Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. KA080269, George Genesta, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Rapp.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Perysian.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendants Travis Jackson Rapp and David Allen Perysian appeal from the judgments entered following a jury trial in which each defendant was convicted of first degree burglary, first degree robbery, and attempted first degree robbery, with firearm findings, and Perysian was further convicted of willful, deliberate, and premeditated attempted murder, with firearm-use findings. Perysian contends the trial court erred by denying his motion to reopen evidence during arguments and by denying his motion for a new trial. He further contends that his trial attorney rendered ineffective assistance of counsel and the prosecutor engaged in prejudicial misconduct in argument. Rapp contends that the evidence is insufficient to support his conviction as an aider and abettor for attempting to rob one of the victims and that one of two firearm enhancements imposed on a single count must be stayed. We agree with Rapp regarding the enhancement and direct the trial court to issue amended abstracts of judgment with respect to each defendant, but otherwise affirm.
BACKGROUND
On the evening of August 21, 2007, Travis Aldridge, Marissa Beale, and another young woman visited the home of Pamela Harman and her sons, Adam and Brian. At some point, Pamela went to bed, leaving all of the young people watching television in the living room. Beale’s friend departed. After Beale made a telephone call, she told the others that her boyfriend was coming to pick her up and stepped outside. Beale came back inside and asked if her friends could come in. Defendants Rapp, Perysian, and a third man entered the living room and sat down. Adam had never seen any of the three men before. Aldridge had met Rapp on one prior occasion, months before, but had never seen the other two men. Perysian smoked a cigarette and he and Rapp went into the kitchen to get drinks out of the refrigerator. After about five minutes, the three men and Beale left. Adam was asleep in a chair in the living room when they left.
Brian left the living room and Aldridge went into the kitchen. Aldridge suddenly felt a gun touching the back of his head and saw that Rapp was behind him. Rapp said, “This is a pocket check” and “Do you remember the security guards?” Friends of Aldridge who worked as security guards had introduced him to Rapp. Rapp searched Aldridge’s pockets while holding the gun against his head. Rapp took Aldridge’s house key, license, and mints.
Meanwhile, Adam awoke in the living room and saw Perysian pointing a gun at his head from an arm’s length away. Perysian asked him if he had any money. Adam did not respond. Perysian asked again, then punched Adam in the eye. Adam jumped up and said, “What the fuck?” Perysian shot him. The bullet entered at Adam’s shoulder and lodged in his neck. Adam fell back into the chair. Perysian immediately ran out of the house, followed quickly by Rapp, who ran out of the kitchen holding a gun.
Aldridge heard Adam exclaim, then heard the shot. Rapp looked surprised and immediately ran for the front door. Aldridge also ran toward the living room, but Rapp looked back at him and pointed the gun at him, so he retreated into the kitchen until after Rapp left.
Sheriff’s detectives arrived at the Harman home a little after 10:30 p.m. After speaking to Aldridge and Adam, they went to a house in Glendora, where they arrested Beale and Zachary Dozmati and questioned Rapp. Information provided by Beale led detectives to Perysian, who was arrested and told detectives he was with his girlfriend Brittany until about 1:00 a.m., when Diane Smith picked him up. Perysian said he spent the rest of the night at Smith’s home. Smith told the detectives that Perysian phoned her at around 10:53 p.m. and said he was outside her house. He asked her to drive him to Brittany’s home in Pomona. Perysian told her he had shot someone and had discarded the gun.
Adam and Aldridge identified Rapp, Perysian, Beale, and Dozmati from six-packs of photographs. The first set of six-packs Detective Chaffey Shepherd showed Adam did not include Perysian. Adam selected photographs of Rapp, Beale, and Dozmati and told Shepherd that the man who shot him was not pictured. Adam asked Shepherd to “go get the shooter” and said he would be able to identify him. At trial, Adam and Aldridge identified Perysian and Rapp. Adam further identified Perysian as the man who had shot him, and Aldridge identified Rapp as the person who had robbed him.
Deputy Chris Kusayanagi and trainee Deputy Martin Dimas responded to the Harman house just after the shooting. Dimas initially testified that Adam provided the names Rapp and Dozmati for two of the three men who had been at the house, and said that Rapp was the person who shot him. Dimas then testified that Adam actually just referred to Rapp as “Travis,” and the deputies filled in the surname Rapp after they arrested Rapp. Dimas then denied that Adam gave the deputies the name Dozmati and said someone else provided the deputies with that name. Dimas further explained that the deputies’ use of the name Dozmati resulted from Adam “being in shock and then telling us what happened at that moment, you know, from what he told us.” Dimas also testified he could not recall where they got the names Rapp and Dozmati, but they put the surnames in the report after learning them from another source.
Dimas further testified that Aldridge both did and did not state that Rapp was the person who robbed him, and that Aldridge said Rapp “was one of the persons that was in there with the gun.” Dimas also testified that Aldridge said Dozmati was the person who took his identification and Aldridge saw Rapp go through Adam’s pockets, which contained only an identification.
