(Super. Ct. No. SF115167A)
The opinion of the court was delivered by: Hoch , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Keith Wayne Harrell of second degree robbery (Pen. Code,*fn1 §§ 211, 212.5, subd. (c)) and deadlocked as to whether he personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)). In a bifurcated proceeding, the jury found that defendant had burglary convictions in 1975, 1978, 1984, and 1990, each alleged as a prior serious felony (§ 667, subd. (a)) and a strike (§§ 667, subds. (b)-(i), 1170.12). The jury found defendant had served prior prison terms for the 1984 and 1990 burglaries. (§ 667.5, subd. (b).) He was sentenced to state prison for 45 years to life, consisting of 25 years to life for the offense plus five years each for the prior serious felonies. Sentences on the prison term enhancements were stayed pursuant to section 654.*fn2
On appeal, defendant contends (1) the prosecutor committed prejudicial misconduct when he vouched for prosecution witness (and former co-defendant) Jaimy Martin, (2) the trial court failed to consider whether his sentence was proportionate to that of Martin, (3) the abstract of judgment must be corrected to reflect the oral pronouncement of judgment, and (4) the prison term enhancements should have been stricken rather than stayed. With regard to the vouching contention, defendant has forfeited this issue by failing to object in the trial court. Anticipating this result, defendant claims ineffective assistance of counsel by failing to object. We reject defendant's claim because defense counsel's summation provided a satisfactory explanation for not objecting in the trial court. As to his second claim, defendant also has forfeited this claim by failing to object in the trial court. Again anticipating this result, defendant claims ineffective assistance of counsel. We conclude there is no reasonable probability defense counsel could have established that defendant's sentence was excessive when compared with Martin's sentence. Next, we reject defendant's claim that the abstract of judgment does not reflect the oral pronouncement of judgment. Finally, we conclude the prison term enhancements should have been stayed. The judgment is modified to stay execution of the one-year prison term enhancements. As modified, the judgment is affirmed.
On a Sunday in June 2010, defendant and Martin, his friend and roommate, decided to spend the day going to garage sales and purchasing items using counterfeit bills. After visiting two garage sales, defendant pulled out a gun from under the driver's seat of his car and told Martin, "We're going to rob the next place." Martin believed defendant was serious and not joking because he seemed to be agitated, and he was acting in an aggressive manner. Martin agreed with defendant's plan.
As they drove, defendant and Martin saw signs for another garage sale. They followed the signs and ended up at the home of Quang Vo. Martin got out of the car, walked up to Vo, and said, "Give me all your money." At first, Vo thought Martin was joking. However, Martin looked back over her shoulder toward defendant, who was still sitting in the car, and told Vo that defendant had a gun. Vo looked over at the car and saw defendant holding a gun. At that point, Vo feared for his life, so he pulled all of the money out of his pockets and gave it to Martin. After getting the money, Martin hurried back to the car and defendant drove away.
The defense rested without presenting evidence or testimony.
Vouching for Prosecution Witness
Defendant contends the prosecutor committed prejudicial misconduct during his direct examination of Martin when he "developed the fact that Martin had pled guilty with the stipulation that she would testify truthfully at trial, and, if so, she would receive a sentence of probation (with jail time)." In defendant's view, introduction of this evidence "resulted in improper prosecution 'vouching' for a crucial prosecution witness, violating the federal constitutional right to due process." (Citing, e.g., United States v. Brooks (9th Cir. 2007) 508 F.3d 1205, 1209; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1473; United States v. Roberts (9th Cir. 1980) 618 F.2d 530, 532.)
The Attorney General counters that the claim has been forfeited because defendant did not object on the ground of prosecutorial misconduct and did not seek any admonition from the court. (E.g., People v. Jones (2003) 29 Cal.4th 1229, 1262.) The Attorney General further argues that none of the exceptions for raising an objection and seeking a curative admonition apply in this case. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Anticipating the Attorney General's response, defendant claims his trial counsel's failure to object and request a curative admonition constitutes ineffective assistance. We are not persuaded.
During direct examination, Martin testified that when she first met with police regarding the robbery, she lied and told officers she and defendant had bought an entertainment stand at Vo's garage sale. She admitted at trial that this version of events was just "a story."
The prosecutor and Martin later had this exchange regarding her testimony:
"Q. All right. And you actually came and talked to myself and Detective Perez previous to your ...