges on April 7, 2010, and that the
complaint bears a file stamp of April 9, 2010, the day counsel was appointed. It was on
April 7, 2010, that Detective Ramirez informed defendant that he was a suspect in this
case, informed him of his Miranda rights,8 interviewed him, and then placed him in the
same cell as Kill Kill. Later, defense counsel represented his review of the Sheriff’s
Department website and his conversation with defendant indicated there was a hold
relating to this case placed on defendant at the time of his arrest for the injunction
violation, and that bail was set at $3,000,000. The prosecutor represented to the court
that defendant had been arrested on April 1, 2010, for a misdemeanor violation of section
166, subdivision (a)(4). At defense counsel’s request, the court later reviewed the
misdemeanor file, and found no hold or bail relating to this case. Thus, the earliest
defendant has shown he was not free to go on the instant charges was April 7, 2010,
when Detective Ramirez presented the case to the district attorney and the complaint was
signed.
       Nevertheless, nothing in evidence shows a disposition for the misdemeanor
charge; the record thus does not indicate whether defendant was given credit in that case
for the time in custody prior to the filing of the complaint in this case. Defendant has
thus failed to meet his burden to demonstrate that any time prior to April 10, 2010, was
wholly attributable to the current charges. As defense counsel’s concession at sentencing
of 587 days has not been shown to be erroneous, we conclude that defendant is not
entitled to additional credit.
                                       DISPOSITON
       Defendant’s sentence as to count 2 is modified to impose a term of life in prison
with a 15-year minimum parole eligibility period pursuant to section 186.22, subdivision
(b)(5), plus a consecutive firearm enhancement of 25 years to life pursuant to section
12022.53, subdivision (d). The superior court is directed to correct its minutes to reflect
the modified sentence and to delete that the sentence was “enhanced by the


8      See Miranda v. Arizona (1966) 384 U.S. 436, 444-445.

                                              18
186.22(b)(1)(C) Penal Code allegation.” The court is further directed to issue an
amended abstract of judgment and forward a copy to the Department of Corrections and
Rehabilitation. As so modified, and in all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 ____________________________, J.
                                                 CHAVEZ

We concur:



___________________________, P. J.
BOREN



___________________________, J.*
FERNS




________________________________________________________________________
* 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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