P. v. Ynclan

Filed 7/12/07 P. v. Ynclan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Sara F. Pattison, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Lloyd G. Carter, Kathleen A. McKenna, and Connie Broussard Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On December 4, 2003, the Kings County District Attorney filed an information in superior court charging appellant Gino Ynclan as follows: counts I and IIattempted manufacture of a sharp instrument while in prison (Pen. Code,^[1]  4502, subd. (b)) with one prior felony strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms ( 667.5, subd. (b)).

On December 5, 2003, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On January 9, 2004, the court denied appellants motion to set aside the information.

On February 17, 2004, jury trial commenced. At the conclusion of the prosecution case-in-chief that same day, the court granted appellants motion to acquit on count II, finding only a single act ( 1118.1).

On February 18, 2004, the jury found appellant guilty of count I.

On the same date, the court conducted a bifurcated proceeding as to the special allegations and appellant admitted one prior prison term and one prior serious felony conviction. ( 667.5, subd. (b), 667, subds. (b)-(i), 1170.12, subd. (a).)

On April 1, 2004, appellant filed a motion for a new trial based on prosecutorial misconduct.

On April 7, 2004, the prosecution filed written opposition to appellants motion.

On April 19, 2004, the court heard the arguments of counsel and denied appellants motion for new trial. The court then denied appellant probation and sentenced him to a total term of seven years in state prison. The court imposed the upper term of three years on the substantive count, doubled that term pursuant to his prior strike conviction, and imposed a consecutive one-year term for the prior prison term enhancement. The court directed that the seven-year term run fully consecutive to the sentence from Sutter County, case number CRF 002167 for robbery pursuant to Section 1170.1 Subsection (e). The court imposed a $600 restitution fine ( 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole ( 1202.45).

On August 24, 2004, appellant filed an application in this court for relief from default and for permission to file a belated notice of appeal (case No. F046164).

On September 16, 2004, this court granted appellants petition for writ, granted appellant 20 days to file a notice in the Superior Court of Kings County, and directed the Clerk of that court to treat appellants notice as timely filed.

On September 28, 2004, appellant filed a notice of appeal.

On December 14, 2005, this court filed a nonpublished opinion affirming the judgment of conviction and the admitted special allegations. This court further remanded the matter to the trial court for the limited purpose of either striking or imposing sentence on two prior prison term enhancements ( 667.5, subd. (b)) that the trial court failed to address in the original sentencing proceeding.

On March 1, 2006, the California Supreme Court denied appellants January 23, 2006, petition for review without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220, on California law.

On January 22, 2007, the United States Supreme Court filed its opinion in Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856, 860] (Cunningham),holding the California Determinate Sentencing Law by placing sentence-elevating factfinding within the judges province, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.

On February 20, 2007, the United States Supreme Court granted appellants petition for writ of certiorari and motion for leave to proceed in forma pauperis.

On March 1, 2007, this court ordered the remittitur to be recalled and the judgment entered December 14, 2005, to be vacated.

On March 7 and April 20, 2007, appellant and respondent, respectively, filed supplemental briefs addressing the applicability of Cunningham to the instant appeal.

STATEMENT OF FACTS

In 2003, appellant was incarcerated at Avenal State Prison for a felony robbery conviction. On June 12, 2003, he returned from correctional school to his housing unit and was subjected to a search. Correctional Officer Richard Pizana testified that inmates are regularly searched when entering or leaving an area and are routinely subjected to an examination by a metal detector. During this search, Officer Pizana found a piece of metal hidden inside the cushioned insole of each appellants state-issued tennis shoes. The pieces of metal were thin and flexible and appeared to come from a Pendaflex hanging folder. Pizana said appellant had access to this type of folder in the classrooms. The metal in appellants shoe consisted of broken pieces. Pizana said the metal was too long to fit into the shoes had it not been broken into pieces. The tennis shoes did not bear any identification numbers or marks and there was no way to determine the identity of the inmate to whom they were issued. According to Pizana, inmates can swap shoes in prison.

Correctional Lieutenant John Soto testified about weapons, particularly sharpened objects, in prison. Soto said an inmate would first need to secure some weapon stock in order to manufacture a weapon. The inmate would then have to shape the material into a convenient size so that it would fit in the palm of the hand, with only a small sharpened portion sticking out. Soto explained that inmates typically cover the weapon to conceal fingerprints and make the weapon more stable. Soto further explained that inmates are not allowed to have metal in their possession and, therefore, typically use plastic to manufacture weapons.

