P. v. Mason

Filed 8/21/07 P. v. Mason CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Alice E. Altoon and Michael K. Kellogg, Judges. Affirmed as modified.

Fay Arfa, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Colleen Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Micah Jerrod Mason challenges his carjacking and robbery convictions on the grounds they are not supported by the evidence, defense counsel labored under a conflict of interest and rendered ineffective assistance, the prosecutions failure to disclose certain photographs violated due process, an officers conduct in citing a potential witness with obstructing justice violated appellants right to compulsory process, and the court improperly punished him for robbing and carjacking the same victim. Appellant also requests that this court review the record of in camera proceedings regarding his motion for discovery of police officer personnel records and complaints.

We conclude ample evidence supports appellants convictions. Appellant did not establish that his attorney had an actual or a potential conflict of interest. The prosecutions failure to disclose photographs purportedly taken by the Riverside Police Department did not violate due process because the photographs were not material. Appellants right to compulsory process was not violated by charging a man who lied to officers on the scene with obstructing justice. Penal Code section 654 requires that appellants sentence for robbery be stayed. The trial court did not abuse its discretion in ruling upon appellants discovery motion.

BACKGROUND AND PROCEDURAL HISTORY

As Virna Alarcon attempted to secure a loose object in the cargo space of her Lincoln Navigator, appellant and a companion drove up and stopped in front of Alarcons vehicle. Appellant approached Alarcon, pointed a gun at her, and demanded the keys to the Navigator. Alarcon told appellant the keys were inside the vehicle. Appellant got into the Navigator, forced Alarcons two passengers out of the vehicle at gunpoint, and drove away behind his companions car. Alarcons Navigator was located by means of a Lojack signal, and appellant was arrested nearby.

A jury convicted appellant of three counts of carjacking and two counts of robbery. It found appellant personally used a gun in the commission of the crimes. Appellant was sentenced to 16 years in prison.

DISCUSSION

1. Substantial evidence supports appellants convictions.

Appellant contends the victims identification testimony was weak and uncorroborated, and the evidence was therefore insufficient to establish his involvement in the crimes.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.)

Altagracia Alvarez testified that she and Diana Cruz were passengers in Virna Alarcons Lincoln Navigator on the evening of December 23, 2003.^[1] Between 6:30 and 6:45 p.m., Alarcon, who was driving, stopped to secure a stroller that was rattling in the cargo area. As she returned toward the drivers door, a dark green Honda CR-V pulled up and stopped in front of the Navigator. A man got out of the Honda CR-V, pointed a gun at Alarcon, and demanded the keys. At trial and at the preliminary hearing, Alvarez identified appellant as the man who pointed a gun at Alarcon. Alarcon told appellant the keys were inside the Navigator. The drivers door of the Navigator was open and the interior light was on. Appellant got into the Navigator, pointed his gun at Cruz, and told her to get out. She grabbed her purse and Alarcons purse and got out. Appellant then pointed the gun at Alvarez and told her to get out. She attempted to comply, but the door would not open because a child safety lock was on. Appellant attempted to unlock the door, but was unsuccessful. He told Alvarez to climb over the console to the front seat, but she refused. Appellant unlocked the door, and Alvarez got out. She asked appellant if she could take her purse. Appellant relayed the question to the driver of the Honda CR-V, then told Alvarez, No. Appellant then drove away in the Navigator, following the Honda CR-V.

A few days after the crimes, Alvarez selected appellants photograph from an array of photographs. She recognized him right away. She remembered that he had a large forehead and extremely short hair, and was somewhat light-skinned. She did not speak to Cruz or Alarcon about the photographs before selecting appellants photograph. She did not identify anyone in a second array of photographs.

Alvarez testified that she watched appellant the entire time, from beginning when she first saw him point a gun at Alarcon. When appellant got into the Navigator, she looked at his face and body as well as the gun. She made eye contact with appellant while telling him she could not open the door.

