Filed 3/27/13 P. v. Milton CA2/3 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

WILLIAM MARTINEZ MILTON, 

 Defendant and Appellant. 

B238492 

(Los Angeles County 

Super. Ct. No. NA088326) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, 

Tomson T. Ong, Judge. Modified and, as modified, affirmed with directions. 

 Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, David E. 

Madeo and John Yang, Deputy Attorneys General, for Plaintiff and Respondent. 

_________________________
2 

Appellant William Martinez Milton appeals from the judgment entered following 

his conviction by jury on count 1 – attempted first degree burglary with a person present 

(Pen. Code, §§ 459, 667.5, subd. (c)(21)) with court findings he suffered a prior felony 

conviction (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen. Code, 

§ 667, subd. (a)), and a prior felony conviction for which he served a separate prison term 

(Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for 12 years. We 

modify the judgment and, as modified, affirm it with directions. 

FACTUAL SUMMARY 

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 

6 Cal.4th 1199, 1206 (Ochoa)), the evidence established that on March 7, 2011, Erica 

Ruvalcaba lived in an apartment at 826 Elm in Long Beach. Her apartment was on the 

second floor of the rearmost of two buildings which were about 40 feet apart and separated 

by a courtyard. A fence enclosed the entire apartment complex. Ruvalcaba’s apartment 

had a locked lattice door near the window of her apartment. A laundry room downstairs 

housed her cats.

About 10:30 p.m. on the above date, Ruvalcaba and her son were in her apartment 

when Ruvalcaba heard the lattice door shaking a few seconds as if someone were trying to 

open it. Her porch light was off. Ruvalcaba had not given anyone permission to enter her 

property. She looked out a window of her apartment but saw no one. Shortly thereafter, 

Ruvalcaba heard one of her cats scream. Ruvalcaba looked out her window and saw 

appellant standing downstairs by the laundry room door. He was wearing a cap and a dark 

jacket. Ruvalcaba ducked and called 911. She continued talking with the 911 operator 

during the ensuing events. Ruvalcaba looked out her window again but did not see 

appellant. 

The front building had two apartments, one upstairs at 822 Elm and the other 

downstairs at 824 Elm. About two minutes after Ruvalcaba saw appellant outside the 

laundry room, she looked out her window and saw that appellant had ascended about twothirds of the staircase leading to 822 Elm. Ruvalcaba knew appellant was not one of her 

neighbors. 
3 

Ruvalcaba testified that appellant, whose back was towards Ruvalcaba, was using 

his left hand to reach towards the window at 822 Elm and push on it “maybe ten seconds at 

the least.” Ruvalcaba testified there was very dim lighting from the apartment next door, 

there was lighting from “the other apartment,” and she could see clearly. 

Ruvalcaba later saw appellant on the porch at 822 Elm. His hand was not extended 

at that time. Ruvalcaba later looked and appellant was not on the porch. 

The front building was the westernmost of the two buildings. A pathway ran 

alongside the north side of the front building, and the pathway extended from the courtyard 

westward to a location in front of the front building. The door to 824 Elm was on the north 

side of the front building, and a walkway led from the pathway to the door of 824 Elm. A 

portion of that walkway, and the door of 824 Elm, were both inset into the building. 

After Ruvalcaba saw that appellant was not on the porch at 822 Elm, she looked 

again and it appeared appellant was leaving the inset walkway near the door at 824 Elm. 

Ruvalcaba later looked out her window and saw appellant at the bottom of the staircase 

that led to 822 Elm. Appellant was using his left hand to wrap around his right hand and 

arm the jacket he had been wearing. Ruvalcaba then saw appellant was wearing a white 

shirt. Perhaps a minute later, Ruvalcaba looked out her window and saw appellant wearing 

the jacket and walking on the pathway. 

Ruvalcaba ducked but about two seconds later she looked out her window and saw 

police detain appellant. Ruvalcaba told the 911 operator that the person police had 

detained was the person Ruvalcaba had seen. About 15 minutes passed from the time 

Ruvalcaba had called 911 to the time police arrived. Ruvalcaba did not see anyone else in 

the courtyard. 

Ruvalcaba hung up the phone and, about two to three minutes later, police came to 

her apartment. She told police that the person whom police had caught inside her building 

was the person she had seen. Ruvalcaba also identified appellant during a field show-up. 

At the time, appellant was wearing a white shirt and the jacket. Ruvalcaba did not identify 

appellant at trial. 
4 

Meynardo Benitez lived at 822 Elm with his son Abraham Morales. He testified to 

the effect the window Ruvalcaba had seen appellant push at 822 Elm was Benitez’s locked 

kitchen window that led into his apartment. Benitez gave no one permission to open his 

window. 

