Filed 12/29/15 P. v. Whitaker CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C076820

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. 13F07954,
                                                                                         13F03835)
         v.

JABAHL LEE WHITAKER,

                   Defendant and Appellant.




         After a confrontation with a security guard in a parking lot where defendant Jabahl
Lee Whitaker drew a gun and threatened to kill the guard, a jury found defendant guilty
of making criminal threats (Pen. Code, § 422) and possession of a methamphetamine pipe
(Health & Saf. Code, § 11364.1) in case No. 13F07954. The trial court found true the
allegation that defendant had a prison prior (§ 667.5, subd. (b)) and that defendant had
violated probation in case No. 13F03835. The court sentenced defendant to a total term
of four years in prison.



                                                             1
       On appeal, defendant contends that his convictions must be reversed because the
prosecutor impermissibly lowered the burden of proof by asking defendant about his
motive in testifying and there was instructional and evidentiary error. He further
contends that his prior prison term enhancement must be stricken because his conviction
in that case was for an offense, petty theft with a prior, which is no longer a felony under
Proposition 47.
       Although we find both instructional and evidentiary error, we find these errors
harmless, both individually and cumulatively. We explain why we decline to consider
defendant’s contention that we must strike his enhancement. We affirm.
                                          FACTS
       On December 7, 2013, Moshin Nayyef was working as a security guard at Citrus
Heights Plaza Center. Customers complained about an aggressive panhandler at the
BevMo liquor store and the manager told Nayyef to ask the man to leave. Nayyef
approached defendant, who was eating a sandwich, and asked him to leave. Defendant
asked why and Nayyef explained there had been complaints. Defendant said he would
not leave. After Nayyef told defendant he would call the police, defendant started
walking.
       Nayyef followed defendant at a distance of 30 feet to make sure defendant was
leaving the property. Defendant threw his sandwich at Nayyef and said, “ ‘Back off or
I’ll shoot you with my .45.’ ” Nayyef called the police. Again, defendant said, “ ‘Back
off or I’m going to shoot you.’ ” Defendant then pulled out a gun and said, “ ‘I’m going
to shoot you, motherfucker.’ ” Defendant had his arm extended and the gun pointed at
Nayyef. Nayyef was afraid defendant would shoot him and took cover behind a car.
Defendant’s gun looked real to Nayyef, like a Wellington or a Glock.
       Nayyef’s 911 call to the police was played at trial. Nayyef reported that the
suspect “just pulled a gun on me”; the suspect said, “[B]ack up or I’m gonna shoot you”



                                             2
and then pulled a gun. “I saw the gun by my, by my own eyes, like he pulled the gun and
he said he’s gonna shoot me.”
       The police responded to the 911 call. Officer Mike Coltharp saw defendant, who
matched the description of the suspect. Coltharp made eye contact with defendant, who
jumped in a raised planter box. After the police detained defendant, another officer found
a pipe used to smoke methamphetamine in defendant’s backpack. The police found the
gun in the planter box. The gun was a BB or pellet gun that resembled a handgun.
       Defendant testified in his defense. At the time of the confrontation with Nayyef,
defendant was homeless and “couch surfing.” He claimed Nayyef came at him and told
him, “ ‘Get the fuck out of here.’ ” Defendant denied that he threatened to shoot Nayyef,
but admitted he threw his sandwich at him. Defendant explained the BB gun was broken;
he had bought it for $5 and intended to fix it and either give it to his son or use it for
target practice. He hid the gun from the police because that was “good common sense.”
       Defendant testified he did not realize he had the methamphetamine pipe. His
friend Dave had given him the jacket with the pipe and a phone inside. Defendant
admitted he did smoke methamphetamine.
       Defendant had “quite a bit of stuff” in his backpack, such as some speakers, the
pellet gun, flashlights, clothes, and deodorant. He explained he was a barterer; he
bought, sold, and traded things. A picture of the contents of defendant’s backpack was
admitted at trial. It showed several items of merchandise still in boxes, a cell phone
cover, a Halloween mask, flashlights, a hat, and a full bag of pistachio nuts.
                                       DISCUSSION
                                               I
                         Questioning Defendant’s Motive to Testify
       Over an unspecified defense objection, the prosecutor asked defendant, “Would
you agree that your goal in testifying today is to be acquitted of the crimes that you’re
charged with, sir?” Defendant said, “yes.” In closing argument, the prosecutor argued

