Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH44347
Lambden, J.
A jury found defendant guilty of first degree residential burglary in violation of Penal Code section 459. The jury also found true six prior felony convictions, five of which were serious felony convictions (§ 667, subd. (a)(1)) and “strikes” (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), and one prior prison term commitment (§ 667.5, subd. (b)). On appeal, defendant objects to the lower court’s refusal to grant his motion to continue the trial to give him time to investigate the jury recruitment process. He also challenges the admission into evidence of a necklace found by the court clerk and the court clerk’s testimony about finding the necklace. He raises an ineffective assistance of trial counsel claim and asserts that the lower court erred in failing to provide sua sponte a unanimity instruction. We are not persuaded by defendant’s arguments and affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
The Charges
On March 7, 2008, an information charged defendant with residential burglary (§ 459) with six prior felony convictions, five of which qualified as both serious felonies (§ 667, subd. (a)(1)) and “strikes” under section 667, subdivision (e)(2) and section 1170.12, subdivision (c)(2), and one prior prison term (§ 667.5, subd. (b)). Defendant pleaded not guilty and denied all enhancements.
The Trial
The Panel of Prospective Jurors
On November 17, 2008, the case was sent out for trial on a no time waiver basis with December 1, 2008, as the last day to commence trial. On November 17, 2008, the parties and the court discussed scheduling and voir dire questions. The parties represented that they were ready for trial and the court directed the clerk to summon a panel of 90 prospective jurors for December 1, 2008.
On December 1, 2008, the clerk summoned a panel of prospective jurors. Later that day, the court excused 35 prospective jurors by stipulation and excused six prospective jurors for cause. The court clerk seated 18 prospective jurors for examination and voir dire continued.
Defendant’s Motion to Continue the Trial
On December 2, 2008, defendant filed a motion to continue the trial to investigate possible constitutional violations from the alleged under-representation of African-Americans in Alameda County venires. Defense counsel filed a declaration stating that defendant is an African-American male and the panel of 90 prospective jurors contained no African-American males and only two African-American females. Defense counsel asserted that the percentage of African-Americans living in Alameda County at that time was 13.7. Defense counsel noted that the pool under-represented African-American males and that counsel needed additional time to prepare and present a motion to show that the under-representation was due to systematic exclusion in the jury selection process. Counsel represented that defendant was willing to waive time for trial to accommodate any defense discovery requests.
After a hearing on defendant’s motion to continue, the court denied the motion. The trial court explained as follows: “Counsel, this is only the second time in 15 and a half years I’ve been on the bench, 150 to 200 jury trials, once again, only the second time this motion has been brought. I denied it last time. When I looked at the case law, seems as though the leading cases are out of our neighboring county, Contra Costa, and the standard is very high, it shows systematic exclusion. It’s my understanding the Alameda County panels are drawn from voter registration and [Department of Motor Vehicle (DMV)] records, those are the two primary sources, and I find that there’s––this is just sort of a luck-of-the-draw process that you point out apparently Alameda County is something approximately 13 percent African-American. We can’t guarantee, I mean, I have jury panels that are maybe quarter African-American. This happens to be one that we only got out of 49 or 90 [sic].
“You’re an attorney of total integrity as far as I’m concerned and you’re very thorough, prepared, however, I think this motion is really, it would be an impossible standard to show that we systematically excluded African-Americans so that Mr. Johnson didn’t get a fair cross section or representative cross section of the community.
“So it was a no-time-waiver case. I’ve come in, not at full strength, I mean, I’ve had this bilateral ear infection, to make sure we gave him a speedy trial, and hence, maybe he just had bad luck. One of the two African-American females is––has been in the original 12. She would be on the jury since you both passed. However, at sidebar I did indicate that I would hear this motion before we had jeopardy attach. However, I cannot find that our system systematically excludes African-Americans, and once again, it’s really a luck of the draw.