Long Beach Police Officer Patrick Dougherty testified as follows. At 10:27 p.m. on 

March 7, 2011, Dougherty and his partner, in uniform in a marked car, received a call 

about a burglary in progress at 822 Elm. The officers were told the suspect was wearing a 

white T-shirt. The officers were dispatched to the location. 

At 10:29 p.m., the officers arrived at the location, walked to a locked gate, and saw 

appellant inside the property and walking towards Dougherty. Dougherty told appellant to 

stop and get on the ground and appellant complied. A resident gave Dougherty a gate key 

and Dougherty used it to enter. The officers detained appellant, who matched the suspect’s 

description. 

Dougherty searched appellant and found personal checks attached to a checkbook in 

the right front pocket of appellant’s jacket. Dougherty found a cellphone in appellant’s 

pants pocket. Dougherty also recovered from appellant a MetroPCS cellphone. Dougherty 

asked appellant what appellant was doing there and he explained to Dougherty why 

appellant was there. 

During booking, appellant was wearing a white button-down long-sleeve shirt and 

appellant told Dougherty that appellant lived at 1085 Walnut in Long Beach. Dougherty 

gave conflicting testimony regarding whether he remembered that appellant was wearing a 

black cap. Appellant’s booking slip did not refer to a black cap but the slip would have 

referred to such a cap if appellant had been wearing one at the time of his arrest. 

Long Beach Police Detective Jennifer Valenzuela testified as follows. Valenzuela 

had been a police officer for over 19 years, had been assigned to the burglary detail since 

2002, and had conducted over 2,000 burglary investigations. A cat burglary occurred 

when someone broke into a residence while someone was present. Valenzuela had 

investigated burglaries during which a person merely had reached through an open window 

of a house and had taken something. She had also investigated burglaries during which the 
5 

suspect went around checking doors and windows to see if they were open, and during 

which the burglar might have used a ladder or something to climb. 

Valenzuela testified she interviewed appellant and he told her the following. 

Appellant climbed the apartment complex fence near the back of 826 Elm. He did not 

know the phone number of the MetroPCS cellphone but knew the phone number of the 

other cellphone and claimed both belonged to him. Appellant presented no defense 

witnesses. 

ISSUES 

Appellant claims (1) there is insufficient evidence supporting his conviction, (2) the 

trial court erroneously excluded statements by appellant, (3) the prosecutor committed 

Griffin error, (4) the prosecutor committed misconduct by attempting to shift the burden of 

proof, (5) the prosecutor committed misconduct by misleading the jury, (6) the prosecutor 

violated appellant’s right to due process by failing to provide a full photographer’s report, 

(7) appellant was entitled to additional precommitment credit, and (8) cumulative 

prejudicial error occurred. 

DISCUSSION 

1. Sufficient Evidence Supported Appellant’s Conviction. 

The information alleged appellant attempted to burglarize Benitez’s apartment (i.e., 

the one at 822 Elm). The court instructed the jury on the definitions of attempt and 

burglary, and there is no dispute those instructions correctly stated the law.1

 The jury 

convicted appellant of the attempted burglary of Benitez’s apartment. 

 

1

 The court, using CALJIC No. 6.00, instructed the jury that an attempt to commit a 

crime consisted of two elements: (1) a specific intent to commit the crime and (2) a direct 

but ineffectual act done toward its commission. Using CALJIC No. 14.50, the court 

instructed that the elements of burglary were: (1) a person entered a building and (2) at the 

time of the entry, the person had specific intent to steal and take away someone else’s 

property, and intended to deprive the owner permanently of that property. 
6 

Appellant claims there is insufficient evidence supporting that conviction. We 

reject the claim. Our power begins and ends with the determination whether there is 

substantial evidence, contradicted or uncontradicted, to support the judgment. (People v. 

Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.) 

Appellant concedes there is “no shortage of circumstantial evidence to convict 

appellant of attempted burglary” and concedes he approached more than one residence. 

We accept the concessions. 

Based on the evidence and Valenzuela’s testimony, the jury reasonably could have 

concluded beyond a reasonable doubt appellant was a late night cat burglar who had 

climbed the apartment complex fence to enter the complex (thereby evidencing 

consciousness of guilt), he approached apartments and tested their doors and/or windows 

in an effort to enter an apartment(s) with intent to steal; Benitez’s apartment was one such 

apartment, and appellant pushed on the window of Benitez’s apartment to enter and steal. 

There was sufficient evidence to convince a rational trier of fact, beyond a reasonable 

doubt, that appellant committed the attempted burglary of Benitez’s apartment. 