Soto testified the metal found in appellants shoes was weapon stock because the size and length of the metal made it ideal for a weapon. One end of the metal had a hook. In Sotos opinion, that end of the metal was already sharp enough to be perfect for a weapon and did not need to be sharpened. In Sotos view, an inmate could wrap the metal and sharpen it on cement in 25 minutes. Soto also testified the metal found in appellants shoes was too thick to be used as a stinger, a lawful metallic device used for heating liquids and beverages. Soto also said the filing cabinets of the prison are typically locked, are not located in the education center, and are not accessible to inmates. He assumed the metal found in appellants shoes came from a folder in a desk.

Defense

Richard Martinez, a retired correctional lieutenant, testified on behalf of the defense. Martinez said an inmate who worked as a clerk could legitimately be exposed to office supplies such as file folders. Martinez explained:

So them [inmates] simply having [a metal component] in its original form in the file, that itself does not constitute contraband; just the act of removing it and breaking it in half yes, now you have contraband, but I have never experienced this before.

Lieutenant Martinez said the type of metal found in appellants shoes could be used as a stinger, although he had never seen one fashioned from such metal. Martinez explained that inmates can purchase stingers from the prison canteen. Martinez also said the pieces of metal in appellants shoes could possibly have been made into other items besides a weapon. Such other items included a picture hanger, material for crafts and hobbies, an AC outlet adaptor, a splint, a reinforcement for eyeglasses, and a hacksaw or lock-pick to facilitate escape. He also said many other items in a prison can be fashioned into weapons. Such items include pens, credit cards, and a stocking with a rock or soap inside.

Although Martinez acknowledged the metal pieces would be useful as a weapon, they were not sufficiently manipulated to constitute a weapon. In Martinezs view, it would have taken an additional 15 or 20 minutes to transform the pieces of metal into a completed weapon. Martinez nevertheless acknowledged the metal could be used as an effective slashing instrument while in its current state.

Oral Argument

At the close of his rebuttal argument, the prosecutor stated:

[T]he defense states that these items, Exhibits 10-A and 10-B [the pieces of metal found in appellants shoes], are not sharp instruments and that we are using our imagination to try and somehow make them into weapons.

After making that statement, the prosecutor took one of the pieces of metal and slashed a sheet of paper with it. The prosecutor then concluded his remarks:

Were not using our imagination, ladies and gentlemen. Thank you.

DISCUSSION

I.

ADMISSION OF PHOTOGRAPHS OF INMATE-MADE WEAPONS NOT

RELATED TO THIS CASE

Appellant contends the trial court erroneously admitted Peoples exhibit Nos. 2 through 5 (photos of inmate-made weapons unrelated to this case) because they were irrelevant and misleading.^[2]

He specifically argues:

Here the issue was whether the metal in Ynclans shoes was being manufactured as a weapon or not. The court admitted into evidence photographs of other inmate-made weapons, Exhibits 2-5, on the ground that in some details they appeared to be similar to a weapon that could be made from the metal found in Ynclans shoes. However, the testimony about Exhibits 2-5 showed more differences between them and the metal found in Ynclans shoes, than it showed similarities. Specifically, the metal in Exhibits 2-5 was much thicker than the metal found in Ynclans shoes, and strength of metal was a key factor in inmate-made weapons. Exhibits 2-5 had been sharpened and wrapped, which was not the case with the metal found in Ynclans shoes.

In this case, the question to be answered by the jury was whether the metal found in Ynclans shoes was really a step in the manufacture of a weapon, or not. In such circumstances, the admission in evidence of Exhibits 2-5, being photos of weapons made from thicker metal, and already sharpened and wrapped, was most unfair to Ynclan. There was a failure to lay a proper foundation even for illustrative purposes. What, after all, did those photos illustrate? That the metal in Ynclans shoes was not in many particulars similar to the photos of lethal weapons, which were received in evidence as Exhibits 2-5[?] ... [T]he illustrative evidence was irrelevant, and thus its admission was an abuse of discretion.

Proceedings in the Superior Court

Prior to trial, defense counsel informed the court that the prosecutor had supplied her with color photographs of metallic objects. She explained:

[M]ost of these [objects] are not relevant because they are not the items that are the ones that were located [in appellants shoes] on that day. [] So whether or not these can be turned into a weapon ... Mr. Reinhart [the prosecutor] said the [prosecution] expert is going to testify as to how this piece of metal could be made into a weapon, and most of these photographs are not of the piece of metal consistent with the one that also that was found on that day so I dont know how that would be relevant.

The court indicated it would hear an offer of proof from the prosecutor following jury selection.

The prosecutor subsequently made an offer of proof and explained:

Were going to qualify Lieutenant Soto as an expert in the manufacture of weapons within the prisons.

We are going to elicit testimony in the form of opinions and his experience in how weapons are manufactured, what theyre manufactured from, the steps necessary to manufacture, and thats where these photographs [of different types of sharpened stabbing instruments] come in. [] ... []

Your Honor, if I can put it in simple terms for these photos ... if I was attempting to show the defendant was going to [show an attempt] to manufacture a car [to] somebody who had never seen a car before it would be helpful to see one. Thats the idea behind this. Inmate weapons are unique and it is unique knowledge and thats why I wanted to show the [jurors] examples of what these weapons looked like, and the examples in these photographs, these were chosen so that the material, the metal material closely resembled in size and shape the pieces that were found in the defendants shoes.