Kusayanagi testified that Adam said that he knew or thought that the man who shot him was named Travis. Adam also said that Dozmati robbed Aldridge in the kitchen. Kusayanagi testified that he and Dimas later “determined” the names Rapp and Dozmati and used them throughout their report.
Adam denied making any of the statements attributed to him by Dimas and Kusayanagi and denied telling them the names Rapp and Dozmati. Aldridge told him the name Travis Rapp, but Adam did not know the name Dozmati until court proceedings began.
A gunshot residue test performed on Rapp’s hands revealed the presence of two particles of gunshot primer. This indicated he could have fired a gun, handled a gun, been near someone else when that person fired a gun, walked through a cloud of gunshot residue, or touched a surface contaminated with gunshot residue.
The jury convicted each defendant of first degree burglary, first degree robbery (with respect to Aldridge), and attempted first degree robbery (with respect to Adam). The jury convicted Perysian of attempted murder, which it found to be willful, deliberate, and premeditated. The jury acquitted Rapp of attempted murder. The jury found, with respect to each defendant, that a principal was armed with a gun in the commission of the burglary. (Pen. Code, § 12022, subd. (a)(1); all further statutory references pertain to the Penal Code unless otherwise specified.) The jury further found that Rapp personally used a gun in the commission of each offense. (§ 12022.53, subd. (b).) It found that in the commission of each offense, Perysian personally used a gun and personally and intentionally fired a gun, causing great bodily injury. (§ 12022.53, subds. (b)–(d).) The court found that Perysian had served three prior prison terms within the scope of section 667.5, subdivision (b)(1).
The court sentenced Rapp to 15 years in prison. It sentenced Perysian to 28 years to life.
DISCUSSION
1. Denial of Perysian’s request to reopen during arguments
Perysian contends that the trial court abused its discretion and violated his federal constitutional rights to due process and to present a defense by denying his request, made during arguments, to reopen to call Deputy Romero as a witness. Perysian cites a portion of a report written by Romero in which Romero stated he interviewed Adam at the hospital the night of the shooting and Adam told him that Rapp attempted to rob him, then shot him.
Before the trial resumed on the morning of Friday, June 13, 2008 (all date references pertain to 2008), the court asked defense counsel if they would be calling any witnesses. Counsel for Perysian replied, “Yes, I have two witnesses. I’m having trouble finding one. I have one here. We’re working with Lakewood and San Dimas. My office has called San Dimas seeing where that officer is. I was relying on the messages left by my office and the district attorney. I have [Criminalist Joseph] Cavaleri here. These were the officers Dimas and Kusayanagi.” Counsel continued, “We know Kusayanagi worked graveyard last night, and we don’t know if the message got to him. From Officer Shepherd we don’t know what Lakewood is doing, and I’ve got to call my office to see if Dimas is on his way. I’m ready to start with one witness here already.”
After the trial court addressed other matters, it asked counsel for Perysian if he had any news. Counsel informed the court that he or his office had left messages on answering machines. The court asked for an offer of proof and whether “this witness” generated a police report. Counsel replied, “The original generation of the police report and the original—the original report was—and the manner in which I cross-examined the victim in this manner and the offer of proof, which is the stipulation, which [counsel for Rapp] is not going to enter into is as follows and—” The court interrupted and asked for an offer of proof. Counsel for Perysian replied, “That he interviewed Adam Harman the evening of August 21st and after Adam Harman was shot; [¶] Adam Harman told him subject Rapp arrived with subject Dozmati and a fourth subject to his home; [¶] Second, that after a few minutes— [¶] It’s about a page long, the offer of proof.” The court asked counsel what he wanted to do if the witness was not available. Counsel for Perysian responded, “I’d like to be given to 1:30 to try to get him here. He’s important as an impeachment witness to [Adam] Harman.” The court asked, “Why wasn’t he subpoenaed?” Counsel did not respond, and the court said, “I’ll give you till 1:30 p.m. to locate him.”
Perysian called Cavaleri, the criminalist who analyzed the gunshot residue kit on Rapp, but he was unable to establish a chain of custody. Outside of the presence of the jury, counsel for Perysian admitted he had not subpoenaed Deputy Espinoza, who collected the sample from Rapp. The court again asked counsel for an update regarding the availability of “either of those officers” and warned counsel to have his witnesses available after lunch. After sending the jury to lunch, the court confirmed that counsel for Perysian was “attempting to locate two additional witnesses at this time.” Counsel informed the court that he had learned that Deputy Dimas would “probably” be in court at 1:30, but “[t]hey cannot get ahold of the other.”