“So, I’m going to deny the motion for continuance. We’re going to proceed in a no-time-waiver basis on this case. And once again, I find that this is an insufficient showing to either continue the jury trial or continue this trial so that a new panel can be brought in.”
Defense counsel told the court that it did not want to submit anything further for the record. Defense counsel reiterated that defendant was willing to waive time in order to hear the motion and the court responded that it was denying defendant’s motion.
Evidence Regarding the Burglary
At trial, the prosecution presented evidence that about 6:00 p.m., on October 20, 2007, Genevieve Mattos was sitting in her living room in San Leandro. She knew that her neighbor, Patricia Gowan, was not in town. Mattos spotted defendant walking down an adjacent street and then she saw him put a duffel bag into bushes on Mattos’s property. Subsequently, Mattos saw defendant at the front door of Gowan’s house and defendant was acting “unusual.” He went to the front porch of Gowan’s house and pressed the doorbell and touched the screen door. Defendant looked towards Mattos and she testified that she stepped away from her window for “seconds.” When Mattos looked back out the window, defendant was gone. Mattos went outside to where defendant had left the duffel bag; she opened the bag and saw some computer equipment. She returned home and dialed 911.
Mattos described defendant as African-American, with a medium build, five feet ten inches tall, “very fair” in complexion, with a shaved head, and in his late twenties or early thirties. When asked what defendant was wearing, Mattos responded: “He had on a white, off-white, kind of a creamy white short-sleeved shirt with a pattern across the sleeves and across the chest and the other sleeve, just that, in a gold and brown and orange tones. It gave a stripe effect across.” At one point, defendant was only 10 feet away from Mattos. Mattos identified defendant at the preliminary hearing and at trial.
The Police Investigation and Defendant’s Arrest
Officer Theodore Henderson arrived at Gowan’s house at 6:45 p.m. He heard loud noises emanating from inside the residence. Henderson saw defendant running through the backyard toward the rear fence. Defendant jumped the fence. Defendant was carrying a duffel bag and wearing a “multi-striped” shirt and blue vinyl pants. Defendant ignored Henderson’s orders for him to stop. Henderson described the man to dispatch as a “Hispanic male.” However, at trial he described the man fleeing as being a Black male with a light complexion, and identified defendant as the person he saw running through the yard.
Henderson followed defendant but eventually lost him. Later defendant was detained; he was no longer wearing a striped shirt. Henderson identified defendant while he was seated in the back seat of a patrol car. Defendant gave a false first and middle name and a false date of birth.
Defendant was searched prior to being placed in the patrol car and at the police station; no stolen property was found. Officer Nick Corti took possession from the jailers of an evidence bag containing defendant’s vinyl sweatpants and they were placed into a bag.
Gowan, who had been out of town, arrived home at 7:00 p.m. She encountered police officers on her property and noticed that the back door to her house had been left open and that her jewelry case was missing. She also observed that a window had been broken out, drawers had been opened, and her property had been scattered onto the floor. She reported that a “reddish maroonish” colored duffel bag was also missing.
Henderson found a maroon duffel bag in the bushes. Gowan later identified the bag as belonging to her. The bag was filled with jewelry, a computer keyboard, and a small clock radio.
The morning of the following day, Officer Kenneth Shedd returned to the area around Gowan’s home. He recovered an abandoned white-collared shirt with blue, white, and tan stripes from a garage roof. DNA testing indicated that it was likely that defendant and another individual had contact with the shirt.
The Discovery of a Necklace During the Trial
During the trial, on December 8, 2008, courtroom clerk Michelle Souza handled defendant’s sweatpants marked for identification as exhibit 6-A. Souza had not been the clerk earlier in the morning, as she had been at a medical appointment. During a break in the trial, Souza took the sweatpants and “shook” them before folding them to put them back into the original exhibit envelope. Immediately after shaking and folding the pants, Souza observed a “silver chain” on her desk and told the trial court judge and counsel about what she had found. Souza had not seen the chain earlier.