Defense counsel maintained the objects depicted in the photographs were much thicker than the metal strips in appellants shoes and did not think the photographs were relevant.

The court tentatively ruled:

[A]ssuming the testimony is in accord with the offer of proof, it would seem to me that Exhibit 1 has a relevance which outweighs any [prejudice] as do Exhibits 2 and 4. Exhibits 2 and 4 appear to be based on the offer of proof, I assume, of inmate-manufactured weapons made out of flat metal stock which have been sharpened to a point.

I cant tell from looking, solely from looking at the photographs in Exhibits 3 and 5 whether that was flat metal stock or metal stock that is cylindrical in a very small diameter. Im going to have to wait to hear the testimony to have that established as to what Exhibits 3 and 5 are.

As to Exhibits 3 and 4, they have a probative value that would outweigh any undue prejudice and tendency to confuse the issues. Exhibit 8 is a sealed plastic container containing what appears to be a sharpened piece of metal. One end has been sharpened[,] the other end is blunt, and appears to be conformed in the same fashion as the end of the metal stock allegedly found in the defendants shoes. Whether its of the same or similar thickness or not, I cant tell because I cant really gauge the thickness from the photographs so Ill have to wait until I hear the evidence and see the evidence. . . .

The court and counsel engaged in a further exchange of views, with defense counsel observing, [T]he photographs depicting a weapon being made are a very thick piece of metal and ... theres not a single photograph or piece of evidence that shows that kind of metal [taken from appellants shoes] being made into a weapon. The prosecutor maintained, [W]e still should be allowed to at least show what a weapon looks like so we can demonstrate what process these pieces were found. The court ultimately overruled defense counsels evidentiary objection. The court received exhibit Nos. 2 through 5 into evidence during Lieutenant Sotos testimony on direct examination in the Peoples case-in-chief.

The Applicable Law

Admissibility

Evidence Code section 353 states:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:

(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and

(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.

A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)

A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless there appears of record a timely and specific objection to or a motion to exclude or to strike the evidence. (People v. Morris (1991) 53 Cal.3d 152, 187, overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) While Evidence Code section 353 does not exalt form over substance [citation], it does require sufficient specificity of evidence and legal grounds for the opposing party to respond if necessary, for the trial court to determine the question intelligently, and for the appellate court to have a record adequate to review for error. (People v. Ramos (1997) 15 Cal.4th 1133, 1172.)

Generally speaking, an appellate court is not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so. However, an appellate court is barred from doing so when the issue involves the admission (Evid. Code,  353) or exclusion (Evid. Code,  354) of evidence. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) Neither a reviewing court nor the defendant can avoid the command of Evidence Code section 353 requiring an objection to or a motion to exclude or to strike the evidence. (People v. Visciotti (1992) 2 Cal.4th 1, 53, fn. 19.) Moreover, a trial courts erroneous admission of evidence does not require reversal unless it is reasonably probable defendant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code,  353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878.)

Relevance

Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact of consequence to the determination of the action. (Evid. Code,  210.) The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. Only relevant evidence is admissible. (Evid. Code,  350.) All relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code,  351.)

Evidence Code section 352 provides:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

The trial court has broad discretion in determining the relevance of evidence but lacks discretion to admit irrelevant evidence. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) The courts exercise of that discretion will not be disturbed on appeal unless the probative value of the evidence is clearly outweighed by its prejudicial effect. The prejudice referred to in Evidence Code section 352 characterizes evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Heard (2003) 31 Cal.4th 946, 975-976.)

The Ruling in the Instant Case

The trial court enjoys wide discretion in determining the admissibility of photographs. In ruling on their admissibility, the trial judge has two primary duties. First, he or she has the duty to determine whether a photograph is a reasonable representation of that which it is alleged to portray. Second, he or she has the duty to determine whether use of the photograph would aid the jurors in their determination of the facts of the case or serve to mislead them. (Anello v. Southern Pacific Co. (1959) 174 Cal.App.2d 317, 322-323.)

In the instant case, the prosecutor offered photographs of weapons made by other inmates to underscore the significance of the two pieces of metal found in appellants shoes. Lieutenant Soto testified at length about the manufacture of weapons in prison. He focused on the methods and material typically used in such manufacturing process. He also testified as to the size of typical weapons, the components of those weapons, and the motivations of inmates in fashioning weapons in a specific way. The prosecutor specifically asked Soto whether the weapons depicted in exhibit Nos. 2 through 5 were seized from appellant. Soto affirmed the weapons were not seized from the appellant. During argument, the prosecutor implicitly drew a distinction between the metal in appellants shoes and the objects depicted in exhibit Nos. 2 through 5. He stated: What else was needed to make those items in defendants shoes into items like Exhibit 2 and Exhibit 3, 4, and 5?