(Cf. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Davis (1938) 24 Cal.App.2d 408, 409; 

People v. Gilbert (1927) 86 Cal.App. 8, 9-10; see People v. Martone (1940) 38 Cal.App.2d 

392, 393.)2

 

2

 Appellant argues certain alleged facts permit a reasonable inference of his 

innocence; therefore, the People did not meet their burden of proof. In particular, he refers 

to the alleged facts (1) appellant approached more than one residence, permitting an 

inference he was looking for someone rather than looking for an apartment to burglarize, 

(2) appellant did not break the kitchen window of Benitez’s apartment, permitting an 

inference appellant did not intend to break in and enter but was looking for a certain place 

or person, and (3) appellant did not seek to escape and was cooperative with police, 

permitting inferences he lacked consciousness of guilt. He also refers to the alleged fact 

there was no evidence he tried to enter through the front door of Benitez’s apartment, 

permitting an inference he was not looking for an unlocked door, and refers to the alleged 

facts appellant was not carrying something containing burglar tools, he was not wearing 

gloves to protect against leaving identification evidence, and his fingerprints were not 

found on Benitez’s kitchen window. However, even if the above alleged facts permitted a 

reasonable inference of appellant’s innocence that might have led a jury to acquit him, 
7 

2. The Trial Court Did Not Erroneously Exclude Appellant’s Statement. 

 a. Pertinent Facts. 

During direct examination, Valenzuela testified he interviewed appellant and 

appellant told Valenzuela how appellant entered the courtyard. Valenzuela also testified to 

the effect appellant told Valenzuela that a fence separated the apartment complex from the 

property north of the complex, and appellant entered the complex by climbing that fence 

near the back of 826 Elm. Later, outside the presence of the jury, appellant argued he 

should be “permitted to go into” the remainder of the statement pursuant to Evidence Code 

section 356. 

The court later read into the record appellant’s statement, which appellant 

apparently made to Valenzuela and a detective Kennedy. We quote below the trial court’s 

reading of the statement, and italicize portions that incriminate and/or impeach appellant as 

discussed post. The court stated, “Here is the statement. Actually it is to detective 

Kennedy. [¶] Milton said he had gone to the property where he was arrested to find a guy 

named Eddie. According to Milton, Eddie stole from him approximately a week earlier 

near the Superior warehouse at 10th and Long Beach Boulevard. [¶] Milton was told by 

Miguel that Eddie lived there. Milton could not provide any information about Miguel. 

Milton said that Eddie was a male Hispanic, 23 years old, weighing 155 and he sells weed. 

Milton said he had known Eddie for three weeks, but does not have a phone number for 

him. [¶] Milton said he used meth and was ‘sketching.’ He admits to us that the pipe in 

his possession was his and he used it to smoke methamphetamine. Milton said on the day 

he was arrested he went to Eddie’s to beat the shit out of him and get his [iPod] back.” 

(Italics added.) 

The court continued, “Milton said he went down to the side of the property to the 

north of 822 to 826 and climbed over the fence to the rear side of the building. Milton said 

he went up to the back steps of the building and saw Eddie’s dad through the window so he 

 

there was substantial evidence supporting the jury’s verdict to convict him; therefore, we 

affirm the judgment of conviction. 
8 

went back downstairs. He denied ever touching the window from the stairs or trying to 

open it.” (Italics added.) 

The court continued, “Milton, he said it was very cold so he decided to go into the 

laundry room to get warm by turning on the dryer. Milton said he used the dryer for about 

an hour then he decided to leave. [¶] That was when the police showed up and he was 

arrested. I asked Milton if the dryer was coin operated. He said yes and he put money in 

it. I asked Milton if he ever went to the area under the back of the stairs where Eddie 

lived. Milton denied going to any other door or window on the property.” (Italics added.) 

The court, continuing to read, said, “I asked Milton if the two cell phones he had on 

him at the time of . . . his arrest belonged to him. Milton said they were both his. He had 

the black Metro cell phone with a skull on the back for two months. He said he keeps it 

because . . . all of his contacts are in the phone. Milton could not tell me the number for 

this phone. Milton stated he had the Metro PCS phone with the blue cover for three days. 

He told me the number for that . . . [phone].” (Italics added.) 

The court continued, “I asked Milton about the checks that were in his possession at 

the time of his arrest. Milton said he was ‘sketching’ on meth and found them somewhere. 

I asked if he ever tried to use the checks. He said no. Milton said the checks all had old 

dates on them. I pointed out there was a check filled out and dated 

3-6-11, for Metro PC, (562) 666-1952. I asked him if he filled out this check or knew who 

filled it out. He said no. I asked him if he knew any number (562) 666-1952 and he said 

no.” (Italics added.) 

