Filed 7/24/13 P. v. Ward CA2/7 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOHNNY WARD, 

 Defendant and Appellant. 

 B239031 

 (Los Angeles County 

 Super. Ct. No. SA076857) 

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

A. Solorzano, Judge. Affirmed as modified. 

 James Koester, 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, Senior Assistant Attorney General, Susan Sullivan Pithey and 

David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent. 

____________________ 
2

INTRODUCTION 

 Defendant Johnny Ward appeals from a judgment of conviction entered after a 

jury trial and a subsequent plea agreement. The People charged Ward by information 

with six counts: the February 28, 2011 first degree burglary of a residence belonging to 

Polly Morgan (Pen. Code, § 459; count 1); the February 28, 2011 first degree burglary of 

a residence belonging to Charlotte Lusk (ibid.; count 2); the February 26, 2011 first 

degree burglary of a residence belonging to Masa Shopp (ibid.; count 3); the February 26, 

2011 first degree burglary of a residence belonging to Lindsay Larson (ibid.; count 4); the 

February 21, 2011 attempted first degree burglary of a residence belonging to Cassandra 

Helton (id., §§ 459, 664; count 5); and the February 21, 2011 first degree burglary of a 

residence belonging to Meghan Murphy (id., § 459; count 6). The information alleged 

that Ward had four prior felony convictions, which made him ineligible for probation (id., 

§ 1203, subd. (e)(4)), and that one of those convictions was a serious felony, which 

constituted a strike under the “Three Strikes” law (id., §§ 667, subds. (a)(1), (b)-(i), 

1170.12). 

 The jury convicted Ward on counts 3 and 4 only. The jury was unable to reach 

verdicts on the remaining counts, and the trial court declared a mistrial as to those counts. 

At a sentencing hearing, and at the suggestion of the trial court, Ward entered into a plea 

agreement whereby he pleaded no contest to counts 5 and 6 in exchange for dismissal of 

the serious felony allegations. The trial court sentenced Ward to nine years and four 

months in state prison, consisting of the upper term of six years on count 3, and one-third 

the middle term on counts 4, 5, and 6, to be served consecutively. 

 On appeal Ward argues that the trial court violated his due process rights to a fair 

trial by joining the counts against him without imposing adequate procedural safeguards 

and giving a limiting instruction regarding cross-admissibility of evidence. He also asks 

us to order the trial court to correct the abstract of judgment to reflect accurately his 

presentence custody credits. We reject his challenges to the judgment of conviction. We 
3

modify the judgment to impose the correct parole revocation fine and order the trial court 

to correct the abstract of judgment. 

FACTS 

 A. Count 1

 On the evening of February 28, 2011 Fiafia Teofilo, who lived on Paloma Avenue 

in Venice, heard his neighbor, Polly Morgan, scream, “Help. I need help.” Teofilo ran 

out of his house to where the screaming was coming from, and he saw Morgan fighting 

with a man at her front door on the porch. Morgan was saying “Get away from me. Get 

away from me.” Teofilo struggled with the man, punched him, knocked him down, and 

grabbed his legs while other neighbors called the police. Another neighbor, Bahar 

Kaffaga, was eating dinner when he heard “a woman’s scream,” ran outside, and saw the 

struggle on Morgan’s porch. The man, whom Kaffaga identified at trial as Ward, 

managed to escape and “hopped over the fence,” but the neighbors gave chase. They 

wrestled Ward to the ground, but Ward was strong enough to escape again. Teofilo went 

back to comfort Morgan. 

 Kaffaga and other neighbors continued to look for Ward. They lost sight of him 

briefly but split up into groups and found him again. Ward looked like the man Kaffaga 

had been pursuing, although Ward was not wearing the sweater he had been wearing. As 

they approached him, Ward said, “I don’t want no more trouble from you guys.” When 

Ward walked away again, Kaffaga “grabbed him by the shoulders and shoved him into a 

hedge, sat him down to the ground, and in ten seconds the police car circled around and 

saw us and stopped.” 