                                               3
defendant was the only one with something to gain in the trial; he sought an acquittal
which gave him a reason to lie; and he lied because he was guilty. There was no
objection to this argument.
       Defendant contends the prosecutor impermissibly lowered the burden of proof by
asking about his motive to testify and then arguing that his interest in the case gave him a
motive to lie. He contends this argument used defendant’s status as a criminal defendant
to prove his guilt: his desire for an acquittal showed that he was lying and his lying was
evidence of his guilt. Defendant further contends the trial court, by overruling the
objection to the question about defendant’s motive to testify, endorsed the view that
defendant’s testimony was necessarily biased. Defendant argues this “endorsement” was
the equivalent of an instruction that the jury consider defendant’s personal interest in the
case in assessing his credibility. Defendant contends this court should follow federal
cases that have found such instructions improper. (See United States v. Gaines (2d Cir.
2006) 457 F.3d 238, 246 [denouncing instruction that tells a jury that a testifying
defendant’s interest in the outcome of the case creates a motive to testify falsely]; United
States v. Bear Killer (8th Cir. 1976) 534 F.2d 1253, 1260 [instruction to consider that he
is the defendant and his personal interest in the case to assess credibility should not be
given].)1
       The defendant made a similar argument in People v. Bunyard (1988) 45 Cal.3d
1189 (Bunyard). There, the defendant complained “that the prosecutor committed
misconduct by arguing that defendant was an ‘interested party’ and that the jury should


1  As defendant recognizes, federal courts do not take a unanimous position on this issue.
(See, e.g., United States v. Nunez-Carreon (9th Cir. 1995) 47 F.3d 995, 997-998
[upholding, with stated reservation, charge permitting jury to “consider any interest the
defendant may have in the outcome of the case, his hopes and fears and what he has to
gain or lose as a result of your verdict”]; United States v. Jones (5th Cir. 1979) 587 F.2d
802, 806 [proper to instruct jury that in assessing credibility it may consider defendant’s
“ ‘very keen personal interest in case’ ”].)

                                              4
consider his interest and motive to lie when assessing his credibility. By analogy to early
cases holding that the court in its instructions may not single out and specifically instruct
on the defendant’s interest because this throws the court’s judicial weight into the scales
against the defendant [citation] defendant reasons that prosecutorial argument which
singles out the defendant’s interest and motive to lie carries comparable weight and is
misconduct warranting reversal.” (Id. at p. 1222, fn. omitted.)
       Our high court rejected the argument: “Defendant cites as misconduct that which
the prosecutor was entitled to do.” (Bunyard, supra, 45 Cal.3d at p. 1222.) Citing
People v. Jenkins (1974) 40 Cal.App.3d 1054, at pages 1057-1058, the Bunyard court
found comments concerning the defendant’s bias and motive to lie were proper when
such comments were fairly derived from the evidence. (Bunyard, at pp. 1222-1223.) In
Bunyard, the defendant put his credibility at issue by denying the testimony of key
prosecution witnesses. (Id. at p. 1222.) Here, defendant denied making any threats,
contradicting the testimony of the key prosecution witness Nayyef. Thus, his credibility
was put at issue and the jury was free “to ‘consider anything in reason that tended to
prove or disprove the truthfulness of his testimony, including the existence or
nonexistence of a bias, interest or other motive. . . .’ ” (Id. at p. 1223, citing Evid. Code,
§ 780, subd. (f).)
       The Bunyard court also rejected the argument that the prosecutor’s comments
violated due process. “He asserts that the prosecutor’s emphasis on defendant being an
‘interested party’ created a ‘presumption of guilt’ and a presumption of interest and bias
based solely on defendant’s status as defendant and on his interest in acquittal, which
conflicts with the presumption of innocence thereby lessening the People’s burden of
proof. We find no merit in defendant’s position. The jury in the case at bar was not
instructed by the court that there was any presumption of interest and bias; to the
contrary, the instruction upon which the prosecutor [citation] based her argument relating
to credibility clearly left the jurors a choice as to whether to find any existence of motive