Continuing reading, the court stated, “I asked Milton if he ever wrapped his lower 

arm with anything. He said no. Milton asked why he would do that, and I told him that 

some people wrap their arm before breaking a window. I asked him if he ever tried to 

open the window and reach in and try to touch the windows. I told Milton that I had 

witnesses that saw him do all these things and he was becoming agitated and asked what I 

wanted. Milton said, ‘what do you expect me to do, tell you the truth?’ I asked Milton that 

I wanted the truth, and he became more agitated and started raising his voice.” (Italics 

added.) 
9 

The prosecutor objected, in pertinent part, that Evidence Code section 356 

permitted evidence only on the subject of how appellant entered the backyard, otherwise, 

the remainder of his statement was beyond the scope of direct examination, irrelevant, 

excludable under Evidence Code section 352, and hearsay, and, if appellant wanted his 

statements admitted into evidence, he should testify. 

Appellant argued, inter alia, he was entitled to cross-examine Valenzuela about the 

remainder of appellant’s statement, i.e., about appellant’s statements other than his 

statement he climbed the fence near the back of 826 Elm, because they evidenced he had a 

legitimate reason to climb the fence and to be on the apartment complex property. 

Appellant’s counsel acknowledged that if the court granted his request, the prosecutor 

could introduce, pursuant to Evidence Code section 356, additional portions of appellant’s 

statement that “don’t help [appellant]” and there might be a “downside risk” for appellant. 

Appellant’s counsel argued appellant’s mere statement to Valenzuela that appellant had 

climbed over the fence implied appellant had entered the property for an illegal purpose 

and “not for some [other] reason, wrong as it may have been.” 

Following argument, the trial court ruled that, pursuant to Evidence Code section 

356, appellant could ask Valenzuela if appellant had said he had climbed the fence 

“ ‘because the property is fenced all around’ ” and appellant could not otherwise have 

gained entry. However, the trial court also ruled appellant could not ask Valenzuela if 

appellant had said he had climbed the fence “because ‘I went to recover’ and all that other 

stuff.” The court indicated evidence on the former issue was admissible because it 

“explain[ed] the conduct of climbing, not the purpose.” The court indicated any other 

statements by appellant were self-serving hearsay. 

b. Analysis.

Appellant claims the trial court erroneously failed to admit, under Evidence Code 

section 356, testimony from Valenzuela concerning the remainder of appellant’s statement 

to Valenzuela to the extent it explained why he climbed the fence and was on the 

apartment complex property. We conclude the claim is unavailing. 
10 

Evidence Code section 356 provides, in pertinent part, “Where part of an act, 

declaration, conversation, or writing is given in evidence by one party, the whole on the 

same subject may be inquired into by an adverse party.” “The purpose of this section is to 

prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to 

create a misleading impression on the subjects addressed.” (People v. Arias (1996) 

13 Cal.4th 92, 156 (Arias).) 

“ ‘In applying Evidence Code section 356 the courts do not draw narrow lines 

around the exact subject of inquiry. “In the event a statement admitted in evidence 

constitutes part of a conversation or correspondence, the opponent is entitled to have 

placed in evidence all that was said or written by or to the declarant in the course of such 

conversation or correspondence, provided the other statements have some bearing upon, or 

connection with, the admission or declaration in evidence. . . .” [Citations.]’ [Citation.]” 

(People v. Zapien (1993) 4 Cal.4th 929, 959.) The requirement that the remaining 

statements have some bearing upon, or connection with, the admission or declaration in 

evidence is a requirement of relevance. (Carson v. Facilities Development Co. (1984) 36 

Cal.3d 830, 850 (Carson).) 

If the remaining statements are relevant, the fact they are self-serving does not 

preclude their admission into evidence under Evidence Code section 356. (Arias, supra, 

13 Cal.4th at p. 156; Carson, supra, 36 Cal.3d at p. 851.) Moreover, section 356 is an 

exception to the hearsay rule. (People v. Vines (2011) 51 Cal.4th 830, 861; People v. Pic’l

(1981) 114 Cal.App.3d 824, 863, fn. 13.) 

Even if the trial court erred, it does not follow we must reverse the judgment. We 

have quoted the trial court’s recitation of appellant’s statement to Valenzuela. It included 

appellant’s statement as to how he entered the property (i.e., by climbing the fence near the 

back of 826 Elm). The remainder of appellant’s statement included his statements as to 

why he climbed the fence and was on the apartment complex property. 

We previously have italicized the incriminating portions of the remainder of 

appellant’s statement and we will not recite them again here. Suffice it to say that the 

remainder of appellant’s statement included statements incriminating and/or impeaching 
11 

him, such as his statement he was using methamphetamine, and his question implying he 

would not tell the truth to Valenzuela. If the trial court had admitted into evidence 

pursuant to Evidence Code section 356 the remainder of appellant’s statement to the extent 

it explained why he climbed the fence and was on the apartment complex property, the 

trial court also would have been required pursuant to that section to admit into evidence 

the remainder to the extent it incriminated and/or impeached him. 

