P. v. Mitchell

Filed 3/8/07 P. v. Mitchell CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Carl Dwayne Mitchell was convicted by a jury of three armed robberies (Pen. Code, 211),^[1]and the false imprisonment of two victims in each of the armed robberies. ( 236.) The jury found true a personal use of a firearm enhancement as to each of the nine charged counts. ( 12022.53, subd. (b), 12022.5, subd. (a).) The trial court found defendant had suffered eight prior robbery convictions bringing defendant within the provisions of sections 667, subdivisions (a) and (b)-(i), and 1170.12.

Defendant was sentenced to consecutive terms of 35 years to life for the three robbery convictions and to consecutive terms of 33 years to life for three of the six false imprisonment convictions. The court stayed imposition of sentence on the remaining three false imprisonment convictions pursuant to section 654. The trial court imposed additional 10-year terms on the robbery convictions pursuant to section 12022.53, subdivision (b), and additional consecutive 10-year terms on the three false imprisonment convictions pursuant to section 12022.5, subdivision (a). The court imposed additional consecutive 20-year terms for six prior serious felony convictions pursuant to section 667, subdivision (a). The total prison term imposed amounted to 384 years to life.

On appeal defendant claims (1) the jurys discovery during deliberations of an item not in evidence, specifically an ATM receipt in the coat where the revolver was found, prejudiced his constitutional rights, (2) the prosecutor committed misconduct in closing argument, (3) the trial court abused its discretion in denying defendants repeated Marsden^[2]motions, and (4) there was insufficient evidence to prove defendants eighth prior conviction. We reject all of defendants claims except the last. As to the last claim, we accept respondents concession of error and we shall remand the matter for resentencing.

FACTUAL BACKGROUND

A. Robbery of Goemans Lounge

On October 10, 2004, at about 11:00 p.m., bartender Jesus Valadez and a customer named David Mooney were the only two people in Goemans Lounge on Franklin Boulevard. An African-American man and woman entered the bar. The man ordered a beer and Valadez saw him reach into his back pocket. When Valadez next turned around, he saw the man pointing a silver handgun at him.

Mooney only glanced at the couple when they came in and then turned his attention back to the television. When Mooney heard the man say something about moving to the end of the bar, he glanced back and saw the man pointing a chrome-plated revolver at him. The man told Mooney not to look at him, to put his head down and move to the end of the bar. Mooney closed his eyes and moved as instructed. The man told Mooney to lie on the floor, handed Valadez a roll of duct tape and told Valadez to tie Mooney up.

When Mooneys hands and feet were taped together, the man took Valadez back to the safe. The man told Valadez if he did not open the safe, he would blow his brains out. Valadez felt the gun at his head. Valadez opened the safe and the man took the money that was inside. Then they returned to the front of the bar. The man ordered Valadez to open the cash register. Valadez did and the man took all the money. The man told Valadez to lie down on the floor and directed his female companion to tie Valadez up, which she did. The man told Valadez and Mooney not to move for five minutes or he would kill them. The couple left the bar.

After a couple of minutes, Valadez and Mooney freed themselves from the duct tape. Valadez called the police and then his boss.

The description Valadez gave of the male robber to the 911 operator and the responding officer differed slightly from his description of him at trial, both of which were different to defendants actual age, height and weight. Two months after the robbery, Valadez picked defendant out of the physical lineup conducted at the jail. It took him about a minute to choose defendant. Valadez said defendants face looked very familiar, but he could not be sure. At trial Valadez identified defendant as the male robber, testifying again he looked familiar, but he could not be absolutely sure.

Mooney did not attend the physical lineup. He was shown photographs of the men from the lineup in February 2005. Mooney testified he told the officer he thought it might be either photograph No. 3 or No. 4 (defendant). The officer testified Mooney actually eliminated photograph No. 3 and No. 4. At trial Mooney identified defendant in court as the male robber.

B. Robbery of Trinos Bar

On October 18, 2004, at about 1:00 a.m., bartender Tracy Biagi and customer Gary Slauson were the only two people in Trinos Bar located on Fulton Avenue. An African-American man and woman entered the bar. Biagi served each of them a beer and the couple visited the patio area in the back. When they came back, they laughed and talked with Biagi until closing time. Biagi told the couple they would have to finish their drinks and leave. Biagi started to close out the cash registers and asked Slauson, who had been playing darts, to let them out the door.

As the man stepped outside the door, he turned and stuck a chrome-colored gun into Slausons belly. The man grabbed Slausons arm, turned him around, and directed him back inside the bar. The man pointed the gun at Biagi, who had turned around to see Slauson and the man walking back. Biagi put her hands up and the man told Biagi to walk over to him. He told Biagi and Slauson to lie down. The man then directed his female companion to tape Slauson up. The woman taped Slausons hands and feet with silver duct tape.

The man told Biagi to get up. He wanted to go to the back where the safe and surveillance tape were located. Biagi accompanied the man to the back of the bar and gave the man the tape from the VCR, but told him her boss was the only person with access to the safe. Biagi opened the lockbox for which she had a key and gave the man $50 of rolled quarters from inside. When she eventually convinced him she could not get into the safe, they walked back to the registers behind the bar. Biagi opened the two registers. The man ordered her to lay down by Slauson with her arms behind her back. Biagi laid down. Her arms and legs were duct taped. She heard the man by the register, the sound of coin trays being moved, the tip bucket being moved and crunching money. The man told Biagi and Slauson not to move for five minutes or they would be sorry. Biagi heard the bar door open and close.