Diana Cruz testified that she and Altagracia Alvarez were passengers in Virna Alarcons Lincoln Navigator on the evening of December 23, 2003. Between 6:30 and 6:45 p.m., Alarcon, who was driving, stopped and got out because a stroller was moving around in the cargo area. A dark green car stopped in front of the Navigator. Cruz heard someone say, Give me your keys. A man walked toward the Navigator and got in through the drivers door. The lights inside the car were on. At trial, Cruz identified appellant as the man who got into the car. He pointed a gun at Cruz and told her to get out of the car. She got out and stood by the Navigator with Alarcon, waiting for Alvarez to get out. After Alvarez got out, the Navigator drove away, followed by the dark green car.

A few days later, Cruz went to the police station and selected appellants photograph from an array of photographs. Although Alarcon and Alvarez were also at the police station, they did not discuss the incident or the identification. Cruz looked at both the gun and appellants face. She thought she was within four feet of appellant for less than 20 seconds. Cruz agreed with defense counsel that in her experience, Black people tend to look alike.

California Highway Patrol Officer David Robles testified that at 9:17 p.m. on December 23, 2003, the Lojack unit in his patrol car picked up a signal. Robles obtained a description of the Lojack-equipped vehicle from the dispatcher, called for assistance, and began tracking the directional signal. After about 15 minutes, Robles found the signal-emitting vehicle, a Lincoln Navigator, parked in front of 6610 Solano Street in the Rubidoux area of Riverside County. A dark green Honda CR-V was parked directly in front of the Navigator. Other Highway Patrol officers and sheriffs deputies and a helicopter arrived. The officers knocked on the door of the house at 6610 Solano Street and spoke to the occupants, who included J.L. The officers impounded both the Navigator and the CR-V.

J.L. testified that appellant, whom she knew as Uncle Micah, and another man were at her house at 6610 Solano Street watching television with her uncle Allen Davis on December 23, 2003. She subsequently noticed that a window was open, and immediately afterwards she saw police officers outside. Five to ten minutes later, the police brought appellant back to the house in a police car.

Riverside County Sheriffs Deputy Curt Harris testified he responded to 6610 Solano Street, and then to another location, 0.8 miles away. At the latter location, Harris saw appellant walking near a Burger King restaurant. Harris detained appellant, and another deputy detained Lee Jackson, who was across the street.^[2]

Cruz and Alvarez identified Alarcons Navigator in photographs (Peoples Exhibits. 1-3). Robles said the photographs appeared to depict the vehicle officers recovered at 6610 Solano Street. Alvarez testified that the Honda CR-V that pulled in front of Alarcons vehicle just before the crimes looked like the one depicted in photographs of the CR-V impounded at 6610 Solano Street. The parties stipulated that Lee Jackson was the registered owner of the impounded Honda CR-V.

Appellant presented expert testimony regarding the unreliability of eyewitness identifications.

Alvarezs and Cruzs identifications of appellant, appellants presence in the house outside of which were found Alarcons stolen Navigator and a Honda CR-V that matched the description of the getaway vehicle, and the short interval of less than three hours between the carjacking and the discovery of the stolen Navigator constitute substantial evidence supporting appellants convictions. Appellants arguments regarding the eyewitness identification were matters for the jurys consideration, but do not deprive the evidence of its sufficiency. Testimony believed by the trier of fact is rejected on appeal only if physically impossible or obviously false. (Peoplev.Allen (1985) 165 Cal.App.3d 616, 623.) Weaknesses and inconsistencies in eyewitness testimony are matters for the jury to evaluate. Conflicts and even testimony subject to justifiable suspicion do not justify the reversal of a judgment; it is the exclusive province of the trier of fact to determine credibility and the truth or falsity of the facts upon which credibility depends. (Ibid.)

Appellant further argues that the photographic identification procedure was unfair because the police placed appellants photograph in position four each time an array of photographs was shown to a victim, and appellant was the only person in the array depicted wearing light-colored clothing.