The trial court conducted an Evidence Code section 402 hearing regarding the necklace. Souza testified that she noticed the chain on her minutes sheet. She could not recall who had opened the bag with the pants, but she said that she was the person who had marked the exhibit.
The court found that Souza had become a material witness and ordered a new clerk assigned for the balance of the trial. Defendant objected to the admission of the chain into evidence on the grounds of an improper foundation. The court overruled the objection and stated that a “reasonable inference was that it came out of the pants.”
Souza testified about finding the chain. Gowan also testified. Gowan identified the chain as belonging to her and as being missing from her home.
Defendant moved for a mistrial on the basis of a lack of a foundation and a violation of his state and federal constitutional rights. The trial court denied defendant’s motion for a mistrial. The court stated that a trial “is really a search for the truth, [and] this is what happened according to Ms. Souza.” The court explained that all relevant evidence is prejudicial in some fashion or it would not be relevant. The court elaborated: “I think that the great majority of appellate courts would find this to be harmless error. If we put this case back in context, we have a civilian and a police officer identifying your client as the burglar. Secondly, the DNA evidence in this case points to your client being the burglar of this residence. There’s been a mountain of evidence against your client. While this necklace is another crucial bit of evidence, I believe an appellate court would find this to be harmless error in view of all the other evidence. Thus, I make my ruling in denying the mistrial.”
Verdict and Sentence
On December 10, 2008, the jury returned its verdict finding defendant guilty of residential burglary. On December 11, 2008, the jury found true all prior conviction allegations.
On February 23, 2008, the trial court sentenced defendant to 25 years to life for burglary, plus 15 years for three serious felony prior convictions and one year for a prior prison term for a total term of 41 years to life.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Denial of Defendant’s Motion for a Continuance
Voir dire began on December 1, 2008, and defendant asserts that of the 90 prospective jurors summoned for voir dire, only two of them were African-American, and both of them were female. Defendant is an African-American male. He maintains that 13.7 percent of the population in Alameda County is African-American and therefore the panel did not represent a cross-section of the community.
On December 2, 2008, defendant filed a motion to continue the trial to investigate a possible violation of his constitutional rights. (See Duren v. Missouri (1979) 439 U.S. 357 (Duren).) After a hearing on the motion, the trial court denied his motion to continue the trial, and defendant claims that the trial court abused its discretion when it denied his motion.
A. Standard of Review
A defendant must demonstrate good cause to obtain a continuance of trial (§ 1050, subd. (e)). We review an order denying a motion to continue for abuse of discretion when the motion is based on the need for further investigation. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) In making that assessment, we look to the circumstances of each case, paying particular attention to the reasons presented to the trial court at the time the court denied the request. (People v. Courts (1985) 37 Cal.3d 784, 791.) “ ‘The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 972, superseded by § 190.41 on a different issue.) The trial court should also consider the diligence of defendant and counsel. (People v. Grant (1988) 45 Cal.3d 829, 844.)
Defendant contends that the right to a representative jury presents a mixed issue of law and fact and that we review the legal issues de novo and look to see if substantial evidence supports the factual findings. (See People v. Currie (2001) 87 Cal.App.4th 225, 232 [the appellate court’s review of the defendant’s claim that he made a prima facie showing that jurors of a particular race were underrepresented in venires and that such underrepresentation resulted from systematic exclusion is a mixed question of law and fact].) The issue presented, however, is not whether the trial court correctly ruled on a defendant’s prima facie constitutional challenge to the jury panel. Rather, the issue is whether the court should have granted defendant’s motion to continue the trial in order for defendant to discover evidence that may have supported a challenge to the jury composition. It is well-settled that a motion to continue is reviewed for an abuse of discretion. (See, e.g., People v. Wilson (2005) 36 Cal.4th 309, 352; People v. Courts, supra, 37 Cal.3d at p. 791; People v. De Rosans (1994) 27 Cal.App.4th 611, 619-620.)
