P. v. Punch

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Filed 2/7/08 P. v. Punch CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH CHARLES PUNCH,
Defendant and Appellant.
C052350
(Super. Ct. No.
05F090A)
Defendant Joseph Charles Punch did not dispute that he
struck 19-year-old Megan C. in the forehead with the butt of a
pellet gun while on a camping trip with friends, but he
maintained he was not guilty of robbery or false imprisonment.
Because defendant, the victim, and their three friends were all
regular users of methamphetamine, their recollection of the
details of the camping trip was inconsistent and the trial
became a classic credibility contest. In this context,
defendant argues a slew of evidentiary, instructional, and

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sentencing errors. We can find no prejudicial error in this
record and affirm.
FACTS
Enter the world of crystal methamphetamine. The relevant
facts, though simply stated, should be viewed through the
distorted perspective of a drug addict. The victim, Megan C.,
had used methamphetamine since she was 14 years old.1 By the
time she was 19, she had been kicked out of her mother’s home,
lived in her truck, and befriended Jessica Ketchum, who allowed
her to shower in her apartment, then to sleep on her couch, and
eventually to take a vacation with her to Humboldt County.
Ketchum and Megan used methamphetamine and smoked marijuana all
the way from Escondido to Humboldt. Once there, they stayed
with various people and ended up at defendant’s house, where
they irritated defendant’s parents and went off camping with
defendant and two others.
Megan’s various accounts of what happened during the
camping trip differed. But the essence of her testimony at
trial included her description of a brutal assault, robbery, and
false imprisonment. She testified she commingled her belongings
with Ketchum’s in borrowed bags and also brought a Roxy brand
backpack. She claimed that while the other four smoked
methamphetamine on the day of the camping trip, she smoked only
marijuana. She alone had cash, $35 her father had given her for
1 To protect her privacy, we will refer to Megan C. by her first
name. No disrespect is intended.

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her birthday. Once Ketchum became romantically involved with
defendant, she started to ignore Megan. Annoyed by her friend’s
lack of attention and the mosquitoes, Megan secluded herself in
her tent. When she came out of the tent to smoke a cigarette,
the others went off to collect firewood.
When they returned, defendant approached Megan, pointed a
rifle at her, and demanded her money. She told him to take it
out of her purse, which was in the tent. Defendant hit her
forehead with the butt of the gun, knocking her unconscious.
When she came to, defendant was standing over her holding the
gun to her head. He shot the gun 10 to 15 times at the trees
and into the fire. One of the other campers punched and kicked
Megan and rubbed dirt into an open wound on her forehead.
Another camper suggested duct taping her so she would not move.
They began to put “zip ties” on her.
Ketchum and the other two campers took things out of the
tent and put them in the truck. Defendant threw her tent on the
fire and burned it up. Defendant, Ketchum, and the others drove
away. After they were gone, Megan ran toward a nearby creek,
screaming for help, and then ran along the highway until she
eventually found a market. When the market opened, someone
there called the police.
Ketchum, a codefendant at trial, corroborated most of
Megan’s story. Ketchum married defendant in jail and then
decided she had made a mistake. She, too, told the jury that
defendant struck Megan with the gun, but in her version, the
assault was the culmination of a long argument. Like Megan,

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Ketchum testified that defendant pointed the gun at her and
said, “Give me your money.” At that moment, Megan came toward
Ketchum, and Ketchum pushed her away from defendant and walked
over to the truck. Because of the drug use, no one seemed to
have a very accurate perception of the passage of time. Ketchum
expressed remorse for driving away as her friend stood up, with
blood dripping down her face, and begged for her help.
Megan was treated at a local hospital and required two
layers of sutures above her eye. After she was released, she
accompanied a sheriff’s deputy to the campsite. They found a
piece of paper with her brother’s phone number, zip ties, her
lighter, and a blanket on the ground. The phone number had been
in her purse. The remains of a tent were in the fire pit.
Defendant, Ketchum, and the others were arrested a few
hours later. Defendant gave nearly incoherent responses to an
interrogator’s questions. The admissibility of the tape is an
issue we address below, but in essence, he began by denying all
involvement and ultimately admitted pushing her down and
injuring her because she reneged on a drug deal. He denied
taking her money or personal belongings.
Police investigators seized a green backpack, a blue and
gray backpack, and the Roxy backpack from defendant’s room.
Megan’s purse was never found.
A jailhouse informant testified that while he was
incarcerated with defendant, defendant told him that he “robbed
a girl for 20 bucks over some dope, with a pellet gun, and left
her for dead on the side of the road.” Defendant also said he