Biagi and Slauson freed themselves from the duct tape. Biagi called the police and then her boss. Later, Biagi realized that an ID was missing from the cash register. At trial she identified a drivers license for Janis LaBella, found in defendants car, as the missing ID. LaBella, a customer of Trinos Bar, also identified the ID as her license.

On December 8, 2004, Biagi picked defendant out of the physical lineup conducted at the jail. She identified defendant before the curtains in the viewing room were even fully opened. Biagi also identified defendant at trial as the man who robbed the bar. She said defendant had the same lump on his head as the male robber. She also recognized his eyes and nose. There was no doubt in her mind. Biagi denied seeing news coverage photos of defendant after he was arrested in connection with a subsequent robbery.

Slauson also identified defendant at the physical lineup conducted on December 8. Slauson recognized defendant as soon as he saw him. He was sure about his identification. At trial Slauson identified defendant as the male robber. There was no doubt in his mind.

C. Robbery of Oaks Lounge

On October 20, 2004, at about 11:15 a.m., bartender Debbie ODell was inside the Oaks Lounge on Auburn Boulevard getting ready to open. The only other person in the bar was the owner Roy Tillis. Around 11:20 a.m., an African-American man and woman entered the bar. According to ODell, the man was wearing a dark navy blue jacket and light colored jeans. He had a cap on. The woman was wearing a jacket and what looked like a wig of long wavy hair. They asked ODell if there was a place they could eat chicken and ODell provided a phonebook. The woman used the restroom and then the man went down the hall to use the restroom.

Tillis was in his office preparing the daily tills. The safe was open and there was about $5,800 in cash in the tills, the safe, and laying out in the office. Tillis staples his $10 bills into packs of $100. Tillis looked up to see a man come into the office holding a dark, bluing colored revolver. The man told Tillis it was a holdup. He made Tillis get up from the desk and hold a bag while the man put all the money from the safe into the bag. The man grabbed the plastic tray inside the safe and unsuccessfully tried to pull it out. When he had all the money, he ordered Tillis into the bar area.

ODell saw Tillis come out of his office with the man behind him. The man was holding a silver revolver and a bag. The man pointed the gun at ODells face and told her and Tillis to get down on the floor. The man asked his female companion to tie them up with duct tape. The man then directed ODell to get up. He first took her back to the office and then made her go into the restroom. He told her not to come out or he would kill her.

Tillis saw the couple leave the bar. He immediately broke free of his duct tape and went to the restroom to check on ODell. Tillis told her to call the sheriffs. He then ran to the front door, got in his truck and drove around the corner of the bar, where he saw the couple starting to get into their Ford Explorer. Tillis saw the man open the drivers door and get into the car with the money bag in his hand. There were no other cars in the area. Tillis chased the Explorer as it drove through residential streets and onto westbound Interstate 80. When Tilliss truck appeared to be running out of gas, Tillis accelerated and tapped the Explorer to make it stop. Both cars spun out. Tillis ended up on the inside center rail and the Explorer ended up on the right side of the freeway.

As Tillis tried to cross the freeway, Tillis observed the man and the woman get out of the Explorer. The man grabbed the money bag, spilling some of the money onto the drivers seat and ground. Once Tillis got to the Explorer, he picked up the money and threw it back inside the car. The man was going up the embankment from the freeway and the woman was trying to follow him. She did not have on her wig. It was left in the Explorer. The mans coat was gone. He was wearing a white shirt. Tillis saw the man swing the money bag over a fence at the top of the embankment, jump over the fence and then disappear.

Shannon Fannin was traveling on eastbound I-80 at the time. He noticed smoke coming off the other side of the freeway and stopped to help. He saw the driver of a Blazer-type vehicle get out of the car and take off running up the hill. Fannin described the man as Black, in his late 20s to early 30s, wearing a blue sweater or sweatshirt with a stripe in it and blue jeans. There was a grayish bag in the mans hand. A second person came out of the car. Fannin thought it was a woman. She was wearing a big black fluffy down jacket and carrying an oversized purse. When the man got to the top of the hill, he grabbed the fence, looked back at the car and then climbed to the other side. Fannin called 911 as he watched the man go up the hill. Fannin never had a full view of the mans face, but identified defendant at trial as the man he saw going up the hill. Fannin was fairly certain from the side profile of defendants face.

Robert Black was sweeping the driveway of his home on Harris Avenue facing the I-80 freeway on October 20, 2004, at about 11:30 a.m. He heard a crash on the freeway and went to see what was going on. He saw a Black man dressed in a blue jogger suit coming over the hill. A Black woman was following him up the hill. She was dressed all in black. She had a long fluffy coat and was carrying a big black purse. The man had a brown paper bag in his hands. Money was falling out of the bag. Black asked the man if he needed help, but did not get a response. A person at the bottom of the hill told Black the man had just robbed him. Black got in his truck to follow the man and woman who were moving toward North Avenue. When the couple split up, Black followed the man until he met a parking officer who told him the police had been notified.

Sacramento Police Officer Joseph Alioto detained defendant in the area of North Avenue and Clark. Defendant was wearing blue jeans and a green jacket zipped up. Under the jacket defendant had on a white T-shirt. The green jacket had a dark blue interior. Defendant was found to have money, including stapled $10 bills, in his shoes.

