P. v. McDonald

Filed 1/16/07  P. v. McDonald CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge.  Affirmed as modified.

            Joseph Hilton McDonald was convicted by a jury of three counts of first degree burglary (Pen. Code,[1] §§  459, 460); attempted first degree burglary (§§  459, 460, 664), petty theft with a prior (§§  484, 666), possession of stolen property (§  496, subd. (a)), and possession of a firearm by a felon (§  12021, subd. (a)(1)).  True findings were also made that McDonald had served a separate prison term (§  667.5, subds. (a), (b)) and had been convicted of serious/violent felonies within the meaning of the three strikes law (§§  667, subds (b)-(i), 1170.12, 668).  He was sentenced to a total term of 22 years and 4 months.

            On appeal, McDonald contends reversal is required because a photographic line-up was impermissibly suggestive; the court erred in admitting impeachment evidence or his counsel was ineffective in failing to object to the evidence; an enhancement should have been stricken rather than stayed; and the abstract of judgment needs to be corrected.  We find merit to the last two contentions and therefore order the judgment modified.  Otherwise, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

McDonald's Living Situation

            In late August 2003, McDonald, a California Youth Authority parolee, was given approval to live at a sober living home, One Day At A Time, on 36th Street in San Diego.  As a condition of parole, McDonald was required to keep his parole officer informed about where he was living. 

            On October 16, 2003, McDonald told a San Diego police officer he was living at 4120 Polk Street in the City Heights area of San Diego.  At the time he spoke to the officer, he was with Tony Washington, who was arrested for petty theft and being drunk in public.

            On October 17, McDonald's parole officer made a random home visit to One Day At A Time.  The parole officer saw only two pairs of pants in the closet in McDonald's room, no linens on the bed, and no toiletries and came to the conclusion McDonald was not staying there on a regular basis.

            Beginning in middle to late October, a clerk who worked in a produce store saw McDonald and Washington entering and leaving Regina Burton's apartment on Troy Street in Spring Valley.  Burton's apartment was directly across from the market.  The clerk saw McDonald and Washington every day; when he was not busy he would look out the window, and it appeared to him that McDonald and Washington were living in the apartment.  Sometimes they came to the store.

            On the evening of November 4, 2003, McDonald went to the parole office with Burton, whom he identified as his cousin,[2] and requested and was given permission to move to her Troy Street apartment.

            On November 5, the police conducted surveillance on the Troy Street apartment.  McDonald and Washington came in and out of the front door several times before getting into a car and leaving.  Their observations were inconsistent with Burton's claim that on November 5 she had picked up McDonald from the One Day At A Time residence.

            On November 6, the police executed a search warrant on the Troy Street apartment, arrested McDonald, and searched his car.  As detailed below, property from the burglaries was found in the apartment and car.

            Washington, McDonald, and Burton testified that while McDonald spent a significant amount of time at the Burton apartment in October and November 2003, he never, or only once, spent the night there and he continued to reside at One Day At A Time.  Washington began living in Burton's apartment on October 23.  McDonald was not living at Burton's apartment on November 5 or 6.

October 9, 2003 -- Burglary of Havern Residence

            On October 9, 2003, at about 1:00 p.m., Jolene Havern (Jolene)[3] arrived home at her parents' house on Vista Arroyo and found it had been burglarized.  Her mother, Janet Havern (Janet), arrived home a short time later.  Jewelry boxes in Jolene's room had been disturbed but nothing had been taken.  Her parents' room had been ransacked.  Among the items taken from the residence were a JVC camcorder, owner's manual and cables, a tripod, a soft-sided cooler used as a carrying case for the camcorder, jewelry, and a London Fog suitcase.

            On November 6, The JVC camcorder, cables and soft-sided cooler were found in the Troy Street residence.  The owner's manual for the camcorder was found in the glove compartment of McDonald's car.  The videotape in the camcorder included photographs from a wedding taken by Jolene as well as scenes taken at the Troy Street apartment that included McDonald, Washington and Burton.  The London Fog suitcase and tripod were found inside McDonald's car trunk.