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hit her in the head with the gun at a campground in Helene. The
informant made a deal with the prosecution for county time,
rather than state prison, and the dismissal of some of the
charges pending against him in exchange for his testimony.
DISCUSSION
I. Evidentiary Errors
Defendant asserts several evidentiary errors and contends
they are of constitutional stature. Thus he asserts he was
deprived of his rights to due process and a fair trial when the
trial court permitted the jury to hear a videotape in which he
mentions “probation” and “incarceration”; he was denied his
constitutional right to present a defense when the court
sustained the prosecutor’s objections to his cross-examination
of a sheriff’s detective; and he was denied due process when the
court failed to sanction the prosecutor for failing to comply
with its discovery obligations prior to trial. As to the first
and last contentions, we conclude the trial court properly
exercised its discretion and committed no error. As to the
second contention, we conclude any possible error was harmless
beyond a reasonable doubt. Defendant was the beneficiary of an
inherently fair trial as assured by the state and federal
Constitutions.
A. The Videotape
Defendant’s postarrest interview was videotaped. As he
concedes, he appeared to be under the influence of
methamphetamine. He requested the trial court to redact the
first half of the tape because he mentioned at one point

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something about being on probation and also stated that the last
time he shot a gun was when he was incarcerated. On appeal, he
contends that he was denied due process and a fair trial when
the court allowed the prosecutor to play the entire tape for the
jury. We disagree.
Defendant contends that the trial court, erroneously
believing the tape could not be redacted if portions were
admissible, failed to exercise its discretion. He misreads the
record. The court did not refuse to redact the tape because
portions were admissible. Our reading of the record suggests
the court determined that the two rather innocuous references to
probation and incarceration were integrated into the interview
in such a way as to make redaction quite awkward. Because
defendant appeared high on methamphetamine and much of the
interview was incoherent, we agree that his responses would not
have inflamed the jurors, who in all likelihood would have had
enormous difficulty even understanding what he was talking
about. For example, as the court pointed out, his response that
the last time he shot a gun was while he was incarcerated did
not make any sense.
Thus, the record belies defendant’s accusation that the
court failed to exercise its discretion. To the contrary, the
court listened to the tape in its entirety, carefully
entertained defense counsel’s objections, and evaluated the
admissibility of the evidence. After a lengthy and thorough
hearing on the issue, the court concluded: “The tape will be
played in its entirety. I reviewed the tape from beginning to

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end. It includes both the denial and the admission, which are
really part and parcel, the same interview. There are breaks in
it. And the statements made by Mr. Punch, regarding probation
and incarceration, I think they’re two different things,
separated by time, are insignificant when it comes to
prejudicing -- make the jury biased against him in a manner to
any significant degree.”
It is true, as defendant suggests, that his prior criminal
conduct was not relevant to the issues before the jury. But the
fact that he denied all involvement at the outset of the
interview and ultimately admitted the brutal assault certainly
was relevant. Defendant grossly overstates the potential danger
of brief, disjointed, and confusing references he made to his
past just as he exaggerates the role his past played in the
prosecutor’s closing argument.
Defendant seems to suggest that his past criminal conduct
played a predominant role at trial. Not so. In the midst of
his incoherent interview he made bare mention of being on
probation and later indicated that the last time he shot a gun
was when he was incarcerated. As a result, the trial court was
faced with a difficult challenge. With the possible exception
of these two remarks, the entire tape was relevant to
establishing his lack of credibility, his drug-induced
condition, and to demonstrate how he initially denied all
involvement and ended with a straightforward admission of
assault with a deadly weapon. The court denied defendant’s
request to redact the entire first half of the tape, during