Tillis and Black were separately taken to view defendant in a field show-up. Tillis was 80 percent positive defendant was the male robber when he saw him 30 to 60 feet away. When officers brought defendant up close to Tillis, Tillis saw defendants face and said, Yes, thats him. Black also identified defendant at the show-up as the man he had seen climb over the fence, but said defendant had changed clothes. Both Tillis and Black were shown other possible suspects, but said they were not the man. In December 2004, at the physical lineup, it took Tillis only a second to identify defendant. ODell also quickly identified defendant at the physical lineup. Both Tillis and ODell were certain of their identification. At trial, ODell, Tillis, Fannin and Black all positively identified defendant as the robber.

ODell, Tillis, Fannin and Black did have difficulty specifically identifying the various items of clothing collected by the police from defendant, his Ford Explorer, and the area above the freeway.

Inside the Explorer, officers found $1,764 in cash, including $10 bills stapled together, a black coat with a handgun in the pocket, a wig, LaBellas ID (located between the drivers seat and the center console), checks made out to the Oaks Lounge, a vehicle registration and a vehicle insurance document for the Explorer made out in the names of defendant and his wife, and other paperwork connecting the car to defendant.

Two latent fingerprints found on the plastic money tray from the Oaks Lounge safe matched defendants known fingerprints.

D. The Defense

Defendant testified on his own behalf. He claimed at the time of the Oaks Lounge robbery he was flagged down in the Auburn Boulevard area by three individuals who he thought were women. They were standing by a car with its hood up. They asked and offered to pay for a ride to South Sacramento. Although defendant was headed home to West Sacramento, he agreed to give them a ride. Two of them got into his Explorer and the person in the back directed him onto the highway. Suddenly defendant found himself being chased by a gold pickup truck. The person in defendants backseat told defendant to just get us out of here fast. Defendant looked back and saw the person in his backseat had removed a wig, revealing he was a man, and he was putting money into his pocket. The man promised to kick [defendant] in if defendant got them out of there. The man had a gun. On the freeway, the gold truck bumped the Explorer and spun them out. As they were coming to a stop, the man in the back seat handed defendant a couple of bundles of money, jumped out and headed up the hill. Not wanting to be left holding the bag, defendant decided to get out and run up the hill too. He took a different path from the other man. Defendant did not see Black at the top of the hill. When stopped by the police, defendant admitted he gave them untrue explanations of what he was doing in the area. He put the money he was given in his shoe.

Defendant denied robbing the Oaks Lounge. He claimed he had never been inside the bar in his life. Defendant denied the prints on the inside of the safe were his. Defendant denied robbing either Goemans Lounge or Trinos Bar.

DISCUSSION

I.

The Jurys Discovery Of The ATM Receipt

Background

At the end of the jurys first day of deliberations, a juror brought to the attention of the court attendant the fact that an ATM sales receipt had been found by the jury in the pocket of the coat in which the revolver had been found, which coat was an exhibit in evidence. The juror pointed out the date of the receipt, noting it was the night before the Oaks Lounge robbery. The receipt was not in evidence. Apparently no one knew the receipt was in the pocket of the coat. The receipt turned out to be for a beverage bought at a Kwik Stop Market by Barbara Mitchell (defendants wife) on October 19, 2004, at 8:51 p.m. The court attendant told the juror who pointed it out that it was probably insignificant, but she would inform the court.

The next morning the trial court expressed to counsel its intention to admonish the jury it was not to consider this item. It was not admitted into evidence and was not admitted before them. It was inadvertently discovered and they were to disregard it. Since the jury had at this point reached verdicts on the Oaks Lounge and Trinos Bar robberies, the trial court said it would inquire of the jury as to whether or not the verdicts were reached before or after they discovered the receipt. If the verdicts were reached after the discovery, the trial court stated it was its current intention to give back the completed verdict forms and direct the jury to renew their deliberations on those counts and reconsider the evidence in light of the admonishment not to consider the receipt. Defendant moved for a mistrial, which the trial court denied in light of how it intended to proceed with the jury.

When the jury was brought in, the trial court confirmed the jury had reached verdicts on the six counts relating to the Oaks Lounge and Trinos Bar robberies. The following exchange then occurred:

THE COURT: Its also been brought to my attention that inside what Ill refer to as the dark navy pea coat, there -- somebody found a sales receipt from a Kwik Stop Market.

JURY FOREPERSON: That is correct.

THE COURT: And Im going to instruct you that that receipt is not an item of evidence.

And (Redacted, Juror No. 2313728), Im going to ask whether or not the sales receipt is something that the jury considered in their deliberations in reaching a verdict?

JURY FOREPERSON: No, it is not.

THE COURT: Had any verdict been reached prior to the time that you discovered [the] item in the coat pocket?

JURY FOREPERSON: No, it had not.

THE COURT: All right. And was any of the information thats on the receipt considered by the jury in deliberating on any of the counts?

JURY FOREPERSON: No, it was not.

THE COURT: Was this item circulated among the members of the jury during deliberations?

JURY FOREPERSON: Circulated?

THE COURT: For everybody to look at.

JURY FOREPERSON: It wasnt something that we all shared the information, no. We were all aware that that existed, but we hadnt all passed it around and said look at this.

THE COURT: Were the contents discussed among the jurors in the deliberations?

