Filed 8/31/09 P. v.

Tran CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G040318

v. (Super. Ct. No. 05CF3536)

JONATHAN PHONG KHANH TRAN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Willliam

R. Froeberg, Judge. Affirmed as modified.
Law Office of William J. Kopeny & Associates and William J. Kopeny for
Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
 A jury convicted defendant Jonathan Phong Khanh Tran of first degree
felony murder (Pen. Code, § 187; all further statutory references are to this code unless
otherwise specified; count 1), two counts of rape (§ 261, subd. (a)(2); counts 2 and 3),
and oral copulation under color of authority (§ 288a, subd. (k); count 4). It also found
true defendant was armed and personally used a firearm during commission of the rapes
(§§ 12022.3, subds. (a), (b), 667.61, subds. (a), (e)(4)) and had multiple victims
(§ 667.61, subds. (a), (e)(5)). Defendant was sentenced to 25 years to life for the murder,
consecutive 15-years-to-life terms for the rapes, and a consecutive 8 years for the oral
copulation.
Defendant raises several grounds for his appeal: (1) there was insufficient
evidence for felony murder; (2) instructional and evidentiary errors; (3) enhancements
should not have been added to conform to proof after the conclusion of testimony; (4) his
motion for new trial should have been granted; (5) ineffective assistance of counsel; and
(6) resulting cumulative error. The Attorney General argues the sentences for the rapes
were mandatory 25 years to life instead of the imposed 15 years to life.
We find no merit in defendant‘s arguments. However we agree the
sentences for counts 2 and 3 should have been 25 years to life. Therefore we modify the
judgment to that effect.

FACTS

In December 2003 defendant stopped his truck in front of a restaurant on

Harbor Boulevard where 17-year-old Reanna B. was working as a prostitute. After she
got into the truck, in response to defendant‘s inquiry, Reanna stated her fee was $100;
defendant then drove to another location. When he stopped the truck Reanna attempted
to get out because she had not been paid. But defendant grabbed her and pulled out a
semiautomatic weapon. While pointing the gun at her, defendant demanded she take off

2
her pants and panties and then raped her. When the rape was completed Reanna left the
truck and ran away.
In January 2004, defendant picked up 19-year-old prostitute Amber R. on
Harbor Boulevard. After Amber got into defendant‘s truck, they agreed on a price of
$150 for oral copulation and sex. Defendant told her he would take to a safe place.
During the drive defendant asked Amber if she had ever been hurt while working as a
prostitute. She said no and they joked about it.
When defendant stopped his truck in a dark cul-de-sac, he pulled a
semiautomatic gun from behind the seat and said ―I lied to you.‖ ―I don‘t want to fuck
you. I just want to kill you.‖ He ordered Amber to remove her pants, panties, and shoes
and then raped her. During the 10-minute rape defendant had his gun pressed against her.
Defendant then again told her, ―Like I told you, I didn‘t want to fuck you. I just want to
kill you.‖ He demanded her money and her purse and she gave him over $120.
Defendant asked if there was more money in her purse, and when she said no, he said he
would kill her if he found any. After he looked through her purse and found no more
money he let her dress and leave the truck.
A few days later defendant stopped his truck at the same location he had
first picked up Amber. She was there and immediately recognized him, although
defendant did not initially recognize her. When he did he pulled away.
Within a day or so defendant again stopped his truck in front of the same
restaurant on Harbor Boulevard where Reanna and her friend, 15-year-old Hannah
Montessori were working as prostitutes. When Reanna approached the truck, defendant
said, ―No. I want the white girl.‖ Reanna told Montessori defendant had raped her and
not to go with him. Montessori said she needed the money and got into the truck.
Montessori began ―chirping‖ with Reanna on their walkie-talkie-like
phones. Soon, from what Reanna could hear, it sounded as it Montessori was afraid and

