P. v. Moore






Filed 10/7/11 P. v. Moore CA2/4



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. ERNEST CHRISTOPHER MOORE, Defendant and Appellant.

B218901 (Los Angeles County Super. Ct. No. NA077588)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed in part, reversed in part, and remanded.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.



Ernest Christopher Moore appeals from his convictions by jury verdict of first degree residential burglary, attempted first degree residential burglary, assault with intent to commit a sexual offense, criminal threats, attempted robbery, and assault with a deadly weapon. He contends the trial court erred in admitting evidence of uncharged crimes and in instructing the jury on first degree burglary. Appellant challenges the sufficiency of the evidence to support the assault conviction. He argues the prosecutor violated discovery rules and due process by failing to disclose forensic test results. Appellant argues that multiple punishment for burglary, criminal threats, and attempted robbery is improper and that the case must be remanded to afford the court an opportunity to exercise its discretion to impose consecutive or concurrent sentences. He asserts that these cumulative errors warrant reversal.
We conclude that evidence of uncharged crimes was properly admitted under Evidence Code section 1101, subdivision (b). The instructions on burglary were adequate. We find sufficient evidence to support appellant’s conviction for assault with intent to commit a sex crime. The curative instruction given by the trial court was an adequate sanction for the prosecution’s violation of its statutory obligation to provide timely discovery. The sentences for attempted robbery and criminal threats are stayed pursuant to Penal Code section 654 (all statutory references are to the Penal Code unless otherwise indicated). Appellant forfeited his challenge to the imposition of consecutive sentences by failing to object, but in any event the court provided an adequate reason for its sentencing choice. The trial court erred by failing to impose the mandatory five-year enhancement for each new serious felony conviction under section 667, subdivision (a) and we order the abstract of judgment amended to reflect those enhancements.
Respondent asks us to review the trial court’s ruling excluding evidence of uncharged crimes under Evidence Code section 1108. The issue was not preserved for appeal because the prosecutor opted not to pursue admissibility under that statute.

FACTUAL AND PROCEDURAL SUMMARY
On the afternoon of April 6, 2006, Eiko Stewart, a 60-year-old Asian woman, went to the home of her late parents. After doing some gardening, she went inside the house and got onto her knees next to the mail slot next to the front door to sort some mail which had accumulated on the floor. Suddenly someone threw a shawl over her head and placed a knife at her throat. She received a small cut to her neck. The man told her not to scream or she would be killed. Several times he demanded that Ms. Stewart show him where the money was or he would kill her. She told him there was no money in the house and began to cry. The man told her to turn around and avoid looking at his face. At that point she was on her knees facing his crotch. Then he had her lie face down on the floor with her hands at her sides. She complied and the man put a blanket over her head. During this time she thought she might have to orally copulate him or that he might rape or sodomize her. He warned her not to move or he would kill her. She said she would comply. As she lay on the floor, Ms. Stewart realized from the sound of his voice that the man was moving away from her. When his voice got farther away, she dropped the blanket and shawl and ran out the front door screaming for help. She ran toward an elementary school across the street.
Ms. Stewart heard someone running and looked behind her. She saw an African American man run out of her parents’ house. Ms. Stewart ran faster but then realized the man was not following her. She turned and saw him run to a car parked across the street. Ms. Stewart moved closer to the car to see the license plate. She memorized the number, wrote it down, and gave it to the police. The man drove away. She identified blue athletic shorts which were entered into evidence at trial as those worn by the perpetrator. She also said the man wore a black doo rag on his head. The knife he used was dropped in the front doorway. It was from the kitchen in her parents’ house. Nothing was taken from the house, but an extension cord from one of the back bedrooms was found in the hallway that goes from the back bedrooms to the foyer. The shawl and blanket used by appellant were taken from the couch in the living room. Ms. Stewart was unable to identify appellant as the perpetrator at trial, but said he had the same build as her attacker.
Appellant was apprehended four days later when a Torrance patrol officer saw him standing in the yard of an elderly Asian woman who was gardening. She later told the officer that she was unaware that appellant was in her yard. When he saw the officer, appellant went to a car fitting the description of the car identified by Ms. Stewart, with the same license plate number, and drove away. The officer followed appellant and ran the license plate of the car. The car was wanted by the Los Angeles Police Department in connection with the crimes against Ms. Stewart. He pulled appellant over.
Appellant was detained and taken to the Torrance police department. Los Angeles Police Department investigators took custody of evidence seized from appellant’s car. Appellant was arrested and charged with first degree residential burglary, attempted rape, assault with intent to commit rape, sodomy, or oral copulation, criminal threats, attempted first degree residential robbery, and assault with a deadly weapon. Appellant admitted six prior convictions of a serious or violent felony. The jury convicted appellant of first degree burglary, criminal threats, simple assault, assault with intent to commit a felony, attempted robbery and assault with a deadly weapon.^[1] He was found not guilty of attempted rape. Following his conviction in this case, appellant moved for new trial on due process grounds because of admission of the prior crimes evidence. That motion was denied.
The trial court declined to strike the prior strike convictions. Appellant was sentenced to an aggregate term of 105 years to life. This timely appeal followed. Following oral argument, we vacated submission and invited counsel pursuant to Government Code section 68081 to brief whether the imposition of a five-year enhancement is required under section 667, subdivision (a) for each of appellant’s new serious felony convictions. We have received and reviewed the supplemental briefs filed in response to our order.