B. The Right to a Jury Drawn from a Cross-Section of the Community
The right to a jury drawn from a fair cross-section of the community is guaranteed by the Sixth Amendment to the United States Constitution and article I, section 16 of the California Constitution. That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. (People v. Mattson (1990) 50 Cal.3d 826, 842, superseded by § 190.41 on a different issue.) In deciding a claim of a fair cross-section violation, the federal and state jury trial guarantees are coextensive and the analysis is identical. (People v. Bell (1989) 49 Cal.3d 502, 525, fn. 10.)
The United States Supreme Court in Duren, supra, 439 U.S. 357 set forth the three requirements for a prima facie showing of a violation of the fair cross-section requirement. “[T]he defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Id. at p. 364.) “If a defendant establishes a prima facie case of systematic underrepresentation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire.” (People v. Horton (1995) 11 Cal.4th 1068, 1088.)
The third Duren factor does not require a showing of intentional or purposeful discrimination. (People v. Harris (1984)36 Cal.3d 36, 58, overruled on other grounds in People v. Melton (1988) 44 Cal.3d 713, 756-766, fn. 26.) “[A] defendant does not meet the burden of demonstrating that the underrepresentation was due to systematic exclusion, by establishing only statistical evidence disparity. (People v. Burney (2009) 47 Cal.4th 203, 226.) A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process. (People v. Howard (1992) 1 Cal.4th 1132, 1160.) Underrepresentation on the defendant’s particular panel is not relevant. (People v. Bell, supra, 49 Cal.3d at p. 525.) When criteria for selecting prospective jurors are neutral with respect to race, ethnicity, sex, and religion, the third prong of the test requires that the defendant show the criteria are applied in a manner that is the probable cause of the disparity in representation and is constitutionally impermissible. (Id. at p. 524.)
C. Applying the Law to the Present Case
Defendant contends that he had evidence to support the first two factors in Duren and that the trial court should have given him additional time to develop evidence that the underrepresentation was due to a systematic exclusion in the selection process.
Defendant insists that he could not have brought this motion earlier because the disparate jury composition was not apparent until the panel arrived in the courtroom. This argument, however, misunderstands the requirements under Duren. Under Duren, defendant did not have to wait to see the actual composition of the jury panel before raising a challenge to the jury recruitment process. “The second Duren prong requires a showing that the cognizable group is underrepresented in venires from which juries are selected, not on the panel from which the defendant’s jury is selected.” (People v. De Rosans, supra, 27 Cal.App.4th at p. 621, fn. omitted.)
Defendant’s argument has already been addressed and rejected by our Division in a case not cited by either defendant or the People, People v. De Rosans, supra, 27 Cal.App.4th 611. In De Rosans, we noted that “a challenge on fair cross-section grounds usually is made as a pretrial motion before any panel is assigned to the court that will try the defendant. [Citations.]” (Id. at p. 620, fn. omitted.) We concluded: “Based on the nature of fair cross-section analysis and on the substantive and procedural requirements for a challenge to the panel, we hold that the trial court did not err in denying appellant’s motion for a continuance to prepare the challenge. The fair cross-section requirement itself, as well as Duren and section 225, clearly contemplates a pretrial challenge.” (De Rosans, supra, at pp. 620-621.)
As we pointed out in People v. De Rosans, supra, 27 Cal.App.4th 611, a defendant is not entitled to a panel that represents a cross-section of the community. (Id. at p. 621.) “Rather, he is entitled to a panel drawn from a representative cross-section of the community. Thus, a challenge to the jury panel is always necessarily a challenge not to the composition of the panel but to the procedure by which the panel is composed. Indeed, the actual composition of the jury panel in a defendant’s case is irrelevant to a challenge to the jury panel. (People v. Bell, supra, 49 Cal.3d at p. 525.)” (De Rosans, supra, at p. 621.) “The evidence required for the prima facie showing is therefore entirely available before voir dire begins.” (Ibid.)