3
struggling with defendant. The last thing she heard Montessori say was, ―taking my
chirp.‖
Defendant had driven Montessori toward a residential cul-de-sac where
prostitution regularly occurred. When they were near the end of the street, Montessori
jumped out of the truck, hitting her head on the pavement and skidding down the street.
Within minutes she was dead. Defendant continued driving, turned around, and drove
past the body.
Six months later defendant, driving an Infiniti, picked up another prostitute
on Harbor Boulevard. When he stopped at an intersection, she jumped out of the car and
was approached by a police officer who had seen the initial pick up. The woman was
hysterical, crying, and screaming that defendant had a gun pointed at her head,
demanding oral copulation. When police finally stopped defendant‘s car they did not
find a gun, although the car was not within their sight the entire time. Defendant
admitted to police he was in the area to pick up a prostitute, but no charges resuled.
Fifteen months later defendant stopped his truck on Harbor Boulevard and
made an arrangement with 17-year-old Martha M. to pay $100 for sex. Defendant drove
her to an industrial area, parked, and began speaking in ―code‖ into his cell phone.
Defendant told Martha he was an undercover police officer, showed her a badge, and said
he would not arrest her if she orally copulated him. He then spoke on his cell phone,
inquiring of a ―dispatcher‖ if Martha had any outstanding warrants. He told her
everything was okay and had her orally copulate him. When the act was complete
defendant told her if she revealed what had occurred she would be arrested.
The pathologist called by defendant testified the autopsy findings were
consistent with Montessori being hit in the head with a single blow with something like a
brick or baseball bat, driven while still upright to the location where she died, and thrown
from a truck. He testified that the speed suggested by the prosecution‘s evidence was too
slow to cause her injuries. He did agree that if the truck had been going faster, her

4
injuries would be more consistent with the prosecution‘s theory about the cause of her
death. Defendant‘s girlfriend also testified he had never been violent or disrespectful to
women.

DISCUSSION

1. Felony Murder Conviction

a. Sufficiency of the Evidence
The prosecution relied on attempted rape or attempted robbery or both as
the underlying felony, charging defendant with the felony murder of Montessori.
Defendant contends there is insufficient evidence of either attempted rape or attempted
robbery. We disagree.
Felony murder is ―murder . . . committed in the perpetration of, or attempt
to perpetrate, . . . rape . . . [or] robbery . . . .‖ (§ 189.) ―An attempt to commit a crime
consists of two elements: a specific intent to commit the crime, and a direct but
ineffectual act done toward its commission.‖ (§ 21a.)
―Rape is an act of sexual intercourse accomplished with a person not the
spouse of the perpetrator . . . [¶] . . . [¶] . . . [w]here it is accomplished against a person‘s
will by means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.‖ (§ 261, subd. (a)(2).) Attempted rape requires a
―specific intent to commit rape, and a direct but ineffectual act done towards its
commission. [Citation.] Such act cannot be merely preparatory, and must constitute
direct movement towards completion of the crime. [Citation.] However, attempted rape
does not necessarily require a physical sexual assault or other sexually
―‗unambiguous[]‘‖ contact. [Citations.]‖ (People v. DePriest (2007) 42 Cal.4th 1, 48.)
―Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by

5
means of force or fear.‖ (§ 211.) The elements of attempted robbery are the intent to
commit a robbery and some ineffectual act to commit it. (People v. Vizcarra (1980) 110
Cal.App.3d 858, 861.)
Where there is a claim of insufficient evidence, ―we ‗examine the whole
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid value—such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‘
[Citations.] We presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence. [Citation.]‖ (People v. Guerra (2006) 37
Cal.4th 1067, 1129, disapproved on another ground in People v. Rundle (2008) 43
Cal.4th 76, 151.) ―Unless it is clearly shown that ‗on no hypothesis whatever is there
sufficient substantial evidence to support the verdict‘ the conviction will not be reversed.
[Citation .]‖ (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) We apply the
same standard to convictions based largely on circumstantial evidence. (People v. Valdez
(2004) 32 Cal.4th 73, 104; see People v. Marks (2003) 31 Cal.4th 197, 230-231
[circumstantial evidence sufficient to prove attempted robbery]; see also People v. Miller
(1962) 57 Cal.2d 821, 826-827 [same for attempted rape].)
Defendant argues that, even with the evidence of the other sexual crimes in
evidence, there is no evidence defendant intended to rape Montessori as opposed to
committing some other sexual assault such as oral copulation.
A recent Supreme Court case, People v. Story (2009) 45 Cal.4th 1282,
disposes of this argument. There the defendant was charged with felony murder based on
offenses of rape and burglary. Some of the evidence used to prove the underlying crimes
were four other rapes committed by defendant. The court held the ―defendant is a serial
rapist, and that his raping conduct began before he killed Vickers and continued
afterwards. The other four sexual assaults were quite similar in a number of respects to
each other and to the crime of this case. In each case, defendant entered an