Appellant did not object to the identification evidence at trial, and therefore forfeited this claim. (In re Michael L. (1985) 39 Cal.3d 81, 88 [specific objection that lineup was unduly suggestive waived, even though objection of contamination raised].)

In any event, appellants claim has no merit. A pretrial identification procedure violates a defendants due process rights only if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification, i.e., it suggests in advance of identification by the witness the identity of the person suspected by the police.  (Peoplev.Sanders (1990) 51 Cal.3d 471, 508; People v. Hunt (1977) 19 Cal.3d 888, 894, citation omitted.) The defendant bears the burden of proving unfairness as a demonstrable reality, not just as speculation. (Peoplev.DeSantis (1992) 2 Cal.4th 1198, 1222.) On appeal, we review the totality of the circumstances in determining whether an identification procedure was unconstitutionally suggestive. We must resolve all evidentiary conflicts in favor of the trial courts finding and uphold that finding if substantial evidence supports it. (Peoplev.Wimberly (1992) 5 Cal.App.4th 773, 788.)

Appellant has not established unfairness as a demonstrable reality. The three victims were separated when the police showed them the photographs, and they did not speak to one another about their identifications. It was therefore not prejudicial for the police to show each victim the same photographic array. Nor has appellant shown that the composition of the photographic array was impermissibly suggestive. The mere fact appellant was wearing light-colored clothing in the photograph would not necessarily cause his photograph to stand out. Nor did it suggest appellant was the person involved in the crime, as Alvarez and Cruz both testified the carjacker wore a black or dark-colored shirt.

2. Appellant did not establish that his attorney had an actual or potential conflict of interest.

Appellant contends the deputy public defender who represented him had an actual conflict of interest because the public defenders office had previously represented Lee Jackson. Appellant argues his attorney should have implicated Jackson as the man who pointed the gun at the three victims and forced them out of the Navigator, but conflicting loyalties prevented from doing so.

The Sixth Amendment right to the effective assistance of counsel includes the right to representation free from conflicts of interest. (People v. Jones (1991) 53 Cal.3d 1115, 1133-1134.) Conflicts of interest may arise in various factual settings. Broadly, they embrace all situations in which an attorneys loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests. (Id. at p. 1134, quoting People v. Bonin (1989) 47 Cal.3d 808, 835.) Prejudice is presumed when the defendant shows that counsel actively represented conflicting interests and an actual conflict adversely affected counsels performance. (People v. Jones, supra, 53 Cal.3d at p. 1134.) Establishing an adverse effect upon counsels performance does not require outcome-determinative prejudice. (People v. Roldan (2005) 35 Cal.4th 646, 674.)

The corresponding right under state law to conflict-free counsel only requires the defendant to show a potential conflict. However, the record must support an informed speculation that the purported conflict adversely affected counsels performance. (People v. Frye (1998) 18 Cal.4th 894, 998, citations omitted.)

Appellant raised the conflict of interest issue in his motion for a new trial and supported it with a memorandum from a public defenders office investigator. In the memorandum, the investigator noted that Deputy Public Defender Michael Sklar represented Jackson in a prior narcotics case for which he was apparently on parole at the time he was arrested with appellant on December 23, 2003. (Exhibit F to Motion for New Trial.)

Jackson apparently was not charged with the present offenses, and nothing indicates he was represented by the public defenders office in relation to any case at the time of appellants trial. Because he was not a witness at appellants trial, no risk existed that confidential information obtained through the offices prior representation of Jackson would be used. Nothing in the record suggests that the deputy public defender who represented appellant had ever represented Jackson or obtained confidential adverse information about appellant from Jackson. The mere fact that Jackson was previously represented by the same public defenders office that employed appellants attorney does not give rise to an inference of a conflict of interest. (People v. Pineda (1973) 30 Cal.App.3d 860, 865 disapproved on another ground in Leverson v. Superior Court (1983) 34 Cal.3d 530.)