JURY FOREPERSON: No.

THE COURT: All right. Then Im satisfied that it has not entered into your deliberations in any way. I would only repeat the admonition that as part of the instructions that youve already been given that youre only to base your verdict on the items that are in evidence.

This item was not in evidence. It was inadvertently included in the item that you did receive, which was the coat, and you are admonished and instructed that you are not to draw any inference from the presence of this item in the coat and youre not to consider it in any way.

And Im satisfied from what (Redacted, Juror No. 2313728) has told me that it has not entered into your deliberations.

I think I would pose the same question generally to the other members of the jury panel, has this sales receipt or anything contained within the sales receipt entered into anyones consideration of the facts in that case?

THE JURORS: No.

THE COURT: Thats a negative response from everyone.

All right. Then Im satisfied that it has not entered into your deliberations. Im going to ask then that you return to the deliberations room and that you continue your deliberations at this time. Thank you.

After the jury left the courtroom, the trial court stated again it was satisfied based on this exchange the jury had not considered the receipt or its contents in their deliberations. That was the reason the court did not instruct them to begin their deliberations anew. The trial court denied defendants renewed motion for mistrial.

According to defense counsel, the only ambiguity is the nature of how it was -- how everybody came to the knowledge of it is not clear. I know it was just stated that it was not per se passed around, but somehow it did come to the knowledge of everybody. That wasnt clear for the record. The trial court indicated it could clarify that with the jurors when they returned the next time, but the court was satisfied they did not consider it in their deliberations and that they had heeded the instructions previously given to base their verdict only on the matters that were in evidence.^[3] With their assurances and the further admonition, the trial court was satisfied the receipt had not had any impact on the jury. The court was mindful it is difficult to unring the bell and if it had felt the receipt entered into the jurys deliberations in any way, notwithstanding what they told the court, it would have instructed them to begin anew. However, the trial court did not believe that to be the case.

When the court was advised the jury had reached a verdict, the trial court asked if there was any matter counsel wanted to bring up before the jury was brought in. Both counsel said, no. The jury came in and the court proceeded to take the verdicts. The court did not clarify how the jurors became aware of the receipt. There was no objection from defendant.

Analysis

Defendant claims reversal is required in the first place because the trial court failed to carry out its stated intentions 1) to order the jury to re-deliberate on the Oaks and Trinos Lounge counts if the jury had discovered the receipt before reaching their verdicts on those counts, and 2) to make further inquiry regarding how all of the jurors learned of the receipt. Defendant then contends that, because he had no opportunity to engage in any confrontation or cross-examination regarding the sales receipt, the jurys discovery of it should be treated as federal constitutional error. Alternatively, it should be treated as jury misconduct giving rise to a presumption of prejudice. Under any standard of error, defendant claims the error was prejudicial. We reject these contentions.

First, the trial court reasonably explained why it did not instruct the jury to re-deliberate on the six verdicts it had already reached when the issue of the receipt came up. The trial court stated multiple times it was convinced, based on its inquiry, that the receipt and its contents had not been considered by the jury in reaching its verdicts. In such circumstance, there was no point in ordering them to re-deliberate. While defendant renewed his motion for a mistrial, without stating any specific grounds but apparently on the previously stated basis that the jurys discovery of the receipt prejudiced his rights, defendant did not specifically object to the courts failure to order deliberations to begin anew. Defendant appeared to accept the courts explanation of its reconsideration of its original intention to order new deliberations, stating after the courts explanation: the only ambiguity is the nature of how . . . everybody came to the knowledge of it is not clear. Defendant has forfeited his claim of procedural error. (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)

Similarly, defendant did not remind the court of its intention to question the jury further about how it learned of the receipt nor did defendant object to the courts failure to make such inquiry when the jury was next convened in court. Defendant has forfeited his right to complain the trial courts inquiry was inadequate. (People v. Saunders, supra, 5 Cal.4th at p. 590, fn. 6.)

Even if, however, we were to find defendant had not forfeited these claims and the courts inquiry and actions were not sufficient to ensure the jury did not consider the sales receipt, we would not find prejudicial error.

Defendant does not argue the receipt found by the jury would have been inadmissible evidence if it had been discovered earlier. It was simply inexplicably missed by law enforcement, the prosecution and the defense. Therefore, the receipt was not outside evidence the jury should never consider. (See, e.g., People v. Nesler (1997) 16 Cal.4th 561, 579.) The evidence was a document the jury was not entitled to consider because it had not been introduced into evidence at trial. The receipt had been inadvertently given to the jury by the court with the coat exhibit, which counsel stipulated into evidence and was properly admitted as evidence.

In this situation, we follow the California Supreme Courts statement of the applicable standard of prejudice. (People v. Rose (1996) 46 Cal.App.4th 257, 264.) When, as in this case, a jury innocently considers evidence it was inadvertently given, there is no [jury] misconduct. [Citation.] Rather, all that appears is ordinary error. . . . []  [W]ith ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted. [Citation.] (People v. Clair (1992) 2 Cal.4th 629, 668; accord, People v. Jackson (1996) 13 Cal.4th 1164, 1213-1214; People v. Cooper (1991) 53 Cal.3d 771, 835-836; People v. Jordan (2003) 108 Cal.App.4th 349, 363-364; People v. Rose, supra, at p. 264.)