In sum, even if the trial court erroneously failed to introduce, pursuant to Evidence 

Code section 356, appellant’s statements concerning why he had climbed the fence and 

why he had been on the apartment complex property, the error was not prejudicial since it 

is not reasonably probable appellant would not have been convicted of attempted burglary 

absent the alleged error. (Cf. People v. Pride (1992) 3 Cal.4th 195, 235-236; People v. 

Williams (1975) 13 Cal.3d 559, 566; People v. Watson (1956) 46 Cal.2d 818, 836 

(Watson).) 

3. The Prosecutor Did Not Commit Griffin Error, Shift the Burden of Proof, or Mislead 

the Jury. 

a. Pertinent Facts. 

During argument to the jury, appellant asked the jury to assume a person was 

visiting a friend at the location. Appellant then argued as follows. The person would have 

to climb the fence or get the friend’s attention to come down and unlock the gate. There 

were therefore two reasonable interpretations as to the person’s purpose for entering. One 

interpretation, that the person was there to visit, pointed to the person’s innocence. The 

other interpretation was the person could have been there to do wrong. The jury had to 

accept the reasonable interpretation pointing to innocence. 

During rebuttal argument, the prosecutor commented, “First of all, . . . to be visiting 

a friend, you need to have a friend at the location. There is no evidence that Mr. Milton 

had a friend at that location. That’s something that Mr. Fuller [defense counsel] is 

arguing. You didn’t hear any testimony about any friend. Nobody knew him. That was 
12 

the testimony on the witness stand under oath. So that’s not a reasonable interpretation.” 

(Italics added.)3

b. The Prosecutor Did Not Commit Griffin Error. 

Appellant claims the prosecutor committed Griffin4

 error by commenting there was 

no evidence appellant had a friend at the location. We conclude otherwise. First, appellant 

waived the issue by failing to object to the comment on that ground. (Cf. People v. Bruce

G. (2002) 97 Cal.App.4th 1233, 1244.)5

As to the merits, we reject appellant’s claim. Griffin holds it is error for a 

prosecutor to comment, directly or indirectly, on the failure of the defendant to testify. 

(People v. Hughes (2002) 27 Cal.4th 287, 371-372.) As a result, the prosecutor may not 

“refer to the absence of evidence that only the defendant’s testimony could provide.” 

(Id. at p. 372.) The prosecutor may, however, comment “on the state of the evidence or on 

the failure of the defense to introduce material evidence or to call logical witnesses.” 

(People v. Hovey (1988) 44 Cal.3d 543, 572.) In determining whether Griffin error has 

 

3

 At 11:30 a.m. on December 8, 2011, the jury retired to begin deliberations, and the 

jury had a lunch break from 12:00 noon to 1:30 p.m. During the afternoon, the jury 

requested readbacks of the testimony of Ruvalcaba and Dougherty, a readback of 

Ruvalcaba’s testimony followed, and the jury later withdrew its request for a readback of 

Dougherty’s testimony. The jury rendered a verdict that afternoon. 

4

 Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin). 

5

 Appellant argues an objection would have been futile because a trial court which, 

notwithstanding Evidence Code section 356, excluded appellant’s complete statement to 

Valenzuela would not have sustained a Griffin objection. We reject appellant’s argument. 

We cannot infer from the trial court’s state law evidentiary ruling what the trial court 

might have done concerning appellant’s constitutional objection to the prosecutor’s jury 

argument. Moreover, because, as discussed below, there were several potential witnesses 

whom appellant might have called to testify on the issue of whether appellant had a friend 

at the location, and these potential witnesses provided a basis for the prosecutor’s 

comment, the trial court properly could have overruled a Griffin objection for a reason 

having nothing to do with appellant’s statement to Valenzuela. For similar reasons we 

reject appellant’s arguments that it would have been futile for him to object that the 

prosecutor attempted to shift the burden of proof and that the prosecutor misled the jury, 

issues we discuss post. 
13 

occurred, we ask whether there is a reasonable likelihood that jurors could have understood 

the prosecutor’s comments to refer to the defendant’s failure to testify. (People v. Clair

(1992) 2 Cal.4th 629, 663.) 

In the present case, the prosecutor’s comment there was no evidence appellant had a 

friend at the location never directly or expressly referred to appellant’s failure to testify. 

Except for the two previously italicized statements in the prosecutor’s remarks, the 

prosecutor never referred to the absence of testimony or evidence, much less the absence 

of testimony from appellant. 