In the present case, Deputy Public Defender Youseef Elias filed the motion to continue the trial on December 2, 2008. The record establishes that Elias was representing defendant as early as March 12, 2008. On November 17, 2008, Elias told the court that he was ready to proceed to trial and agreed that the last day to commence trial was December 1, 2008. Moreover, on November 18, 2008, Elias filed a motion on behalf of defendant to exclude DNA evidence. Thus, since the time of his appointment until the beginning of trial on December 1, when the trial began, defendant’s trial counsel had almost nine months in which to prepare and file a challenge to the jury panel. In People v De Rosans, supra, 27 Cal.App.4th 611, there was only a little less than two months between the time trial counsel was appointed and the beginning of trial. (Id. at p. 622.) We concluded that this was sufficient time to prepare and file a challenge to the jury panel and therefore the trial court did not abuse its discretion in denying defendant’s motion for a continuance to make such a challenge once the trial had commenced. (Ibid.) Defendant’s trial counsel had even more time in the present case and the trial court did not abuse its discretion in declaring that the process had advanced “too far” to accommodate defendant’s request for a continuance.
Additionally, in the present case, defendant alleged no improper feature of the jury selection employed by Alameda County and made no representation that a continuance would result in the development of such evidence. The only evidence was, as the trial court stated, that the jury composition of the panel was simply the “luck of the draw.” Defendant’s sole argument that only two female African-Americans appeared in the panel of 90 venire persons was insufficient cause for a continuance and did not show or even suggest systemic exclusion. (People v. Massie, supra, 19 Cal.4th at p. 580; People v. De Rosans, supra, 27 Cal.App.4th at pp. 620-622.)
Accordingly, we conclude that the lower court did not abuse its discretion in denying defendant’s motion to continue the trial.
II. Admission of Evidence of Silver Necklace
During a break in the trial testimony, the court clerk, Souza, found a silver necklace at the clerk’s table after shaking out defendant’s sweatpants prior to placing the pants back into the evidence bag. The necklace had not been seen earlier. Gowan identified the necklace as her stolen property. The trial court admitted the necklace into evidence and defendant contends the admission of this evidence violated his due process rights.
A. Lack of Notice
Defendant asserts that admitting the necklace into evidence violated his due process rights based on a lack of notice. He claims that the preliminary hearing did not provide notice to him that he would be prosecuted based upon a necklace discovered during the course of the trial. Rather, he claims that the prosecution of him was based on witnesses’ identifying him as the person fleeing the crime scene. Defendant adds that Gowan testified that the police returned her duffel bag containing the jewelry and she never mentioned that a necklace was missing.
The People contend that defendant has forfeited this challenge because he objected to the admission of this necklace in the trial court on the basis of no foundation, not on the grounds of no notice. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 431.) Defendant responds that an objection at trial is not necessary when the error alleged is a due process or constitutional error. Further, he claims that his mistrial motion in the trial court was on due process grounds and was sufficient to preserve the issue on appeal. We need not decide the question of forfeiture because we conclude that defendant’s argument fails on its merits.
“Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 640.) “Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination, not by a factually detailed information.” (People v. Jennings (1991) 53 Cal.3d 334, 358.) “[T]he information has a ‘limited role’ of informing defendant of the kinds and number of offenses; ‘the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript,’ which represents ‘the touchstone of due process notice to a defendant.’ [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 312.) “ ‘Where... the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense.’ ” (People v. Graff (2009) 170 Cal.App.4th 345, 366.)
In the present case, defendant had sufficient notice of the offense being prosecuted. The information charged defendant with committing on October 20, 2007, a first-degree residential burglary “in that... [he] unlawfully enter[ed] an inhabited dwelling house” occupied by Gowan with the intent to commit larceny and any felony. The necklace was additional evidence to support the charge that he had burglarized Gowan’s home. The necklace did not amend the charge or deprive the defense of any constitutional rights. There was no amendment to the information to charge defendant with a crime different from that shown at the preliminary hearing.