When the trial resumed after lunch, Deputies Dimas and Kusayanagi appeared and testified. Before conducting redirect examination of Kusayanagi, counsel for Perysian informed the court that he would “like to introduce and show him the report of Officer J. Romero... where it indicates he interviewed victim [Adam] Harman at the hospital, ask him whether or not he referred to this report. If he did, if he would read the report where the victim [Adam] Harman specifically indicated that two males entered his residence, suspect Rapp approached him and pointed the handgun. [¶]... [¶]... I’d like to get this report in.” The court informed counsel that the report was inadmissible hearsay, but he could ask Kusayanagi about reports that he read or incorporated in his own report. After a brief recess, counsel for Perysian asked Kusayanagi what other reports he looked at “in order to determine these names.” Kusayanagi responded that he did not look at any other reports to determine names, and in fact did not see other reports until after he and Dimas had completed their own report.
Deputy Espinoza then testified regarding collection of the gunshot residue test from Rapp, and Cavaleri was recalled and completed his testimony. The court then asked counsel for Perysian if he had any more witnesses. Counsel said his next witness was Brittany, who would provide Perysian with an alibi, but she was not present because the car sent to pick her up was stolen. Counsel said, “I don’t know if I’ll get her by Monday now. I did my best, and you got to admit we got everybody here at 1:30.” The prosecutor objected that he had no discovery on Brittany. The court let the jury go for the weekend and told counsel that on Monday, “We’ll either have Brittany, or we will have instructions and argument.”
When the trial resumed on the morning of Monday, June 16, counsel for Perysian informed the court he had one witness, and the prosecutor stated that he would call Detective Shepherd as a rebuttal witness. Perysian called Michelle Renz, at whose home police detained Beale, Rapp, and Dozmati. At the conclusion of her testimony, the court asked counsel for Perysian if he had any additional witnesses. He replied, “Not at this time.” The court asked, “Well, are you resting?” Counsel for Perysian responded, “Yes, Your Honor. As best as I can, yes.” Counsel for Rapp informed the court that he had no additional witnesses, and the prosecutor called Shepherd to testify. At the conclusion of Shepherd’s testimony, counsel for each defendant told the court that he had no surrebuttal witnesses. The court instructed the jury, the prosecutor gave his opening argument, and the court recessed for lunch.
When the trial court reconvened after lunch, counsel for Perysian asked to reopen, saying, “I have Officer Romero here now.” The court said, “Counsel, you’re not going to reopen. We’re in closing statements. How can you reopen? [¶]... [¶]... Counsel, you’ve rested.” Counsel for Perysian replied, “Your Honor, I don’t think I really did. I did at the insistence that I had no more witnesses, but I still have Detective Romero here. I know this is the court’s discretion.” The court noted that this was the first it had heard of Romero, and counsel had said he had no more witnesses. Counsel stated he meant that he “had no more witnesses here in the courthouse,” but admitted he had not said that. The court responded, “We’re past that. You know, you rested. I heard nothing more. I heard no request for additional time. You didn’t tell me you had a problem or what was going on. This has been an ongoing thing with you.” Counsel asked, “You’re saying I cannot call Officer Romero?” The court replied, “We’re past that. Everyone’s rested. We’ve heard the closing arguments of the People. [¶]... [¶]... It’s not even a close call.”
“In determining whether a trial court has abused its discretion in denying a defense request to reopen, the reviewing court considers the following factors: ‘(1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.’” (People v. Jones (2003) 30 Cal.4th 1084, 1110, quoting People v. Funes (1994) 23 Cal.App.4th 1506, 1520.)
Perysian’s motion to reopen was made at a very late stage, without any demonstration of diligence. Although Perysian argues in his appellate brief that he informed the court of his difficulty in securing Romero’s attendance on Friday, the record reveals that counsel for Perysian never mentioned calling Romero as a witness (by name, job description, or purpose of the proposed testimony) before asking to reopen. When counsel for Perysian initially told the court he was going to call two witnesses and was having trouble locating one of them, he referred to Cavaleri, Dimas, and Kusayanagi by name, noting that Cavaleri was present and his office was attempting to contact Dimas and Kusayanagi. Counsel’s offer of proof referred to the original police report, which was prepared by Dimas and Kusayanagi. Dimas and Kusayanagi both appeared and testified after lunch on Friday, and counsel for Perysian later noted for the court that he “got everybody here at 1:30.” At the end of the day on Friday, counsel for Perysian informed the court of his desire to call Brittany and his difficulty in securing her attendance. Counsel did not mention Romero or any witness other than Brittany. The court did not require counsel for Perysian to rest at that time, but gave him the weekend to secure his additional witness or witnesses. When the trial resumed on Monday, counsel for Perysian did not mention any desire to call Romero or any effort underway to secure Romero’s attendance. Counsel rested without Romero’s testimony and without alerting the court that he wanted to call any other witness. Although Perysian argues in his appellate brief that “Romero was under subpoena by the prosecution,” he fails to support his assertion by reference to the record. Our review of the record reveals no reference to Romero being subpoenaed by any party. Of course, Perysian’s argument on appeal reveals that he had not subpoenaed Romero.