            Jolene had dated Washington a year or two earlier.  Over a four month period, he had visited her home several nights a week.  After they stopped dating, he continued to call her occasionally.

October 15, 2003 - Borrego Burglary

            On October 15, 2003, at about 11:00 a.m., Adrian Borrego's next door neighbor in Spring Valley was working in his backyard.  He made eye contact with a young black man with beaded hair he saw walking alongside Borrego's house.  Borrego was not at home.  The neighbor saw the man meet another man, whom the neighbor could not see well because he was in the shadows.  The two men then went to a car and drove away.  The neighbor wrote down the license plate number of the car.  When Borrego returned home, the neighbor told Borrego about the incident, described the man he had seen and asked Borrego if the man was a friend.  Borrego said no.  A window screen had been removed from Borrego's residence and a window had fallen inward towards his daughter's bed but nothing was missing from the house. 

            The license plate number was traced to McDonald's car.

October 23, 2003 - Meza Burglary

            On October 23, 2003, about 1:00 p.m., McDonald and Washington went to Central Avenue in Spring Valley where Peter and Michele Meza reside.  McDonald asked the Mezas' next door neighbor, Terina Noa (Terina), who was sitting on her front porch, for a glass of water.  Washington remained on the street.  Terina turned and yelled to her husband Elias Noa (Elias) inside the house that there was a man outside who wanted some water.  When she turned around, McDonald was standing on the porch within four or five feet.  She again yelled for Elias to bring some water.  She felt suspicious of McDonald because he was peering into her house as if he was " casing" it.  Eventually, Elias gave McDonald some water in a plastic cup and told McDonald to keep the cup and leave.  He watched McDonald walk up to Washington and then saw both start walking toward the Meza house.  Elias went back inside.  Terina, who had gone inside when Elias gave the water to McDonald, returned to the porch 20 to 30 minutes later.  She noticed McDonald and Washington coming out of the Meza driveway.  Both had bicycles, McDonald was carrying a camera bag and Washington was carrying a black bag.  They had not earlier had the bicycles or bags.  As soon as they left, Terina went to the Meza house, knocked on the door, and after finding no one was home, called the Mezas' business number to tell them what she had seen.

            When the Mezas returned home, they found their bedroom had been ransacked.  Among the items taken from the home were a palm pilot, jewelry, a digital video camera and bag, the children's bicycles, and two guns, one of which had been recently issued to Peter Meza who is a deputy sheriff.  

            Around this time McDonald and a man went to the produce market across from the Troy Street apartment.  McDonald pulled jewelry out of his pocket and offered to sell it to the store clerk and a customer, neither of whom was interested in purchasing.

            Both Terina and Elias positively identified McDonald in a photo array as the man who had asked for water.  They also identified him at trial.

            The Mezas' guns, palm pilot, and digital video camera were found in the Troy Street apartment. 

October 23, 2003 - Morgan Attempted Burglary

            The Meza residence had a rental unit on the ground floor occupied by Dennis Morgan and his wife.  When Morgan arrived home about 3:00 p.m., on October 23, 2003, he found a window screen near the kitchen door was bent and partially removed, the door to the living room was open, and a window sash was pulled away from the wall.  From the damage to the window sash and a plant as well as scuff marks and finger marks on the exterior wall, it was apparent someone had used the window sash and planter to climb up to the balcony and gain entry to the Meza residence.  It did not appear anyone had entered the Morgan residence and nothing was found missing.

November 3, 2003 - Petty Theft at E & L Therapy

            On November 3, 2003, Michelle Porras discovered her wallet had been taken out of her purse, which had been placed in a desk drawer in a back office at E & L Therapy where Porras worked.  E & L Therapy was located in an office building with other businesses in Chula Vista.