DISCUSSION
I
Appellant argues the trial court erred in admitting other crimes evidence pursuant to Evidence Code section 1101, subdivision (b) (section 1101(b)) and over his objection, and that the evidence should have been excluded under Evidence Code section 352. Respondent challenges the court’s refusal to admit the evidence under Evidence Code section 1108 (section 1108).

A. Pretrial Proceedings
Appellant’s defense was misidentification. Before trial, the prosecutor moved for admission of evidence of prior offenses committed by appellant under section 1108 and section 1101(b) to prove identity, intent and motive. The trial court questioned the admissibility of evidence of prior sex crimes under section 1108 because there was no evidence appellant committed a sex crime in the present case and because the prior crimes evidence was overly prejudicial. The prosecutor said she would forgo admission under section 1108, but argued the prior crimes evidence was relevant as to identity, intent and modus operandi and thus admissible under section 1101(b). Defense counsel argued that the uncharged crimes did not constitute a signature crime to warrant admissibility for identity under section 1101(b). He also contended that the evidence should be excluded as more prejudicial than probative under Evidence Code section 352.
The trial court ruled the prior crimes evidence was not admissible under section 1108. But it concluded there were sufficient multiple similarities between the prior crimes and the present offense to support admission of the prior crimes evidence on the issue of identity and intent under section 1101(b). Pursuant to Evidence Code section 352 the court excluded the details of defendant’s prior attacks and limited this evidence to six common aspects, including the fact that the victims were elderly women, they were gardening, the method of entry, covering the face of the victim, tying the hands of the victim, and use of a knife.
B. Other Crimes Evidence Admitted
Appellant confessed to crimes involving three victims in 1989 and was convicted of those offenses.^[2] In this case, the 1989 crimes (three convictions of residential burglary (§ 459), one conviction of sodomy (§ 286, subd. (c)), and two convictions for rape (§ 261, subd. (2)) were alleged as six prior strikes (§§ 667, subd. (b), 1170.12) and as prior convictions of a serious felony and prior prison terms under sections 667, subdivision (a)(1) and 667.5, subdivision (b). Appellant admitted these 1989 prior convictions before trial began.
The preliminary hearing testimony of the first victim in 1989 was read to the jury in this case.^[3] That victim, Y.T., was 85 years old when attacked and was of Japanese ancestry. She was working in her garden and as she went back into her house, appellant emerged from behind the door and grabbed her. He held her mouth with his hand, threatened to kill her, and blindfolded her with a blouse from her laundry. He bound her hands, took off her clothes, put her on the bed, and then raped and sodomized her. He told her to count to one hundred and then put her clothes back on. No knife was used. Appellant was convicted of the burglary, sodomy and rape of Y.T.
A.C., a 66-year-old Chinese woman, was too ill to testify at this trial. Instead her daughter testified that A.C., who lived with the daughter, planned to do some gardening on May 2, 1989. The daughter was at work when she received a telephone call from her mother that afternoon. A.C. was crying and said someone had broken into the house, used a knife to threaten her, robbed her, and raped her. She had been tied up and a blanket was put over her face. The man demanded money. Appellant was convicted of burglary and the rape of A.C.
Appellant’s third 1989 victim was Margaret Ann Notehelfer. Her preliminary hearing testimony was read to the jury in this case. She was 54 years old in 1989 and was not Asian. On the day in question, she spent between 10 to 15 minutes working in her garden. She had left the back gate and back door to her house open while she was outside. When Ms. Notehelfer went back around her house, she saw appellant walking down her driveway toward the street away from her house. He was approximately opposite the front of the house. Ms. Notehelfer followed him as he walked toward a car parked across the street. Appellant had one of the dish towels from her kitchen in his hand. He told her he was looking for the house of a friend that looked like her house and left. Other than the towel, Ms. Notehelfer found nothing missing from her house. She was not harmed. Later that afternoon she noticed the shoelace from her jogging shoe had been removed and had been placed in a loop on top of the bed. Appellant was convicted of the burglary of Ms. Notehelfer’s home.
C. Analysis
Section 1101(b) provides for the admission of evidence that a person committed a crime “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident), . . . other than his or her disposition to commit such an act.” The degree of similarity required between the present and prior offenses under section 1101(b) depends on the purpose for which the prior crimes evidence is offered. “When the prosecution seeks to prove the defendant’s identity as the perpetrator of the charged offense with evidence he had committed uncharged offenses, the admissibility of evidence of the uncharged offenses turns on proof that the charged and uncharged offenses share sufficient distinctive common features to raise an inference of identity. A lesser degree of similarity is required to establish the existence of a common plan or scheme and still less similarity is required to establish intent. [Citations.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance. [Citations.]” (People v. Lindberg (2008) 45 Cal.4th 1, 23; People v. Thomas (2011) 52 Cal.4th 336, 354-356.) We review the trial court’s decision on admission of other crimes evidence for abuse of discretion. (Ibid.)