Further, the preliminary hearing provided defendant with specific notice that the burglary involved the removal of jewelry. At the preliminary hearing, Gowan testified that when she returned to her home on October 20, 2007, all of the drawers in her jewelry case had been opened and some of the drawers were on the floor. She reported that the police showed her a duffel bag that contained her jewelry, but she never claimed that the duffel bag contained all of her missing jewelry. To the contrary, she stated, “That’s most of the contents of my jewelry cabinet.” Thus, her testimony made it clear that the police did not recover all of her jewelry and that the burglary involved the taking of her jewelry.
Defendant contends that he had no notice because evidence of the necklace changed the theory at trial. He argues: “What started out as a trial where the central issue was identification, whether indeed [defendant] was the person who the police had chased though the backyards of people’s homes, turned into a trial about whether possession of the chain necklace showed [defendant] was connected to the burglary.” This is an improper characterization of the trial. The trial did not change to a prosecution of possession of stolen property. Rather, the evidence of the necklace in addition to the court clerk’s testimony that she found the necklace after shaking defendant’s sweatpants and Gowan’s testimony that this necklace belonged to her and was missing after the burglary were relevant to establishing that defendant was the actual burglar of Gowan’s home.
Defendant relies on People v. Graff, supra, 170 Cal.App.4th 345 (defendant may not be tried on charges not established at preliminary hearing), People v. Burnett (1999) 71 Cal.App.4th 151 (amending the information to add a separate incident, not mentioned at the preliminary hearing, in support of the charge the defendant had possessed a firearm was improper), and People v. Dominguez (2008) 166 Cal.App.4th 858 (improper to amend the information to add a separate incident, not mentioned at the preliminary hearing, in which the defendant had unauthorized use of a vehicle). These cases, however, are unavailing. In all three of these cases the prosecutor was permitted to amend the information to charge a different crime from that shown at the preliminary hearing. That did not occur in the present case. In contrast, here, all of the evidence supported the original charge.
In People v. Burnett, supra, 71 Cal.App.4th 151, for example, the defendant successfully appealed a conviction of being a felon in possession of a firearm. (Id. at p. 155.) The defendant was originally charged with crimes committed on or about January 8, 1996, and alleged that he possessed a “ ‘.38-caliber revolver.’ ” (Id. at pp. 155-156.) The evidence at the preliminary hearing addressed the January 8 incident and the brandishing a.38-caliber revolver. (Id. at p. 164.) At trial, a witness testified that the defendant had shown him.357 magnum revolver, which the witness locked away for safekeeping on January 4, 1996; the witness returned the gun to the defendant on January 7. (Id. at p. 157.) The jury was told it could convict the defendant based on either incident. (Id. at p. 169.) The appellate court concluded that defendant never had notice that he would be prosecuted for possession of the.357 magnum revolver. (Id. at p. 173.)
In contrast to the situation in People v. Burnett, defendant, here, had notice that he would be prosecuted for the burglary of Gowan’s home, which included the removal of jewelry from her home. The evidence at the preliminary hearing did support the charge of the burglary of Gowan’s home. “So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires.” (People v. Jeff (1988) 204 Cal.App.3d 309, 342.)
We therefore reject defendant’s contention that admitting evidence of the necklace deprived him of notice and violated his due process rights.
III. Effective Assistance of Trial Counsel
Defendant contends that his trial counsel was ineffective to the extent he did not preserve an objection to the admission into evidence of the necklace or to request a curative instructions.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham, supra, at p. 1003.) “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (Ibid.)
In the present case, defense counsel did object to Souza’s testimony and asked for an instruction to tell the jury to disregard the necklace evidence. Defendant is critical because he claims that defendant did not object on the basis that this evidence violated his constitutional rights. Even if we were to agree that the objection was inadequate to preserve the issue for appeal, as already discussed, the admission of this evidence did not deprive defendant of notice and his due process rights. Accordingly, he cannot demonstrate prejudice. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-694.)