Contrary to defendants claim, the identification evidence relating to the Oaks Lounge robbery was very strong. Admittedly there was some confusion among the witnesses regarding what defendant was seen wearing and some inaccuracies in their description of the robbers, but Tillis and ODell were unequivocal in their identification of defendant as the male robber at the physical lineup and at trial. Tillis made a positive identification of defendant at the field show-up, rejecting another suspect he was shown. Black also identified defendant at the field show-up. He identified defendant after being driven past another suspect who he said was not the man he saw climb over the fence. ODell, Tillis, Fannin and Black all identified defendant at trial. Tillis testified he watched defendant get into the drivers door of the Ford Explorer as it left from the Oaks Lounge. Inferentially, it was defendant he saw get out of the drivers door after the accident, with the money bag, and run up the hill. No witness saw three people get out of the car and run up the hill. Defendant was found with stapled $10 bills in his shoes. Money, checks made out to the Oaks Lounge, and the coat with the gun were found in the Explorer. Defendant testified he had never been inside the Oaks Lounge in his life, yet his fingerprints were found on the money tray located inside the safe at the Oaks Lounge. In the face of this evidence, defendants story was a patently inadequate and implausible explanation. Moreover, defendants credibility was seriously undermined. Defendant admitted he made up stories (lies) to explain his presence in the area above the freeway. Defendant was impeached with several of his prior convictions.

The evidence was nearly as strong with respect to the robbery of Trinos Bar. Biagis identification of defendant at the physical lineup was swift and certain. She had no doubt in her mind when she identified defendant at trial based on the lump on defendants head, his eyes and his nose. Slauson also immediately identified defendant at the physical lineup and was definite about his in-court trial identification of defendant. LaBellas drivers license, taken from the cash register in the robbery of Trinos Bar, was found in between the drivers seat and the center console of the Explorer when it was searched after defendants arrest. Defendants hitchhiker explanation was far-fetched.

The identification evidence relating to the robbery of Goemans Lounge was weaker than the other two cases. However, the jury had not yet reached verdicts relating to Goemans Lounge when the sales receipt was discovered. The jury was specifically admonished not to consider the sales receipt in its further deliberations. The sales receipt did not directly relate to the robbery at Goemans Lounge, but only to defendants version of the events following the Oaks Lounge robbery. The similarities between the robberies, particularly the robbery of Trinos Bar and the robbery of Goemans Lounge, strongly supported the identification of defendant as the robber made by Valadez and Mooney.

We are convinced there is no reasonable probability that an outcome more favorable to the defendant would have resulted if the sales receipt had not inadvertently been given to the jury. (People v. Clair, supra, 2 Cal.4th at p. 668.)

Defendant also contends the jurys discovery of the sales receipt deprived him of his federal constitutional rights to an impartial jury, confrontation, cross-examination and the assistance of counsel. Assuming without deciding these claims were preserved for appeal, we reject any claim of error regarding defendants federal constitutional right to an impartial jury. (See People v. Clair, supra, 2 Cal.4th at pp. 661, fn. 6, 669, fn. 10; People v. Jackson, supra, 13 Cal.4th at p. 1214, fn. 5.) To the extent there was any error regarding defendants federal constitutional rights to confrontation, cross-examination and assistance of counsel, we conclude it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711].)

II.

Prosecutorial Misconduct

Background

Penny Hummell, an identification technician for the Sacramento Sheriffs Department, testified to her comparison of defendants known fingerprints with the latent prints found on various items recovered from Goemans Lounge, Trinos Bar, and Oaks Lounge after the robberies. Defendants prints did not match any of the latent prints found at Goemans Lounge or Trinos Bar, but Hummell testified defendants prints matched in excess of eight points of comparison to the prints on the money tray of the safe at the Oaks Lounge. She was absolutely certain about the match. On cross-examination, however, Hummell could not say exactly how many points of comparison there were between the prints without reviewing the prints before testifying. No one had asked her to review the prints before testifying. Her report only reflected a positive or negative finding. She could not answer a number of specific questions about whether there was double impressions, debris and smudges on the latents without reexamining the prints at her office. She repeatedly stated she would have to examine the prints again to answer questions by counsel.

In his closing argument, defense counsel argued Hummells testimony was the most abysmal display of forensic evidence. He argued Hummell could have used the magnifying glass she had with her on the stand to examine the prints or used her lunch hour to examine the prints so as to be prepared to answer questions. Defense counsel argued it was a disgrace the way the sheriffs department claimed a match in this case. He went on to add, Maybe its important for Miss Hummell and other people in the latent bureau over at the sheriffs department to do their job and look at things and make their call, maybe thats important. And maybe nothing else is important to them . . . . But the jury was entitled to demand, that somebody get off their butt and show you. It was horrible and this was a court of law. Defendant urged the jury not to give Hummels testimony any credibility.

The prosecutor began her rebuttal argument with the following comments: According to the defense, every witness testified [sic] for the prosecution is mistaken. His client just has a bad streak of bad luck it seems. []  Defense even came down on Penny Hummell from the Sacramento Sheriffs Department on the fingerprints. This is nothing new, this is what we expect of a defense attorney in a criminal case. Defense counsels objection based on mischaracterization was overruled.