Appellant argues his attorney pulled her punches because she did not implicate Jackson as the person who pointed the gun at the victims and drove away in the Navigator. Appellant argues the evidence indicated that appellant may have been the driver of the Honda CR-V, but Jackson was the man who used the gun. Notably, appellant does not specify the evidence supporting this contention. This courts review of the record revealed no such evidence. All three victims identified appellant as the man who pointed the gun at them and took the Navigator. Although Alarcon did not testify at trial, her preliminary hearing testimony included an in-court identification of appellant as the person who pointed a gun at her and demanded her keys. She also testified regarding her prior identification of appellant from photographs. None of the victims saw the driver of the Honda CR-V well enough to identify him. Appellants claim that defense counsel should have attempted to persuade the jury that Jackson, not appellant, was the person who pointed a gun at the victims and took the Navigator is therefore meritless, as such a claim necessarily would have been based upon pure speculation.

Accordingly, appellant has not shown the existence of a conflict of law based upon either state or federal law.

3. Failure to disclose photographs purportedly taken by the Riverside Police Department did not violate due process.

Appellant contends the prosecution violated due process by failing to produce to the defense photographs of appellant, Jackson, and the house at 6610 Solano Street. Appellant submitted unauthenticated photographs to the trial court in support of his new trial motion. He claimed the photographs were taken by the Riverside Police Department.^[3] Exhibit H to appellants New Trial Motion purportedly consists of photographs of appellant. Exhibit I to the motion purportedly contains photographs of Jackson. Contemporaneous photographs of the curb and front of the house at 6610 Solano Street purportedly comprise Exhibit J to appellants Motion. One photograph in Exhibit J appears to depict a dark green or blue-green Honda CR-V parked at the curb just past the house that appears to bear the numerals 6610.^[4]

Appellant argues that he needed the fully body photographs of suspect Jackson to show the witnesses to determine whether they could identify him as the man who pointed a gun at them. He further argues that the witnesses needed to see photographs of him in order to determine whether they recognized him, and the photographs show a distinctive tattoo on his arm that none of the witnesses described. In addition, he argues, the photographs show that appellants head was shaved, which [n]one of the witnesses originally described.

Brady v. Maryland (1963) 373 U.S. 83, 87, established that due process requires the prosecution to disclose to the defense any and all potentially exculpatory evidence. The defendant must establish that the undisclosed information was favorable to the defense and that a reasonable probability exists that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. (Kyles v. Whitley (1995) 514 U.S. 419, 433-434.) Such a reasonable probability exists where the undisclosed evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. (Id. at p. 435; In re Williams (1994) 7 Cal.4th 572, 611.) A Brady claim requires state suppression, either willful or inadvertent, of favorable evidence and ensuing prejudice. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.)

Appellant has not demonstrated the materiality of the photographs of himself. Appellant was present at his own trial and presumably knew he had a distinctive tattoo on his arm. He could have displayed that tattoo at trial. None of the victims was asked whether the gunman was wearing a long-sleeved shirt, which would have covered the tattoo. Because the crimes occurred at night in late December, this may have been the case. Alvarez testified that the gunman was wearing a black top over a white shirt, which is consistent with the white T-shirt depicted in Exhibit H, but not the black shirt, without a white shirt underneath, depicted on the person in Exhibit I.^[5]

The victims identified appellant from a photographic array and at trial. Appellant offers no grounds for believing they would not have identified him had they been shown the photographs in Exhibit H.^[6] The appearance of the person depicted in the photographs in Exhibit H is no different than that of the person depicted in the photograph selected by each of the victims from the photographic arrays they were shown. Respondent argues that the photographs of Jackson and appellant used in the arrays shown to the victims were booking photographs, taken shortly time after the Riverside photographs. Although nothing in the record establishes this, the photographs in Exhibit H are consistent with the photograph selected by each of the victims from the photographic arrays. In any event, Alvarez testified she told the police officers who responded to the scene of the carjacking that the gunman had somewhat light skin, not that dark, a big forehead and his hair really short. This description is consistent with the photographs in Exhibit H. For all of these reasons, there is no likelihood these photographs would have put the case in a such different light as to undermine confidence in the verdict.