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which his denials were so blatant, not because the court
believed that it could not do so, but because it concluded that
the probative value of the tape intact outweighed the miniscule
risk that these remarks would unduly prejudice the jury.
Nor did the prosecutor focus on either the fact that
defendant had been on probation or the fact that he had been
incarcerated. Indeed, he did emphasize his monstrous behavior
while high on methamphetamine. And the prosecutor berated
defendant for his lifestyle and his brutality. But defendant’s
own admissions justified such condemnation. The prosecutor did
little more than state the obvious, and he certainly did not
capitalize on defendant’s prior criminal conduct as defendant
contends.
We cannot say the trial court abused its discretion. The
risk of prejudice was indeed slight in a case where defendant
himself admitted a brutal assault on the victim. Given, as the
court observed, that much of the tape was incomprehensible, the
two brief mentions of his probation and incarceration would have
had little, if any, impact on the jury. It is not because the
prosecution was entitled to play the entire tape pursuant to
Evidence Code section 356, but because the trial court properly
weighed the potential for prejudice against the probative value
of the entire tape. We cannot say the court abused that
discretion because it did not redact these two brief remarks
amidst the lengthy interview.

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B. Cross-examination of Detective Langston
Defendant accuses the court of denying him his
constitutional right to present a defense by limiting his cross-
examination of Detective Langston. We have no disagreement with
his citation to venerable principles of constitutional law.
There is no question that “[t]he right of cross-examination is
more than a desirable rule of trial procedure. It is implicit
in the constitutional right of confrontation, and helps assure
the ‘accuracy of the truth-determining process.’” (Chambers v.
Mississippi (1973) 410 U.S. 284, 295 [35 L.Ed.2d 297].)
Moreover, the right to cross-examination is particularly
important when the subject of the impeaching testimony to be
elicited is the complaining witness in a criminal prosecution.
(People v. Murphy (1963) 59 Cal.2d 818, 831.) While defendant
insists that curtailing his cross-examination of Langston about
Megan’s inability to find the campsite and the reasons she might
have laughed while giving a statement constitutes an egregious
trampling of his defense, we conclude that the two rulings did
not result in any prejudicial error, particularly of
constitutional magnitude. We review the rulings in context.
On direct examination, Detective Langston testified he
interviewed Megan in the ambulance. He described her as
emotionally upset. During cross-examination, defense counsel
attempted to probe the detective’s perception of Megan’s
condition. In that vein, defense counsel asked about Megan’s
laughing, and Langston acknowledged she might have laughed at
something he said, possibly more than once. The laughing, in

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the detective’s assessment, could have been a sign she was
emotionally upset. Defense counsel further inquired about
Megan’s ability to give him directions to the campsite, and
Langston testified that he “probably” told her what she was
saying did not make any sense. The prosecution interposed a
relevancy objection. The objection was sustained.
We need not unravel the ensuing objections and rulings that
somehow involved prior inconsistent statements, hearsay, and
relevancy because any error was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705].) It is clear that defendant was attempting to
discredit Megan’s account of what had transpired by suggesting
that her inappropriate laughing, as well as her inability to
direct the detective to the campsite, demonstrated she was high
on methamphetamine. But that inference was hardly news to the
jury. While Megan may have denied smoking methamphetamine on
the day of the assault, she candidly admitted she had been a
heavy user since she was 14 years old. Moreover, she admitted
smoking marijuana earlier in the day, and Ketchum testified
Megan had enjoyed methamphetamine in the tent with the girls a
short time before the assault. This entire story centers on
Megan and her descent into the world of methamphetamine.
But more importantly, as the Attorney General points out,
Ketchum and defendant himself corroborated her account, as did
her injuries and the physical evidence. Defendant, in his
videotaped interview, admitted he pushed Megan and she fell into
some rocks. Ketchum, like Megan, testified that defendant had

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demanded money before striking her. Her facial trauma was but
additional evidence of the assault. Moreover, although she did
not remember this at trial, Megan told a sheriff’s detective
that someone had rifled through her purse, and some of the
contents were found on the ground by the fire. She recounted
how the other two campers had threatened to tie her up with zip
ties, and the zip ties were also found on the ground at the
campsite. She testified that defendant had burned her tent, and
the remnants of the tent were found in the fire pit.
That is not to say this young addict was entirely credible.
She changed the details of the story over time. But defense
counsel vigorously cross-examined Megan and exposed the
weaknesses in her credibility that he sought to reemphasize
through Detective Langstrom. All the percipient witnesses to
the attack suffered the same disability: they were all under
the influence of methamphetamine and/or marijuana. As a result,
we conclude that defendant’s inability to further explore the
detective’s observation of Megan’s laughs or her confusion about
the location of the campsite did not hamper his defense because
at best it would have only confirmed what the jury already
knew -- that Megan’s ability to accurately perceive the events
that transpired may have been diminished by her drug use.
C. Possible Statements to the Prosecutor
Pursuant to the principles enunciated in Brady v. Maryland
(1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady), “the prosecution
must disclose to the defense any evidence that is ‘favorable to
the accused’ and is ‘material’ on the issue of either guilt or