6
acquaintance‘s home at night uninvited, and proceeded to rape, or attempt to rape, the
victim. . . . [¶] This pattern of conduct ‗provides ample evidence for a reasonable jury to
find that defendant intended to rape [the victim] when he killed her.‘ [Citation.] ‗The
chance that defendant acted with innocent intent with [the murder victim] is sharply
reduced by evidence that he committed a forcible, nonconsensual sex act upon [a
different victim] a few months earlier.‘ [Citations.] This latter observation is all the
more compelling here, where defendant committed four sexual assaults, two before and
two after he killed [the victim]. . . . Accordingly, when the evidence of the other sexual
assaults is considered, the evidence supporting the jury‘s verdict was not insufficient but
extremely strong.‖ (Id. at pp. 1297-1298.)
Defendant attempts to distinguish Story, claiming there are strong
similarities among the crimes in that case as opposed to the dissimilarities in the present
one. In Story, the other four crimes were all rapes (one only inferred from circumstantial
evidence) in the victims‘ homes; the victim was killed in her home after sexual
intercourse occurred.
But there are substantial dissimilarities as well. Although the victim was
strangled, there was no strangulation in two of the other four incidents; in one of the
others the defendant used a gun and no weapon was used in the fourth. Two of the
victims had had one date with the defendant; the other two had not. The crimes occurred
over a period of 13 years.
The other crimes in the instant case are substantially similar. All involved
prostitutes defendant picked up at or near the same location on Harbor Boulevard. He
agreed to pay the women and then refused. The two crimes committed before
Montessori‘s death were rape at gunpoint after defendant had driven the victims to a
different location. They occurred only a month before Montessori‘s killing.
That 5 months and 20 months later defendant was demanding oral
copulation from two other prostitutes does not change the result. We also reject

7
defendant‘s claim the similarities are insufficient because they deal with ―method of
operation‖ rather than being ―felony[]specific.‖ Under Story evidence of the first two
rapes at gunpoint was sufficient for the jury to infer defendant intended to commit the
same crime with Montessori. ―A reasonable jury was not required to find that the one
time defendant actually killed his victim was the one time he had no intent to rape.
‗Nothing in this case required the jury to find that [the murder victim] was an exception
to this pattern . . . .‘ [Citation.]‖ (People v. Story, supra, 45 Cal.4th at p. 1298.)
Defendant‘s other distinctions of Story are also ineffective. That there was
no evidence defendant assaulted Montessori, as opposed to the fact the defendant in Story
had assaulted the victim, is meaningless. Here the charge was attempted rape, not rape.
The claim there could have been reasons other than attempted rape that Montessori
jumped from the truck is likewise unavailing. Contrary evidence or other inferences the
jury could have drawn from testimony do not defeat the substantial evidence supporting
the crime. (People v. Thomas (1992) 2 Cal.4th 489, 514.) It is also irrelevant that in the
instant case the prosecution had two alternate underlying felonies while in Story there
was only one. Finally defendant‘s argument Story dealt primarily with the propriety of
admission of similar sexual offenses under Evidence Code section 1108 is without merit.
The case also stands for the proposition for which we cite it.
The attempted rape supports the felony murder conviction and thus we need
not discuss the alternate attempted rape theory.

b. Jury Instruction
Because there was sufficient evidence to support felony murder, it was not
error to instruct on this theory.