Nor has appellant demonstrated the materiality of Exhibit I. For the purpose of this discussion, we assume that the person depicted in Exhibit I is Jackson. The prosecution introduced a photograph of Jackson (Peoples Exhibit 13). Appellant was free to introduce additional photographs of Jackson. The only apparent potential value of the particular photographs in Exhibit I would have been to show that Jackson was wearing a black shirt when he was arrested. Appellant, who was with Jackson before and at the time of their arrest, presumably knew what Jackson was wearing. In addition,

Jacksons booking photograph would have revealed the color of his shirt. Appellant could have established the color of Jacksons attire through the booking photograph, testimony of the deputy who arrested him, or possibly booking records. Moreover, the photographs in Exhibit I do not indicate that Jackson fit the description of the man with the gun. Jacksons hair was of a normal length, not really short, and his skin is fairly dark, not somewhat light, as described by Alvarez. None of the victims was able to identify Jackson from a photographic array, and each testified, either at the trial or preliminary hearing, that she did not see the driver of the Honda CR-V well enough to identify him. It is simply not reasonably probable that prior disclosure of the photographs in Exhibit I would have put the entire case in such a different light as to undermine confidence in the verdict.

Appellant argues that the photographs in Exhibit J would have shown that the police never found the Navigator at 6610 Solano Street. While the photographs in Exhibit J do not show a Navigator, they also fail to disprove that a Navigator could have been in front of 6610 Solano Street. The upper photograph on the page shows a white sedan parked in front of a house that appears to bear address numerals of 6610. The lower photograph depicts what appears to be a dark green or blue-green Honda CR-V, which appears to be parked more or less in front of the midpoint between two houses. If the house on the right is 6610, then it is just to the left of that house. Neither of the photographs depicts the entire street in front of, or adjacent to, 6610 Solano Street. While the photographs in Exhibit J may have been useful in cross-examining Officer Robles, they did not disprove his testimony that he and other officers located a Navigator emitting a Lojack signal from in front of 6610 Solano Street, directly behind a Honda CR-V. The photographs in Exhibit J show a small empty space behind the CR-V, but not the entire length of curb behind it. Moreover, the Navigator may have had already been towed when the photographs in Exhibit J were taken. Because the photographs show such a limited view and no offer of proof was made to establish their content, it is impossible to conclude that they prove that the police never found the Navigator at 6610 Solano Street, as appellant argues. Given Robless testimony and the limited scene depicted in the photographs, they do not put the entire case in such a different light that it undermines confidence in the verdict. Moreover, a report written by Officer Robles indicates that California Highway Patrol Officer Tupper took photographs of the vehicles and suspects. (Exhibit L to Motion for New Trial.) Accordingly, it is reasonably probable that, had appellant introduced the photographs in Exhibit J to attempt to prove the Navigator was not recovered where Robles testified it was, the prosecution would have been able to introduce the CHPs photographs to corroborate Robless testimony.

Accordingly, we conclude non-disclosure of the photographs in Exhibits H, I, and J to the New Trial Motion did not violate due process.