                                               5
or interest on the part of any witness, including defendant. Nor does the record show any
argument from the prosecutor that the jury should presume guilt as the result of his status
as the defendant or his interest in acquittal. We perceive no violation of due process
under the facts presented.” (Bunyard, supra, 45 Cal.3d at pp. 1223-1224.)
       Any person accused of committing a crime has a deep personal interest in the case
against him. By pleading not guilty and exercising his right to a jury trial, he necessarily
seeks an acquittal. Thus, the prosecutor’s question asked no more than what was readily
apparent to the jury. Under Bunyard, the prosecutor was permitted to ask defendant’s
motive in testifying and then use his answer to argue that the jury should consider
defendant’s interest in the case and motive to lie when assessing his credibility.
       Defendant argues Bunyard is inapplicable because it addressed only the allegedly
improper allusion to defendant’s interest in the case. He asserts his claim is different; he
claims the prosecution used his interest as a criminal defendant as actual evidence of his
guilt. Defendant highlights the People’s somewhat circular argument that people lie in
court because they are guilty and defendant wanted an acquittal so he lied. To the extent
this argument differs from that rejected in Bunyard, it finds error in the prosecution’s
argument, not the prosecutor’s question to defendant about his purpose in testifying.
Defendant objected only to the question, not to the subsequent argument.
       “As a general rule 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. Samayoa (1997) 15 Cal.4th 795, 841.) To the extent
that defendant now challenges the prosecutor’s argument at trial, he has failed to preserve
this claim of prosecutorial misconduct.




                                              6
                                              II
                                     Instructional Error
       Defendant contends the trial court erred in telling the jury that the instruction to
view defendant’s statements made before trial with caution unless they were in writing
(CALCRIM No. 358) did not apply to any of defendant’s statements that were alleged to
be criminal threats. He contends the error was prejudicial because it bolstered Nayyef’s
credibility and impaired defendant’s constitutional right to confront all witnesses against
him.
       The trial court instructed the jury: “You have heard evidence that the defendant
made oral or written statements before trial. You must decide whether the defendant
made any of these statements in whole or in part. [¶] If you decide that the defendant
made such statements, consider the statements along with all the other evidence in
reaching your verdict. [¶] It’s up to you to decide how much importance to give to the
statements. Consider with caution any statement made by the defendant tending to show
his guilt unless the statement was written or otherwise recorded. [¶] This instruction
applies to statements made by the defendant before the trial, other than a statement made
by the defendant which is alleged to be a criminal threat in itself.”
       The purpose of this cautionary instruction is “to aid the jury in evaluating whether
the defendant actually made the statement.” (People v. Diaz (2015) 60 Cal.4th 1176,
1184 (Diaz)). In People v. Zichko (2004) 118 Cal.App.4th 1055, 1058, the court held that
the cautionary instruction is not to be given in a criminal threats case, in which the
statement constitutes the criminal act itself. In Diaz, our Supreme Court “granted review
to resolve a conflict in the Courts of Appeal regarding whether a trial court has the duty
to instruct a jury to consider a criminal defendant’s out-of-court statements with caution
when the statements at issue form the basis of a prosecution for making criminal threats.”
(Diaz, at p. 1181.) The court disapproved Zichko and held the cautionary instruction does
apply to a verbal threat; “the cautionary instruction applies to any extrajudicial oral