Here, the trial court reasonably admitted the photographs to aid the jury in understanding how a state prison inmate could attempt to manufacture a weapon from innocuous material such as the flat metal tab from a Pendaflex file folder. With respect to admissibility, it is not reasonably probable a result more favorable to appellant would have occurred in the absence of the photographs. The prosecutors demonstration at the conclusion of his argument showed the metal pieces had been honed to a certain extent and, therefore, established that the manufacturing process was underway. With respect to relevance, the photographic evidence was not inflammatory and tended logically, naturally, and by reasonable inference to establish material facts underlying the attempted manufacture charge. The evidence was particularly relevant to the element of manufacture, which the court defined as to make a sharp instrument ... from raw materials by hand or machinery.

The trial court did not commit reversible evidentiary error by admitting photographs of inmate-manufactured weapons unrelated to the instant case.

II.

NEW TRIAL MOTION: PROSECUTORIAL MISCONDUCT

Appellant contends the trial court erroneously denied his motion for new trial after the prosecutor presented evidence and argument to show the pieces of metal were already sharpened.

Procedural History of the Case Prior to Trial

On October 17, 2003, the Kings County District Attorney filed a complaint in the Avenal Division of Superior Court charging appellant with two counts of possession of a sharp instrument ( 4502, subd. (a)). At the outset of the November 21, 2003, preliminary hearing, the prosecutor advised the court and opposing counsel: ... I would like to alert the Court that I intend to present evidence that the defendant committed the felony crime of 4502(b), not (a), in that he attempted to manufacture or attempted to possess material that could be made into a sharpened instrument. The prosecutor further advised that the evidence of attempted manufacture/possession applied to both counts of the complaint.

That same day, the court held appellant to answer and amended the complaint to conform to proof by alleging violations of section 4502, subdivision (b). On December 4, 2003, the district attorney filed an information alleging two counts of manufacture and attempt to manufacture a sharp instrument. One week later, appellant filed a motion to set aside the information on the ground of insufficient evidence at the preliminary hearing to show that the defendant manufactured or attempted to manufacture a sharp instrument. On December 22, 2003, the district attorney filed written opposition to the motion. On January 7, 2004, the court conducted a contested hearing and took the matter under submission.^[3] On January 9, 2004, the court denied the motion, stating:

Okay, the Court took under submission the 995 motion that was filed here, and Ive had a chance to do some research as to whether or not the evidence was sufficient to support the charge of attempting to manufacture a weapon, and its a close case. Certainly the evidence is sufficient to permit the reasonable inference that Mr. Ynclan knew that he had a piece of metal stock in each of his shoes. Merely possessing a means to commit a crime such as the manufacturing of a sharp instrument under the law is insufficient to constitute an attempt.

Here the testimony at the preliminary hearing was that the metal stock originally was one piece, which had been broken in two. In the ruling on the motion to bind over the Magistrate noted that and found that under the circumstances it could be inferred that Mr. Ynclan had broken the stock in two, and if so, that that is a step taken toward the manufacture of a sharp instrument. So the Court finds that there was sufficient evidence adduced at the preliminary hearing to hold Mr. Ynclan to answer to the charges, and the 995 motion is denied.

Proceedings at Trial

Examination of Lieutenant Soto

Deputy District Attorney Michael Reinhart tried the case in superior court. The following exchange occurred during Lieutenant John Sotos testimony during the Peoples case-in-chief:

Q. [by deputy district attorney Reinhart]: Okay. Having examined the material, the metal pieces that were obtained from the defendants shoes in June of last year, do you have an opinion as to whether or not this material would constitute weapon stock?

A. [by Lieutenant Soto]: Yes, I do. It is, in fact, weapon stock in my opinion.

Q. And why do you have that opinion?

A. The size itself is almost perfect. If I may, can I pick it up.

Q. Yes, please?

A. The size itself and the overall length is perfect. When a person grabs it here, you only want a small portion to be exposed outside that.

Q. Why?

A. Because, one, as in this specific scenario, the metal is not that strong. In other words, its relatively easily bendable, okay? But what the person will do is theyll wrap this. Depending on which end, because this has two perfect ends. This end can be easily sharpened, and this end is essentially really good as is. So depending on which end you chose, you wrap it to supply support to the overall length, but its actually been

Q. Now, Im sorry. The record is probably going to be unclear and I want to stop you right there because you referred to two different ends?