4. Appellants right to compulsory process was not violated by citing Davis for obstructing justice.

Officer Robles testified that after the officers knocked on the door at 6610 Solano Street, he spoke with the homeowner, Allen Davis. Robles and the other officers asked Davis to come out of the house. They then asked him questions about the vehicles parked in front of the house. Robless written report (Exhibit L to the Motion for New Trial) indicates that Davis initially told Robles that he was alone with his kids in the house and no other adults were present. California Highway Patrol Officer Davis spoke to J.L., who told him that Davis, Mason, and Jackson were in the house before the officers arrived. Mason and Jackson then jumped out of a window and fled into the backyard. At trial, J.L. testified that Davis, appellant and another man were all in the living room watching television before the police arrived. When Davis was questioned again, he admitted that appellant and Jackson were inside his house when he arrived home about 30 minutes before the police arrived. Appellant was a friend who sometimes stayed at the house. Appellant and Jackson were nervous and antsy. When Davis heard a helicopter overhead, he told appellant and Jackson that the police were outside. They fled through the back of the house. After Davis changed his statement, Robles cited him for a violation of Penal Code section 148, subdivision (a)(1). Robless report states that this citation was based upon his initial misleading and untruthful statements. (Exhibits L and M to the Motion for New Trial.)

Appellant contends that writing Davis a citation for obstructing justice intimidated him and prevented him from testifying for the defense, which violated appellants rights to due process and compulsory process.

A defendants constitutional right to compulsory process is violated when the government interferes with the exercise of his right to present witnesses on his own behalf, e.g., by intimidating defense witnesses. (In re Martin (1987) 44 Cal.3d 1, 30, citations omitted.) Such intimidation may take many forms, such as telling defense witnesses they will be prosecuted for perjury or any crimes they reveal while testifying, threatening that witnesses will suffer adverse consequences in their own criminal cases or investigations, and arresting a defense witness before he or she or other defense witnesses complete their testimony. (Id. at pp. 30-31.)

Appellant bears the burden of demonstrating at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable; that the prosecutionengaged in activity that was entirely unnecessary to the proper performance of its duties and of such a character as to transform a defense witness from a willing witness to one who would refuse to testify; and a causal link between that misconduct and his inability to present witnesses on his own behalf. (People v. Harris (2005) 37 Cal.4th 310, 343.)

Appellant demonstrates none of the requirements for a viable claim of a violation of his right to compulsory process. His argument in his reply brief regarding the expected testimony of Davis is based entirely upon speculation. Davis told two stories to the California Highway Patrol. It is speculative which of those stories, if either, Davis would have told if called as a witness at trial. Robles acted reasonably in citing Davis for violating Penal Code section 148, subdivision (a)(1), as Daviss lies delayed the police in pursuing appellant and Jackson as they fled. Nothing in the record indicates Robles was motivated by a desire to prevent or dissuade Davis from testifying at future proceedings. Finally, appellant has demonstrated neither that Davis was unwilling to testify nor that the citation was a cause of appellant being unable to call Davis as a witness. Defense counsel may have declined to call Davis because he would be impeached with his prior inconsistent statement.

5. Appellants trial attorney did not render ineffective assistance.

Appellant contends his trial counsel rendered ineffective assistance by failing to obtain photographs of the rear of the house at 6610 Solano Street and subpoena documents from the Riverside Police Department.

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsels errors, appellant would have obtained a more favorable result. (Peoplev.Ledesma (1987) 43 Cal.3d 171, 216-218.)

Citing Exhibit C to the New Trial Motion, appellant argues that photographs of the house would have shown that there was a patio door, which would have cast doubt upon J.L.s testimony that appellant jumped through a rear window. Appellant also argues that the photographs would show that the window was too high for any dog to have jumped against. J.L. testified that the window in her bedroom was normally kept closed because the family had dogs, and one of them jumps up on the windowpane when the window is open. She did not, however, testify that appellant left the house through a window. She apparently did not see appellant leave. She saw him in the living room, and then after her cousin spoke to her, she went to her bedroom and saw that the window was open. After she saw the open window, she realized that all of the adults had left the house.

