Filed 3/27/13 P. v. Milton CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115.

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 Su perior Court of Los Angeles County, Tomson T. Ong, Judge. Modified and, as modified, affirmed with directions. Phillip I. Bronson, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Steven D. Matthews, David E. Madeo and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ ____________2 Appellant William Martinez Milton app eals from the judgment entered following his conviction by jury on coun t 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 pr ior 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 sent enced appellant to prison for 12 years. We modify the judgment and, as modi fied, 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 th at 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, Ruva lcaba 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 o ff. Ruvalcaba had not given an yone permission to enter her property. She looked out a wi ndow 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 look ed 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 an d saw that appellant had ascended about twothirds of the staircase leadi ng 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 ve ry dim lighting from th e 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 extend ed from the courtyard
westward to a location in front of the front building. The do or 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 no t 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 sa w appellant at the bottom of the staircase that led to 822 Elm. Appellant was using his left hand to wr ap around his right hand and arm the jacket he had been w earing. Ruvalcaba then saw appellant was wearing a white shirt. Perhaps a minute later, Ruvalcaba look ed out her window and saw appellant wearing the jacket and walking on the pathway.
Ruvalcaba ducked but about two seconds la ter she looked out her window and saw police detain appellant. Ruvalcaba told th e 911 operator that the person police had detained was the person Ruvalcaba had s een. About 15 minutes passed from the time Ruvalcaba had called 911 to the time police arri ved. Ruvalcaba did not see anyone else in the courtyard. Ruvalcaba hung up th e phone and, about tw o to three minutes later, police came to her apartment. She told police that the pe rson whom police had caught inside her building was the person she had seen. Ruvalcaba also identified appellant duri ng a field show-up. At the time, appellant was wearing a white shir t and the jacket. Ruvalcaba did not identify appellant at trial.4 Meynardo Benitez lived at 822 Elm with hi s son Abraham Morales. He testified to the effect the window Ruvalcaba had seen appe llant push at 822 Elm was Benitez’s locked
kitchen window that led into his apartment. Benitez gave no one permissi on to open his
window. Long Beach Police Officer Patr ick 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 pr ogress at 822 Elm. The officers we re 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 lo cation, walked to a locked gate, and saw appellant inside the property and walking towa rds Dougherty. Dougherty told appellant to stop and get on the ground and appellant complie d. 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 cell phone in appellant’s pants pocket. Dougherty also recovered from appellant a MetroPCS cellphone. Dougherty asked appellant what appellant was doing there and he explaine d to Dougherty why appellant was there. During booking, appellant was wearing a white button-down l ong-sleeve shirt and appellant told Dougherty that appellant lived at 1085 Walnut in Long Beach. Dougherty gave conflicting testimony rega rding whether he remembered that appellant was wearing a black cap. Appellant’s booking slip did not re fer 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 Valenz uela testified as follows. Valenzuela had been a police officer for over 19 years, had been assigne d 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 the5 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 in terviewed 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 th e MetroPCS cellphone but knew the phone number of the other cellphone and claimed both belonged to him. Appe llant presented no defense
witnesses.
ISSUES Appellant claims (1) there is insufficient eviden ce supporting his co nviction, (2) the trial court erroneously excluded statements by appellant, (3) the prosecutor committed Griffin error, (4) the prosecutor co mmitted misconduct by attemp ting to shift the burden of proof, (5) the prosecutor committed misconduc t 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 Supporte d Appellant’s Conviction. The information alleged appellant attempted to burglarize Benite z’s apartment (i.e., the one at 822 Elm). The court instructed the jury on the defin itions of attempt and burglary, and there is no di spute 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 co mmit the crime and (2) a direct but ineffectual act done toward its commiss ion. Using CALJIC No. 14.50, the court instructed that the elements of burglary were: (1) a person en tered a building and (2) at the time of the entry, the person ha d 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 ev idence supporting that conviction. We reject the claim. Our power begins and en ds with the determination whether there is substantial evidence, contradicted or unco ntradicted, 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 Va lenzuela’s testimony, the ju ry 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 (t hereby evidencing consciousness of guilt), he approached apartm ents and tested their doors and/or windows in an effort to enter an apar tment(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 attemp ted 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 fact s permit a reasonable inference of his innocence; therefore, the People did not meet their burden of proo f. In particular, he refers to the alleged facts (1) appellant approached more than one residence, permitting an inference he was looking for someone rather th an looking for an apartment to burglarize, (2) appellant did not break th e kitchen window of Benite z’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 cont aining burglar tools, he was not wearing gloves to protect against leaving identifica tion 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 th at 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 ap pellant entered the courtyard. Valenzuela also testified to the effect appellant told Valenzuela that a fence separated the apar tment complex from the property north of the comple x, 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 in to” the remainder of the statem ent pursuant to Evidence Code
section 356.