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punishment. Failure to do so violates the accused’s
constitutional right to due process. [Citation.] Evidence is
material under the Brady standard ‘if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.’” (City of Los Angeles v. Superior Court (2002)
29 Cal.4th 1, 7-8.) Defendant asks us to remand the case to the
trial court to determine whether the prosecution violated the
Brady precepts. The court’s failure to order the prosecution to
comply with its discovery obligations, coupled with its refusal
to instruct the jury to consider the discovery violation, in
defendant’s view, constitutes a violation of his rights to due
process and a fair trial.
For the first time at trial, Megan testified that Jasmine
Stover, one of the other campers on the trip, kicked and beat
her for nearly three hours, and another camper, Jason Bowland,
had suggested binding her with duct tape and had removed her
belongings from the tent. This testimony came as a complete
surprise to the defense and, apparently, to the prosecution as
well.
Megan suggested, however, she had told the prosecutor this
information. The prosecutor denied it and then told the court
he had no recollection of Megan’s statements. Defendant’s
lawyer expressly stated that he did not think the prosecutor did
anything wrong and put the blame on Megan, calling her a liar.
Nevertheless, defense counsel insisted on putting the prosecutor
on the stand and urged the court to instruct the jury in the

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language of CALJIC No. 2.28 that they could consider the
prosecutor’s concealment in determining the believability or
weight to be given to that particular evidence.
The trial court denied both requests. The court focused on
the substance of the surprise testimony. Assured that the
relevance of the testimony was to impeach Megan, the court
decided to exclude the possible statements to the prosecutor
under Evidence Code section 352. The court explained, “And as I
indicated at sidebar, the record is replete with many instances
of contradictions, not remembering, changing her story, if you
will. Anything beyond that, anything involving these two
instances with Mr. Mock is 352.” For emphasis, the court
pointed out that, for the longest time, Megan had not told
either of the police detectives that there were two other
suspects in the case. “And that seems that that would be a very
important issue. So if anything, we’re beating a dead horse.”
The court concluded the surprise testimony was “de minimus in
its probative value.”
Thus the court analyzed the issue under Evidence Code
section 352; the Attorney General insists there is no Brady
violation demonstrated; and defendant requests a remand to
determine if there was a Brady violation and, if so, whether it
was material. We accept defendant’s assertion that even an
inadvertent failure to disclose may constitute a Brady
violation. (Bailey v. Rae (9th Cir. 2003) 339 F.3d 1107, 1114,
fn. 5.) But even if we presuppose the prosecutor should have,

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and did not, disclose the testimony about Stover and Bowland,
the failure does not warrant reversal.
We need not remand the issue for an assessment of
materiality or prejudice. CALJIC No. 2.28, requested by
defendant, is itself instructive. Had there been a discovery
violation, the jury would have been told: “If you find that the
concealment and/or delayed disclosure was by the prosecution,
and relates to a fact of importance rather than something
trivial, and does not relate to subject matter already
established by other credible evidence, you may consider that
concealment and/or delayed disclosure in determining the
believability or weight to be given to that particular
evidence.” We acknowledge that Megan’s credibility was a fact
of importance, but as the court concluded, her credibility had
been impeached time and time again, both as it related to her
ability to perceive and remember the events and as it related to
her embellishment of the facts over time. As CALJIC No. 2.28
admonishes, the discovery violation is significant only if it
does not relate to subject matter already established by other
credible evidence, and Megan’s credibility was challenged
throughout the trial.
Moreover, “[e]vidence is ‘material’ [under Brady] ‘only if
there is a reasonable probability that, had [the evidence] been
disclosed to the defense, the result . . . would have been
different.’” (In re Sassounian (1995) 9 Cal.4th 535, 544.)
Ketchum also testified that Bowland threatened Megan and Stover
physically restrained her. We understand that once Bowland and