 Morgan told the police that someone had stolen items from her house. She 

thought Ward was the man who had done so, but she was not sure. Teofilo could not 

make an identification. 
4

 B. Count 2

 Early in the morning on February 28, 2011 Charlotte Lusk was asleep in her 

apartment in Windward Court in Venice when she was awakened by the sound of her 

neighbor’s Rottweiler “barking uncontrollably.” She heard the sounds of someone 

climbing over the metal door leading to the back patio. She grabbed “a big steak knife” 

she kept by her bed and went downstairs to investigate. She saw a “hippie”-looking man 

with shaggy, curly, “sandy beachy blond” hair “walking through the kitchen and just kind 

of assessing out the house kind of thing.” He was about five feet, nine and one-half 

inches tall, and weighed 160 to 170 pounds. He looked “sedated or high.” She screamed 

at him to get out of her house and displayed the knife. He told her to calm down and 

“chill,” and that he was just drunk. He slowly backed up, opened the back door, and 

calmly walked into the alley. 

 Lusk identified Ward from a photographic lineup a few days later. She recognized 

Ward as soon as she saw his picture in the photographic lineup and was “like 100 

percent” certain. At trial, however, she was unable to identify him. 

 C. Count 3

 Masa Shopp lived in a house on Superba Avenue in Venice. On the afternoon of 

February 26, 2011 she was home with her 22-month-old son, who was sleeping, when 

she heard noises coming from the rear of the property, where there was a guest house. 

When she went into her kitchen to investigate, she saw Ward walking out the kitchen 

door into the backyard. He was clutching her purse, a black Gucci tote bag, which held 

her wallet, her son’s toy or book, and a pouch of personal hygiene products. She yelled 

at him to stop, but he continued walking and jumped over a wall into the neighbor’s yard. 

Shopp called the police. She later identified Ward from a photographic lineup as “clearly 

the guy who took my purse” and also identified him in court. 
5

 D. Count 4

 On the morning of February 26, 2011 Lindsay Larson and her sister left Lindsay’s 

apartment on Venice Way to take a walk. When they returned and Larson attempted to 

enter the hallway, “there was someone standing there stopping the door from opening.” 

After some “pushing and pulling of the door handle” Larson was able to see the “entire 

face” of the person on the other side of the door. She asked him who he was and what he 

was doing in her house. Ward “said something about just being tired and needed a place 

to rest or sleep, or something like that.” Larson then let Ward close the door, called the 

police, and went with her sister to a neighbor’s apartment. 

 When the police arrived, Ward was gone. Larson went through her apartment, and 

it appeared to her that her room had been searched. Her 26-inch flat screen television set 

was missing, and the screen had been bent and removed from the bathroom window. 

There was a footprint on the toilet seat in her bathroom directly under the window and a 

plastic bag in the bedroom that did not belong to her. The police found documents in the 

plastic bag that had Ward’s name and signature on them. Larson later identified Ward 

from a photographic lineup and identified him in court. 

 E. Count 5

 Robert Sunderland lived on the second floor of a duplex on Vista Place in Venice. 

When he arrived home at about 9:00 p.m. on February 21, 2011 after taking his dog for a 

walk, he saw Ward at the door of his downstairs neighbor, Cassandra Helton. Ward was 

holding a crowbar and moving it back and forth. Sunderland asked what he was doing 

there. Ward said that his girlfriend lived there. When Sunderland challenged him, Ward 

“started backing up real slowly . . . and then he just ran down the alley.” Sunderland 

called 911 and reported that he had witnessed someone trying to break into his neighbor’s 

apartment. Two weeks later, Sunderland identified Ward from a photographic lineup. 

Sunderland recognized him by eyes, hair, and facial features. He also identified Ward at 

trial. 
6

 F. Count 6

 At about 10:45 p.m. on February 21, 2011, Meghan Murphy returned to her home 

in Venice Beach after buying some noodle soup at a liquor store four buildings down the 

street. She unlocked her door, went inside, and walked past her bedroom and into the 

kitchen. Then she saw a man with “long shaggy brown hair” and a “scruffy face,” 

wearing jeans and a T-shirt, walking out of her bedroom and towards the door. When she 

asked who he was, he said, “Don’t worry about it” and walked out the front door. She 

then realized that the man had her laptop, so she shouted to him, “You have my 

computer,” and he ran off towards the Venice canals. The police arrived ten minutes 

later, and Murphy determined that the man broke in through a window over the kitchen 

sink that had been painted shut. Murphy “picked [Ward] out right away” in a 

photographic lineup, recognizing him “from his hair and eyes” and build. Murphy also 

identified Ward in court. 