The court later read into the record appellant’s statement, which appellant apparently made to Valenzuela and a detectiv e Kennedy. We quote below the trial court’s reading of the statement, and italicize portions that incriminat e and/or impeach appellant as
discussed post . The court stated, “Here is the stat ement. 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 hi m 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 su pporting 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 dr yer. Milton said he us ed 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 operat ed. 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 as ked 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 cove r 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 th ere was a check filled out and dated 3-6-11, for Metro PC, (5 62) 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 aske d 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 touc h the windows. I told Milton that I had witnesses that saw him do all these things a nd 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 th e scope of direct examination, irrelevant,
excludable under Evidence Code section 352, and hearsay, a nd, if appellant wanted his
statements admitted into evid ence, he should testify. Appellant argued, inter alia, he was entitle d to cross-examine Valenzuela about the remainder of appellant’s statement, i.e., a bout 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, add itional portions of appellant’s statement that “don’t help [app ellant]” and there might be a “downside risk” for appellant. Appellant’s counsel argued appe llant’s mere statement to Va lenzuela that appellant had climbed over the fence implie d appellant had entered the pr operty 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 a ppellant had said he had climbed the fence “ ‘because the property is fenced all around’ ” and appellant could not otherwise have gained entry. However, the tr ial court also ruled appellant could not ask Valenzuela if appellant had said he had clim bed the fence “because ‘I went to recover’ and all that other
stuff.” The court indicated evidence on th e former issue was ad missible because it “explain[ed] the conduct of climbing, not th e purpose.” The cour t indicated any other statements by appellant we re self-serving hearsay.
b. Analysis. Appellant claims the trial court erroneou sly failed to admit, under Evidence Code section 356, testimony from Vale nzuela concerning the remainder of appellant’s statement to Valenzuela to the extent it explaine d why he climbed the fence and was on the apartment complex proper ty. We conclude the claim is unavailing.10 Evidence Code section 356 provides, in pe rtinent part, “Where part of an act, declaration, conversation, or writing is give n 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 asp ects of a conversation, act, decl aration, 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 35 6 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 corresp ondence, the opponent is entitled to have placed in evidence a ll that was said or written by or to th e declarant in the course of such conversation or correspondence, prov ided the other statements have some bearing upon, or connection with, the admission or declarati on in evidence. . . .” [C itations.]’ [Citation.]” ( People v. Zapien (1993) 4 Cal.4th 929, 959.) Th e 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 r ecitation of appellant’s statemen t 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 incrim inating portions of the remainder of appellant’s statement and we w ill not recite them again here. Suffice it to say that the remainder of appellant’s statement included statements incriminating and/or impeaching11 him, such as his statement he was using methamphetamine, and hi s 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 remai nder 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 pursua nt to that section to admit into evidence
the remainder to the extent it incr iminated and/or impeached him. In sum, even if the trial court erroneously failed to introduce, pursuant to Evidence Code section 356, appellant’s statements c oncerning why he had climbed the fence and why he had been on the apartm ent complex property, the erro r 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 attenti on 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 wa s there to visit, pointed to the person’s innocence. The other interpretation was the pers on could have been there to do wrong. The jury had to accept the reasonable interpreta tion pointing to innocence. During rebuttal argument, the prosecutor comment ed, “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 was12 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 Griffin 4 error by commenting there was no evidence appellant had a friend at the location. We conclude otherwis e. First, appellant waived the issue by failing to object to the comment on that ground. (Cf. People v. Bruce
G . (2002) 97 Cal.A pp.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 ev idence that only the defendant’s testimony could provide.” ( Id. at p. 372.) The prosecutor may, however, co mment “on the state of the evidence or on
the failure of the defense to introduce materi al evidence or to ca ll 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 ju ry 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 re ndered a verdict that afternoon.