Appellant argues the pattern of each crime is not sufficiently distinctive to warrant admissibility under section 1101(b). He points out that there was no sexual assault in this case, but that Y.T. was raped and sodomized and A.C. was raped. Notehelfer was not harmed. Y.T. was blindfolded with a blouse, A.C. had a blanket placed on her face, and both a shawl and blanket were thrown over Ms. Stewart. All of these items were taken from the victims’ houses. Y.T. was assaulted on her bed but the evidence does not establish the location of the attack on A.C. Y.T., Ms. Notehelfer, and Ms. Stewart each was outside gardening when appellant entered their homes. A.C. planned to garden, but the exact circumstances of her attack are not in evidence. She told her daughter that appellant broke into her house. A knife was used in the attack on A.C. and Ms. Stewart; no knife was used in the other crimes. A.C. told her daughter that appellant asked for money, as he did in the present offense. Neither A.T. nor Ms. Notehelfer said he demanded money.
While there are some dissimilar features of these crimes, we find a distinctive pattern warranting admission under section 1101(b) as to identity. Appellant entered the homes of older victims who were alone while they were gardening somewhere on their properties. In the sexual attacks on Y.T. and A.C., and in the attack on Ms. Stewart, appellant used an item found in the house to either blindfold or prevent the victim from seeing him by throwing it over them. Three of the four victims were Asian. “The inference of identity need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together. [Citations.]” (People v. Scott (2011) 52 Cal.4th 452, 473; People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) To the extent a close question is presented on admission to establish identity, any error was rendered harmless in light of the other strong evidence identifying appellant as Ms. Stewart’s attacker, including the license plate on his car and the shorts and doo rag he wore which were in his car when he was arrested.
In addition, respondent argues the degree of similarity of the other crimes evidence was sufficient to make it admissible to prove intent. In Ewoldt, the Supreme Court held that the least degree of similarity is required to prove intent: “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, at p. 402.) We agree the crimes here were sufficiently similar to warrant admission to prove intent. (See People v. Scott, supra, [2011 WL 3503547 pp. 1, 10-11] [holding evidence of prior burglaries and rapes sufficiently similar to be admissible on intent where all the crimes occurred at night, in a four-month period, in a particular geographic location, and with the threat to use deadly force.].)
Appellant contends the trial court abused its discretion in not excluding evidence of the 1989 crimes under Evidence Code section 352, which gives the “court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue time consumption or create substantial danger of undue prejudice, confusing the issues, or misleading the jury.” (People v. Loy (2011) 52 Cal.4th 46, 61.) The fact that the evidence tended to establish elements of the prosecutor’s case does not render it prejudicial for purposes of Evidence Code section 352. (People v. Tran (2011) 51 Cal.4th 1040, 1050.)
Since appellant had been convicted and punished for the 1989 crimes, there was little danger of confusing the issues by requiring the jury to determine his guilt of both the 1989 offenses and the charged offenses, and no risk the jury might convict him to prevent him from escaping punishment for the 1989 offenses. (See People v. Tran, supra, 51 Cal.4th at p. 1050.) In addition, the court gave a limiting instruction which informed the jury that evidence that appellant had committed crimes other than the present offenses could not be considered to prove defendant was a person of bad character or had a disposition to commit crimes.^[4] (Ibid.) Under these circumstances, the trial court did not abuse its discretion in ruling that the probative value of the other crimes evidence outweighed its prejudicial effect.
Pursuant to Penal Code section 1252, respondent asks that we review the trial court’s ruling that the other crimes evidence was not admissible under Evidence Code section 1108.^[5] “Section 1108, enacted in 1995, provides in subdivision (a), ‘In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to Section 352.’ (See generally People v. Falsetta (1999) 21 Cal.4th 903.)” (People v. Loy, supra, 52 Cal.4th at p. 60.) The limitations of section 1101 do not apply to the admission of evidence under section 1108 in that the charged and uncharged crimes need not be sufficiently similar to be admissible under section 1101. (Id. at p. 63.) “‘It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.’ [Citation.]” (Ibid.)
Here, the prosecutor repeatedly chose to “forgo” admission of the prior crimes evidence under Evidence Code section 1108 and instead pursued admission only under Evidence Code section 1101, subdivision (b). This decision was made on the prosecutor’s own volition. As a result respondent has not preserved this issue for appeal. (People v. Miller (2007) 146 Cal.App.4th 545, 551; see also People v. Virgil (2011) 51 Cal.4th 1210, 1258.)