DISCUSSION 

 A. Joinder Without Limiting Instruction 

 Ward contends that “[w]hen transactionally unrelated counts are joined for a 

single trial under the provisions of Penal Code sections 954 and 954.1, due process 

considerations require that the court give a limiting instruction that the jurors may not 

consider the facts of the multiple counts as evidence that the defendant is a person of bad 

character or has a propensity to commit crimes.” As discussed below, the Penal Code 

provides procedural protections to prevent prejudice resulting from the joinder of 

transactionally unrelated counts. Ward, however, did not ask the trial court for such 

protections, and the trial court had no duty to give a limiting instruction sua sponte. 

Ward’s failure to request a limiting instruction forfeited on appeal his contention that the 

trial court erred in failing to give the instruction. In any event, we conclude that the 

failure to give the instruction was not prejudicial. 
7

 Penal Code section 954 provides in pertinent part: “An accusatory pleading may 

charge . . . two or more different offenses of the same class of crimes or offenses, under 

separate counts, . . . provided, that the court in which a case is triable, in the interests of 

justice and for good cause shown, may in its discretion order that the different offenses or 

counts set forth in the accusatory pleading be tried separately or divided into two or more 

groups and each of said groups tried separately. . . .”1 When the charged offenses satisfy 

the requirements for joinder, a defendant may seek severance on the ground there is a 

substantial danger of prejudice if the trial court tries the charges together. (People v. 

Thomas (2011) 52 Cal.4th 336, 349; People v. Bradford (1997) 15 Cal.4th 1229, 1315; 

People v. Memro (1995) 11 Cal.4th 786, 849.) 

 Ward points to nothing in the record indicating that he filed a motion for 

severance. Therefore, he has forfeited any claim of error with respect to joinder. (People 

v. Ramirez (2006) 39 Cal.4th 398, 438; People v. Marlow (2004) 34 Cal.4th 131, 143;

People v. Maury (2003) 30 Cal.4th 342, 392.) Moreover, because Ward was charged 

with the same offense in all six counts (although one was an attempt), joinder was 

presumptively appropriate. (People v. Thomas, supra, 52 Cal.4th at pp. 349-350.) 

 Ward seems to be suggesting that Penal Code section 954 is unconstitutional 

because it allows the jury to hear evidence regarding the defendant’s conduct in other 

charged crimes without the same procedural safeguards available when the prosecution 

seeks to admit evidence of other uncharged crimes under Evidence Code section 1101, 

subdivision (b). California courts, however, have repeatedly upheld the constitutionality 

of Penal Code section 954. (See, e.g., In re Pearson (1947) 30 Cal.2d 871, 873-874; 

People v. Mills (1958) 162 Cal.App.2d 840, 859; People v. Grossman (1938) 28 

Cal.App.2d 193, 203.) To the extent the evidence of a defendant’s uncharged acts is so 

prejudicial that no limiting instruction could cure the harm caused by its admission, the 

defendant may protect his right to a fair trial by moving for severance under the statute, 

 

1 Penal Code section 954.1 addresses the cross-admissibility of evidence when 

different offenses are joined together. 
8

which Ward did not do. (See People v. McKinnon (2011) 52 Cal.4th 610, 630 [“‘Denial 

of a severance motion may be an abuse of discretion if the evidence related to the joined 

counts is not cross-admissible; if evidence relevant to some but not all of the counts is 

highly inflammatory; [or] if a relatively weak case has been joined with a strong case so 

as to suggest a possible “spillover” effect that might affect the outcome’”]; Belton v. 

Superior Court (1993) 19 Cal.App.4th 1279, 1285 [“‘When substantial prejudice is 

clearly shown, a trial court’s denial of a defendant’s motion for severance constitutes an 

abuse of discretion under Penal Code section 954” because “[f]undamental principles of 

due process compel such a conclusion.’ [Citation.]”]; see also People v. Thomas (2012) 

53 Cal.4th 771, 799-801.) 

 Ward also points out that when the prosecution seeks to admit other crimes 

evidence, the prosecution has the burden of establishing that the probative value of the 

evidence outweighs its prejudicial effect. (People v. Soper (2009) 45 Cal.4th 759, 773; 

see Evid. Code, § 352.) By contrast, when cases are joined under Penal Code 

section 954, the defendant bears a “high burden” of establishing that joinder would be 

prejudicial. (Soper, supra, at p. 783.) Ward, however, cites no authority for the 

proposition that imposing this burden on a defendant is unconstitutional. 