                                              7
statement by the defendant that is used by the prosecution to prove the defendant’s
guilt—it does not matter whether the statement was made before, during, or after the
crime, whether it can be described as a confession or admission, or whether it is a verbal
act that constitutes part of the crime or the criminal act itself.” (Id. at p. 1187.)
       The Diaz court further held that the cautionary instruction need no longer be given
sua sponte. (Diaz, supra, 60 Cal.4th at p. 1190.) “The cautionary instruction on
admissions is no longer ‘necessary for the jury’s understanding of the case’ [citation]
because courts are now required to instruct the jury, in all criminal cases, concerning the
general principles that apply to their consideration of witness testimony. [Citation.]”
(Ibid.) Any failure to give the instruction was subject to harmless error analysis under
state law: “[W]hether it is reasonably probable the jury would have reached a result more
favorable to defendant had the instruction been given. (People v. Watson (1956) 46
Cal.2d 818, 835-836.) Failure to give the cautionary instruction is not a violation of
federal due process warranting the ‘more stringent standard’ of review for federal
constitutional error. [Citation.]” (Diaz, at p. 1195.)
       Here, the trial court added language to the standard CALCRIM instruction,
specifically telling the jury that the cautionary instruction did not apply to defendant’s
alleged threats. Although this is a different error than that considered in Diaz, the Watson
standard of harmless error still applies. “Mere instructional error under state law
regarding how the jury should consider evidence does not violate the United States
Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 71-75.)” (People v. Dickey (2005)
35 Cal.4th 884, 905.)
       In determining whether instructional error was harmless, “[a] reviewing court
considers ‘the specific language challenged, the instructions as a whole[,] the jury’s
findings’ [citation], and counsel’s closing arguments to determine whether the
instructional error ‘would have misled a reasonable jury . . . .’ [citation].” (People v. Eid
(2010) 187 Cal.App.4th 859, 883.)

                                               8
       On this record, defendant has not shown that the addition to the cautionary
instruction misled the jury such that there was a reasonable probability of a more
favorable result without the error. The trial court properly instructed the jurors through
CALCRIM No. 226 that “[y]ou alone must judge the credibility or believability of the
witnesses” and that the testimony of each witness should be judged by the same
standards, and provided relevant factors to consider in making credibility determinations.
The court also instructed on how to evaluate conflicting evidence. (CALCRIM No. 302.)
       The issue of Nayyef’s credibility was the focus of the defense closing argument.
Defense counsel attacked Nayyef’s credibility, arguing that Nayyef had a motive to lie
because at trial he had to tell the same (presumably false) story he had previously told the
police. Counsel pointed out a number of “lies” by Nayyef: Nayyef misrepresented both
his position and his length of employment on the social media site Linkedin; he claimed
on a job application that he had been in the Special Forces in Iraq when he was actually a
police officer; he testified he wrote a report about the incident with defendant, but did
not; and he testified he left his job due to fear while he told his employer he left to go
back to school.
       “ ‘Since the cautionary instruction is intended to help the jury to determine
whether the statement attributed to the defendant was in fact made, courts examining the
prejudice in failing to give the instruction examine the record to see if there was any
conflict in the evidence about the exact words used, their meaning, or whether the
[statements] were repeated accurately.’ [Citation.]” (Diaz, supra, 60 Cal.4th at p. 1195.)
While Nayyef used slightly different language, sometimes including profanity and
sometimes not, in testifying about the threats, his testimony was consistent with what he
told the 911 dispatcher. The dispute was whether defendant made the threats, not the
exact words or meaning. Without direct evidence calling into question the accuracy of
the statements attributed to defendant, the trial court’s error related to CALCRIM No.
358 was harmless. (See People v. McKinnon (2011) 52 Cal.4th 610, 680 [“This court has

                                              9
held to be harmless the erroneous omission of the cautionary language when, in the
absence of such conflict, a defendant simply denies that he made the statements”].)
                                               III
                                        Evidentiary Error
       Defendant contends the trial court erred in admitting into evidence the contents of
his backpack and testimony about the origin of his cell phone. He contends this evidence
was not relevant to any issue in the case but was highly prejudicial because it suggested
that he was violent and stole things.
       A. Background
       Before trial, the defense moved to exclude any reference to the contents of
defendant’s backpack, except the methamphetamine pipe and that a witness saw
defendant put the gun there. The prosecutor had no objection; “I can’t think of a reason
why that would come in.” Counsel explained there was merchandise in the backpack and
a Halloween mask that some might find “creepy.” Counsel was concerned the jury might
think the merchandise was stolen. He asked that the photograph of the contents of the
backpack not be shown. The court granted the request, finding the items in the backpack
had no relevance. In response to the People’s expressed concern, the court indicated that
it would revisit the issue if something happened at trial to create some relevance or a need
for such evidence.
       During direct examination, defendant explained that before leaving the parking lot
he paused to zip up his backpack because he “had a lot of stuff” in there that day.
Defense counsel asked: “What kind of stuff did you have in there?” Defendant
mentioned speakers, the pellet gun, flashlights, clothes, and deodorant. Defendant said it
was not all his possessions, but “quite a bit of stuff.”
       Subsequently, the People argued defendant’s testimony had “opened the door” to
the admission of the contents of his backpack. The People argued the defense was trying
to paint the picture that defendant was homeless and simply loitering with only his