II
Appellant challenges the jury instruction on first degree burglary. A person is guilty of first degree burglary if he or she enters a house “with intent to commit grand or petit larceny or any felony.” (§ 459.) “In a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure.” (People v. Rathert (2000) 24 Cal.4th 200, 204; People v. Hughes (2002) 27 Cal.4th 287, 348.) Appellant argues the trial court failed to define the felonies which were the basis for the burglary charge. He also contends the trial court failed to instruct the jury that the prosecution was required to prove he harbored the intent to commit one of the specified felonies at the time he entered the structure.
Appellant also contends that the jury could reach more than one possible conclusion about his intent upon entering Ms. Stewart’s home. He asserts that the jury could have found that he entered with the intent to commit a misdemeanor rather than theft or a felony, particularly because the jury found him guilty of simple assault as a lesser included offense. On this ground, he argues the instructional error was not harmless beyond a reasonable doubt.
“In deciding whether a trial court’s misinstruction on an element of an offense is prejudicial to the defendant, we ask whether it appears ‘“‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’”’ (People v. Hagen (1998) 19 Cal.4th 652, 671.) ‘“To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.”’ (People v. Harris (1994) 9 Cal.4th 407, 426.)” (People v. Hudson (2006) 38 Cal.4th 1002, 1013.)
The jury was instructed with CALJIC No. 14.50 which stated, “Every person who enters any building with the specific intent to steal, take, and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of that property or with the specific intent to commit any felony is guilty of the crime of burglary in violation of Penal Code section 459.” (Italics added.) The same instruction provided: “In order to prove this crime, each of the following elements must be proved: [¶] 1. A person entered a building such as a home; and [¶] 2. At the time of the entry, that person had the specific intent to steal and take away someone else’s property, and intended to deprive the owner permanently of that property, or commit any felony.” (Italics added.) The italicized language in the last sentence appeared in a handwritten addition to the instruction.
In addition, the jury was instructed on the felonies of rape (CALJIC No. 10.00), assault with intent to commit rape, sodomy, or oral copulation (CALJIC No. 9.09), unlawful oral copulation by force or threats (CALJIC No. 10.10), unlawful sodomy by force or threats (CALJIC No. 10.20), felony criminal threats (CALJIC No. 9.94), felony assault with a deadly weapon (CALJIC No. 9.02) and robbery (CALJIC No. 9.40). As we have seen, in addition to burglary, appellant was charged with the separate offenses of attempted forcible rape, assault with intent to commit rape, sodomy, or oral copulation, felony criminal threats, attempted robbery, and felony assault with a deadly weapon. He was convicted of burglary, assault with intent to commit a specified felony, criminal threats, attempted robbery, and assault with a deadly weapon. He was found not guilty of attempted rape on count 2 and convicted instead of the lesser offense of simple assault on that count.
“‘In determining whether instructional error was harmless, relevant inquiries are whether “the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions” [citation] and whether the “defendant effectively conceded the issue” [citation]. A reviewing court considers “the specific language challenged, the instructions as a whole[,] the jury’s findings” [citation], and counsel’s closing arguments to determine whether the instructional error “would have misled a reasonable jury. . . .”’ (People v. Eid (2010) 187 Cal.App.4th 859, 883.)” (People v. Sojka (2011) 196 Cal.App.4th 733, 738.)
Taking the instructions as a whole, we conclude the jury was adequately instructed on the elements of each of the felonies which appellant was charged with intending to commit when he entered Ms. Stewart’s home. The error in not including these definitions in the instruction on burglary was harmless beyond a reasonable doubt under these circumstances.
In addition, the jury was instructed in CALJIC No. 14.50: “In order to prove this crime, each of the following elements must be proved: [¶] 1. A person entered a building such as a home; and [¶] 2. At the time of the entry, that person had the specific intent to steal and take away someone else’s property, and intended to deprive the owner permanently of that property, or commit any felony.” Paragraph 2 of this instruction, together with the instructions on the individual felonies we have discussed, informed the jury of the specific intent appellant needed to harbor when he entered Ms. Stewart’s house. Appellant’s statements to Ms. Stewart eliminate any doubt that he entered the house with the intent to commit robbery or theft. We find no error on this ground.