8
2. Failure to Instruct on Involuntary Manslaughter
Defendant claims the court erred by failing to instruct the jury sua sponte
on a theory of involuntary manslaughter.
Involuntary manslaughter, a lesser included offense of murder, ―is a killing
committed ‗in the commission of an unlawful act, not amounting to a felony; or in the
commission of a lawful act which might produce death, in an unlawful manner, or
without due caution and circumspection.‘ [Citation.]‖ (People v. Prettyman (1996) 14
Cal.4th 248, 274.) ―[A] court is not obligated to instruct on involuntary manslaughter in
the absence of substantial evidence that the defendant killed his victim ‗―in the
commission of an unlawful act, not amounting to [a] felony; or in the commission of a
lawful act which might produce death, in an unlawful manner, or without due caution and
circumspection.‖‘ [Citations.]‖ (People v. Benavides (2005) 35 Cal.4th 69, 102.)
Defendant asserts that ―[h]ad the jury been given an alternative legal basis
for convicting [defendant] of a lesser crime, there is . . . a reasonable probability . . . that
at least one juror would not have convicted him of murder.‖ But defendant does not
point to substantial evidence on which a jury could rely to convict defendant of
involuntary manslaughter. He merely argues that some act by defendant caused
Montessori to be fearful, leading her to jump from the truck. Specifically, he claims
―whatever was causing [her] to act frightened, it was an action of defendant.‖ (Italics
added.) But this does not satisfy the substantial evidence requirement. It is pure
speculation. ―[S]peculation is not evidence, less still, substantial evidence. [Citation.]‖
(People v. Berryman (1993) 6 Cal.4th 1048, 1081, disapproved on another ground in
People v. Hill (1998) 17 Cal.4th 800, 822-823.)
At oral argument, defendant suggested the underlying misdemeanor could
have been either solicitation of prostitution or misdemeanor assault. But this is still
speculative. And even if there was some evidence, it is insufficient. ―[T]he existence of
‗any evidence, no matter how weak‘ will not justify instructions on a lesser included

9
offense, but such instructions are required whenever evidence that the defendant is guilty
only of the lesser offense is ‗substantial enough to merit consideration‘ by the jury.
[Citations.] ‗Substantial evidence‘ in this context is ‗―evidence from which a jury
composed of reasonable [persons] could . . . conclude[]‖‘ that the lesser offense, but not
the greater, was committed. [Citations.]‖ (People v. Breverman (1998) 19 Cal.4th 142,
161, italics added.) There was not substantial evidence of involuntary manslaughter that
would warrant an instruction, much less require it sua sponte.

3. Amendment of Information to Add Enhancement

At the end of testimony the prosecution moved to amend the information to
add a firearm enhancement to count 2 (the rape of Reanna) to conform to proof. There
was no argument and defense counsel did not object. After discussion about jury
instructions, the court granted the motion without comment. Defendant asserts this was
error based on the provisions of section 1009.
Defendant did not object at trial to the amendment and thus forfeited the
right to raise the argument on appeal. (People v. Carrasco (2006) 137 Cal.App.4th 1050,
1056 [failure to object to amending information forfeits right to appeal issue].)
Defendant argues that if this is the case then his lawyer‘s failure to object constituted
ineffective assistance of counsel. Without deciding that question, on the merits the claim
fails.
Section 1009 provides: ―The court in which an action is pending may order
or permit an amendment of an indictment, accusation or information, or the filing of an
amended complaint, for any defect or insufficiency, at any stage of the proceedings . . . .
An indictment or accusation cannot be amended so as to change the offense charged, nor
an information so as to charge an offense not shown by the evidence taken at the
preliminary examination.‖ Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 [120
S.Ct. 2348, 147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct.

10
2531, 159 L.Ed.2d 403], United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738,
160 L.Ed.2d 621, and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166
L.Ed.2d 856], defendant claims the enhancement is the equivalent of an offense and was
not supported by evidence at the preliminary hearing.
None of the cited cases supports the issue before us. Further, neither party
pointed to any case law directly on point and we found none. Cases on which defendant
relies deal generally with due process issues in charging and proving enhancements.
(E.g., Apprendi v. New Jersey, supra, 530 U.S. at p. 490 [―Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt‖]; United
States v. Booker, supra, 543 U.S. at p. 231 [that crime called ―‗sentence enhancement‘
rather that a separate criminal act was irrelevant for constitutional purposes‖].) In the
context of the multiple convictions rule our state Supreme Court ruled, ―By definition, an
enhancement is ‗an additional term of imprisonment added to the base term.‘ [Citations.]
For that reason alone, an enhancement cannot be equated with an offense. [Citation.]‖
(People v. Izaguirre (2007) 42 Cal.4th 126, 134.)
But even if in this context an enhancement is the equivalent of a charged
offense under section 1009, which we do not decide, the amendment was proper. There
was sufficient evidence at the preliminary hearing that defendant used a firearm when
raping Reanna. A police officer testified at the preliminary hearing Reanna told him
defendant had used a gun.
Defendant relies on the prosecutor‘s statement at the conclusion of the
preliminary hearing that there was insufficient evidence a firearm was used and his
statement to the judge that the prosecution was not seeking a gun enhancement on count
2 charging the rape of Reanna. But that was merely the prosecutor‘s belief at the time. It
does not negate the existence of the evidence. Moreover, defendant has not shown his
defense would have been any different and thus has not been prejudiced.