A. Correct.

Q. You referred to, for lack of a better term, theres one end that looks like theres a hook to?

A. Correct.

Q. And you said that end is good as a weapon as is?

A. As is.

Q. Why?

A. Well, if you come up from a person from behind and just hook the juggler, just pull it right out.

Q. Now, the opposite end?

A. The opposite end is virtually okay as it is right now, too, because I can see its got sharp edges. But initially I was talking about the overall length and its the perfect size to hold in ones hand and to utilize.

Q. Okay, so as is its your testimony that this could be used as a weapon by an inmate?

A. Correct.

Q. And you indicated one, one edge of it is sharp?

A. Correct.

THE COURT: Excuse me, were going to take a brief recess. Well ask the jurors to assemble in the jury room for a moment, please. Dont talk about the case. The Bailiff will call you when were ready to resume.

The court then held the following proceedings outside the presence of the jury:

THE COURT: The jurors have left the courtroom. Mr. Reinhart, you were not representing the People on this case at that time, but at the 995 motion your office conceded that these were not sharpened instruments as they existed and proceeded solely on the theory of attempting to manufacture a sharpened instrument.

Youre not going to be able to be allowed to change the theory of the prosecution now by claiming these are now claiming that these are sharpened instruments.

MR. REINHART: Right, Im not proceeding under the (b) [sic] section that he was in possession of a sharpened instrument, but I think theres an issue did he manufacture ... a sharpened instrument or whether this is still in the process of being manufactured?

THE COURT: You conceded that it was not a sharpened instrument so there couldnt have been a completed manufacture.

MR. REINHART: I see the Courts point. [A]nd I understand. Where Im going with this is my understanding in talking to this witness theres additional things that an inmate would do to perfect this as a weapon.

THE COURT: And I understand that. I just interjected because I was hearing testimony that this is a sharpened instrument. [] Now, as a matter of fact, it might be a sharpened instrument but the testimony at the preliminary hearing was conceded by the People to have been that it was not a sharpened instrument.

The defendant then brings a 995 and you have insufficient evidence to proceed on the theory that it is a sharpened instrument then its not appropriate at trial [to] proceed on the theory that its a sharpened instrument.

MR. REINHART: Yes, and quite right, although ... I dont know why they would have conceded that at the 995. At the preliminary hearing the only testimony was it had not been sharpened to a point, but yet we are proceeding under the (b) Section so I intend to show ... where this lies in the steps of manufacture.

The Prosecutors Closing Argument

Deputy District Attorney Reinhart argued to the jury:

The second point Id like to address is the defense states that these items, Exhibits 10-A and 10-B, are not sharp instruments and that we are using our imagination to try and somehow make then into weapons.

(Whereupon, Mr. Reinhart took one of the pieces of metal and slashed a piece of paper with it.)

Were not using our imagination, ladies and gentlemen. Thank you.

New Trial Motion

On February 18, 2004, the jury rendered a verdict finding appellant guilty of count I of the information. On April 1, 2004, appellant filed a motion for new trial alleging prosecutorial misconduct. He specifically argued:

Prosecutor Reinhart misstated or mischaracterized the evidence in the following examples:

(1) In direct testimony, by eliciting testimony from Officer Soto that the metal objects were sharp in their present state and presently could be used as a weapon by virtue of the piece being broken in two.

(2) In rebuttal argument, by pulling the metal piece from the exhibit envelope and slashing the metal against a piece of paper, cutting the paper down the middle.

The prosecution filed written opposition, asserting that Lieutenant Sotos testimony was relevant and proper and that Reinharts closing argument was a fair response to defense counsels closing argument. The trial court ruled on April 19, 2004:

All right. This motion has to do with Mr. Reinhart using one of the instruments in question to slash a piece of paper that he held in his hand during his argument.

The genesis of the motion goes back to the Courts ruling on the 995 motion. At the preliminary hearing the People had the case bound over on the strength of the testimony of, I believe it was an expert witness called by the People, a correctional officer or investigator who stated that in his opinion the instruments were not sharp instruments.

Accordingly, the Court ruled that since there was, that was the evidence at the preliminary examination the People would not be able to proceed to trial on the theory that Mr. Ynclan possessed a sharpened instrument, but that there was sufficient evidence adduced at the preliminary hearing to proceed on the theory that he intended to manufacture had attempted to manufacture, I should state, a sharpened instrument.

Now, at trial the evidence indicated that notwithstanding the testimony of the peoples expert at the preliminary examination the metal stock in question was, in fact, sharp to a certain extent.

Mr. Reinharts demonstration to the jury was in the form of simply a rebuttal to defense counsels argument that the pieces of metal werent sharp.

The jury was appropriately instructed as to the only theory of the case that the Court allowed the matter to go to trial on and that was that this was an attempt to manufacture a sharpened instrument.