III
Appellant challenges the sufficiency of the evidence to support his conviction for assault with intent to commit forcible rape, sodomy or oral copulation in count three. In assessing this claim, we apply established principles of appellate review: “‘“‘[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citations.]’ ‘An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citations.]’” (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)
“‘The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required.’ [Citation.] The same, we believe, is true of assault with intent to commit sodomy. ‘[I]f there is evidence of the former intent and acts attendant to the execution of that intent, the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509-510; see also People v. Maury (2003) 30 Cal.4th 342, 399-400.)
Appellant grabbed Ms. Stewart, threw a shawl over her head, and placed a knife at her throat, cutting her. He told Ms. Stewart, who was on her knees sorting mail, to turn around, which placed her facing his crotch. Then appellant had her lie face down with her hands at her sides while he put a blanket over her head.
Evidence of appellant’s prior sexual attacks on Y.T. and A.C. was admissible to prove appellant harbored the same intent in this case. “‘“‘We have long recognized “that if a person acts similarly in similar situations, he probably harbors the same intent in each instance” [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.’” (People v. Gallego (1990) 52 Cal.3d 115, 171.)’ [Citation.]” (People v. Thomas, supra, 52 Cal.4th at pp. 355-356.) The 1989 evidence that appellant watched older women who were gardening then gained entry into the house through an open door, grabbed them when they entered the house, covered their eyes using a household item, bound them, and sexually attacked them, supports the jury’s finding that he entered Ms. Stewart’s house and assaulted her with the intent to commit sexual offenses against her. His attack was interrupted when she fled. Substantial evidence supports appellant’s conviction of assault with intent to commit a specified sex crime in violation of section 220.
Appellant cites People v. Greene (1973) 34 Cal.App.3d 622 to support his challenge to the sufficiency of the evidence. In that case, the defendant accosted a young girl on the street, told her he had a gun, put his arm around her, and said he wanted to play with her. The victim testified that she was afraid she would be raped. The court found the victim’s unexpressed subjective evaluation of the situation was not sufficient to support the verdict of assault with intent to commit rape. The court described the defendant’s conduct as simple touching which could only be attributed to attempted seduction, or an attempt to satisfy some sexual interest short of actual sexual intercourse. (Id. at p. 651.) Unlike Greene, the attack on Ms. Stewart occurred in isolation inside the house and appellant placed a knife at her throat, cutting her slightly. The jury could reasonably infer that appellant was in the process of bringing the extension cord to bind Ms. Stewart when she escaped. Combined with evidence of the pattern of appellant’s attacks on Y.T. and A.C., this was a sufficient basis from which the jury could infer that appellant assaulted Ms. Stewart with the intent to commit a sex crime but was interrupted.