It appears there were only two apartment buildings separated by about 40 feet in the 

complex, each building contained only two residences, and the complex was small enough 

for Ruvalcaba to testify she knew all her neighbors. If appellant had a friend in the 

complex, nothing prevented appellant from calling witnesses who might have testified to 

that fact. This included Ruvalcaba’s son, Ruvalcaba’s neighbors, Benitez, Morales, and 

the resident who gave the gate key to Dougherty. Moreover, assuming Miguel, Eddie’s 

father, and Eddie existed, appellant might have called them to testify as well.6

 The 

prosecutor reasonably could have believed that if appellant had a friend at the location, one 

or more of these several potential witnesses might have seen appellant, the friend, and/or 

both of them on the premises on a previous occasion(s). 

The prosecutor was entitled to comment on appellant’s failure to introduce material 

evidence or to call logical witnesses. Appellant has failed to demonstrate the prosecutor 

commented upon the absence of evidence that only appellant’s testimony could have 

provided. The prosecutor’s remaining quoted remarks were fair comment on the evidence. 

(See People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) We conclude no Griffin error 

occurred because there is no reasonable likelihood jurors could have understood the 

prosecutor’s challenged comment to refer to appellant’s failure to testify. (Cf. People v. 

 

6

 Notwithstanding appellant’s argument to the contrary, the fact “Eddie” might have 

invoked his right against self-incrimination did not make him unavailable; only if he had 

been called and sworn as a witness, and had invoked his right against self-incrimination, 

would he have been unavailable. (People v. Ford (1988) 45 Cal.3d 431, 439-442.) 
14 

Bradford (1997) 15 Cal.4th 1229, 1339-1340; People v. Medina (1995) 11 Cal.4th 694, 

756; People v. Sanders (1995) 11 Cal.4th 475, 527-528.) 

Moreover, there was ample evidence of appellant’s guilt. Further, during its final 

charge to the jury, the court gave various instructions which we presume the jury 

followed.7

 (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852.) Further still, “ ‘brief and 

mild references to a defendant’s failure to testify, without any suggestion that an inference 

of guilt be drawn therefrom, are uniformly held to constitute harmless error.’ ” (People v. 

Turner (2004) 34 Cal.4th 406, 419-420.) No prejudicial Griffin error occurred. 

(Cf. Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman).) 

c. The Prosecutor Did Not Attempt to Shift the Burden of Proof. 

Appellant claims the prosecutor’s comment there was no evidence appellant had a 

friend at the location was prosecutorial misconduct that shifted to appellant the burden to 

prove the friend’s existence beyond a reasonable doubt; therefore, the comment was a 

misstatement of law. The claim is unavailing. Appellant failed to object on the ground of 

prosecutorial misconduct and failed to request a jury admonition with respect to the 

prosecutor’s comment, which would have cured any harm. Appellant waived the issue of 

whether the prosecutor committed misconduct. (Cf. People v. Gionis (1995) 9 Cal.4th 

1196, 1215; People v. Mincey (1992) 2 Cal.4th 408, 471; see fn. 5, ante.) 

As to the merits, to prevail on a claim of prosecutorial misconduct based on remarks 

to the jury, appellant must show a reasonable likelihood the jury understood or applied the 

complained-of comments in an improper or erroneous manner. (People v. Dykes (2009) 

46 Cal.4th 731, 771-772.) In the present case, the prosecutor neither directly nor indirectly 

commented upon a burden of proof on appellant. As mentioned, the prosecutor was 

entitled to present fair comment on appellant’s failure to introduce material evidence or to 

 

7

 The court gave CALJIC No. 1.02 [attorneys’ statements not evidence], CALJIC 

No. 2.11 [production of all available evidence not required], CALJIC No. 2.60 [no 

inference of guilt may be drawn from appellant’s failure to testify], CALJIC No. 2.61 

[appellant may rely on the state of the evidence], and CALJIC No. 2.90 [presumption of 

innocence and People’s burden of proof beyond a reasonable doubt]. 
15 

call logical witnesses. No prosecutorial misconduct occurred. Moreover, any 

prosecutorial misconduct was not prejudicial for the same previously discussed reasons 

any Griffin error was not prejudicial. (Cf. Watson, supra, 46 Cal.2d at p. 836; Chapman, 

supra, 386 U.S. at p. 24.) 

d. The Prosecutor Did Not Mislead the Jury During Argument. 

Appellant claims the prosecutor’s comment that there was no evidence appellant 

had a friend at the location was prosecutorial misconduct which misled the jury because 

the remainder of appellant’s statement to Valenzuela provided such evidence but the trial 

court excluded that remainder after the prosecutor argued for its exclusion. However, 

appellant failed to object on the ground of prosecutorial misconduct and failed to request a 

jury admonition with respect to the prosecutor’s comment, which would have cured any 

harm. Appellant waived the issue of whether the prosecutor committed misconduct (see 

fn. 5, ante). 