To find the defendant guilty the jury had to have been of the opinion that he intended to manufacture or ... excuse me, that he had attempted to, that he had the specific intent to commit the attempted crime.

I dont feel that the People are required nor is the jury required to ignore the manifest facts of the case that the instrument was indeed sharp or is required to stand by silently while an argument is made asking the jury to disregard what is clearly the case.

I dont think that it was improper conduct for the prosecutor to argue that what defense counsel was telling the jury simply wasnt true. The Court finds that the motion for new trial is without merit and is denied.

Governing Law

Section 1181, subdivision 5 states:

When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [] ... [] 5. ... [W]hen the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury.

A motion for new trial is an application for reexamination of an issue in the same court, before another jury, after a verdict has been given. ( 1179.) The motion may be made after either a jury or a court trial. (In re Rothrock (1939) 14 Cal.2d 34, 40-41.) If the motion is granted, the parties are placed in the same position as if there had been no trial. ( 1180.) The judge who presides at trial should hear and determine the motion for a new trial. (People v. Tokich (1954) 128 Cal.App.2d 515, 517.) An order granting or denying a motion for new trial is within the court's discretion. (People v. McDaniel (1976) 16 Cal.3d 156, 177, cert. den. sub. nom. McDaniel v. California (1976) 429 U.S. 847.) The court should determine whether there is sufficient credible evidence to sustain the verdict. If there is not, the court should grant the motion for new trial. (People v. Robarge (1953) 41 Cal.2d 628, 634.)

No judgment shall be set aside or new trial granted, in any cause, on the ground of the improper admission or rejection of evidence or for any error as to any matter of procedure unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion the error complained of has resulted in a miscarriage of judgment. (Cal. Const., art. VI, 13.) Whether the conduct of a prosecuting attorney has prejudiced the substantial rights of a defendant must rest largely upon the facts of each case. An appellate court may only reverse the judgment when it appears from all the facts there has been a miscarriage of justice. (People v. Kirkes (1952) 39 Cal.2d 719, 726-727.) A miscarriage of justice exists where it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error. (People v. Pierce (1979) 24 Cal.3d 199, 206-207.)

A prosecutors misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. In other words, the misconduct must be of sufficient significance to result in the denial of the defendants right to a fair trial. A prosecutors misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. When the issue focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. Moreover, prosecutors have wide latitude to discuss and draw inferences from the evidence at trial, and whether the inferences the prosecutor draws are reasonable is for the jury to decide. (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181-182; People v. Morales (2001) 25 Cal.4th 34, 44; People v. Ochoa (1998) 19 Cal.4th 353, 427.) However, misconduct need not be intentional in order to constitute reversible error. (People v. Bolton (1979) 23 Cal.3d 208, 214.) What is crucial to a claim of prosecutorial misconduct is not the good faith of the prosecutor, but the potential injury to the defendant. (People v. Clair (1992) 2 Cal.4th 629, 661.)

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. The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished does not forfeit the issue for appeal, if an admonition would not have cured the harm caused by the misconduct. Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct and, as a consequence, the defendant has no opportunity to make such a request. (People v. Hill (1998) 17 Cal.4th 800, 820-821; accord, People v. Clair, supra, 2 Cal.4th at p. 662.)

Appellants Contention on Appeal

Appellant argues:

In this case there was a pattern of conduct so egregious that it infected the trial with unfairness so as to violate due process. It began with the prosecutor introducing evidence that the metal was a sharp instrument, contrary to proof at the preliminary hearing, and culminated with the prosecutors action during closing argument when he attempted to demonstrate that it was sharp by using it to slash a piece of paper.

Regardless of the prosecutors intent, the prosecutor used deceptive means to try to persuade the jury that Ynclan was guilty by producing inadmissible evidence of an offense not charged in the information, namely, that the weapon already was a sharp instrument.

Further, the prosecutor improperly inflamed the jurys passions and prejudice by removing the metal from its evidence envelope, and using it in the courtroom to slash a piece of paper. While not directly threatening the jury, this demonstration instead was intended to shock the jury by the sudden and unexpected use of the metal as a slashing device in their presence, with the sound undoubtedly made by paper being torn. The prosecutors demonstration was inflammatory because it implied a threat to the jurys safety.

Moreover, the prosecutors demonstration had no probative value, since it did not prove that Ynclan manufactured or attempted to manufacture a weapon. As pointed out by the defense expert [Richard Martinez], almost any object could be used as a weapon in a prison setting, including a pen. Had a pen been the object at issue in this case, the prosecutor could likewise have slashed a piece of paper with a pen, causing similar ripping and tearing sounds in an inflammatory fashion. That would have been equally irrelevant, since the issue was not whether the object could be used to slash a piece of paper in a courtroom, but whether Ynclan manufactured or attempted to manufacture a weapon.