IV
Appellant argues the prosecution violated its duty to disclose forensic test results in a timely manner as required by section 1054.1. He contends this violation was prejudicial because the opening statement by his attorney and testimony of a defense witness emphasized the failure of investigators to conduct the forensic tests. He asserts he was deprived of his right to due process because he was not able to conduct further investigation based on the untimely forensic results. Appellant suggests the untimely revelation of the test results was part of a calculated effort by the prosecution to withhold evidence and surprise defense counsel at trial. He does not claim a violation of the prosecutor’s duty to disclose exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83.
Section 1054.1 requires the prosecution to disclose to the defense specified categories of evidence “in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies.” Evidence subject to disclosure includes: “Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” (§ 1054.1, subd. (f), italics added.) “‘Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)’ ([People v.] Zambrano [(2007) 41 Cal.4th 1082,] 1133 [(Zambrano)].)” (People v. Verdugo (2010) 50 Cal.4th 263, 280 (Verdugo).)
If it is demonstrated that the defense complied with section 1054.1 and that the prosecution did not, “a trial court ‘may make any order necessary to enforce the provisions’ of the statute, ‘including, but not limited to, immediate disclosure, . . . continuance of the matter, or any other lawful order.’ (§ 1054.5, subd. (b).)” (Verdugo, supra, 50 Cal.4th at p. 280.) “The court may also ‘advise the jury of any failure or refusal to disclose and of any untimely disclosure. (§ 1054.5, subd. (b).) A violation of section 1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)”^[6] (Verdugo, supra, 50 Cal.4th at p. 280.)
In opening statement, defense counsel told the jury that the Los Angeles Police Department failed to investigate a partial palm print on the kitchen drawer from which the knife used in attacking Ms. Stewart was taken. Counsel also referred to the failure of officers to investigate a partial fingerprint from the kitchen, the knife, the shawl, the blanket and the extension cord. He stated that no DNA tests had been run on the evidence gathered at the scene.
During direct examination by the prosecutor, Detective Patricia Guerra, the investigating officer, testified that the knife found at the Stewart crime scene had been submitted to serology for DNA analysis. When the prosecutor asked what was found on the knife, defense counsel asked to approach and raised a discovery violation. The prosecutor responded that the detective had received the results just a few minutes earlier and apologized for failing to inform defense counsel. The prosecutor said that tests of the knife showed there was no blood on it. Defense counsel moved for dismissal based on the discovery violation as prosecutorial misconduct. He also requested a curative instruction. The court agreed to give a curative instruction but denied the motion for mistrial. The court asked the prosecution whether there would be any other surprises. The prosecutor revealed that the palm print was too smudged to allow a comparison. Defense counsel said he only knew there was a partial palm print, but had not been told that it had been submitted for testing.
When examination of Detective Guerra resumed, she testified that the knife blade tested negative for blood. She also testified that the partial palm print from the kitchen drawer was put through the computerized print comparison system and came back as not being of a quality sufficient for comparison.
The jury was given CALJIC No. 2.28 which stated: “The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non complying party’s evidence. [¶] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the People failed to timely disclose the following evidence: serology and DNA results. [¶] Although the People’s failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. [¶] If you find that the delayed disclosure was by the prosecution, and relates to a fact of importance rather than something trivial, and does not relate to subject matter already established by other credible evidence, you may consider that delayed disclosure in determining the believability or weight to be given to that particular evidence.” Appellant’s motion for new trial based on the discovery violation was denied.
“‘[A] trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecutor’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 299.) “‘To establish a due process violation, a defendant must do more than show that ‘helpful’ evidence was withheld [citation]; a defendant must go on to show that “‘there is a reasonable probability that, had [the evidence] been disclosed to the defense, the result . . . would have been different.’” [Citation.]” (People v. Gaines (2009) 46 Cal.4th 172, 183-184.)
Appellant argues the late discovery of the forensic results rendered the trial unfair because defense counsel formulated his trial strategy without the benefit of the evidence, in a manner “he would not have done had the prosecution complied with discovery.” He contends the only effective sanction for the prosecution’s discovery violation was a new trial because he could not undo his opening statement. Appellant argues that the curative instruction was not sufficient because he was deprived of formulating a strategy based on the test results and could not follow through on his opening statement. He contends he was deprived of the opportunity to call the persons who did the testing and wrote the reports as witnesses and to have his expert witness testify about the testing.
During the colloquy about the prosecution’s discovery violation, defense counsel did not request a continuance to investigate the forensic results after his motion for mistrial was denied. Instead, he requested a curative instruction, which was given. In People v. McKinnon (2011) 52 Cal.4th 610, 668, the prosecutor failed to provide timely discovery, defendant did not seek a continuance and defendant made no showing of how his defense would have been different if timely discovery had been provided. The Supreme Court held that the defendant failed to meet his burden of showing that a continuance would not have cured the harm and that the prosecutor’s discovery violation was prejudicial.
Various versions of CALJIC No. 2.28 have been criticized because the instruction allowed the jury to draw an adverse inference against the defendant based on a discovery violation by defense counsel and permitted an adverse inference regarding the defendant’s consciousness of guilt without informing the jury that the violation itself was not sufficient to prove guilt. (See People v. Riggs (2008) 44 Cal.4th 248, 306-307.) Much of this criticism was in the context of a discovery violation committed by the defense rather than by the prosecution. (See People v. Lawson (2005) 131 Cal.App.4th 1242; People v. Saucedo (2004) 121 Cal.App.4th 937; People v. Cabral (2004) 121 Cal.App.4th 748; People v. Bell (2004) 118 Cal.App.4th 249.)
Here, in contrast, the discovery violation was by the prosecutor, not defense counsel. The instruction as given favored the defendant. In addition, we note that here the test results were neutral; they neither implicated appellant nor ruled him out. We conclude that the court’s instruction adequately informed the jury that the opening statement by defense counsel and the testimony of his expert witness were based on incorrect information because of the prosecutor’s failure to disclose the test results in a timely manner. Under these circumstances, it is not reasonably probable that the violation affected the trial result. (People v. Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)