11
4. Testimony As to Lineup
Although Reanna identified defendant at trial, during the investigation
when presented with a six-pack photo lineup she could not positively identify him but
instead could only point to two men, including defendant, as having features similar to
the one who attacked her. On cross-examination defense counsel asked the officer if he
had conducted a live lineup in addition to a photo lineup; he had not. Counsel also asked
some follow-up questions about Reanna‘s difficulty in positively identifying defendant
from the photo lineup.
On redirect the prosecutor asked why the officer had not conducted a live
lineup. ―Did you feel there was no need to do that? Had you done any other
investigation on this case?‖ The officer explained he never had done a live lineup but
always relied on photo lineups in conjunction with corroborative evidence. Over
defendant‘s objection the officer explained there were additional reasons as well why he
did not conduct a live lineup, because defendant had been ―positive[ly]‖ identified by
other witnesses. The prosecutor then asked, ―So you didn‘t feel it was particularly
relevant since [Reanna] had narrowed it to two, since she wasn‘t the only victim to do a
live – or photographic lineup?‖ After the officer agreed, the court immediately instructed
the jury that the testimony had been admitted for a limited purpose, not the truth but only
that the officer did not do a live lineup. The jury was told not to consider the testimony
for its truth. On recross, defense counsel elicited that Amber had not made a positive
identification of defendant in the photo lineup; she had only stated she thought it was him
but his hair was different.

12
 Defendant argues the questions establishing the officer had not done a live
lineup because he believed there was no need were leading and argumentative and
―designed to suggest the answer . . . that [the officer‘s] investigation convinced him the
defendant was guilty . . . .‖ Defendant also asserts this allowed the officer to present an
expert opinion that the identification of defendant from the photo lineup was correct and
that defendant had been correctly identified. We are not persuaded.
As the court stated in overruling defendant‘s objection, defendant‘s
question whether the officer had conducted a live lineup opened the door to questions
about why he had not. Defendant‘s question did raise an inference that the officer‘s
investigation was incomplete and the prosecution was allowed to rebut it. (People v.
Matthews (1980) 108 Cal.App.3d 793, 795.) Nor can the officer‘s testimony be
categorized as an opinion. Rather, the officer explained how he had conducted his
investigation. More importantly, the witnesses identified defendant in court. These brief
statements by the officer, in light of the other evidence, were not particularly significant.
Finally, the court gave a limiting instruction right after the testimony was elicited and
gave another shortly after that. Admission of the statements was not erroneous.

5. Ineffective Assistance of Counsel

a. Introduction
Defendant raises several grounds to support his claim of ineffective
assistance of counsel. He also claims his motion for new trial based on ineffective
assistance was denied in error. Defendant has not satisfied his burden to show ineffective
assistance of counsel. For that reason, there was no error in denying the motion for new
trial on that ground.
The standard for determining ineffective assistance of counsel is well
settled. To prevail, a defendant must show that, viewing it objectively, counsel‘s

13
performance fell below prevailing professional standards and was prejudicial.
(Strickland v. Washington (1984) 466 U.S. 668, 687-694 [104 S.Ct. 2052, 80 L.Ed.2d
674].) To prove prejudice, defendant must demonstrate there is a ―‗reasonable
probability that, but for counsel‘s unprofessional errors, the result of the proceeding
would have been different.‘‖ (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) ―‗―‗A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.‘ [Citations.]‖ [Citations.]‘ [Citation.]‖ (People v. Weaver (2001) 26 Cal.4th
876, 925.)
We give deference to findings of fact based on substantial evidence. (In re
Andrews (2002) 28 Cal.4th 1234, 1250.) ―On questions of mixed law and fact or of a
purely legal nature, however, we reach our conclusions on the basis of an independent
review of the record and the law. [Citation.] Both any deficiency in counsel‘s
performance and any prejudice occasioned thereby are mixed questions of law and fact.
[Citation.]‖ (People v. Mayfield (1993) 5 Cal.4th 142, 199.)
―‗―[I]f the record on appeal sheds no light on why counsel acted or failed to
act in the manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation,‖ the
claim [of ineffective assistance of counsel] on appeal must be rejected.‘ [Citations.] A
claim of ineffective assistance in such a case is more appropriately decided in a habeas
corpus proceeding. [Citations.]‖ (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-
267.) Here, while acknowledging an ineffective assistance of counsel claim ordinarily
must be raised collaterally, defendant asserts the record reveals there is no reasonable
explanation for any of the alleged deficiencies.