IV. Souza’s Testimony
Defendant argues that permitting Souza, the court clerk, to testify about finding the necklace deprived him of a fair trial. He asserts that he was entitled to due process and a fair and impartial trial under the Sixth and Fourteenth Amendments. He argues that, prior to the clerk’s testimony, the court had made statements extolling the clerk’s testimony. Thus, when the trial court permitted Souza to testify about the necklace, the court, according to defendant, became improperly aligned with the prosecution and disregarded the influence court personnel may have on jurors. (See Turner v. Louisiana (1965) 379 U.S. 466, 471-472 (Turner).) He maintains that the court should not have permitted Souza to testify or should have given an instruction sua sponte that her testimony carried no more weight than other witnesses. (See People v. Hill (1998) 17 Cal.4th 800 (Hill).)
When the trial began on December 1, 2008, the judge introduced himself and other court personnel to the prospective jurors. After introducing the certified shorthand reporter and the bailiff, the court introduced Souza. The court stated that she had been his clerk for over 12 years. The court added: “She’s kind of the Jill of all trades, she’ll provide a number of functions throughout this particular trial.”
At no point during the trial did the court make any statement about Souza’s credibility or her testimony. Rather, at the start of voir dire, the court praised Souza’s value as a court clerk. Once the court ruled that Souza could testify, the court had a substitute clerk for the remainder of the trial.
Defendant has not established any fundamental miscarriage of justice and the two cases upon which he relies are unavailing. In Turner, the two principal witnesses for the prosecution were deputy sheriffs who had investigated the murder for which the defendant in the case was ultimately convicted and sentenced to death. (Turner, supra, 379 U.S. at p. 466.) The defendant had confessed the crime to these deputies. (Id. at pp. 466-467.) The deputies also acted as bailiffs during the defendant’s trial, and the jurors, who were sequestered, were continuously in their presence. (Id. at pp. 467-468.) After the deputies gave their testimony, they continued acting as bailiffs during the trial. (Id. at p. 470.)
The Supreme Court concluded that “[w]hat happened in this case operated to subvert [the] basic guarantees of trial by jury,” emphasizing that the deputies’ testimony “was not confined to some uncontroverted or merely formal aspect of” the prosecution’s case. (Turner, supra, 379 U.S. at p. 473.) The high court went on to explain that “even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.” (Ibid.) The court emphasized that the defendant’s “fate depended upon how much confidence the jury placed in these two witnesses.” (Id. at p. 474.)
In Hill, the courtroom bailiff overheard the defendant make incriminating statements and, at trial, testified for the prosecution regarding those statements. (Hill, supra, 17 Cal.4th at p. 842.) The bailiff thereafter resumed his courtroom duties. (Ibid.) The California Supreme Court concluded that the trial court, on its own motion, should have instructed the jury not to give the bailiff’s testimony any additional weight merely because he was a bailiff and that the bailiff should have been reassigned to another courtroom after he testified because the jurors would likely have accorded the bailiff’s testimony additional weight simply because he was a uniformed officer in charge of their protection. (Id. at pp. 842-843.)
Here, defendant presented no evidence that would bring this case within Turner or Hill. There is absolutely no evidence in the record that the jurors had any personal or direct interaction with Souza. Additionally, as the trial court in the present case pointed out, there was ample other evidence establishing that defendant was the burglar. Mattos identified defendant as the burglar at the preliminary hearing and at trial. Officer Henderson identified defendant as the person he saw running from Gowan’s residence carrying a duffel bag containing Gowan’s property. DNA evidence showed that defendant had abandoned his distinctive shirt on a garage roof near the place where he was arrested. Thus, Souza’s testimony was not required for a verdict against defendant. Finally, unlike the situations in both Turner and Hill, Souza was not a uniformed officer and she ceased acting as the clerk after testifying.