V
“A defendant cannot be punished multiple times for convictions that arise out of ‘an indivisible transaction’ and have a ‘single intent and objective.’ [Citation.] ‘A court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
Appellant argues the trial court erred in imposing consecutive sentences for burglary, making criminal threats, and attempted robbery in violation of section 654 because these offenses were committed in an indivisible course of conduct with a single objective—to steal from the residence. Therefore, he contends the sentences for making criminal threats and attempted robbery should have been stayed. Respondent argues there was no violation of section 654 because appellant entered the house with the dual intent to steal money and sexually assault Ms. Stewart.
Under section 654, appellant could not be punished for burglary in addition to the underlying felonies he intended to commit upon entering the house. In People v. Alvarado (2001) 87 Cal.App.4th 178 (Alvarado), the defendant broke into the home of his 81-year-old neighbor, assaulted her, demanded and took money, and raped her. The defendant contended that the burglary, robbery and rape were part of an indivisible course of conduct and that the burglary and robbery were committed with the single intent to steal. The trial court in Alvarado stayed the sentence for residential burglary under section 654. On appeal, the defendant argued that the trial court erred in imposing a life term for rape committed during a burglary and a consecutive six-year term for the robbery with a one-year enhancement because the victim was elderly. The Alvarado court observed that multiple punishments are permissible where the perpetrator acted with multiple independent criminal objectives which were not merely incidental to each other even if the violations were committed during what was an otherwise indivisible course of conduct. (Id. at p. 196.) It held that the rape and robbery each had its own unique objective and that neither was incidental to or a means to committing the other in that defendant robbed the victim for money and raped her for sexual gratification. Therefore separate punishments did not violate section 654 since the burglary sentence had been stayed. (Id. at pp. 197-198.)
Here the court imposed a sentence of 25 years to life on the burglary count, with a five-year consecutive enhancement for a serious felony prior (§ 667, subd. (a)) and consecutive 25-years-to-life sentences for assault with intent to commit sex crimes, criminal threats, and attempted robbery. The 25-years-to-life sentence for assault with a deadly weapon was stayed pursuant to section 654. The sentence violated section 654 because appellant was sentenced for burglary as well as attempted robbery and criminal threats. Execution of the sentences for attempted robbery and criminal threats must be stayed, the stay to become permanent on completion of the indeterminate sentence imposed for burglary pursuant to the Three Strikes law. (People v. Galvez (2011) 195 Cal.App.4th 1253, 1264.)