b. No Prejudice
―‗[A] court need not determine whether counsel‘s performance was
deficient before examining the prejudice suffered by the defendant as a result of the

14
alleged deficiencies.‘ [Citation.]‖ (People v. Cox (1991) 53 Cal.3d 618, 656,
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
see also In re Alvernaz (1992) 2 Cal.4th 924, 945 [―‗If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should
be followed‘‖].) Several of the claimed errors by counsel did not prejudice defendant.

1) Test of Shell Casing

Police found a shell casing in defendant‘s truck. Defendant criticizes trial
counsel for failing to follow up on a request to test it to determine whether it came from a
handgun or the rifle found in defendant‘s bedroom. He argues the prosecution was able
to argue the presence of the shell casing corroborated the testimony of the victims that
defendant threatened them with a gun. Posttrial testing showed the shell casing came
from the rifle. Had this information been known prior to trial the shell casing would not
have been relevant and not admitted. Instead the prosecution was able to ―create the
impression‖ the shell casing came from a handgun.
But failure to test was not prejudicial. The prosecution did not need the
shell casing to prove defendant used a gun. More than one victim testified he did and that
was sufficient. Moreover, defense counsel argued the shell casing was from the rifle, and
the prosecution was unable to rebut that argument.
In a related argument defendant claims that the possibility the shell casing
was from a handgun eliminated his ability to argue the gun about which the victims
testified was only a toy, thereby defeating the gun enhancement under section 12022.53.
But arguing the gun was a toy would not necessarily have eliminated the enhancement.
In People v. Monjaras (2008) 164 Cal.App.4th 1432, the court held ―[c]ircumstantial
evidence alone is sufficient to support a finding that an object used by a robber was a
firearm. [Citations.]‖ (Id. at p. 1436.) ―[T]he victim‘s inability to say conclusively that

15
the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that
the gun was a firearm. [Citation.]‖ (Id. at pp. 1437-1438, fn. omitted.)
Further, it was a reasonable tactic not to have the shell casing tested. Had
testing shown the bullet was from a handgun, counsel could not have argued it came from
the rifle and it would have strengthened the prosecution‘s case that defendant did use a
gun. That it may not have been a tactic every lawyer would have used is not the test.
―‗[W]e accord great deference to counsel‘s tactical decisions‘ [citation], and we have
explained that ‗courts should not second-guess reasonable, if difficult, tactical decisions
in the harsh light of hindsight‘ [citation]. ‗Tactical errors are generally not deemed
reversible, and counsel‘s decisionmaking must be evaluated in the context of the
available facts.‘ [Citation.]‖ (People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)

2) DNA Test of Montessori’s Cell Phone

Defendant also criticizes counsel‘s failure to test Montessori‘s cell phone
for DNA, claiming there was no reason not to test. A subsequent test showed none of
defendant‘s DNA on the phone. Defendant claims had this evidence been introduced at
trial he could have argued he never touched the phone, thereby defeating the felony-
murder claim based on robbery.
Again, defendant has not shown prejudice. First, the absence of DNA does
not show defendant did not attempt to take the phone, grabbing Montessori‘s arm or wrist
in the process. Further, as discussed above, the felony-murder count was proven by
attempted rape and defeat of the attempted robbery charge would not have mattered.

3) Failure to Move to Exclude Inadmissible Testimony

Defendant claims counsel should have moved to exclude his statement to
police that he was on Harbor Boulevard to pick up prostitutes because it was made during

16
a custodial interrogation and he was not read his Miranda (Miranda v. Arizona (1966)
384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) rights. We do not reverse for a violation
of Miranda where admission of the evidence was harmless beyond a reasonable doubt.
(People v. Bradford (2008) 169 Cal.App.4th 843, 854.) Such is the case here. There was
plenty of other evidence defendant was soliciting prostitutes. As to this woman, a police
officer observed the solicitation. Further, defendant‘s conduct in picking up prostitutes as
shown by the testimony of the various victims was ample evidence, even without
defendant‘s statement.