The photographs in Exhibit C reveal two sliding windows and one sliding door, as well as a greenhouse window on the rear wall of the house. The lower edges of the sliding windows appear to be approximately three to four feet above the surface of the rear patio. Although jurors might reasonably wonder why anyone would leave the house through a window, rather than a door, introducing the photographs in Exhibit C would not have impeached J.L., as she did not testify appellant went through the window. Moreover, it was irrelevant whether appellant left the house through a window or the sliding door. The relevance of J.L.s testimony was that appellant was present in the house in front of which the stolen Navigator was found and fled at about the same time the police arrived. Appellants assertion that no dog could leap against the windows is unsupported and lacks merit. Moreover, nothing in the record indicates the breed, size or age of the dogs residing at 6610 Solano Street, or whether a bed or other object beneath the window provided an elevated platform from which a dog could leap against the window. Accordingly, counsels failure to have the house photographed was not objectively unreasonable. Nor is it reasonably probable that appellant would have obtained a more favorable result if his attorney had obtained photographs of the rear of the house and introduced those photographs at trial.

In his claim regarding the Riverside Police Department, appellant refers only to photographs of Jackson (Exhibit I to Motion for New Trial). Assuming these photographs were obtained from the Riverside Police Department and depict Jackson, appellant has not established prejudice. The jury saw a photograph of Jackson (Peoples Exhibit 13). The only apparent potential value of the particular photographs in Exhibit I would have been to establish what Jackson was wearing when he was arrested. The victims identified appellant as the gunman, testified that they did not see the driver of the Honda CR-V well enough to identify him, and failed to identify Jackson from a photographic array. There is no basis for concluding that the victims would have identified Jackson from the photographs in Exhibit I when they did not identify him from the photographic array. The photographs in Exhibit I tend to show that Jackson did not match Alvarezs description of the man with the gun in regard to skin color and hair length. Appellant and the stolen Navigator were in the same location a short time after the crimes, and an argument that appellant was the driver of the Honda CR-V, rather than the gunman, would not have diminished his criminal liability. For all of these reasons, it is not reasonably probable appellant would have obtained a more favorable result if his attorney had obtained the photographs in Exhibit I and introduced them at trial.

6. Cumulative error does not require reversal.

Appellant contends that the cumulative effect of the prior claims of error requires reversal. The only arguable error was counsels failure to obtain from the Riverside Police Department the photographs in Exhibit I to the Motion for New Trial. Appellants cumulative error claim is therefore identical to the analysis of prejudice regarding that aspect of appellants ineffective assistance of counsel claim. Because we have determined the failure to obtain and introduce those photographs was harmless, appellants cumulative error contention has no merit.

7. The trial court did not abuse its discretion in ruling upon appellants

Pitchess motion.

Appellant filed a motion seeking discovery of identifying information regarding everyone who filed a complaint or was interviewed in connection with any complaint against Riverside County Sheriffs Deputy Mark Barrett alleging any of numerous types of misconduct. The trial court granted the motion with respect to perjury and fabrication. The court conducted an in camera review of complaints produced by the custodian of records for the Riverside County Sheriffs Department. It found no relevant complaints.

Appellant requests this court to review the record of the in camera proceedings to determine whether the trial court ordered disclosure of all responsive complaints.

A defendant seeking discovery of a police officers personnel records and complaints against such officers must file a motion describing the type of records sought and showing, inter alia, the materiality of the information to the subject of the pending action and good cause for disclosure. (Evid. Code, 1043, 1045.) Upon such a showing, the trial court examines the records in camera and discloses only those, if any, that are both relevant to the pending action and are not statutorily excluded from disclosure by Evidence Code section 1045, subdivision (b). (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227.) To facilitate appellate review, the trial court must make a record of what it reviewed by photocopying the documents, making a list of them, or simply stating for the record what documents it reviewed. (Id. at p. 1229.) We review the trial courts decision for abuse of discretion. (Peoplev.Jackson (1996) 13 Cal.4th 1164, 1220.)