VI
Appellant argues that remand is required to allow the court an opportunity to exercise its discretion as to whether the 25-years-to-life terms for burglary, assault to commit a sexual offense, criminal threats, and attempted robbery should run consecutively or concurrently.
Counsel for appellant did not object when the trial court imposed consecutive sentences without explicitly stating its reasons for those choices. In People v. Scott (1994) 9 Cal.4th 331, 356, the Supreme Court held that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. Appellant has forfeited the issue.
In any event, the judge explained the sentencing choice. In imposing sentence on appellant, the court said: “Mr. Moore, if there ever was a definition, in fact, quintessential definition of a sexual predator, it’s you. And what makes these crimes more despicable, if they can be more despicable, these crimes were committed on elderly women. I just can’t imagine how disgusting, these poor women that suffered at your hands and, sir, you deserve every single solitary day and minute that I’m going to sentence you to.” The implication of this statement is that the court intended to maximize appellant’s sentence as allowed by law and thus constitutes the necessary statement of reasons as to why consecutive sentences were imposed.
Respondent argues that consecutive sentencing was mandatory under section 667, subdivision (c)(7). Subdivision (c) of section 667 states: “Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following . . . .” Subdivision (c)(7) provides: “If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” Paragraph (6) of section 667, subdivision (c) limits the current felony convictions which may be the basis for consecutive sentencing to felonies “not committed on the same occasion, and not arising from the same set of operative facts, . . .”^[7] While appellant’s current convictions for assault in violation of section 220, first degree burglary, and criminal threats all qualify as serious or violent felonies under 667.5 or 1192.7, subdivision (c), they occurred on the same occasion. We therefore conclude that consecutive sentences were not mandatory under section 667, subdivision (c)(7). The court’s statements at sentencing demonstrate that it exercised its discretion in ordering that the sentences be served consecutively. We find no error on this ground.

VII
Pursuant to Government Code section 68801 we invited counsel to brief whether the imposition of five-year enhancements is required for each of appellant’s new serious felony convictions pursuant to section 667, subdivision (a). That statute provides that each person convicted of a serious felony who previously has been convicted of a serious felony in California “shall receive . . . a five-year enhancement for each such prior conviction on charges brought and tried separately.” We directed the attention of counsel to People v. Williams (2004) 34 Cal.4th 397 (Williams).
Appellant took the position that the Supreme Court in Williams did not say that the five-year enhancement is mandatory and therefore we should respect the trial court’s choice not to impose it on every new serious felony conviction. Alternatively he argues that if we conclude the enhancement is mandatory, we should remand for resentencing to allow the trial court to reconsider appellant’s sentence in the aggregate. Respondent argues the section 667, subdivision (a) five-year enhancement is mandatory, citing language in Williams that under the Three Strikes law, “section 667(a) enhancements are to be applied individually to each count of a third strike sentence.” (Williams, supra, 34 Cal.4th at p. 405.) Respondent contends we may correct this sentencing error on appeal so that no remand is necessary.
The section 667, subdivision (a) five-year enhancement is mandatory. (People v. Garcia (1999) 20 Cal.4th 490, 495; People v. Jones (2009) 178 Cal.App.4th 853, 863-864.) As the Supreme Court put it in Williams, supra, 34 Cal.4th at p. 403, “a prior serious felony conviction requires a five-year enhancement term. (§ 667(a) [‘any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive . . . a five-year enhancement for each such prior conviction on charges brought and tried separately’].)” “The failure to impose a five-year section 667, subdivision (a) prior serious felony conviction enhancement is a jurisdictional error which may be corrected for the first time on appeal. [Citations.]” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.) The Supreme Court explained in People v. Scott (1994) 9 Cal.4th 331, 354, that unauthorized sentences commonly occur when the trial court violates mandatory sentencing provisions governing the length of confinement. (Ibid.) The Scott court reasoned that such unauthorized sentences may be corrected on appeal “because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing. [Citation.]” (Ibid.)
It appears that the multiple offenses committed by appellant in 1989 were charged and tried together rather than separately. It follows that the court should have imposed one five-enhancement under section 667, subdivision (a) on each new serious felony conviction. For purposes of section 667, subdivision (a), “serious felony” is as defined in section 1192.7. (§ 667, subd. (a)(4).) Each present conviction with the exception of simple assault qualifies as a serious felony as defined in section 1192.7.^[8] Since this error is not dependent on any factual issues, as in People v. Scott, supra, 9 Cal.4th at p. 354, remand is not necessary to correct the error. Imposition of the additional enhancements also is consistent with the trial court’s expressed intent that appellant serve the maximum sentence available for his crimes. The abstract of judgment must be amended to reflect an additional five-year enhancement under section 667, subdivision (a) for each of these offenses.
Since we affirm the judgment as modified we find no cumulative error.

DISPOSITION
The 25-years-to-life sentence imposed for the convictions of attempted robbery and making criminal threats is ordered stayed, the stay to become permanent on completion of the indeterminate sentence imposed for burglary. A five-year enhancement under section 667, subdivision (a) is imposed as to the convictions for first degree burglary, criminal threats, assault with intent to commit rape, sodomy or oral copulation, attempted robbery and assault with a deadly weapon. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




EPSTEIN, P. J.
We concur:




WILLHITE, J.




SUZUKAWA, J.


Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---