The prosecution continued: In fact, if we were to take a class called fingerprint defense 101, first lesson you would learn is that if the DA doesnt have your prints on evidence, claim this proves your clients innocence. Obviously if you were there and touched the stuff, they would have found the prints. Defense counsel interrupted, stating he understood the point the prosecutor was trying to make, but I dont think its fair to attribute my state of mind or my approach to this in this manner. The court responded: Well, it is argument. The jury has been previously instructed that argument is not evidence. []  But I would caution [the prosecutor] to concentrate on what evidence thats shown rather than what tactics may have been used.

The prosecution returned to her argument, stating: And if the DA does have your prints, the defense attorney should go to deny everything or claim error or bias, which has been done in this defenses closing argument. []  Now, did Miss Hummell seem fingerprint happy in this case at all? She compared multiple items of evidence. Should she have looked to see how many points of comparison there were on the latent before she came to Court? Absolutely. Unprofessional all the way. But to discredit her testimony and make it sound like she was willing to come in here, risk her reputation, risk her career and say that she found a matching latent fingerprint to this defendant, someone she doesnt know, is just a bogus argument. It does not work here. []  The defense attorney in this case . . . is very capable, very competent, very respectable person. His job here is to focus on the details that came out during the trial. []  Its not to bring your attention to all the evidence that points to his clients guilt, the overwhelming evidence that points to his clients guilt. Its to make you focus and confuse you and to focus on snippets of evidence in this case. Defense counsel objected again to the characterization of his intent. The court suggested the prosecutor focus on what the evidence had shown.

Analysis

Defendant claims on appeal the prosecutors argument amounted to misconduct because it was an improper attack on the integrity of defense counsel and an improper accusation that, consistent with the behavior of all criminal defense attorneys, defense counsel was acting in bad faith, unethically, or dishonestly in his treatment of this prosecution witness. Defendant also contends the argument that Hummell would not be willing to come in here, risk her reputation, risk her career, constituted impermissible vouching.

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The prosecutors good or bad faith is not at issue because the standard by which his or her conduct is evaluated is objective. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Alvarez (1996) 14 Cal.4th 155, 213.) As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] (People v. Samayoa, supra, at p. 841.) [O]therwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (People v. Price (1991) 1 Cal.4th 324, 447.)

Respondent argues defendant has forfeited his claims because he failed to specifically object based on prosecutorial misconduct and request an admonition. With respect to defendants claim the argument improperly denigrated his counsel we conclude defendants objection to the mischaracterization of defense counsels intent was sufficient to preserve the issue for appeal. We reject the claim on its merits.

A prosecutor commits misconduct by accusing defense counsel of fabricating a defense, suggesting defense counsel is free to deceive a jury, or otherwise attacking the integrity of defense counsel. (People v. Bemore (2000) 22 Cal.4th 809, 846; People v. Hill, supra, 17 Cal.4th 800, 832.) However, a prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. (People v. Bemore, supra, at p. 846; see People v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where prosecutor said counsel can twist [and] poke [and] . . . try to get you to buy something].) An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper. [Citation.] (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) The prosecution may vigorously attack the defense case and argument if that attack is based on the evidence. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)

The prosecutors argument here was principally a response to the defense attack on Hummells testimony. It generally fell within the wide latitude allowed a prosecutor to point out the deficiencies in the tactics and argument of the defense. The prosecutors argument that the defense was trying to get the jury to focus on details instead of the overwhelming evidence of defendants guilt was not inappropriate argument. To the extent that some of the prosecutors comments went outside the evidence to possibly question the integrity of defense counsel, the trial court cautioned the prosecutor to concentrate and focus on the evidence, not defense tactics, and essentially admonished the jury it had been previously instructed that argument is not evidence. (CALJIC No. 1.02.) The jury was also instructed to decide all questions of fact from the evidence received in the trial. (CALJIC No. 1.03.) We presume the jury heeded the courts admonition and followed its instructions. (People v. Dickey (2005) 35 Cal.4th 884, 914; People v. Burgener (2003) 29 Cal.4th 833, 873; People v. Carter (2003) 30 Cal.4th 1166, 1219-1220.) Thus, the admonition and instruction cured any harm and defendant was accorded the fair trial to which he was entitled.^[4]

With respect to defendants claim the prosecutors argument disputing that Hummell would be willing to come in here, risk her reputation, risk her career, constituted impermissible vouching, defendant failed to object to the comment and request an admonition. Defendants other objections to the mischaracterization of his counsels intent did not fairly encompass this comment by the prosecutor. Defendant has failed to preserve the issue for review. (People v. Samayoa, supra, 15 Cal.4th at p. 841; People v. Price, supra, 1 Cal.4th at p. 447.)

In any event, we see no misconduct. There is no improper vouching for a witness unless the prosecutor suggests personal knowledge of matters outside the record. (People v. Frye (1998) 18 Cal.4th 894, 971.) The prosecutors remarks here did not suggest any such thing.^[5]The comment criticized the defense argument and was simply a response to the suggestion the only thing important to Hummell and the sheriffs department was to make their call on latent prints, not to adequately support their conclusion for the jury.

III.

Denial Of Defendants Marsden Motions

A. Background

Prior to the start of defendants preliminary hearing, defendant made a motion for substitution of counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118 (Marsden). The trial court held an in camera hearing at which defendant complained about his counsels failure to file certain motions and to obtain particular discovery. Defense counsel responded with his reasons for wanting to delay filing the motions and explained he was undertaking discovery, investigation and research for defendants case. Defense counsel represented he had discussed all legal issues with defendant at length and acted on all of them. The trial court found defense counsels actions were not only competent, but showed pretty good tactical sense. Defendants motion was denied.