Under the circumstances, the trial court was entitled to deny the motion to reopen based upon Perysian’s lack of any showing of diligence in attempting to procure Romero’s testimony and the very late stage at which Perysian sought to reopen. Perysian’s attempt to examine Deputy Kusayanagi about Romero’s written report demonstrates that he knew of Romero during trial. Yet Perysian made no showing in the trial court of his excuse for failing to present Romero’s testimony before the close of evidence. Nor has Perysian made such a showing on appeal.
The gist of Romero’s proposed testimony had already been introduced through the testimony of Dimas and Kusayanagi. Romero would have been the third person to testify that on the night of the shooting, Adam stated that “Travis” (or Rapp) shot him. While Adam’s repetition of this statement to Romero would have had some value and significance for Perysian, Romero’s testimony was necessarily cumulative. And Adam’s statement to Romero was subject to doubt for the exact reasons as his statement to Dimas and Kusayanagi: Adam testified that he did not know any of the three men who came into his house, but Aldridge told him that one of them was named Travis Rapp. Adam apparently used the name he had heard from Aldridge when he spoke to deputies in the immediate wake of his shooting. But when he was shown six-packs of photographs the next day, he identified Rapp, Dozmati, and Beale, but told Detective Shepherd that the man who shot him was not depicted in the six-packs of photographs. When Shepherd showed Adam a six-pack containing Perysian’s photograph, Adam identified Perysian as the man who shot him. Adam’s identification of Perysian as the shooter was consistent from that moment onward.
In addition, Adam’s purported use of the name “Travis” to the deputies cannot be reconciled with the statements or testimony of Aldridge. Aldridge was familiar with Rapp and consistently stated and testified that at the moment he heard a gunshot in the living room of the Harman house—the shot that struck Adam—Rapp was in the kitchen pointing a gun at Aldridge. The record does not support an assertion in Perysian’s appellate brief that Aldridge made an inconsistent statement regarding identification, as none of the portions of the record cited by Perysian reflects an inconsistent identification by Aldridge, apart from contradictory testimony by Deputy Dimas on this point. Dimas first testified that Aldridge said “Travis” robbed him. But when asked again, “So Aldridge told you Rapp robbed him?” Dimas said, “No, he did not. [¶]... [¶]... He said that was one of the persons that was in there with the gun.” Dimas later testified that Aldridge said Dozmati robbed him. But Deputy Dimas contradicted himself frequently, especially with respect to the victims’ identification of the suspects. Dimas testified that Adam knew the name Dozmati based on prior contacts, that Adam had not told the deputies that he had had prior contacts with Dozmati, that no one at the Harman house mentioned Dozmati’s name, that the deputies filled in the names of the suspects after arresting Rapp and Dozmati, and that Adam both did and did not tell him that one of the suspects was named Dozmati.
Accordingly, while testimony from Deputy Romero would have had some significance for Perysian, the matter of Adam’s initial identification of his shooter by name as “Travis” was already before the jury through the testimony of Dimas and Kusayanagi. The trial court did not abuse its discretion by refusing to permit Perysian to reopen during arguments to present evidence he could have presented in a timely fashion if he had exercised diligence.
A defendant does not have an unfettered right to introduce evidence that is incompetent, privileged, or otherwise inadmissible under the rules of evidence. (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [116 S.Ct. 2013].) In particular, the exclusion of relevant evidence due to a defendant’s failure to comply with procedural requirements does not violate the Constitution. (Ibid.) Here, the trial court did not prevent Perysian from presenting a defense, but simply rebuffed his attempt to present in an untimely fashion and without a showing of due diligence some additional, cumulative evidence. The court’s refusal was neither a violation of Perysian’s constitutional rights nor of state law.
2. Denial of Perysian’s motion for new trial
Perysian filed a motion for a new trial that was based, at least in part, upon the court’s refusal to permit him to reopen to present the testimony of Deputy Romero. He argued that Romero “was under subpoena by the People and the defense was able to subpoena the previous day.” He further argued that the trial court abused its discretion by denying his request to reopen because Romero’s testimony was “crucial to substantiate the defendant’s version that he did not shoot nor attempt to rob the victim in this matter.”
At the hearing on the motion for a new trial, the trial court asked counsel for Perysian to remind the court of the testimony regarding the witnesses’ multiple identifications. Counsel for Perysian said, “What ended up happening was that the investigation took down the wrong names, if you recall. And once there was—but what’s interesting about Romero is that Romero wasn’t there at the house when the two investigating deputies were. He was at the hospital, and at the hospital he also identified a different individual.” The court stated that it did “not recall the ample testimony we had in terms of the correction of who was referring to whom by the officers, who was the training officer, who was the investigating officer, who were the other officers on scene in regards to identifying people and identifying various individuals. [¶] I believe the court’s original ruling was that Officer Romero would not have added anything to the jury in regards to what was in evidence already at the time in terms of what level of confusion of who was identified at any point in time. I think that was brought out by other corresponding witnesses. The court’s ruling and grounds for the ruling will stand.”