4) Girlfriend’s Testimony About Advice Not to Speak to Police

When defendant‘s girlfriend was cross-examined, she testified she did not
talk to police based on advice by defendant‘s counsel to both her and defendant not to do
so. Defendant claims this would constitute the introduction of evidence defendant had
exercised his Fifth Amendment privilege not to testify, in violation of Griffin v.
California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] (improper comment on a
defendant‘s failure to testify) and Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49
L.Ed.2d 91] (postarrest silence), and that counsel erred by not seeking a mistrial or at
least a jury admonishment.
The court found this testimony was a passing comment, and the record
confirms this, and thus harmless. In People v. Turner (2004) 34 Cal.4th 406 in opening
statement the prosecutor commented ―‗we did not have access to testimony from the
defendants.‘‖ (Id. at p. 420, italics omitted.) The court held failure to object was not
ineffective assistance of counsel because there was no prejudice: ―The reference was
brief and mild and did not suggest that the jury should draw an inference of guilt from
defendant‘s failure to testify.‖ (Ibid.) So, too, here.

17
 5) Defendant’s Expert
In an effort to defeat the felony-murder charge, the defense put on an expert
pathologist who testified that Montessori could have been intentionally killed by being hit
with an object such as a brick and then thrown into the street after she was dead.
Defendant charges the expert was not retained until two days before he testified, did not
hear the testimony of the prosecution‘s pathologist and was not provided with all relevant
documents, thus giving the prosecution the opportunity to argue he was not being
truthful. He also points out that the court decided to give a jury instruction about
premeditated murder based on the testimony of defendant‘s expert.
Here, again, there was no prejudice. Defendant was not convicted of
premeditated murder. Moreover, in light of the evidence, it is not reasonably probable
that there would have been a different result absent the testimony or the prosecution‘s
comments about it.

c. No Errors
In addition, as discussed below most of the claimed inadequate
representation did not fall below professional standards.

1) Failure to Object
Defendant claims counsel erred by failing to object to admission of or move
to exclude the shell casing, claiming it was irrelevant, speculative, or inadmissible as
prejudicial under Evidence Code section 352. But the shell casing was relevant as
tending to prove defendant had a firearm in his truck. The fact that subsequent testing
showed it came from a rifle does not change this. We do not evaluate counsel‘s
performance in hindsight. (People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)

18
 Defendant also contends counsel should have objected to Reanna‘s
testimony describing her telephone conversation with Montessori after she got into
defendant‘s truck. To talk on the ―chirp‖ walkie-talkie-like phone, a button needs to be
held down; when it is not, nothing can be heard. When Montessori was in defendant‘s
truck Reanna was talking to her but the conversation kept ―breaking up, like [Montessori]
kept pushing the button . . . .‖ ―So it was as if she was fighting.‖ When the prosecutor
asked how Montessori sounded, Reanna responded, ―She wasn‘t calm. She was
frightened. She was scared. You can tell . . . something was happening.‖ When the
prosecutor asked her to describe Montessori‘s voice, Reanna testified, ―She was like
fighting . . . with him.‖ ―[T]he last three words I heard from [Montessori were] ‗taking
my chirp.‘‖
Defendant argues this testimony was speculative, conclusory, and
inadmissible lay opinion. But ―a witness may testify about objective behavior [the sound
of Montessori‘s voice] and describe behavior as being consistent with a state of mind.‖
(People v. Chatman (2006) 38 Cal.4th 344, 397.) An objection would have been
overruled.
Defendant also attacks the statements that Montessori was fighting and
―taking my chirp,‖ claiming they improperly and prejudicially supported the attempted
robbery count. As discussed above, the felony-murder count could be sustained on
attempted rape and thus, even if inadmissible, the statements were not prejudicial.

2) Failure to Move to Exclude Inadmissible Testimony

The unnamed prostitute who got out of defendant‘s car told a police officer
defendant had pointed a gun at her head demanding oral sex. Defendant claims his
lawyer should have moved to exclude this. During a pretrial hearing defense counsel