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Stover were charged, the defense no longer had an opportunity to
call them as witnesses. But we conclude that there is not a
reasonable probability a different outcome would have resulted
so as to undermine our confidence in the outcome had defendant
known earlier that the involvement of Bowland and Stover was
greater than had been anticipated.
D. Cross-examination of Jailhouse Informant
Defendant asserts the prosecution was allowed to convey a
false impression of a jailhouse snitch’s veracity to the jury by
curtailing cross-examination. He acknowledges that not every
restriction of cross-examination amounts to an infringement of
his constitutional right to present a defense and that the trial
court retains wide discretion to limit cross-examination that is
repetitive, prejudicial, confuses the issues, or is of marginal
relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-
679 [89 L.Ed.2d 674].) But here he contends the cross-
examination would have exposed “a significantly different
impression” of Wilfred Mead’s credibility. We disagree.
Appearing in chains and an orange prisoner uniform, Mead
testified that while they were both incarcerated, defendant
“told me that he robbed a girl for 20 bucks over some dope, with
a pellet gun, and left her for dead on the side of the road.”
He also testified he had been charged with two counts of being a
felon in possession of a firearm and ammunition, a felony
failure to register as a sex offender, and a special allegation
for having received a prior felony conviction in Shasta County.
He admitted to a lengthy rap sheet including state prison time

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for cruelty to a child and spousal abuse, and that he was a
registered sex offender. He testified that he was facing two to
three years in state prison for the charges pending against him,
and consequently, he entered into a deal with the prosecution
whereby in exchange for his truthful testimony, he was promised
county jail time. That agreement was admitted into evidence.
Defendant hoped to impeach Mead with the testimony of an
officer with the Department of Justice who would have provided
the factual basis for the pending charges. He also attempted to
cross-examine Mead about his failure to appear at the beginning
of trial. Had he been able to impeach Mead or probe further
during cross-examination, he insists the jury would have had a
significantly different impression of him.
We cannot say the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner by limiting
the impeachment evidence and cross-examination. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) We agree with the
Attorney General that further impeachment was cumulative. The
jurors were well aware of Mead’s shady character. They observed
him in chains and his orange jumpsuit, heard him admit a long
history of criminal conduct, and realized he was testifying
because he had reached a deal with the prosecution. We cannot
accept defendant’s proposition that knowing the details of his
pending possession charges when the jury already knew he was a
convicted sex offender and spousal and child abuser would have
significantly changed their perception of his veracity. Nor do
we believe that an examination of his failure to appear would

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have made any difference in the jury’s assessment of the truth
of his testimony. In short, the court did not abuse its
discretion and the limited curtailment of his defense did not
violate the state or federal Constitutions.
II. Instructional Errors
A. Pinpoint Instruction
The trial court refused to give a special instruction
offered by the defense because it was unnecessary. The court
instructed the jury in the language of CALJIC No. 3.31:
“[T]here must exist a union or joint operation of act or conduct
and a certain specific intent in the mind of the perpetrator.
Unless the specific intent exists the crime or allegation to
which it relates is not committed or is not true.” The jurors
were further instructed that to prove the crime of robbery the
prosecution must prove “[t]he property was taken with the
specific intent permanently to deprive that person of the
property.” (CALJIC N. 9.40.) And more to the point, the court
specifically told the jurors: “To constitute the crime of
robbery, the perpetrator must have formed the specific intent to
permanently deprive an owner of [her] property before or at the
time that the act of taking the property occurred. If this
intent was not formed until after the property was taken from
the person or immediate presence of the victim, the crime of
robbery has not been committed.” (CALJIC No. 9.40.2.)
Given these clear instructions, we reject defendant’s
assertion that the jurors needed a special instruction to draw
their attention to the necessity for a joint operation of act

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and intent. The court rejected his special instruction that
read as follows: “Robbery requires a showing of an intent to
steal before or during the application of force, rather than
merely after the application of force. If you find that a
defendant drove away from the scene with the victim’s property
in the car without knowing that the property was in the car, he
or she is not guilty of robbery.”
While the court must instruct the jury on the general
principles of law relevant to the issues raised by the evidence
(People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on
another ground in People v. Breverman (1998) 19 Cal.4th 142,
165), a defendant is not entitled to the phraseology he prefers
or to highlight his version of the facts in the guise of a jury
instruction. Here the court’s instructions made clear that
defendant had to entertain the requisite intent at the time he,
or one of his aiders and abettors or coconspirators, took the
victim’s property. Thus, as the trial court concluded, the
special instruction was unnecessary and the court was under no
obligation to deliver it.
B. Failure to Instruct on an Element of a Lesser Included
Offense
Defendant next contends that the court’s failure to
instruct on the elements of theft as a lesser included offense
of robbery constitutes reversible error of constitutional
magnitude. To make matters worse, according to defendant, the
court erroneously instructed the jury that theft required a
general, rather than a specific, intent. The Attorney General