Moreover, as to the merits, a prosecutor’s intemperate behavior violates the federal 

Constitution when it comprises a pattern of conduct so egregious that it infects the trial 

with such unfairness as to make the conviction a denial of due process. Conduct by a 

prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial 

misconduct under state law only if it involves the use of deceptive or reprehensible 

methods to attempt to persuade either the court or the jury. A prosecutor is given wide 

latitude during argument. The argument may be vigorous as long as it amounts to fair 

comment on the evidence, which can include reasonable inferences, or deductions to be 

drawn therefrom. (Hill, supra, 17 Cal.4th at p. 819.) 

In the present case, at the time of the prosecutor’s rebuttal argument, the prosecutor 

reasonably could have believed nothing had prevented appellant from calling one or more 

of the several potential witnesses we previously have identified to testify Eddie existed, 

lived at the apartment complex, or was appellant’s friend, and/or that appellant previously 

had visited the complex. The prosecutor’s argument did not deny appellant due process, 

nor was it a deceptive or reprehensible method to attempt to persuade the jury. No 

prosecutorial misconduct occurred. 
16 

People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett) and People v. Frohner

(1976) 65 Cal.App.3d 94 (Frohner), cited by appellant, do not help him. In Daggett, the 

defendant allegedly committed sexual offenses against a victim. The trial court 

erroneously excluded evidence that others previously had committed sexual offenses 

against the victim, but the trial court admitted evidence suggesting the victim previously 

had sexually victimized others. The prosecutor argued to the jury that if the victim 

sexually victimized others, the victim must have learned that behavior from the defendant. 

The prosecutor thus knew his argument conflicted with the excluded evidence that might 

have refuted his argument (Daggett, at pp. 757-758) and the prosecutor thereby “unfairly 

took advantage of the judge’s ruling.” (Id. at p. 758.) We note that nothing in Daggett

suggests there was evidence upon which the prosecutor could have based his argument 

other than the erroneously excluded evidence and the evidence suggesting the victim had 

sexually victimized others. 

Unlike the appellate court in Daggett, we have not concluded the trial court 

erroneously excluded evidence, i.e., the evidence of the remainder of appellant’s statement 

to Valenzuela. Moreover, leaving aside the remainder of appellant’s statement, we note 

there were, as previously discussed, several potential witnesses whom appellant could have 

called to testify on the issues that Eddie existed, lived at the apartment complex, or was 

appellant’s friend, and/or that appellant previously had been on the premises. Unlike the 

case in Daggett, in the present case there was evidence, other than excluded evidence, 

upon which the prosecutor could have based his argument. A prosecutor is given wide 

latitude during argument, and these multiple potential witnesses whom appellant did not 

call provided a basis for the prosecutor’s fair comment there was no evidence appellant 

had a friend at the location. 

In Frohner, the prosecutor, knowing a witness was unavailable and could not be 

subpoenaed, argued to the jury the defendant could have subpoenaed that witness. 

Frohner concluded the comment was inexcusable and the prosecutor’s only apparent 

reason for making it was improper, i.e., to suggest the defendant purposely had failed to 

call the witness. (Frohner, supra, 65 Cal.App.3d at pp. 108-109.) 
17 

In the present case, the trial court excluded a portion of the remainder of appellant’s 

statement to Valenzuela (i.e., appellant’s statement he climbed the fence “because ‘I went 

to recover’ and all that other stuff”), but the prosecutor never argued to the jury that 

appellant could have introduced that portion into evidence. Moreover, apart from 

appellant’s statement, the above mentioned several potential witnesses provided a basis for 

the prosecutor’ s argument. Finally, in light of the ample evidence of appellant’s guilt and 

the previously discussed instructions, the alleged prosecutorial misconduct was not 

prejudicial. (Watson, supra, 46 Cal.2d at p. 836.) 

4. No Brady Violation Occurred.

After the jury rendered their verdict, the court on January 5, 2012, called the case 

for further proceedings and the prosecutor later indicated as follows. On January 5, 2012, 

the prosecutor talked with Nancy Preston, a criminalist. Preston said that on March 9, 

2011, she went to the location and took photographs and fingerprints. She said she did not 

see any handprints on the window in question, but both panes of the window were dirty. 

Photographs of the window were provided to appellant as part of discovery, but there was 

“no specific statement about there not being a handprint.” 

Appellant’s counsel represented as follows. He had received a report indicating 

there were “no prints lifted,” but the report did not indicate there were no visible 

handprints on the window. Appellant allegedly intended to enter that window; therefore, 

evidence there were no visible handprints on the window was critical evidence he did not 

touch it. Appellant’s counsel had filed a motion for a new trial and, based on the above, he 

wanted to add as a ground for the motion that there was newly-discovered evidence. 