19
stated he wanted the statement to come in because the evidence was the police found no
gun and this would discredit claims of other victims that defendant had a gun. This
would be in conjunction with testimony of a police officer that prostitutes commonly
make these types of claims to avoid being arrested. This was clearly a reasonable tactical
decision, despite defendant‘s argument that counsel should have known it would not be
helpful.
We also reject defendant‘s claim counsel should have objected to the
testimony as ―propensity‖ evidence inadmissible under Evidence Code section 1101,
subdivision (a). The victim‘s spontaneous statement (Evid. Code, § 1240) was not
evidence of a character trait.
During the investigation, defendant was detained on a ―pretext stop‖
because the truck he was using had paper license plates. When the officer asked him why
he had no metal plates, defendant said he did not have them because the car had been
repossessed a year prior. After defendant gave the officer permission to search his truck,
the officer then found the official license plates under the seat. On showing them to
defendant and asking why they were not on the truck defendant said ―he was going to sell
th[e] truck.‖ Defendant argues counsel should have moved to exclude these statements
because no Miranda warning was given. However there is no evidence defendant was in
custody and no warning was necessary. (People v. Farnam (2002) 28 Cal.4th 107, 180
[inquiries during temporary detention not subject to Miranda].)

3) Felony-Murder Jury Instruction

Defendant claims counsel erred by not objecting to the felony-murder jury
instruction. As explained above, there was sufficient evidence of felony murder; thus an
instruction on it was proper.

20
 d. Miscellaneous Arguments
Defendant emphasizes that in analyzing an ineffective assistance of counsel
claim we should look to the cumulative effect of the claimed errors. Because we have
determined there were either no errors or no prejudice, there was no cumulative error.
As to any other claimed errors in defendant‘s briefs that are sprinkled
throughout, they are forfeited because they do not have separate headings or subheadings
describing the argument (Cal. Rules of Court, rule 8.204(a)(1)(B)) and are not supported
by sufficient argument or reasoned legal authority or both (People v. Stanley (1995) 10
Cal.4th 764, 793).

e. Motion for New Trial

Pointing to the substantive claims of ineffective assistance of counsel,
defendant argues the trial court erroneously denied his motion for new trial made on that
basis. His argument is not detailed or lengthy and seems to rely primarily on a
declaration and testimony from an expert who had the opinion trial counsel had fallen
below the applicable professional standards, thereby causing prejudice to defendant.
The trial court reviewed the declaration, as well as the other portions of the
motion, and heard the expert‘s testimony, and, after ruling on each individual ground
raised in the motion, specifically found counsel‘s performance met the prevailing
standard. Based on our conclusions as to the ineffective assistance of counsel claims we
concur. The court did not err in denying the motion.

6. Cumulative Error
Because there were no individual errors, there is no cumulative error.

21
7. Sentencing Error
The Attorney General argues that the 15-years-to-life sentences for the two
rape counts were unauthorized under section 667.61. This argument may be raised for
the first time in respondent‘s brief. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256
[Attorney General may raise issue of unauthorized sentence in the defendant‘s appeal].)
Section 667.61 mandates that a defendant convicted of any of the specified
crimes in subdivision (c) or ―two or more of the circumstances specified in subdivision
(e)‖ shall be sentenced to a term of 25 years to life. (§ 667.61, subd. (a).) The crimes
include forcible rape (§§ 261, subd. (a)(2), 667.61, subd. (c)(1)) and the circumstances
include personal use of a firearm (§§ 667.61, subd (e)(4), 12022.3, subdivision (b)) and
committing rape against more than one victim (§ 667.61, subd. (e)(5)). Defendant was
convicted of two counts of rape with findings that he personally used a firearm in each.
Thus, the provisions of section 667.61 mandate a 25 years-to-life sentence for counts 2
and 3.
Defendant does not put up a serious objection to this argument, merely
asserting the judge was aware of the convictions and enhancements when he imposed the
sentence and that he believes the sentence was lawful. This does not suffice to affirm the
15-years-to-life sentences on those counts. We may set aside an unauthorized sentence
so a proper sentence may be imposed, even if the new sentence is harsher. (In re
Renfrow, supra, 164 Cal.App.4th at p. 1256 see also People v. Serrato (1973) 9 Cal.3d
753, 764, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572,
583, fn. 1.) Thus the judgment must be modified so the sentence for count 2 and count 3
is 25 years to life, to run consecutively (§ 667.61, subd. (i)).

22
 DISPOSITION

The judgment is modified to show that for count 2 and count 3 defendant is
sentenced to 25 years to life, to run consecutively. Except as modified the judgment is
affirmed. The clerk of the court is directed to prepare an amended abstract of judgment
reflecting the new sentence and forward a certified copy to the Department of Corrections
and Rehabilitation.

RYLAARSDAM, J.
WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

23