                                               10
belongings on his person. Defendant objected: “[T]hat was not the purpose of the
question.” Counsel argued the mask in particular should be excluded under Evidence
Code section 352 as a “distraction” and “potentially quite prejudicial.” The court found
the “door has been opened as to this issue.” The People were allowed to ask, at a
minimum, about the contents of the backpack for purposes of defendant’s credibility and
how well he remembered what occurred.
         The defense continued to argue the contents of the backpack should be excluded
due to prejudice. The new merchandise carried the suggestion that it was stolen. The
court affirmed its ruling now admitting the backpack’s contents.
         The prosecutor next raised the issue of defendant’s cell phone. At the scene
defendant told the officers it was his phone and he got it from his friend Steve, but at trial
he testified on direct examination that he got the phone from his friend Dave. The
prosecutor claimed this testimony opened the door to ask about the phone, why he was
lying about the phone, and that the phone was stolen. She argued that although the
charge for possessing stolen property had been dismissed, “the People still have a good
faith belief that the cell phone was stolen, and that’s why he is lying.”
         The court ruled that the People could ask about the prior inconsistent statement,
but Evidence Code section 352 precluded the People from exploring whether the phone
was stolen.
         Defendant denied that he told the police officer he got the cell phone from
someone named Stephen. The officer testified defendant said he got the cell phone from
Steve.
         During cross-examination, the prosecutor asked defendant about the contents of
his backpack. Without objection, the People introduced a picture of the contents. The
prosecutor then questioned defendant about each item, again without objection.
Defendant testified he purchased the flashlights with money his mother gave him. The
two products to straighten hair he had also purchased with money from his mother; he

                                              11
was going to give those as gifts to his sisters. Defendant explained he had some of the
items because he bartered. For example, one day when he went to trade items, the store
he went to was “low on cash” so the owner “threw in” the mask. After a few more
questions, the defense objected to relevance and the court overruled the objection. The
prosecutor next asked about defendant’s testimony that he had clothes in the backpack;
the only item of clothing was a hat.
       B. Analysis
              1. Origin of Cell Phone
       We find no error in admission of evidence as to who gave defendant the cell
phone, Dave or Steve. The testimony of the officer that defendant had given a different
answer about from whom he had obtained the phone was classic impeachment evidence.
“Impeachment is the process of challenging or impugning the credibility of a witness.
One commonly used method of impeachment is the adducing of evidence of a prior
statement by the witness inconsistent with his testimony on the stand, for which purpose
the statement is not considered to be hearsay. [Citation.]” (People v. Sam (1969) 71
Cal.2d 194, 208.)
              2. The Contents of the Backpack
       The People contend that because defendant introduced the testimony about the
contents of the backpack on direct examination, he cannot complain of the additional
evidence about its contents on cross-examination. The People assert that defendant
invited any error. “The doctrine of invited error is designed to prevent an accused from
gaining a reversal on appeal because of an error made by the trial court at his behest. If
defense counsel intentionally caused the trial court to err, the appellant cannot be heard to
complain on appeal.” (People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on
other grounds in People v. Barton (1995) 12 Cal.4th 186, 201.) Appellate courts have
applied the invited error doctrine when the trial court permits the admission of evidence
previously ruled inadmissible after defendant first elicits the evidence. (People v.