Perysian contends that the trial court applied the wrong standard in ruling on his motion, arguing that the court failed to cite any legal authority and to “weigh the evidence properly and reach a conclusion as to whether there was sufficient credible evidence to support the ruling.” He further argues the court “relied on faulty and patently incorrect recollection about [Perysian’s] case and its prior ruling.”
A trial court may grant a motion for a new trial upon the basis of one of the grounds listed in section 1181, ineffective assistance of trial counsel, or where it determines that the defendant has been denied a fair trial. (People v. Amer (1907) 151 Cal. 303, 305; People v. Fosselman (1983) 33 Cal.3d 572, 582–583; People v. Sherrod (1997) 59 Cal.App.4th 1168, 1175.) But a “trial court may grant a motion for new trial only if the defendant demonstrates reversible error.” (People v. Guerra (2006) 37 Cal.4th 1067, 1159.)
The determination of a motion for a new trial rests so completely within the trial court’s discretion that its ruling will not be disturbed on appeal absent a manifest and unmistakable abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1188 (Zambrano), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Perysian did not demonstrate to the trial court that its refusal to reopen evidence constituted reversible error. Given our rejection of Perysian’s constitutional and state law appellate claims of error regarding the trial court’s denial of his request to reopen, “those claims, insofar as included in his new trial motion and arguments, form no grounds for disturbing the trial court’s ruling.... Defendant has shown no manifest and unmistakable abuse of discretion in the trial court’s ruling. No basis for reversal appears.” (Zambrano, supra, 41 Cal.4th at p. 1188.)
3. Ineffective assistance of Perysian’s counsel
Perysian contends that his trial attorney rendered ineffective assistance by failing to (1) cross-examine Aldridge about “his previous identification of someone other than Rapp as the person that robbed him” and (2) cross-examine Aldridge, Adam, and Pamela Harman about threatening phone calls they received from Beale.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (Ibid.) Counsel is given wide latitude and discretion in the area of tactics and strategy, but the exercise of that discretion must be founded upon reasonable investigation and preparation, and reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (Id. at pp. 561, 564–565.) In order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.)
a. Prior misidentification by Aldridge
Perysian’s contention regarding Aldridge’s prior identification of someone other than Rapp is based solely upon a misreading or mischaracterization of the record. Perysian asserts in support of his contention that Aldridge admitted at the preliminary hearing “that when he first made his identification, he identified suspect Dozmati as the suspect that robbed him in the kitchen.... [H]owever, Aldridge said that this earlier identification of Dozmati was a mistake.” Aldridge never testified that he had initially identified Dozmati as the person who robbed him. In fact, Aldridge was never asked if he had ever identified his assailant as someone other than Rapp. Aldridge instead testified that Rapp, whom he had met on one prior occasion, was the person who pointed a gun at him while he was in the kitchen and robbed him. When the prosecutor asked Aldridge to point out Rapp in the courtroom, Aldridge did so. When the prosecutor asked Aldridge to point out the man named Dozmati, Aldridge referred to a man dressed in purple and seated at the end of the table. The court clarified that this man was Perysian. On cross-examination, counsel for Perysian asked Aldridge, “When you first—when you were first making your identification, you identified someone dressed in purple; is that correct?” Aldridge said, “Yes.” Counsel asked, “And you identified him as Mr. Dozmati; is that correct?” Aldridge said, “Yes.” Counsel asked, “Do you know the man next to me to be Mr. Dozmati?” Aldridge responded, “No. I made a mistake.” The court noted for the record that counsel was “indicating Perysian.”
The “misidentification” in this testimony at the preliminary hearing pertained solely to Aldridge’s uncertainty about which man was Perysian and which was Dozmati. Aldridge did not misidentify the person who robbed him at the preliminary hearing or at any other time, as far as the record reveals. Counsel for Perysian thus could not have rendered ineffective assistance by failing to cross-examine Aldridge regarding “his previous identification of someone other than Rapp as the person that robbed him” because Aldridge had made no such prior identification of anyone else as the person who robbed him.
b. Threats by Beale
Aldridge also testified at the preliminary hearing that he had received threatening calls from Beale the day after the crimes and four or five days later. When counsel for Perysian asked what Beale had said, Aldridge replied, “She was just saying that if I did go to court, that I had people looking for me and that there’s people asking her to tell her—tell them where I lived in order for them to tell me, in order for them to make sure I didn’t go to court, but other than that.” Counsel asked whether Beale “ever [told] you to tell the police that it was Mr. Perysian who was the shooter instead of Mr. Rapp?” Aldridge replied, “No. When she called, I told her I did not want to have anything to do with it, I wasn’t going to talk about anything.” Counsel asked whether Beale pressured him “to change [his] story or to not show up at all.” Aldridge responded, “She told me it would be better if I didn’t show up, but I really didn’t pay any attention to it.”