            About 30 minutes before Porras discovered the theft, at about 1:00 p.m., she was in the break room with a coworker eating lunch.  The break room had a door to the parking lot, which was not the general public entrance to the building or to E & L Therapy.  McDonald opened this back door and asked Porras and the coworker where the front entrance was located.  Not knowing who he was or what business he was looking for, Porras directed him to the building's front entrance.  McDonald left.

            Another E & L Therapy employee, Nicholas Brecht, saw McDonald in the back office rummaging through the cabinets under the sink.  He thought McDonald might be a plumber.  When Brecht walked into the front area of E & L Therapy where most of the people worked, he asked if anybody knew about the man who was working on the sink.  Nobody knew anything.  Brecht waited for McDonald to come out of the back area.  When McDonald emerged, he asked Brecht, " Do you know where the bathroom is?"   McDonald was about a foot away.  Brecht pointed to some glass doors and directed McDonald to go out the doors and to his right.  After McDonald left, Brecht suggested his coworkers go to the back office to check if anything was missing.  Porras discovered her wallet was missing.

            Other people in the building also saw McDonald.  An administrative assistant for Remedy Staffing, Annayette Esquer, worked on the first floor of the building.  Remedy Staffing had a door from its lobby to the restrooms.  These restrooms also had an entrance from the building's lobby.  Around lunchtime, McDonald came out of the restroom door into Remedy Staffing and asked Esquer if any jobs were available.  When she said no, McDonald started to go out Remedy Staffing's main entrance but then asked if he could use the bathroom.  She said yes.  He was in the bathroom for a short period of time and then left by the business's main entrance.

            Elena Martinez was working as a receptionist at Capital Funding on the second floor of the building.  Between noon and 1:00 p.m., she saw McDonald on the stairs and then walking down a hallway that was not generally open to the public; the hallway had a " restricted access" sign.  McDonald was out of her view for about 30 seconds.  He later came up to her desk and asked about the restrooms.  She told him they were downstairs.  She watched as he walked downstairs.  She saw the door to the bathroom shut.

            At trial, Porras, Brecht, Esquer and Martinez identified McDonald as the man they had seen on November 3.  Porras and Brecht had been earlier shown a photographic lineup.  Porras had identified McDonald and Brecht had selected two photos, one of which was of McDonald.  Brecht and Martinez had attended a live line-up where they both selected two persons, one of whom was McDonald.

            On November 6, Porras's Nordstrom credit card, gym membership card and Movie Watcher's card were found under the front passenger seat of McDonald's car. 

Defense

            Washington testified McDonald did not participate in any of the burglaries.  Washington had pleaded guilty to the Havern and Meza burglaries and during trial testified about committing the Borrego burglary.

            Washington often borrowed McDonald's car; McDonald was unable to drive because he had broken his glasses.  Washington committed the crimes with a " homie" named " C.K." who he would meet at a trolley station.  Washington did not know where C.K. lived and did not have his phone or pager number.  When he was arrested, he told the police detective that McDonald was not involved.  He denied there was any conversation between himself and McDonald where McDonald suggested Washington should take the blame for the crimes because Washington was likely to get probation while McDonald was likely to go to prison.

            Burton testified McDonald was not living with her, but at One Day At A Time.  McDonald let her use his car when her car was not working.  She would often pick him up at One Day At A Time and he would always return to the facility in the evening to sleep because it had a curfew. 

            Burton specifically remembered what occurred on October 23, 2003, the day of the Meza/Morgan crimes, because it was her son's birthday.  She picked up McDonald at One Day At A Time, brought him with her to her 11:00 a.m. kick boxing class at San Diego City College, ate lunch with him in Chula Vista, dropped him off at One Day At A Time and then, driving McDonald's car, returned to the Troy Street apartment.