The courts reason for denying the motion for new trial was that the prosecutors demonstration was a fair rebuttal to the defense argument that the metal was not sharp. This was an abuse of discretion, because it is an inaccurate characterization of the defense argument.

[Defense] [c]ounsel argued: [] This is not a manufactured sharpened instrument. These pieces are not sharpened. ... Its not a sharpened instrument. By virtue of breaking it in half does not make it a sharpened instrument.

[Defense] [c]ounsel did not argue that the metal was not sharp, but instead argued that it was not sharpened. Counsels point was that Ynclan did not take any action to make the instruments sharp, and that breaking the metal in half did not constitute manufacture of a sharpened instrument. The action of sharpening the metal would be a step in the manufacture of a weapon, and [defense] counsel argued that such action did not occur. Counsel emphasized the point by arguing that many things could be a weapon, such as a pen, but that there was no manufacture or attempt to manufacture in this case, since the metal was not sharpened.

The prosecutor told the jury that his demonstration would refute the defense argument that the metal was not sharp. This was misconduct because there was no such defense argument. The defense focused on the fact that the metal was not sharpened, meaning that no action had been taken to make it sharp, and that breaking it in half did not constitute such action. The defense did not argue that the metal in its current state was not sharp, but instead focused on Ynclans lack of action to make it sharpened.

Change of Theory

Appellant initially contends the prosecutor committed misconduct by introducing evidence that the metal was a sharp instrument, contrary to proof at the preliminary hearing. A criminal defendant may not raise the issue of prosecutorial misconduct on appeal, unless in a timely fashion and on the same ground the defendant assigned the matter as misconduct and requested the court to admonish the jury to disregard the impropriety. (People v. Ochoa, supra, 19 Cal.4th at p. 428.) In the instant case, defense counsel did not object when Lieutenant Soto testified the metal was sharp, did not assign the prosecutors question as misconduct, and did not request a jury admonition. An objection and admonition would have cured any harm arising from the inquiry and appellants late assertion of prosecutorial misconduct during the evidentiary portion of the trial must be deemed waived.^[4] (People v. Price (1991) 1 Cal.4th 324, 456.)

Even if we assume that appellant somehow preserved the issue of misconduct, a review of the record reveals the court and counsel mitigated any negative effects of the inquiry. When Lieutenant Soto briefly mentioned the metal was sharp, the trial court immediately interrupted his direct examination for a recess outside the presence of the jury. The court informed the prosecutor of the sequence of events at the preliminary examination, the prosecutor acknowledged the procedural status of the case, and he further outlined his approach to proving the case-in-chief. After the examination resumed in the presence of the jury, the prosecutor directed Lieutenant Sotos testimony to the process of manufacturing a sharpened instrument in state prison. The prosecutor did not draw further attention to Lieutenant Sotos previous statement. We cannot say the prosecutor used deceptive or reprehensible methods during the evidentiary portion of the trial to persuade the jury to render a verdict of guilt.

Closing Argument^[5]

Defense counsel stated in pertinent part during her closing argument:

The law requires that there be a manufacture of a sharpened instrument or an attempt to manufacture a sharpened instrument and it simply was not proved that thats what happened.

To manufacture, theres a special instruction, to do an affirmative act to produce something, to make something. This is not a manufactured sharpened instrument. These pieces are not sharpened. Lieutenant [Soto] testified to that. Its not a sharpened instrument. By virtue of breaking it in half does not make it a sharpened instrument.

As noted above, the prosecutor stated in rebuttal:

The second point Id like to address is the defense states that these items, Exhibits 10-A and 10-B, are not sharp instruments and that we are using our imagination to try and somehow make then into weapons.

(Whereupon, Mr. Reinhart took one of the pieces of metal and slashed a piece of paper with it.)

Were not using our imagination, ladies and gentlemen. Thank you.

Section 1093, subdivision (e) permits the prosecutor to open and close the argument. (People v. Robinson (1995) 31 Cal.App.4th 494, 505.) The right of an advocate to discuss the merits of the cause, both as to the law and facts, is unabridged. The range of discussion is wide. The advocates illustrations may be as various as the resources of his or her genius. Matters of common knowledge may be parcel of the woven argument which the advocate lays before the jury. (People v. Molina (1899) 126 Cal. 505, 508.) As the Fourth District Court of Appeal noted four decades ago:

All 12 of the people in the jury box have lived a practical, and usually a fairly long, life in the community; they have had a variety of observation and instruction from the time that they were children until they have reached whatever age they presently enjoy, and a lawyer arguing his case should be entitled to cover the whole range of human experience in asking the jury to decide in favor of his client. This should properly include not only the sayings of famous men, but illustrations taken from life, or from books, showing the actions and thoughts of human beings, other than the parties and their witnesses, under various types of pressure and stress. To limit a lawyers voice to a bare monotone, or his intellectual plea to a somber discussion of the evidence and the law, without permitting him to range over the field of human experience, would be to cripple the best of advocates and often to reduce a vibrant trial to a dry and inhuman inquiry. (People v. Polite (1965) 236 Cal.App.2d 85, 93.)