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insists defendant was never entitled to the lesser included
offense instruction because defendant admitted the force or
violence element and was therefore guilty of the greater offense
or nothing. (People v. Duncan (1991) 53 Cal.3d 955, 969-970
(Duncan).) In the Attorney General’s view, the instruction on
theft, even if incomplete or erroneous, was more than he was
entitled to and the error, if any, was harmless.
Given defendant’s admission of the assault on Megan, the
thrust of the defense at trial was that he did not know that
Ketchum, Bowland, and Stover took Megan’s property; he was not
part of any conspiracy to rob her; and he did not knowingly aid
and abet their theft. His revisionist defense on appeal is that
the jury was misled by the erroneous instruction on larceny to
believe that the mere act of taking without the larcenous
specific intent required for robbery was all that was needed to
find him guilty of robbery. He speculates that the effect of
the erroneous instruction on the lesser offense was to withdraw
elements of the greater offense from the consideration of the
jury. While we will acknowledge the argument as creative
appellate advocacy, we do not think it is reasonably likely that
a jury would replace the one erroneous instruction on the intent
required for larceny for all the proper instructions on robbery.
We agree with the Attorney General that any instructional
error on theft was harmless. Defendant acknowledges that
instructional error requires reversal only if it is reasonably
probable that the jury would have reached a result more
favorable to defendant absent the error. (People v. Wharton

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(1991) 53 Cal.3d 522, 571-572, fn. 10.) Defendant argued
vehemently that while he did assault the victim, he did not rob
her. His defense was predicated on the lack of direct evidence
that he personally took any of her property or that he knew her
property was commingled with Ketchum’s. But he continues to
either ignore or minimize his codefendant’s damning testimony
that she heard defendant demand money from Megan, his cellmate’s
testimony that defendant told him he robbed a lady for $20, and
the evidence that he assaulted the victim just as he returned
with his four friends from collecting firewood. As the Attorney
General properly concludes, on this evidence defendant, if
guilty of a taking, was guilty as charged of robbery, not theft.
As a result, the failure to describe each of the elements of
theft and the error in telling the jury that theft was a general
intent crime were harmless.
C. Sua Sponte Obligation to Instruct on Attempted Robbery
Defendant continues to insist, as he did above, that there
is no evidence he took any money from Megan, had possession of
her purse, knew Ketchum and the other campers were loading her
property into his truck, or that the taking of the property was
anything more than inadvertence. Based on his lopsided version
of the evidence, he faults the court for failing to instruct on
attempted robbery.
But defendant demanded Megan’s money as he struck her with
the butt of his pellet gun and continued to assault her as the
others ransacked the tent and put all the property into the
truck. It is true, as defendant suggests, that the jury had to

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determine whether he entertained the specific intent to
permanently deprive her of her property at the time he assaulted
her, and the jury was properly instructed on this pivotal issue.
There was, however, no issue as to whether or not the property
was actually taken. Because there was no evidence the offense
was less than charged, the trial court had no sua sponte
obligation to instruct on attempted robbery. (Duncan, supra,
53 Cal.3d at p. 970.)
D. Failure to Instruct on Circumstantial Evidence
Defendant contends the trial court erred by failing to
instruct sua sponte on the sufficiency of circumstantial
evidence as explained in CALJIC No. 2.01. “The instruction must
be given sua sponte when the prosecution substantially relies on
circumstantial evidence to prove guilt.” (People v. Marquez
(1992) 1 Cal.4th 553, 577 (Marquez).) Defendant argues that the
prosecution’s conspiracy theory was entirely dependent on
circumstantial evidence, and therefore he was entitled to the
instruction. The trial court rejected the instruction because
the prosecution’s case was based on direct evidence.
The record supports the trial court’s ruling. The
prosecution did not substantially rely on circumstantial
evidence and “the circumstantial evidence in the case was not
equally consistent with a rational conclusion that the defendant
was innocent.” (Marquez, supra, 1 Cal.4th at p. 577.) As we
have said before, defendant discounts the direct evidence he
does not like. But codefendant Ketchum corroborated the
victim’s testimony about defendant’s conduct. That is to say,