Our review of the reporters transcript of the in camera review of documents produced by the Sheriffs Department shows the trial court properly exercised its discretion. It examined the complaints produced by the custodian and agreed with the custodians description of the nature of the complaints on the record. The only complaints in existence alleged conduct falling outside the scope of the granted motion. The court did not abuse its discretion.

8. Penal Code section 654 requires a stay of the sentence on count 5.

The court imposed concurrent sentences for the three carjacking convictions, and imposed a consecutive one-year term for the robbery conviction pertaining to Alvarez. In announcing the sentence, the court expressly found the robbery conviction pertained to Alvarezs purse, and was separate and apart from or [a]bove and beyond the carjacking count pertaining to Alvarez because she asked for her purse, and appellant refused to let her have it.

Appellant contends that Penal Code section 654 precluded punishing appellant for both the robbery and carjacking of Alvarez because they constituted a single indivisible transaction. Respondent argues that the sentence was correct because the carjacking and robbery were two distinct acts, occurring consecutively rather than concurrently, which reflect independent objectives.

Penal Code section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (Peoplev.Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)

The defendants intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. (Peoplev.Coleman (1989) 48 Cal.3d 112, 162.)

It is well established that the taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences. (People v. Bauer (1969) 1 Cal.3d 368, 376-377.) [W]here a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible. (Id. at p. 377 [separate sentences could not be imposed for robbery and car theft].) That the intent to take additional property may have been an afterthought does not permit multiple punishment where there is an indivisible transaction. (Ibid [robbers intent to steal car formed while carrying property from inside the house into the garage held not to create divisible transaction].)

Although appellant originally may have intended only to take the Navigator, he had not left with the vehicle before expanding his intent to encompass Alvarezs purse. Inclusion of the purse as an additional item to steal did not create an independent objective. A robbers intent to steal need not be deemed to be limited to items he has identified at the time he applies the force, as opposed to items he identifies during the same transaction. (People v. Brito (1991) 232 Cal.App.3d 316, 325-326.) Taking the purse was incidental to, not independent of, the intent to take the vehicle and, presumably, its contents. The conversation between Alvarez and appellant revealed that the decision to take the purse was made consciously, but the conversation did not serve to terminate the existing criminal objective of stealing the vehicle and create a new, independent objective of taking the purse. Nor did it make the single transaction divisible. To hold otherwise would contravene the established law regarding taking several items of property during a robbery. That one of the offenses was carjacking and the other robbery is immaterial, as the intent was to deprive the victims of personal property.

Accordingly, we conclude insufficient evidence supports the courts finding that appellant formed a separate intent and objective for the robbery and carjacking of Alvarez. The one-year term imposed for the robbery count must be stayed.

9. The trial court erred by failing to impose the proper court security fee.

Respondent contends the court erred by failing to impose a court security fee of $20 for each unstayed count. Penal Code section 1465.8, subdivision (a)(1) requires the imposition of this fee for every conviction. Appellant does not contest this.

At sentencing, the court announced a $10 security fine, though the clerks minute order and abstract of judgment reflect a $20 security fee. The judgment must be corrected to include a $60 security fee.

DISPOSITION

The term imposed for count 5 is ordered stayed. The amount of the court security fee under Penal Code section 1465.8 is increased to $60. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] Alarcon did not testify at trial.

^[2] Jackson apparently was not charged.

^[3] Although deputies of the Riverside Sheriffs Department were involved in the arrest of appellant and Jackson and assisted the California Highway Patrol at 6610 Solano Street, nothing in the record indicates any involvement by the Riverside Police Department.

^[4] None of the photographs in Exhibits H, I, and J is authenticated. However, the prosecutor did not object on this ground, and the respondent has not raised it.

^[5] At the preliminary hearing, Alvarez testified that the gunman wore either a black or white shirt. Cruz testified the gunman wore a black shirt.

^[6] Appellant refers to conflicting eyewitness identification without citation to the record. This courts review of the record reveals that all of the victims consistently identified appellant.