 Ward’s reliance on the California Supreme Court’s decision in People v. Villatoro

(2012) 54 Cal.4th 1152 is misplaced. Villatoro discusses the concerns that arise when 

evidence of uncharged sexual conduct is admitted pursuant to Evidence Code section 

1108. Villatoro does not address the question of joinder or the constitutionality of Penal 

Code section 954. Moreover, the court in Villatoro ultimately concluded that the 

evidence admitted under Evidence Code section 1108 “was highly probative of 

defendant’s propensity to commit such crimes, and its value substantially outweighed any 

prejudice.” (Villatoro, supra, at p. 1169.) 

 In any event, the joinder was not prejudicial. The “jury reviewed the evidence 

dispassionately” and convicted Ward on only two of the six charges against him. (People 

v. Smith (2003) 30 Cal.4th 581, 617.) 
9

 B. Jury Instruction 

 During deliberations, the jury asked the following question: “When we are 

deciding on 1 of the 6 cases, are we allowed to use any evidence from the other 5 cases to 

determine if the defendant is guilty or innocent?” The trial court indicated it intended to 

answer the question “yes,” but it wanted to hear from counsel first. Defense counsel 

asked, “And no clarification other than that?” The court responded, “If you would like 

me to clarify something, this is your opportunity to make that record now.” Defense 

counsel stated, “Well, I would only point out that—that the—that one answer could be 

the evidence has been submitted to you on all six counts, and that, you know, it’s your 

job to review the evidence on all six counts, and then leave it at that.” 

 The prosecutor stated, “I think the one word answer, ‘yes,’ is simple. It’s clean. 

It’s not confusing. And arguments both for the People and the defense—there are 

arguments about M.O. or modus operandi, and the differences and distinctions and 

similarities between the crimes, the way they were committed, things of this nature. So 

obviously, I think that they can all be considered in reviewing the charges and facts and 

the evidence. And I just think the one-word answer “yes” is just simple, clean.” 

 The trial court suggested, “What I can do is reread the instruction that indicates 

that each offense is a separate offense and they must return a verdict on each count. Each 

count is a separate count.” Defense counsel responded, “I would appreciate that.” 

 The jury returned to the courtroom. The trial court answered the jury’s question, 

“yes,” and reread CALCRIM No. 3515: “Each of the counts charged in this case is a 

separate crime. You must consider each count separately and return a separate verdict for 

each one.” 

 Ward now contends that the trial court should have given the jury a limiting 

instruction on the use of potentially cross-admissible evidence. The trial court has no 

duty to provide sua sponte a limiting instruction regarding cross-admissible evidence. 

(People v. Maury, supra, 30 Cal.4th at p. 394.) Defense counsel’s acquiescence in the 

instruction that the trial court gave and counsel’s failure to propose a limiting instruction 

forfeits Ward’s claim of error on appeal. (Id. at p. 398, fn. 11; see Evid. Code, § 355 
10

[trial court shall give limiting instruction “upon request”]; People v. Valdez (2012) 55 

Cal.4th 82, 149 [“a defendant who fails to ask the trial court to give a limiting instruction 

may not raise the issue on appeal”]; People v. Clark (2011) 52 Cal.4th 856, 942 

[“Because defendant failed to request a limiting instruction below, he has forfeited his 

claim that it was error for the court not to so instruct.”].)2

 Moreover, Ward argues that the trial court should have given the jury an 

instruction “that although some of the evidence may have been cross-admissible between 

different counts for specified purposes, they could not amalgamate the evidences [sic] to 

conclude that [Ward] was a person of bad character who was wont to commit burglary 

type offenses and thus likely committed each of the alleged burglaries in this case.” 

Again, the fact that the jury convicted Ward on only two of the six counts strongly 

indicates that the jury did not amalgamate the evidence in this manner. (People v. Smith, 

supra, 30 Cal.4th at p. 617.) 