During the preliminary hearing Adam denied that anyone had threatened or even contacted him, directly or indirectly, about his testimony.
Later in the preliminary hearing, while addressing Beale’s mother and attorney, the court referred to Beale attempting to help “her boyfriend, by trying to sort of steer the case in a particular direction” and suggesting to a witness that “he ought not testify, and if he did, perhaps that he ought change his testimony a little bit to make things better for her boyfriend and a little worse for another defendant, things of that nature.”
The pre-plea probation report, prepared 11 days after the preliminary hearing, recounted a statement by Aldridge to the probation officer that he had received a phone call from a man stating, “‘Your [sic] not worth being here,’” and a call from Beale telling him not to go to court. The report further related the following: “While testifying in court, family members of the defendants were mouthing ‘I’ll get him.’ Since then he has been told by acquaintances that they heard he was dead.” The report further noted that Pamela Harman told the probation officer that “Beale called her son threatening, ‘If you know what is good for you, you won’t go to court.’”
Based upon the quoted preliminary hearing testimony, the comments by the court during the preliminary hearing, and the pre-plea probation report’s reference to Beale’s threatening phone call to Adam, Perysian argues that his trial attorney should have questioned Aldridge, Adam, and Pamela Harman at trial about Beale’s threatening telephone calls.
Although the court at the preliminary hearing interpreted Beale’s threats as an attempt to influence the victims to shift the blame for the crimes from Rapp to Perysian, the actual evidence regarding the threats reflected only an attempt to prevent the victims from testifying. Had the threats succeeded in dissuading the victims from testifying, Perysian and Rapp would have benefited equally. Introducing the evidence of these threats thus created the risk that the jury would conclude that both Perysian and Rapp induced Beale to make the threatening calls. In contrast, because the threats had no tendency to show that Aldridge or Adam altered his testimony to blame Perysian instead of Rapp, introducing the threats created little potential benefit for Perysian. In addition, according to Aldridge’s statement to the probation officer, Beale was not the only person who had threatened him. And, according to the probation report, the “family members of defendants” attempted to intimidate Aldridge during the preliminary hearing. Had counsel introduced evidence of the threats by Beale to attempt to show that the victims skewed their testimony to favor Rapp and blame Perysian, the prosecutor would almost certainly have sought to introduce evidence supporting an inference that both defendants had attempted to suppress the victims’ testimony. Finally, had any or all of the evidence been introduced, the prosecutor would have been able to argue that the threats strengthened the victims’ credibility because they were risking harm to themselves and possibly their families by testifying against defendants. Defense counsel could thus reasonably have concluded that, on the whole, the potential risk of introducing evidence of threats by Beale exceeded the potential benefit of doing so. Accordingly, the record does not affirmatively show that defense counsel lacked a rational tactical purpose for not asking the victims or Pamela Harman about Beale’s threats.
4. Prosecutorial misconduct in argument
The amended information included an allegation—as to each defendant—that the attempted murder was willful, deliberate, and premeditated. By the conclusion of trial, the prosecutor apparently decided to abandon any attempt to have the jury find the allegation true with respect to Rapp, but he did not move to dismiss the allegation, which was submitted to the jury. After arguing that the jury should convict Rapp of attempted murder because the shooting was the natural and probable consequence of “the robbery,” the prosecutor argued as follows: “When we talk about attempted murder—also charged Perysian with deliberation and premeditation. Is Rapp guilty of that? No, he’s not. Why is that? Because the People’s theory is that Rapp wanted to go there to steal. Okay. He’s not guilty of that charge or that particular allegation.”
Perysian contends that the quoted argument constituted prejudicial misconduct because it “unfairly prevented the jury from even considering [his] defense, that Rapp was the person who attempted to rob and murder Harman.” Perysian relies upon People v. Alverson (1964) 60 Cal.2d 803 (Alverson) and People v. Alvarado (2006) 141 Cal.App.4th 1577 (Alvarado) and essentially argues that the prosecutor engaged in a form of vouching for Rapp and against Perysian.
Conduct by a prosecutor that does not violate a ruling by the trial court is misconduct only if it amounts to the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury or is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Silva (2001) 25 Cal.4th 345, 373.)
Absent a showing that an objection or request for admonition would have been futile or the harm could not have been cured, a defendant may not complain of prosecutorial misconduct unless the defendant objected to the alleged misconduct in a timely fashion at trial and requested that the jury be admonished to disregard the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).)
Perysian did not object to the quoted argument of the prosecutor, and thereby forfeited the issue on appeal. But we would find no merit to his claim even if, as he argues, objection would have been futile.