                                             12
Gutierrez (2002) 28 Cal.4th 1083, 1138-1139 [no error to admit prior for impeachment
despite earlier ruling to exclude where defendant elicited evidence].)
       This case does not present a proper application of the invited error doctrine. In
Gutierrez, the defendant “expressly requested the trial court to reverse its prior ruling and
rule admissible for impeachment purposes the 1984 prior conviction.” (People v.
Gutierrez, supra, 28 Cal.4th at p. 1139.) The defendant then elicited the evidence that he
had been in prison and had served time for assault. (Ibid.) The invited error doctrine
prevented defendant from challenging on appeal a ruling that he had requested.
       Here the situation is different. The trial court ruled the contents of defendant’s
backpack were inadmissible because “they don’t have any relevance to any issue in this
case.” Thereafter, in direct violation of the court’s ruling, defense counsel asked
defendant what was in his backpack. The reason counsel asked this question is unclear;
defense counsel claimed he was trying only to describe defendant’s appearance. The
prosecution suggested the defense wanted to paint the sympathetic picture that defendant
was homeless and simply loitering with his few belongings on his person when he was
confronted by an aggressive security guard. But the contents of the backpack,
particularly the mask and unopened merchandise, did not support this “sympathetic
picture” and the defense had earlier succeeded in excluding this evidence as prejudicial.
       Witkin discusses this situation--an apparent mistake or error in eliciting the
excluded testimony in the first instance--as follows. “A practical problem about which
the authorities are difficult to reconcile arises as follows: A witness, on direct or even
cross-examination makes a statement on an irrelevant matter. The adverse party may
have it excluded on objection or motion to strike, but sometimes does not do so. If the
evidence were relevant and merely incompetent (e.g., hearsay or inadmissible opinion),
the failure to object would be a waiver of its inadmissibility [citation]. On the other hand,
failure to object cannot give irrelevant evidence any probative effect [citation]. May the
adverse party nevertheless take advantage of the error in the testimony and the party's

                                             13
own failure to object, and impeach the witness, by cross-examination or rebuttal, on the
collateral matter? [¶] In support of such a right, it has been said that the offering party
on direct examination opened the ‘door’ or the ‘gates,’ and that the adverse party is
‘fighting fire with fire,’ but the metaphors explain nothing. The real question seems to be
whether the matter improperly admitted on any examination was prejudicial and not
curable by objection or motion to strike. If so, the adverse party should be permitted to
contradict it, under the doctrine of ‘curative admissibility’ [citation]. If it is not
prejudicial, there seems no reason to permit the adverse party to capitalize on the
blunder or accident by offering impeaching evidence on a collateral matter. [Citations.]”
(3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 363, pp. 509-510, italics
added.)
       In People v. Steele (2002) 27 Cal.4th 1230, defendant was on trial for murder and
there was evidence he had committed a prior murder. The pathologist who performed the
autopsy on the victim was allowed to testify about similarities between the two murders.
(Id. at p. 1246.) On cross-examination, the defense elicited the opinion that the earlier
killing might have been committed in a rage. On redirect, the prosecutor asked if that
murder could also have been methodical. On appeal, defendant contended it was error to
admit this testimony. Our Supreme Court rejected the argument, noting that the defense
initiated this line of testimony; once the defense asked if the killing might have been done
in a rage, the People were entitled to counter this testimony with the pathologist’s opinion
that the killing might have been methodical. (Id. at p. 1247.) The court noted Witkin’s
discussion of the admission of an irrelevant matter without objection by the other party,
but declined to express a view because it found the question not presented. (Id. at pp.
1248-1249.) It found the defense question about a rage killing “was neither irrelevant nor
a blunder.” (Id. at p. 1249.) The court did, however, state: “We also agree that a party
should not be allowed to take advantage of an obvious mistake to introduce prejudicial
evidence.” (Id. at p. 1248.)