            She also specifically recalled November 3, the day of the E & L Therapy petty theft.  She went with McDonald to One Day At A Time to pick up his food voucher between noon and 1:00 p.m.  He was with her when she went grocery shopping, she dropped McDonald and Washington at her apartment, and then left her apartment about 2:00 p.m..  The records for One Day At A Time, however, indicated that McDonald did not receive a food voucher on November 3; the last voucher he received was on October 20.

            In 2003, Burton and McDonald had been just friends.  However, they had since fallen in love.  She visited him twice a week in jail.  She had deposited money in his jail account.

            McDonald denied being involved in any of the burglaries.  He testified he was not living in Burton's apartment.  He let Burton and Washington regularly borrow his car.  He never saw the guns in the apartment.  He first learned of the video camera in the trunk of his car when he read the police report.  He did not know Porras's cards were under the front passenger seat and had not seen them prior to trial.  He never tried to sell jewelry to anybody in the market across from the Troy Street apartment.  He had no conversation with Washington while in the holding cell because the deputies would not let them talk.

Rebuttal

            When Washington was arrested, he initially denied any involvement in the burglaries.  He later admitted he committed the Borrego and Meza burglaries with McDonald and gave details about the burglaries, including that McDonald climbed up to the rear balcony of the Meza residence.  He said the burglaries were McDonald's idea and he went along only because he was McDonald's friend and was going to " watch his back."   Washington claimed the camcorder was from his aunt's house. 

            McDonald, when he was interviewed by the police, denied any involvement in the crimes, but after being asked if his fingerprints would be on the guns taken in the Meza burglary, admitted he had handled them at one point.

            McDonald and Washington were placed in the holding cells.  Each was alone in a cell.  McDonald yelled to Washington that they were in a lot of trouble and that Washington would probably get probation but McDonald was looking at prison time because he was on parole.  About 15 minutes later, McDonald told a detective that Washington wanted to talk to the detective and would tell him McDonald had nothing to do with the burglaries.

            The detective then went to Washington's holding cell and asked if Washington wanted to talk about something.  Washington said yes.  He said McDonald was not involved with the burglaries; he did them with someone else whom he knew but could not describe.  The detective looked at Washington and essentially told him that he knew what was going on, could appreciate that he wanted to take care of McDonald, but that both he and Washington knew that McDonald was the other person who did the burglaries.  Washington bowed his head, nodded, and said, " Yeah," acknowledging that what the detective said was correct.

DISCUSSION

I

Suggestive Identification Procedure

            McDonald contends the photo array used by the police was unduly suggestive because he had the darkest complexion of the African American males used in the array.

            Four witnesses were shown the photo array:  Terina and Elias Noa on November 4, 2003, Porras on November 12, 2003, and Nicholas Brecht several months after Porras's wallet was taken.  Detective Jerry Hartman generated the photo array using a computer program containing thousands of photographs that selects photographs similar to the suspect's description.  Among the characteristics the detective was looking for were African American males, about the same age as McDonald, who had some facial hair and braided hair.  At the time he generated the array, he did not have information indicating the suspect was a " dark complected" African American; he did not learn that until he talked with Porras.  At trial, he stated what was " dark complected" was a matter of opinion, and that different people have different opinions of what is dark, light and medium.  Detective Hartman acknowledged McDonald was the darkest male in the lineup but noted the photo array specifically admonishes the witnesses that they are not to look at the complexion because there are many factors that could change the complexion of a person.[4]

            To determine whether a pretrial identification procedure is so unreliable that it violates a defendant's right to due process, a court must look at whether the identification procedure was unduly suggestive and unnecessary.  (People v. Carter (2005) 36 Cal.4th 1114, 1152.)  A pretrial identification procedure is unduly suggestive if it "   'suggests in advance of identification by the witness the identity of the person suspected by the police.'  "  (People v. Hunt (1977) 19 Cal.3d 888, 894.)  It is not necessary in assembling a photo array to surround the defendant's photo with people who are nearly identical in appearance.  (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)  The defendant bears the burden of showing unfairness " as a demonstrable reality, not just speculation."   (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)

            If the pretrial identification procedure was unduly suggestive, then the courts look at the totality of circumstances to determine whether the procedure was nonetheless reliable.  (People v. Carter, supra, 36 Cal.4th at p. 1152; People v. Yeoman (2003) 31 Cal.4th 93, 125.)  In viewing the totality of circumstances, the courts consider "   'such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'  "   (People v. Ochoa (1998) 19 Cal.4th 353, 412.)