On the first day of trial, defendant made a second Marsden motion. At the in camera hearing, he claimed there was no client relationship at all between himself and defense counsel. According to defendant, defense counsel rejected all of his input, believed defendant to be guilty, and was making only a passive effort to represent defendant. Defense counsel failed to file certain motions defendant thought important, failed to investigate and subpoena witnesses, failed to make objections at the preliminary hearing, improperly waived time, and was improperly investigating defendants daughter. Defendant and counsel had argued at every interview. Defendant stated one such argument became so intense it resulted in racial and improper name calling by both defendant and counsel. Defendant said he could not be comfortable with being represented by an attorney when they were calling each other names. He felt it would be a miscarriage of justice to allow counsel to continue to represent him.

Defense counsel expressed the opinion that there was a client relationship between defendant and himself, although defendant took offense whenever counsel questioned or analyzed defendants theories. Counsel listened to defendant and took notes. Defense counsel said defendant became angry at one meeting and called counsel a honkey, but denied he ever referred to defendant in a racial way. As counsel left that meeting, defendant was standing up yelling at him, but counsel said only, Have a nice day. Counsel explained his reasons for the timing of the filing of defense motions and his decision to forego filing other motions. Counsel claimed he had given defendant every scrap of discovery and research and had never expressed the belief defendant was guilty. He had followed up on all lines of investigation suggested by defendant. Counsel explained his reason for failing to make objections at the preliminary hearing. Defense counsel contended there was good cause for seeking the continuance. Defense counsel explained his actions with respect to defendants daughter.

Defendant responded that he believed a police officers report was a lie, that defense counsel had refused to pursue that line of inquiry, had refused to request certain discovery and had refused to file a motion to dismiss. As to the incident of name calling, defendant claimed he asked counsel if the reason his last client had killed himself was because counsel was not listening. Counsel became angry and called defendant an asshole bastard for saying that.

Defense counsel claimed there was no basis for the motion defendant wanted and that he had not refused to request discovery. Counsel admitted he had told defendant he was an asshole for saying it was no wonder counsels last client had killed himself, but claimed it was early in their conversation and they continued their conversation after that. Counsel claimed he did not have any problem communicating with defendant if he addressed the points of the case and did not make personal remarks. He did not leave defendant until it was clear defendant did not want to continue to communicate.

The trial court denied defendants second Marsden motion, finding defense counsel had done a thorough investigation and provided excellent representation. The court found counsel and defendant had been communicating. There was no problem with defendant being able to effectively relate his concerns and counsel had not ignored them. While counsel did not always agree with defendant, he had always investigated. The trial court found continued representation of defendant by defense counsel would not interfere with defendants defense. Defendant disagreed with the courts ruling, arguing that after their huge argument, counsel would not represent defendant to the best of his ability. He could not be unbiased. Defendant had taken all the initiative and counsel had only provided passive representation. The trial court stated it accepted defendants representation of what happened and understood the level of heat that was in their argument, but still concluded they were communicating and there was not enough to say defendant was not getting adequate representation.

Defendant made a third Marsden motion after he finished testifying at trial and defense counsel indicated he was not going to call any more witnesses. Defendant complained defense counsel had not asked a number of questions of Biagi and Tillis, should have objected to a photograph showing defendant in handcuffs, and should have subpoenaed witnesses who gave different descriptions of the robber running from the accident. Counsel said he asked many of the questions requested by defendant during trial and explained why he had not asked others. Defense counsel said he used the photo showing defendant after he was arrested as evidence supporting defendants description of what he was wearing. Defense counsel explained he did not call the witnesses defendant wanted because, based on interviews with them, he felt they would have added nothing helpful and would have risked emphasizing that only two people were seen running from the car. The court found defense counsels tactical decisions were reasonably justified and denied defendants third motion.

Defendant made a fourth Marsden motion after the jurys return of the verdicts. Defendant contended the prosecutor and defense counsel had committed a crime in concealing modified and planted fingerprint evidence. Defendant complained defense counsel had failed to question Mooney regarding one matter and again stated counsel had only passively represented him throughout trial. Defense counsel acknowledged he had neglected to bring up the one matter with Mooney, but indicated defendant was wrong in his understanding of what had occurred with the fingerprint evidence. Defense counsel had actually refrained from bringing out evidence of an additional match between defendants fingerprints and one of the latent prints found on the money tray in the safe at the Oaks Lounge. The trial court found defense counsels representation was better than adequate, that the evidence did not establish any collusion between defense counsel and the prosecutor, and that for purposes of the remainder of the trial on defendants prior convictions, defendant and defense counsel had not become embroiled in such an irreconcilable conflict that it would result in ineffective representation. Defendants motion was denied.