If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the jury, we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. (People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Benson (1990) 52 Cal.3d 754, 793.) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. (Benson, at p. 793.) “[W]e ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
It is misconduct for a prosecutor to express a personal belief in the defendant’s guilt if there is a substantial danger jurors will construe the statement as meaning that the belief is based on information outside the trial record. (People v. Mayfield (1997) 14 Cal.4th 668, 781–782.) But such a statement of belief is permissible where the prosecutor makes it clear that the belief is based on the evidence in the record. (Id. at p. 782.) Similarly, the prosecutor may not suggest that matters outside the record establish the veracity of a witness, but the prosecutor may assure the jury of a witness’s apparent honesty or reliability based on matters in the record. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
The prosecutor’s statement in argument that Rapp was “not guilty” of the allegation that the attempted murder was willful, deliberate, and premeditated did not constitute vouching. The prosecutor’s words would not be understood by a reasonable juror to be an expression of a personal belief based upon matters outside of the evidence presented at trial. The challenged statement was, instead, a concession that the evidence did not support a true finding on the allegation with respect to Rapp.
The improper argument by the prosecutor in Alverson, supra, 60 Cal.2d 803, upon which Perysian relies, is distinguishable. There, one of the three charged defendants (Williamson) testified at trial, identified the other two defendants as participants in the crime, and admitted driving the getaway car but denied knowing of the burglary until after the other codefendants committed it. The prosecutor argued in rebuttal “that he found himself in a most unusual but ‘delightful’ situation: ‘A man here, Mr. Williamson, has been charged along with two others, Mr. Alverson and Mr. Stoner, and quite frankly in my own mind I think Mr. Williamson is telling you the truth, and quite frankly I do not think he is guilty of this charge. [¶]... [¶] The defendant here, Williamson, has taken the stand. He has told what I consider is a plausible, honest, forthright story.... [¶] All right, the testimony you have heard, it’s up to you to determine whether, in fact, he is telling the truth; whether, in fact, he is guilty or innocent of the charge. I express to you my own opinion, I express to you what I think the evidence has shown, and I wouldn’t make the statement until all of the evidence is in. [¶]... [¶] I am beginning to sound like a defense counsel, but this is the duty of a District Attorney, of the prosecutor, not to convict innocent people, it’s to convict the guilty, and I will leave it very simply, very plainly with you here.’” (Id. at pp. 805–806.)
The Supreme Court found the prosecutor’s argument to be misconduct: “The tactics used by the prosecuting attorney necessarily disturbed the delicate balance between the defense and prosecution to the disadvantage of appellant Alverson. At the very outset of the trial the prosecutor comes into the case as a champion of the People paid to prosecute offenders. The very importance of that position is, of course, apparent to the jury. The defendant has, in his favor, the presumption of innocence. But, if in addition to his basic advantage of being the champion of the People the prosecutor is to be permitted to stand before the jury like a knight in shining armor, and state that he would not think of prosecuting a man he believed to be innocent, and that he personally believed one of the defendants whose testimony had implicated the other two defendants, then the prosecutor has secured a very unfair advantage indeed. [¶] The argument of the prosecutor asking for the acquittal of Williamson for the reason that he personally believed that Williamson was innocent, and that he, the prosecutor, did not want to convict an innocent man, necessarily also told the jury that, by continuing to prosecute Alverson and Stoner he, the prosecutor, personally believed that they were guilty. Had he expressly made such a statement it would have been reversible error. The law is well settled that such an argument is not only improper, but constitutes misconduct, is prejudicial and requires a reversal, even though not objected to by the defendant, and even though no request to admonish the jury to disregard it has been made.” (Alverson, supra, 60 Cal.2d at p. 808.)
Here, the prosecutor did not engage in vouching. He neither expressly nor implicitly stated a personal belief in Perysian’s guilt, Rapp’s innocence, or the credibility of any witness. Indeed, just prior to making the challenged statement, the prosecutor argued that Rapp was guilty of the attempted murder and urged the jury to convict him of that charge. The prosecutor did not “disturb[] the delicate balance between the defense and prosecution to the disadvantage of” Perysian by throwing the prestige of his office or his personal integrity and reputation behind one defendant to the detriment of another. He simply conceded that the evidence did not support the allegation of willfulness, deliberation, and premeditation against Rapp. Perysian would have had no standing to protest if the prosecutor had moved to dismiss the allegation of willfulness, deliberation, and premeditation against Rapp under section 1385. The challenged argument created no greater disadvantage to Perysian than a dismissal.
Alvarado, supra, 141 Cal.App.4th 1577, upon which Perysian also relies, also involved vouching and is similarly distinguishable. There, in response to defense counsel’s argument, the prosecutor stated, “‘I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it. To insinuate, suggest, or to say outright that I would risk my job, my profession, multiple police officers—I think one detective was on what, 33 years, another one was 27, another one just starting his career—to suggest that any of us would put our professional career on the line because this thug took some kid’s bike is offensive and it is preposterous.’” (Id. at p. 1583, italics omitted.) This court found that the argument constituted prosecutorial misconduct in the form of vouching: “[T]he prosecutor impermissibly invited the jury to convict Alvarado based on her opinion that he was guilty and on the prestige of her office.... The only reasonable inference from these comments is that (1) the prosecutor would not have charged Alvarado unless he was guilty, (2) the jury should rely on the prosecutor’s opinion and therefore convict him, and (3) the jurors should believe [the victim] for the same reason.” (Id. at p. 1585.)