            We have independently reviewed the photo array.  The six men in the array are generally similar in appearance.  All are African American men of a similar age, with similar hairstyles and facial features.  While McDonald's complexion is darker than the other men, it is not radically darker, particularly in the black-and-white photo arrays shown to the witnesses.  Moreover, the photo array specifically warned the witnesses the photo array might not accurately reflect the individual's complexions.  The fact one of the witnesses, Nicholas Brecht, selected two photos also undercuts McDonald's claim the array was unduly suggestive, that is, that it suggested in advance which individual Brecht should select.  We conclude the photo array was not unduly suggestive.

            Furthermore, even if we were to find the photo array was unduly suggestive, we would not reverse because the totality of the circumstances shows the procedure was nonetheless reliable.  The photo arrays were shown to the majority of the witnesses within two weeks of the offenses; Brecht did not see the photo array until several months later.  All the witnesses had a good opportunity to view the suspect at close or relatively close range.  Each witness personally interacted with the suspect, responding to the suspect's request for water or for directions.  There were no issues as to lighting conditions; the suspect was either viewed outside during the day or inside a business during working hours.  The witnesses' descriptions of the suspect generally matched McDonald.[5]

            Finally, we note this is not a case that relied solely on eyewitness identification.  McDonald was linked to the crimes through the license plate of his car and through the property of the victims found in the Troy Street residence or in his car.

II

Impeachment of Burton

            McDonald contends the court erred in allowing the prosecutor to examine Burton about letters she had written to McDonald, including in August 2004, detailing her sexual fantasies and love for him.  He contends the evidence should have been excluded because they were not timely disclosed.  He also contends defense counsel was incompetent by failing to pursue exclusion as a discovery sanction and failing to raise hearsay and relevancy objections.

            During direct examination, Burton testified she spent much time with McDonald from August 2003 until he was arrested on November 5, 2003.  Beginning on October 29, they were together almost every day, but he did not sleep at her apartment.  During cross-examination, she admitted she visited McDonald twice a week in the jail, had put money into McDonald's jail account, had hired a lawyer for him at one point, and was in love with him.  She testified she had told McDonald their relationship would not continue if he were released and she testified she would not lie for McDonald.  When the prosecutor asked if she currently thought of her relationship with McDonald being " sexual in nature at all," Burton answered, " How can it be sexual when he is incarcerated?"   The prosecutor then asked if Burton had written to McDonald about sexual fantasies she had about him.  Defense counsel objected because she had received copies of the letters just prior to Burton's direct examination, and expressed concern some of the letters might involve the attorney/client privilege or defense strategies when Burton may have been " working for" McDonald when he was self-represented.  The prosecutor responded that the letters had been obtained by the previous prosecutor, involved correspondence after defense counsel " came on the case," and argued Burton's expressed sexual fantasies were relevant to showing " bias, interest or other motive."   The court noted McDonald had received the letters, found no attorney/client issues were present or defense strategy issues were involved, and they were relevant to showing Burton's possible bias.  The court stated it would not excuse Burton after cross-examination and defense counsel could have that evening to examine the letters and to try to rehabilitate her the following day.

            The prosecutor then proceeded to cross-examine Burton on some details of her sexual thoughts and fantasies contained in the letters, and how she had written that she would love him forever.  He also asked her if they had ever engaged in oral sex or sexual intercourse, which she denied.  Defense counsel did not object to any specific question nor did she raise any further general objections to the evidence.