The court indicated as follows. Appellant had not put his argument in writing; 

therefore, the court would rule on the issue without delay. The jury heard argument there 

was no evidence appellant’s fingerprints were on the window. Whether the reason for the 

absence of fingerprints was there were no prints, or no prints were lifted, was irrelevant. 

The stronger argument for appellant might have been there were prints on the window but 

no prints of appellant had been lifted. The court denied appellant’s “motion.” 
18 

Appellant claims the prosecutor committed a Brady8

 violation by not disclosing to 

appellant there were no visible handprints on Benitez’s window. We disagree. “The 

federal due process clause prohibits the prosecution from suppressing evidence materially 

favorable to the accused. . . . [¶] For Brady purposes, evidence is favorable if it helps the 

defense or hurts the prosecution, . . . Evidence is material if there is a reasonable

probability its disclosure would have altered the trial result. [Citation.]” (People v. 

Zambrano (2007) 41 Cal.4th 1082, 1132.) 

There is no need to decide whether the information that there were no visible 

handprints on Benitez’s window was favorable to appellant. “Because Brady and its 

progeny serve ‘to restrict the prosecution’s ability to suppress evidence rather than to 

provide the accused a right to criminal discovery,’ the Brady rule does not displace the 

adversary system as the primary means by which truth is uncovered. [Citation.] 

Consequently, ‘when information is fully available to a defendant at the time of trial and 

his only reason for not obtaining and presenting the evidence to the Court is his lack of 

reasonable diligence, the defendant has no Brady claim.’ [Citations.]” (People v. 

Morrison (2004) 34 Cal.4th 698, 715.) 

In the present case, appellant received discovery indicating no prints were lifted. 

He knew or should have known one explanation why no prints were lifted might have been 

that none were there. The record fails to demonstrate anything other than once appellant 

received discovery indicating no prints were lifted, he failed to exercise reasonable 

diligence to determine whether the reason no prints were lifted was none were there, or 

prints were there but none were lifted. 

Moreover, there is no dispute the jury heard argument there was no evidence 

appellant’s fingerprints were on the window,9

 and there is no dispute there was in fact no 

such evidence. If there was no such evidence, the fact the reason for the absence of that 

 

8

 Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215]. 

9

 Appellant argued to the jury there was no evidence of fingerprints, and no testimony 

about a handprint, on Benitez’s window. 
19 

evidence was there were no prints on the window, and not merely that any fingerprints on 

it were not appellant’s, was not constitutionally material; either way, the jury received the 

critical evidence appellant did not touch the window. There was ample evidence appellant 

committed attempted burglary even if he never touched Benitez’s window. There was no 

reasonable probability that disclosure of the fact that there were no visible handprints on 

the window would have altered the trial result. 

5. Appellant is Entitled to Additional Precommitment Credit. 

 Appellant was arrested on March 7, 2011, and remained in custody until the court 

sentenced him on January 11, 2012, a total of 311 days, inclusive. At the sentencing 

hearing, the court asked appellant to calculate his precommitment credit. Appellant 

indicated he was entitled to 345 days of precommitment credit, consisting of 300 days of 

custody credit and 45 days of conduct credit. The court replied, “All right. We are in 

recess. Thank you.” The abstract of judgment reflects the court awarded appellant 345 

days of precommitment credit as categorized by appellant. 

 Appellant claims he is entitled to 450 days of precommitment credit, consisting of 

300 days of custody credit and 150 days of conduct credit. Respondent effectively 

concedes appellant is entitled to same. There is no dispute the trial court awarded custody 

credit and conduct credit. However, both awards were erroneous. 

Appellant is entitled to 465 days of precommitment credit, consisting of 311 days of 

custody credit and 154 days of conduct credit. (People v. Smith (1989) 211 Cal.App.3d 

523, 525-527; Pen. Code, §§ 2900.5, subd. (a), 4019.) We will modify the judgment 

accordingly and direct the trial court to correct its abstract of judgment. (Cf. People v. 

Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3; People v. Solorzano (1978) 

84 Cal.App.3d 413, 415, 417.)10

 

10 In light of our previous discussion, we conclude no prejudicial cumulative error 

occurred. 
20 

DISPOSITION 

The judgment is modified by the addition of 11 days of custody credit pursuant to 

Penal Code section 2900.5, subdivision (a), and by the addition of 109 days of conduct 

credit pursuant to Penal Code section 4019, for a total precommitment credit award of 465 

days and, as modified, the judgment is affirmed. The trial court is directed to forward to 

the Department of Corrections an amended abstract of judgment reflecting the above 

modification. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 KITCHING, J. 

We concur: 

 CROSKEY, Acting P. J. 

 ALDRICH, J.