On the day set for sentencing, defendant stated he wanted to make a record on his Marsden issues. He then submitted to the court a written motion outlining his complaints. Defendant claimed there was new evidence showing errors with respect to the latent prints found on the money tray, that defense counsel withheld the evidence because of the argument with defendant, that the ATM receipt found in the coat was planted evidence, that it was jury misconduct for the jurors to search the pockets of the coat, that defense counsel did not interview witnesses until after the trial began and failed to interview and subpoena other witnesses, that counsel should have brought a motion to dismiss based on denial of defendants speedy trial rights, that defense counsel knew the additional time obtained allowed the prosecution to strengthen its case, that defense counsel prejudiced the jury by showing the photograph of defendant in handcuffs, that counsel denied him the right to participate in his defense, that defense counsel failed to use a newspaper clipping containing a story about a victims misidentification in another case, and that defendants work records should have been introduced as an exhibit. Defendant concluded defense counsels overall representation was a farce and a sham.

The trial court stated each of these issues had been raised and dealt with earlier. The court declined to change its previous rulings. The court said: I think the record adequately reflects the issues that were raised and what my rulings were and they stand.

B. Analysis

Defendant claims it is clear from the record there was an irreconcilable conflict between defendant and his appointed counsel such that the trial court abused its discretion in failing to substitute counsel in response to defendants Marsden motions. We disagree.

We review this claim under a settled standard. [S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. (People v. Smith (1993) 6 Cal.4th 684, 696; see People v. Crandell (1988) 46 Cal.3d 833, 854.) We review a trial courts decision denying substitution of appointed counsel under the deferential abuse of discretion standard. (People v. Cole (2004) 33 Cal.4th 1158, 1190; People v. Earp (1999) 20 Cal.4th 826, 876.) Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. [Citations.] (People v. Hart (1999) 20 Cal.4th 546, 603.)

A conflict over tactical decisions or trial strategy does not constitute the type of irreconcilable conflict that indicates that counsels representation has become inadequate. (People v. Roldan (2005) 35 Cal.4th 646, 682; People v. Welch (1999) 20 Cal.4th 701, 728-729.) When counsel represents a defendant, counsel is the captain of the ship and can make all but the most fundamental decisions for his client. (People v. Welch, supra, at p. 729.)

A defendants lack of trust in or inability to get along with appointed counsel is not enough to establish an irreconcilable conflict. (People v. Jones (2003) 29 Cal.4th 1229, 1245-1246; People v. Berryman (1993) 6 Cal.4th 1048, 1070 overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The Sixth Amendment does not guarantee a meaningful relationship between defendant and his counsel. (Morris v. Slappy (1983) 461 U.S. 1, 13-14, fn. 6 [75 L.Ed.2d 610, 621].) A defendant cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney. [I]f a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law. [Citations.] (People v. Michaels (2002) 28 Cal.4th 486, 523; accord People v. Roldan, supra, 35 Cal.4th at p. 682.) Substitution of counsel is not required where it is defendants intransigence or failure to cooperate that causes the breakdown in the attorney-client relationship. (People v. Lindsey (1978) 84 Cal.App.3d 851, 860.) [A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Smith, supra, 6 Cal.4th 684, 696.)

In this case it appears the conflict between defendant and defense counsel arose primarily because defendant wanted his counsel to do everything defendant suggested and wanted. Defendant became very angry and argumentative over the tactical decisions his counsel made. When counsel continued to use his own judgment in conducting the defense, defendants anger seems to have grown into a general mistrust of and lack of confidence in defense counsel. However, counsel was entitled to make such decisions and the record reflects a reasonable basis for counsels actions. The trial court was entitled to accept counsels representation that he still discussed all legal issues with defendant at length and acted on all of them, that he listened to defendant and took notes, that he followed up on all lines of investigation suggested by defendant, and that he continued to communicate with defendant even after their arguments and name-calling. (People v. Jones, supra, 29 Cal.4th 1229, 1245 [to the extent there is a credibility question, the court may accept counsels explanation].) Thus, there was not a breakdown of communication between defendant and defense counsel. (Cf. Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1024-1025; United States v. Moore (9th Cir. 1998) 159 F.3d 1154, 1158; Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, 1169.) Any lack of confidence in counsel felt by defendant did not have a legitimate basis (cf. Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181, 1198-1199), but was based on defendants intransigence in wanting counsel to accede to all of his wishes and demands. This does not require substitution of counsel. (People v. Michaels, supra, 28 Cal.4th at p. 523; People v. Lindsey, supra, 84 Cal.App.3d at p. 860.)

The trial court did not abuse its discretion in denying defendants Marsden motions.^[6]

IV.

Sufficiency Of The Evidence To Prove Defendants Eighth Prior Conviction

The amended information alleged eight prior serious felony convictions bringing defendant within the provisions of sections 667, subdivisions (a) and (b)-(i), and 1170.12. As the seventh prior conviction, the information alleged defendant was convicted on July 11, 1990, in Alameda County Superior Court case No. 102234, of robbery with personal use of a firearm. As the eighth prior conviction, the information alleged defendant was convicted on September 22, 1998, in Alameda County Superior Court case No. 102234, of robbery with personal use of a firearm. The trial court found all eight prior convictions true and found that each conviction came within the provisions of sections 667, subdivisions (a) and (b)-(i), and 1170.12. In sentencing defendant, the trial court used the eighth prior conviction as a section 667, subdivision (a), prior conviction and a strike, and as part of its calculation of the minimum indeterminate life term.

Defendant contends the documentation submitted as proof of the eighth prior conviction shows the seventh and eighth alleged prior convictions were really only one conviction in Alameda County Superior Court case No. 102234. The alleged eighth conviction was actually only a September 23, 1998 memorialization of a sentence reduction regarding the seventh prior conviction following an appeal, not a further separate prior co