(A)  Discovery Violation

            Section 1054 et seq. provides for reciprocal discovery between the prosecution and the defense in criminal trials.  " The purpose of section 1054 et seq. is to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial."   (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201.)  A prosecutor is required to disclose to the defense " [a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged" that is in the prosecutor's possession.  (§  1054.1, subd. (c).)  If the prosecutor fails to disclose evidence after an informal or court-ordered discovery request, " a court may make any order necessary to enforce the provisions of [the] chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order."   (§  1054.5, subd. (b).)

            Here, the letters were written to McDonald and therefore he had knowledge and possession of them.  This is not a situation where the defendant was previously unaware of the existence of the evidence.  The letters did not involve evidence establishing McDonald's guilt, but went to a collateral issue of a witness's credibility.  The court's decision not to excuse the witness following cross-examination and allow defense counsel time to review the letters was a reasonable response to defense counsel's objection.

(B)  Ineffective Assistance of Counsel

            McDonald contends defense counsel was ineffective in failing to further object to the late discovery, and argues counsel should have objected to admission of the evidence under Evidence Code section 352 because the probative value of the evidence was outweighed by a danger of undue prejudice.[6]

            "   '[A] conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following:  (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted.'  "   (People v. Padilla (1995) 11 Cal.4th 891, 935-936, italics omitted, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)  " A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.  Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.  [Citations.]  If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation."   (People v. Carter, supra, 36 Cal.4th 1114, 1189.)  Prejudice is shown when there is a "   'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.'  "  (In re Avena (1996) 12 Cal.4th 694, 721; People v. Lai (2006) 138 Cal.App.4th 1227, 1256.)

            Here, defense counsel's decision not to raise any further objections to the prosecutor's late disclosure of the letters reasonably could have been based on an assessment that the court had provided her with sufficient time to review the letters and therefore further sanctions were not merited nor would likely be granted by the court.

            Defense counsel's decision not to raise an Evidence Code section 352 objection to the prosecutor's cross-examination was also reasonable. 

            Evidence Code section 352 authorizes the court to exclude evidence if its probative value is outweighed by a danger of undue prejudice.  "   'Prejudice' as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient.  Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent."   (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008.)  The prejudice contemplated by Evidence Code section 352 applies to evidence that has very little effect on the issues or that uniquely evokes an emotional bias against the defendant as an individual.  (People v. Crew (2003) 31 Cal.4th 822, 842.)  Evidence that tends to show a witness is biased or has a motive to lie is generally relevant, admissible evidence.  (Evid. Code, §§  210, 780, subd. (a).)  " A trial court's exercise of discretion in admitting or rejecting evidence pursuant to Evidence Code section 352 'will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice.'  "   (People v. Cain (1995) 10 Cal.4th 1, 33.)

            Here, the evidence was relevant to establishing the extent of Burton's bias and motive to lie.  Further, the evidence was relevant to impeach Burton's testimony that she was not contemplating continuing a relationship with him if he were acquitted.  In contrast to her trial testimony, the letters, written only a few months earlier, indicated she wanted to be with him and would love him forever.

            Moreover, even if we were to agree with McDonald that defense counsel should have objected, we would not reverse because there is no reasonable probability the verdict would have been different had the evidence been excluded.

            Even without the letters, Burton's credibility was severely undermined.  She had already admitted that she was in love with McDonald and thus that she had a bias in McDonald's favor and a motive to lie.  The excerpts from the letters merely provided additional details about the extent of her bias.  Burton's testimony intended to show McDonald was not living in her apartment and to provide McDonald with an alibi for the burglaries was undercut not merely by evidence of her potential bias but by other evidence showing she was lying, including the lack of McDonald's personal belongings at One Day At A Time as of October 17, records contradicting her claim she and McDonald picked up a food voucher at One Day At A Time on November 3, the observations of the produce market clerk about seeing McDonald at the apartment, and by police surveillance of the apartment.