4 Griffin v. California (1965) 380 U.S. 60 9 [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 co mplete 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 objecti on 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 witne sses 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 appe llant’s statement to Valenzue la. 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 th e defendant’s failure to testify. ( People v. Clair (1992) 2 Cal.4th 629, 663.) In the present case, the pr osecutor’s comment there was no evidence appellant had a friend at the location never directly or expressl y referred to appellant’s failure to testify. Except for the two previously italicized stat ements in the prosec utor’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 bu ildings separated by about 40 feet in the complex, each building contained only two re sidences, and the complex was small enough for Ruvalcaba to testify she knew all her ne ighbors. If appellant had a friend in the complex, nothing prevented appellant from ca lling witnesses who might have testified to that fact. This included Ruvalcaba’s son, Ru valcaba’s neighbors, Benitez, Morales, and the resident who gave the gate key to Dou gherty. 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 mi ght 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 a ppellant’s failure to introduce material evidence or to call logical witn esses. Appellant has failed to demonstrate the prosecutor commented upon the absence of evidence th at 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 like lihood 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 hi m 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 appe llant’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, 85 2.) Further still, “ ‘brief and
mild references to a defendant’s failure to te stify, 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 miscondu ct that shifted to appellant the burden to prove the friend’s existence beyond a reasona ble 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 reques t a jury admonition w ith 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 appella nt. As mentioned, the prosecutor was entitled to present fair comment on appellant’s fa ilure to introduce material evidence or to

7 The court gave CALJIC No. 1.02 [attorn eys’ statements not evidence], CALJIC No. 2.11 [production of all available evidence not requir ed], CALJIC No. 2.60 [no inference of guilt may be drawn from appellant ’s failure to testif y], CALJIC No. 2.61 [appellant may rely on the state of the evid ence], and CALJIC No. 2.90 [presumption of innocence and People’s burden of pr oof beyond a reasonable doubt].15 call logical witnesses. No prosecutor ial 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 Vale nzuela provided such evidence but the trial court excluded that remainder after the pros ecutor 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 wh ether 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 egregi ous 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 tr ial 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 cour t 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 inferen ces, or deductions to be drawn therefrom. ( Hill, supra, 17 Cal.4th at p. 819.) In the present case, at the time of the pr osecutor’s rebuttal argument, the prosecutor reasonably could have believed nothing had prevented appellant from calling one or more of the several potential witnesse s we previously have identifie d 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 a ppellant 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 offens es against a victim. The trial court erroneously excluded evidence that others previously had committed sexual offenses against the victim, but the trial court admitte d evidence suggesting th e victim previously had sexually victimized others. The prosecut or 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 conflic ted with the excluded evidence that might have refuted his argument ( Daggett, at pp. 757-758) and the pr osecutor 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 remai nder of appellant’s statement to Valenzuela. Moreover, leaving aside the re mainder 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 exis ted, lived at the apar tment complex, or was appellant’s friend, and/or that appellant prev iously had been on th e premises. Unlike the
case in Daggett , in the present case there was eviden ce, other than ex cluded evidence, upon which the prosecutor coul d 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 inexcusabl e and the prosecutor’s only apparent reason for making it was improper, i.e., to su ggest 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 clim bed the fence “because ‘I went to recover’ and all that other stuff”), but th e prosecutor never argued to the jury that appellant could have introduced that por tion into evidence. Moreover, apart from appellant’s statement, the above mentioned se veral 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, th e 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 fo llows. On January 5, 2012, the prosecutor talked with Nanc y Preston, a criminalist. Preston said that on March 9, 2011, she went to the location and took photographs an d 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 a ppellant 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 re port 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 moti on 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. Appella nt had not put his argument in writing; therefore, the court would rule on the issue w ithout 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 Brady 8 violation by not disclosing to appellant there were no visible handprints on Benitez’s window. We disagree. “The federal due process clause prohibits the pros ecution from suppressi ng evidence materially
favorable to the accuse d. . . . [¶] For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, . . . Evid ence is material if there is a reasonable probability its disclosure w ould have altered the trial result. [Citation.]” ( People v.
Zambrano (2007) 41 Cal.4t h 1082, 1132.)
There is no need to decide whether th e information that there were no visible handprints on Benitez’s window was fa vorable to appellant. “Because Brady and its progeny serve ‘to restrict the prosecution’s ability to suppress evid ence 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 defenda nt 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, th e defendant has no Brady claim.’ [Citations.]” ( People v.
Morrison (2004) 34 Cal.4th 698, 715.) In the present case, appellant received disc overy indicating no prints were lifted. He knew or should have known one explanati on why no prints were lif ted might have been
that none were there. The re cord fails to demonstrate anyt hing 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 lif ted 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 r eason 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 ma terial; either way, the jury received the critical evidence appellant did not touch the wi ndow. There was ample evidence appellant committed attempted burglary even if he never touched Ben itez’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 Add itional 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 calcu late his precommitment credit. Appellant indicated he was entitled to 345 days of prec ommitment credit, consis ting of 300 days of custody credit and 45 days of co nduct credit. The court replied, “All right. We are in recess. Thank you.” The abstract of judg ment reflects the court awarded appellant 345 days of precommitment credit as categorized by appellant. Appellant claims he is en titled to 450 days of precommi tment credit, consisting of 300 days of custody credit a nd 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. Howeve r, both awards were erroneous. Appellant is entitled to 465 days of precommi tment credit, consisti ng 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 prejudi cial cumulative error occurred.20 DISPOSITION The judgment is modified by the addition of 11 days of custod y credit pursuant to
Penal Code section 29 00.5, subdivision (a), a nd by the addition of 10 9 days of conduct credit pursuant to Penal Code section 4019, fo r 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.