                                               14
       That is what happened here. The trial court and both parties had agreed that
evidence of the contents of defendant’s backpack was irrelevant. The defense question
eliciting those contents was an obvious mistake. The question violated the favorable
ruling that the defense had obtained, did not aid the defense, and allowed the People to
present irrelevant but prejudicial evidence. Thus it was error to admit the evidence of the
backpack’s contents, particularly evidence as to how and why defendant obtained each
item. However, the error was harmless.
       Defendant contends admission of the contents of his backpack was prejudicial
because the unopened items of merchandise created the inference that defendant stole
them, and his possession of the “scary” mask and the pellet gun suggested that he
obtained them through violence. Although we agree evidence of the contents of
defendant’s backpack was prejudicial because it suggested defendant was a thief, we find
it was not so prejudicial that it is reasonably probable a more favorable result would have
been reached if it had been excluded. (People v. Watson, supra, 46 Cal.2d at. p. 836.)
The challenged evidence was not evidence of uncharged crimes; at most it raised an
inference of prior criminal activity. That defendant had a criminal history was
established by other evidence. He reluctantly admitted he had been convicted of three
felonies (in 2005, 2010, and 2013) and that he was on formal, searchable probation at the
time of this incident. That defendant might be violent was established by his possession
of the gun and testimony about his threats; the mask added little to that evidence.
       Admission of this challenged evidence eroded defendant’s credibility as he gave
rather incredible answers to the questions of how and why he had the merchandise.
Defendant’s credibility, however, was questionable even without these answers. He
testified that once he discovered his backpack was open, he took the pellet gun out of his
backpack and put it in the front of his pants rather than simply zipping up the backpack.
He gave an odd story about buying and possible future use of the gun. He was often
unnecessarily evasive on cross-examination; for example, he initially answered

                                            15
“[p]robably so” and “I don’t remember” about his prior felony convictions before
admitting them. He claimed not to know the last names of women he called his
girlfriends. In contrast, Nayyef’s credibility was much stronger. Although the defense
revealed several instances of “puffery” by Nayyef, it did not shake his story of the
threats, a story confirmed in real time by the 911 call.
       C. Cumulative Error
       Defendant contends the cumulative effect of the errors requires reversal. “[A]
series of trial errors, though independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error. [Citation.]” (People v. Hill
(1998) 17 Cal.4th 800, 844.) We have found no error with respect to lowering the
standard of proof and the instructional error was clearly harmless in light of other, proper
instructions and argument. As we have described, the evidentiary error was also clearly
harmless and does not contribute to any finding of prejudice. The issue is not whether
there was more than one error, but whether defendant’s guilt on the charge was “fairly
adjudicated” and we must affirm “absent a clear showing of a miscarriage of justice.”
(Ibid.) There was no miscarriage of justice here.
                                             IV
                         Striking Prior Prison Term Enhancement
       In November 2014, California voters approved Proposition 47, The Safe
Neighborhood and Schools Act (the Act). The Act “makes certain drug- and theft-related
offenses misdemeanors, unless the offenses were committed by certain ineligible
defendants.” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) The Act now
makes petty theft with a prior a misdemeanor except for certain defendants who are
required to register as sex offenders or have certain prior convictions for violent or
serious felonies or elder abuse. (§ 666, subds. (a), (b).) The Act also provides a
procedure for a defendant who has completed his sentence for a felony that would be a



                                             16
misdemeanor under the Act to apply to the court to have his felony conviction designated
as a misdemeanor. (§ 1170.18, subd. (f).)
       Defendant contends his one-year prior prison term enhancement (§ 667.5, subd.
(b)) must be stricken due to the change in the law made by Proposition 47. This
enhancement was based on his 2010 felony conviction for petty theft with a prior. (§ 666
as amended by Stats. 2000, ch. 135, § 134, p. 1991.) Defendant contends he does not fall
within the class of defendants for whom petty theft with a prior is still a felony, and since
he would not have received a prison term under the Act for his 2010 petty theft, the prior
prison term enhancement must be stricken. Defendant’s argument is premature. In
People v. Diaz (2015) 238 Cal.App.4th 1323, the defendant also had a prior prison term
enhancement based on a felony conviction for petty theft with a prior. He argued that his
petty theft would have been a misdemeanor if the Act had then been in effect, so it could
not be the basis of the enhancement. (Id. at p. 1327.) The court found that section
1170.18 provided the only remedy; the defendant first had to file an application under
section 1170.18, subdivision (f) to re-designate his prior theft offense as a misdemeanor.
(Id. at pp. 1331-1332.) Here, as in Diaz, there is no evidence that defendant has filed the
necessary application to reduce his 2010 felony. Accordingly, we will not consider his
argument.




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                                   DISPOSITION
       The judgment is affirmed.



                                                  /s/
                                            Duarte, J.



We concur:



      /s/
Butz, Acting P. J.



     /s/
Hoch, J.




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