 C. Ineffective Assistance of Counsel 

 Ward asserts that his counsel’s failure to request a limiting instruction deprived 

him of the effective assistance of counsel. “‘To establish ineffective assistance of counsel 

under either the federal or state guarantee, a defendant must show that counsel’s 

representation fell below an objective standard of reasonableness under prevailing 

professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a 

reasonable probability exists that, but for counsel’s failings, the result would have been 

more favorable to the defendant.’” (In re Roberts (2003) 29 Cal.4th 726, 744-745; see 

Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; 

 

2 Ward argues that we should not deem defense counsel’s acquiescence in the trial 

court’s response a forfeiture because the trial court’s decision to “reinstruct with 

CALCRIM No. 3515 reasonably foreclosed any further request on counsel’s part and any 

further request would have been futile.” The record does not support this argument. The 

trial court was open and amenable to a request for a limiting instruction; the court even 

invited defense counsel to propose one. 
11

People v. Huggins (2006) 38 Cal.4th 175, 205-206.) “‘The burden of sustaining a charge 

of inadequate or ineffective representation is upon the defendant. The proof . . . must be a 

demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 

612, 656; see People v. Williams (1988) 44 Cal.3d 883, 933 [“A factual basis, not 

speculation, must be established before reversal of a judgment may be had on grounds of 

ineffective assistance of counsel.”]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008 

[“It is not sufficient to show the alleged errors may have had some conceivable effect on 

the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent 

the errors the result would have been different.”].)

 Here, the evidence as to the various counts against Ward was cross-admissible to 

prove motive, modus operandi, and intent. (Evid. Code, § 1101, subd. (b).) Defense 

counsel focused her argument on the differences between the counts and how they did not 

reveal a modus operandi. For example, the victims gave different descriptions of how 

each perpetrator acted and how each perpetrator entered the residence. Defense counsel 

emphasized “that this is six different cases for your consideration, that the MO, the 

modus operandi, whether it’s demeanor, or whether it is method of entry, no more than 

two cases match up. . . . So that you must look at each separate count as a separate case. 

This strategy was effective: The jury convicted Ward on only two of the six counts. 

 Because the evidence was cross-admissible and the jury did not amalgamate the 

evidence to convict Ward on the basis of bad character rather than the evidence, Ward 

was not prejudiced by the absence of a limiting instruction. He therefore was not 

deprived of the effective assistance of counsel. (People v. Maury, supra, 30 Cal.4th at 

p. 398, fn. 11; People v. Kraft, supra, 23 Cal.4th at p. 1068.) 

 D. Presentence Custody Credits and Parole Revocation Fine

 Ward contends that the abstract of judgment does not accurately reflect the 

presentence custody credits to which he is entitled. The People agree that the abstract of 

judgment must be corrected. They are both right. 
12

 The trial court awarded Ward 283 days of actual credit plus 42 days of conduct 

credit but incorrectly added the two figures for a total of 324 days of credit. The abstract 

of judgment indicates that Ward received 324 days of credit, consisting of 282 days of 

actual credit and 42 days of conduct credit. The abstract of judgment should reflect the 

award of 283 days of actual credit and resulting total of 325 days of credit. (People v. 

Taylor (2004) 119 Cal.App.4th 628, 647.) 

 The trial court also ordered Ward to pay a restitution fine pursuant to Penal Code 

section 1202.4, subdivision (b), in the amount of $800 and a parole revocation fine 

pursuant to Penal Code section 1202.45 in the amount of $200. Subdivision (a) of Penal 

Code section 1202.45 provides: “In every case where a person is convicted of a crime 

and his or her sentence includes a period of parole, the court shall, at the time of 

imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an 

additional parole revocation restitution fine in the same amount as that imposed pursuant 

to subdivision (b) of Section 1202.4.” We therefore modify the judgment to provide an 

$800 parole revocation fine pursuant to Penal Code section 1202.45, subdivision (a). 
13

DISPOSITION 

 The judgment is modified to impose an $800 parole revocation fine pursuant to 

Penal Code section 1202.45, subdivision (a). As so modified, the judgment is affirmed. 

The trial court is directed to prepare a corrected abstract of judgment, also reflecting an 

award of 325 days of presentence custody credit, and to forward a copy to the 

Department of Corrections and Rehabilitation. 

 SEGAL, J.*

We concur: 

 PERLUSS, P. J. 

 ZELON, J. 

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.