We conclude that under the circumstances of this case, it was not error to permit Souza to testify because “[n]either defendant’s right to a fair trial, nor his right to jury trial was undermined by” Souza’s testimony. (See People v. Cummings (1993) 4 Cal.4th 1233, 1291.) Defendant argues that the lower court should have given a curative admonition sua sponte to direct the jury not to give the clerk’s testimony any more weight than other witnesses. However, for the same reasons we determined the lower court properly permitted Souza to testify, we reject this argument. Souza’s testimony was not critical to the prosecution’s case and her contact with the jurors was minimal. If the court had given such an admonition, the instruction would only have focused undue attention on the clerk. (See People v. Guerra (2006) 37 Cal.4th 1067, 1124, overruled on another issue in People v. Rundle (2008) 43 Cal.4th 76, 151 [defendant not entitled to instruction that bailiff’s testimony was not entitled to any special weight because danger that jury would accord bailiff’s testimony additional weight nonexistent because there was no direct interaction between the bailiff and the jury and “his presence as a uniformed officer was no different than that of any other uniformed officer testifying in court”].)
The trial court did instruct the jury that nothing the court said or did should be taken to disclose a view about the case.
V. No Unanimity Instruction
Defendant contends that the lower court erred by failing to provide sua sponte the unanimity instruction, CALCRIM No. 3500. He claims that introducing evidence of the necklace was a new theory of criminal liability based on his possessing the stolen property. Defendant maintains that the original prosecution of him focused on the witnesses’ identifying him as the person seen fleeing from Gowan’s home.
CALCRIM No. 3500 states in relevant part: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
Errors in jury instructions are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
The state Constitution guarantees criminal defendants a unanimous jury verdict on a specific charge. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132.) When a conviction on a single charge could be based on evidence of two or more discrete criminal acts, all jurors must agree that the defendant committed the same act. Unless the prosecution elects to rely upon a single criminal act, the trial court has a sua sponte duty to instruct the jury that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific act. (People v. Russo, supra, at p. 1132; CALCRIM No. 3500.)
A unanimity instruction is not required where the evidence shows multiple acts in a continuous course of conduct. (People v. Maury (2003) 30 Cal.4th 342, 423.) “The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) “ ‘[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.’ ” (People v. Beardslee (1991) 53 Cal.3d 68, 93.) “The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. [Citation.] If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction.” (People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.)
“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [the defendant] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (People v. Russo, supra, 25 Cal.4th at pp. 1134-1135.)
The question thus becomes whether the evidence here suggested multiple discrete crimes or merely multiple theories of one criminal event. Here, defendant was charged with one count of residential burglary of Gowan’s residence and all of the evidence concerned the one discrete act of burglary. Defendant argues that the possession of a stolen necklace was a separate act from his running from Gowan’s home and he cites the following language in People v. Sutherland (1993) 17 Cal.App.4th 602: “Though there is general approval of the principle that unanimity is not required where the potential jury disagreement may be characterized as a dispute over applicable legal theory, it is clear that the application of the principle may sometimes result in a lack of unanimous agreement on the defendant’s acts. This potential for jury disagreement on the specific acts for which the defendant is to be held criminally liable has led some courts to impose a unanimity requirement even though only one offense is involved, albeit an offense which may be committed in a number of different ways.” (Id. at p. 613.) He claims that the present case is one requiring the unanimity instruction.
This is not a situation where the defendant could be convicted of burglary based on a finding that he was a conspirator or an aider and abettor. (See People v. Sutherland, supra, 17 Cal.App.4th at pp. 616-617.) The conviction was based on defendant’s act of being the actual burglar of Gowan’s home. “[T]he potential disagreement of the jury about what the defendant did is not important where the inconsistency is legally irrelevant, i.e., the disagreement about the acts does not undermine the unanimous legal conclusion that based on either act, the defendant has committed a single charged offense.” (Id. at p. 616.) If the jury merely believed defendant was in possession of a stolen item, it would not have convicted him of residential burglary. Here, all of the evidence presented related to the act of burglarizing Gowan’s home; it is unimportant which actual acts were the reasons for the jury’s finding defendant burglarized Gowan’s home on October 20, 2007.
We conclude that defendant has failed to establish error based on the lower court’s failure to provide sua sponte the unanimity instruction.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.