No juror would have taken the challenged statement here to state or imply that the prosecutor would not have charged Perysian unless he was guilty or that the jury should rely on the prosecutor’s opinion of either Perysian’s guilt or any witness’s credibility. The statement in this case did not constitute any form of vouching, is not comparable to the statements in Alvarado or Alvarez, and did not constitute misconduct.
5. Cumulative error
Perysian contends that the cumulative prejudicial effect of the various individual errors he has raised on appeal requires reversal of the judgment. His cumulative error claim has no greater merit that his individual assertions of error, which we have rejected.
6. Sufficiency of evidence supporting count 3 as to Rapp
Rapp contends that the evidence is insufficient to support his conviction of robbing Adam (count 3). The prosecutor’s theory with respect to both robbery charges and the attempted murder charge was that each defendant aided and abetted the other defendant. Rapp argues that “only speculation... supports a conclusion that [he] took some action intended to encourage or facilitate Perysian in the robbery attempt on [Adam] Harman.”
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 561.) The jury may consider facts such as presence at the scene of the crime and companionship and conduct before and after the offense, including flight, in deciding whether a defendant knew of the perpetrator’s intentions and intended to facilitate or encourage the crime. (People v. Mitchell (1986) 183 Cal.App.3d 325, 330.)
Substantial circumstantial evidence supports findings of the requisite knowledge, intent, and conduct by Rapp. Rapp and Perysian arrived at the Harman house together and behaved boldly for first-time visitors who did not know any of the home’s residents. They sat, smoked, and helped themselves to drinks from the refrigerator. Soon after they pretended to depart, they returned. The jury could reasonably infer that they returned stealthily, since their reentry into the house was not heard by Rapp and did not disturb Adam, who was asleep in a chair in the living room. Acting in a coordinated fashion, Perysian drew a gun and attempted to rob Adam in the living room, while Rapp drew his gun, snuck up on Aldridge in the kitchen, and robbed him at gunpoint. When Perysian shot Adam, Rapp wordlessly ran into the living room while continuing to watch Aldridge and menace him with the gun, then fled the house. The coordinated actions of the two defendants and the apparent absence of any delay between their reentry and their commencement of their efforts to rob the two victims supports an extremely strong inference that the two defendants were acting pursuant to a plan to reenter the house together and rob the occupants at gunpoint. Each defendant aided the other by keeping one of the victims occupied, thereby preventing the victims from assisting one another, as well as potentially increasing the proceeds from the robbery. Accordingly, Rapp’s conviction in count 3 is supported by ample evidence.
Rapp attempts to support his sufficiency of evidence contention with the jury’s not true finding on allegations that he acted “in concert” in the commission of the robbery and attempted robbery. Section 213, subdivision (a)(1)(A) provides lengthier sentences for first degree robbery “[i]f the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house....” The jury was instructed that in order to find this allegation true, the prosecutor was required to prove that “1. The defendant personally committed or aided and abetted a robbery; [¶] 2. When he did so, the defendant voluntarily acted with two or more people who also committed or aided and abetted the commission of the robbery; [¶] AND [¶] 3. The robbery was committed in an inhabited dwelling.” The “in concert” allegation thus required, as an additional element of proof, that the defendant had a minimum of two other accomplices, not just one. Because the evidence at trial revealed little about the knowledge, intent, and conduct of Dozmati or Beale, the jury could readily find that although Rapp and Perysian aided and abetted one another, there was insufficient evidence of the existence of a third accomplice. Accordingly, the not true finding on the “in concert” allegation does not undermine the sufficiency of the evidence supporting Rapp’s conviction in count 3.
7. Rapp’s section 12022, subdivision (a)(1) enhancement on count 1
Rapp contends, and the Attorney General concedes, that the trial court improperly imposed two firearm enhancements upon him in count 1. The parties concede the section 12022, subdivision (a)(1) enhancement should be stayed. We agree. (§ 1170.1, subd. (f).)
8. Correction of abstract of judgment for Perysian
The abstract of judgment for Perysian incorrectly reflects a stayed section 186.22 gang enhancement. This enhancement was not pleaded, proved, or submitted to the jury. The abstract of judgment must be corrected to eliminate this erroneous reference.
DISPOSITION
The judgment is affirmed as to defendant Perysian. Unless it has already done so, the trial court is directed to issue an amended abstract of judgment for Perysian to eliminate the reference to the Penal Code section 186.22 enhancement. The Penal Code 12022, subdivision (a)(1) enhancement on count 1 is stayed as to defendant Rapp only. The trial court is directed to issue an amended abstract of judgment for Rapp, reflecting that this enhancement is stayed. In all other respects, the judgment is affirmed as to defendant Rapp.
We concur: CHANEY, J., JOHNSON, J.