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she confirmed that defendant demanded money from her and then
assaulted her. Mead also provided direct evidence of
defendant’s complicity. He testified that defendant admitted
robbing a girl for $20. As a result, the thrust of the
prosecution’s case rested on direct evidence.
It is true that the prosecution argued a conspiracy theory
and that theory rested, in part, on circumstantial evidence that
the campers devised a scheme or plan to rob Megan. However,
CALJIC No. 2.01 need not be given sua sponte if there is any
circumstantial evidence, but only where the prosecution’s case
rested substantially on circumstantial evidence. The trial
court here was justified in finding the prosecution relied
substantially on direct, not circumstantial, evidence. There
was no error.
III. Prosecutorial Misconduct
Defendant summarizes the apt guiding principle best when he
states that “[t]o rise to the level of deprivation of the
Fourteenth Amendment to the federal Constitution, prosecutorial
misconduct must infect the trial with such unfairness as to make
the conviction a denial of due process.” By isolating remarks
the prosecutor made during closing argument, he concocts, as he
puts it, a “veritable stew of impropriety.” But when placed in
context we can find no deceptive or reprehensible conduct that
infected or tainted this trial with unfairness. (People v.
Price (1991) 1 Cal.4th 324, 448, superseded by statute on other
grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157,
1161-1165.)

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First, defendant accuses the prosecutor of arguing facts
not in evidence by suggesting that Megan had testified that
defendant had rifled through her wallet. The prosecutor in fact
admitted that he was not sure of her testimony. He argued:
“And we know that her purse was taken from the tent where her
other stuff was and rifled through. I don’t know if Mr. Punch
actually did it or one of the others. I’m not sure. She said
she saw him rifling through her purse, I think she might have.
But again, I’m working from notes on this. But you recollect
the testimony.” Such candor is not misconduct.
Defendant next complains that the prosecutor characterized
Bowland as a rough-looking character and referred to the fact he
exercised his Fifth Amendment right not to testify. We agree
with the Attorney General that the prosecutor’s mere statement
that Bowland, “a rough-looking character . . . sat on the stand
and took the Fifth Amendment” was a mere reiteration of what the
jury already saw and heard. Bowland appeared at trial and
invoked his right not to testify. The prosecutor in no way
implied that had Bowland testified, he would have inculpated
defendant.
Defendant also contends the prosecutor argued without
evidentiary support that Bowland had zip ties and intended to
tie Megan with them. Indeed, Megan did testify that she
believed Bowland was going to use the zip ties to tie her up,
and zip ties were found on the ground by the fire pit. It may
have been that Megan came to this conclusion after she saw the
ties on the ground and her testimony was ripe for cross-

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examination. But the witness’s veracity does not render the
prosecutor’s reiteration of her testimony misconduct.
Finally, defendant asserts that the prosecutor improperly
vouched for Mead’s credibility. “A prosecutor may make
‘assurances regarding the apparent honesty or reliability of’ a
witness ‘based on the “facts of [the] record and the inferences
reasonably drawn therefrom.”’ [Citation.] But a ‘prosecutor is
prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by
referring to evidence outside the record.’ [Citation.]”
(People v. Turner (2004) 34 Cal.4th 406, 432-433.) While the
prosecutor’s comments might have come dangerously close to the
line, in context we cannot say they constitute misconduct.
The prosecutor argued: “[Mead’s testimony is] the
absolute, unmitigated truth. So excuse me for saying, ‘You can
have local time as opposed to prison custody for being a felon
in possession of a firearm.’ And you don’t know the gravity of
that case. You don’t know whether it’s a good case, weak case,
strong case, whatever. I do, but you don’t. So we gave him a
deal because what he has to say is necessary to get this gun
back to this crime in this case. But what he has to say is
totally, 100 percent believable and absolute truth. And that’s
why he got a deal.”
Once again, the jury knew that the witness had reached a
deal with the prosecution. The prosecutor was certainly
entitled to make assurances regarding Mead’s veracity,
particularly by highlighting his testimony about the pellet gun.