Under California law, it is not misconduct for a prosecutor to reply to defense arguments as long as his or her comments are based on the record. (People v. Polite, supra, 236 Cal.App.2d at p. 94; People v. Sliscovich (1924) 193 Cal. 544, 553.) In the instant case, defense counsel asserted at argument there was simply no attempted manufacture of a sharpened instrument. In response to her argument, the prosecutor took a piece of paper and slashed it with one of the pieces of metal. In doing so, the prosecutor dispelled the implicit defense notion that the thin metallic object was nothing more an innocuous component of a commonplace office accessory. Moreover, the prosecutor vividly illustrated that the strip of metal was in the process of being fashioned into a sharpened instrument. The prosecutors responsive argument was based on the testimonial record and the physical evidence and no misconduct occurred.

III.

IMPOSITION OF UPPER TERM

In a supplemental opening brief filed March 7, 2007, appellant contends the upper term sentence violates the Sixth and Fourteenth Amendments under Cunningham, supra, 549 U.S. _____ [127 S.Ct. 856]. He submits the only permitted result is a reduction of the sentence to the middle term of imprisonment.

At the April 19, 2004, sentencing hearing in the instant case, the court stated in relevant part:

[W]ith regard to the issue of granting or denying probation, Mr. Ynclan is ineligible for any sentence other than a sentence to the state prison pursuant to Penal Code Section 667 subsection (c)(2) because of the prior serious or violent felony conviction.

As to aggravating or mitigating circumstances which are present, the significant aggravating circumstance appears to be that Mr. Ynclans prior performance on both probation and parole has been unsatisfactory.

The Court finds that aggravating circumstance to outweigh the mitigating circumstances which are present. Mr. Ynclan is committed to the California State Prison for the aggravated term of three years doubled by virtue of the prior strike to six years for a violation of Section 4502 Subsection (b) of the Penal Code plus one year consecutive for the prior prison term enhancement. [][]

A separate $600 restitution fine is ordered pursuant to Section 1202.45 of the Penal Code, payment of which is suspended until such time as parole might be revoked.

Appellants appellate argument originates with Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). In Blakely, the United States Supreme Court reaffirmed the rule it announced in Apprendi: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the Supreme Court reiterated the right to a jury trial requires that [a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. (United States v. Booker (2005) 543 U.S. 220, 244.)

In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court considered the effect of Apprendi and Blakely on this states Determinate Sentencing Law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at p. 1244.)

In Cunningham, the high court held that Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendments right to a jury trial to the extent it permits a trial court to impose an upper term based on facts other than the fact of a prior conviction found by the court rather than by a jury beyond a reasonable doubt. The court stated in relevant part:

As this Courts decisions instruct, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005). [T]he relevant statutory maximum, this Court has clarified, is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, 542 U.S., at 303-304 (emphasis in original).... [] ... []

Contrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871, fn. omitted].)

In view of the necessity of a remand to address overlooked prior prison term allegations (see part IV, post), the most equitable, expeditious, and cost-effective method for addressing the sentence on the substantive count is to vacate it and then remand it for resentencing in light of the principles of Cunningham.

IV.

PRIOR PRISON TERM ENHANCEMENTS

On November 10, 2005, this court transmitted a letter to counsel for the parties outlining the following sequence of events:

On December 4, 2003, the Kings County District Attorney filed an information in superior court alleging, inter alia, four prior prison terms (Pen. Code,  667.5, subd. (b)).

On February 18, 2004, the superior court struck one prior prison term allegation on motion of the district attorney. On the same date, appellant admitted the remaining three prior prison term allegations.

On March 23, 2004, the probation officer filed a sentencing report reflecting a single prior prison term allegation and recommending a one-year enhancement on the admitted allegation. On April 19, 2004, the court sentenced appellant to a total term of seven years, the doubled upper term of six years for a violation of Penal Code section 4502, subdivision (b) and a consecutive one-year term for the single prior prison term enhancement.

This court then requested the parties to submit simultaneous letter briefs addressing the following question:

Did the superior court strike or otherwise dispose of the remaining two prior prison term allegations that appellant admitted on February 18, 2004 and, if not, what is the proper disposition of the matter by this court?

On November 18 and 21, 2005, appellant and respondent, respectively, filed letter briefs acknowledging the trial courts oversight in failing to address the remaining prior prison term allegations and recommending that this court remand the matter for limited resentencing.

A trial court has a duty in a criminal case to impose sentence in accordance with the law. The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. Section 667.5, subdivision (b) enhancements are subject to the exercise of th