            Moreover, there was overwhelming evidence establishing McDonald's guilt.  Not only were there multiple eyewitness identifications but also property from the burglaries was found in his car and the Troy Street apartment. 

            There is no reasonable probability that had the jury not heard about Burton's sexual fantasies, the jury would have acquitted McDonald.

III

Staying Versus Striking Enhancement

            The court stayed a one-year section 667.5, subdivision (b) enhancement and instead imposed a five-year prior serious felony enhancement under section 667, subdivision (a).

            In People v. Jones (1993) 5 Cal.4th 1142, 1152, the court held it is improper to impose both a section 667, subdivision (a) serious felony enhancement and a section 667.5, subdivision (b) enhancement based on the same serious felony.  The Jones court ordered the section 667.5, subdivision (b) enhancement stricken.  (See also People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610, but see People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.)  Accordingly, we order the section 667.5, subdivision (b) enhancement stricken.

IV

Correction of the Abstract of Judgment

            As the Attorney General concedes and we agree, there are errors in the abstract of judgment.

            First, the abstract erroneously indicates that the burglaries in counts 2 and 3 were imposed as " consecutive 1/3 violent."   There is no evidence supporting a finding these burglaries were violent.  Accordingly, the abstract of judgment should be corrected to reflect " consecutive 1/3 non-violent."

            Second, while there is a check mark on the abstract of judgment indicating " Defendant was sentenced pursuant to PC 667 (b)-(i) or PC 1170.12 (two strikes)," the actual individual sentences do not reflect this sentencing, that is, do not reflect, as the court ordered in its oral pronouncement, that the sentences were to be doubled as provided by the three strikes law.  When discrepancies exist, the oral pronouncement of judgment generally prevails.  (People v. Price (2004) 120 Cal.App.4th 224, 242.)  Accordingly, the abstract of judgment should be corrected as follows:

Count 1:  a term of eight years rather than four years.

Count 2:  a term of two years and eight months rather than one year and four months.

Count 3:  a term of two years and eight months rather than one year and four months.

Count 4:  a term of one year and four months rather than eight months.

Count 5:  a term of one year and four months rather than eight months.

Count 6:  a term of one year and four months rather than eight months.

Count 7:  a term of one year and four months rather than eight months.

            Third, the abstract of judgment fails to indicate the court stayed imposition of sentence on count 6, receiving stolen property.   

DISPOSITION

            We order the abstract of judgment to be corrected to reflect:  the striking of the section 667.5, subdivision (b) one-year enhancement; count 1 has a term of eight years; counts 2 and 3 are nonviolent felonies and each have a term of two years, eight months; counts 4 to 7 each have a term of one year, four months; count 6 is stayed; 5 years for the prison prior allegation, and the total term is 22 years 4 months.  A copy of the amended abstract is to be forwarded to the Department of Corrections and Rehabilitation.  In all other respects, we affirm the judgment.

McCONNELL, P. J.

WE CONCUR:

                                   O'ROURKE, J.

                                         AARON, J.

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

[2]          Burton testified her husband, Clarence Burton, was McDonald's second cousin.

[3]          At times we use first names, not out of disrespect, but to distinguish parties with the same last name.

[4]          The photo array included the statement:  " Also, photographs may not depict the true complexion of a person."

[5]          For example, the Noas described the suspect as an African American male, 20 to 25 years old, braided hair, about 6'2" , with a muscular build.  The probation report, completed in November 2004, shows McDonald as 25 years old, black, 6'2" , and weighing 204 pounds.

[6]          McDonald also asserts the excerpts from the letters constituted inadmissible hearsay but he fails to make any further argument or citation of authority to support his argument and therefore we may deem this argument waived.  (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.)