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It was his identification of the type of gun used that convinced
the prosecution that his testimony was reliable, and the
prosecutor emphasized this fact to the jury. That fact made the
testimony, according to the prosecutor, “100 percent
believable.” This was proper argument based on the evidence.
Perhaps the prosecutor started to veer into improper commentary
when he suggested that he knew about the gravity of Mead’s
pending charges and suggested that he knew what the evidence was
and the jury did not. But such an isolated remark hardly
constitutes the kind of egregious misconduct that subverts the
fairness of a trial. We have found nothing in the prosecutor’s
closing argument that constitutes the kind of egregious and
reprehensible misconduct that violates a defendant’s right to
due process.
IV. Sentencing Errors
A. Upper Term
Defendant contends the trial court violated Cunningham v.
California (2007) 549 U.S. ___ [166 L.Ed.2d 856] by imposing the
upper term sentence of five years for robbery. The trial court
based the upper term on the fact, among others, that defendant
was on probation at the time he committed the robbery. The
“imposition of the upper term does not infringe upon the
defendant’s constitutional right to jury trial so long as one
legally sufficient aggravating circumstance has been found to
exist by the jury, has been admitted by the defendant, or is
justified based upon the defendant’s record of prior

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convictions.” (People v. Black (2007) 41 Cal.4th 799, 816
(Black).)
“The United States Supreme Court consistently has stated
that the right to a jury trial does not apply to the fact of a
prior conviction. [Citations.] ‘[R]ecidivism . . . is a
traditional, if not the most traditional, basis for a sentencing
court’s increasing an offender’s sentence.’ [Citation.]”
(Black, supra, 41 Cal.4th at p. 818.) The California Supreme
Court and numerous other jurisdictions have interpreted the
recidivism “exception to include not only the fact that a prior
conviction occurred, but also other related issues that may be
determined by examining the records of the prior convictions.
[Citations.]” (Black, supra, 41 Cal.4th at p. 819; see also
cases cited in People v. McGee (2006) 38 Cal.4th 682, 703-706.)
Defendant’s probationary status necessarily arises from a
prior conviction and relates to the fact of that prior
conviction. The factors related to defendant’s probationary
status can be determined by judicial review of court records
pertaining to defendant’s prior convictions, sentences, and
grants of probation. (Apprendi v. New Jersey (2000) 530 U.S.
466, 488 [147 L.Ed.2d 435].)
As with the number and increasing seriousness of a
defendant’s convictions, whether the defendant was on probation
at the time of the offense is the type of determination “‘more
typically and appropriately undertaken by a court.’
[Citation.]” (Black, supra, 41 Cal.4th at p. 820.) Therefore,
we believe the fact that defendant was on probation at the time

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of the offense is a recidivism factor arising from the fact of a
prior conviction upon which the trial court may rely to impose
the upper term.2 (Cf. United States v. Corchado (10th Cir. 2005)
427 F.3d 815, 820 (“the ‘prior conviction’ exception extends to
‘subsidiary findings’ such as whether a defendant was under
court supervision when he or she committed a subsequent
crime”].)
The aggravating circumstance related to defendant’s
recidivism was established consistently with Sixth Amendment
principles. Accordingly, the maximum sentence that could have
been imposed was the upper term, and the court was permitted to
rely upon “any number of aggravating circumstances in exercising
its discretion to select the appropriate term by balancing
aggravating and mitigating circumstances, regardless of whether
the facts underlying those circumstances have been found to be
true by a jury. ‘Judicial factfinding in the course of
selecting a sentence within the authorized range does not
implicate the indictment, jury-trial, and reasonable-doubt
components of the Fifth and Sixth Amendments.’ [Citation.]”
(Black, supra, 41 Cal.4th at p. 813.)
“The court’s factual findings regarding the existence of
additional aggravating circumstances may increase the likelihood
that it actually will impose the upper term sentence, but these
2 We note this precise issue is currently pending before the
California Supreme Court in People v. Towne, review granted
July 14, 2004, S125677.

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findings do not themselves further raise the authorized sentence
beyond the upper term. No matter how many additional
aggravating facts are found by the court, the upper term remains
the maximum that may be imposed. Accordingly, judicial fact
finding on those additional aggravating circumstances is not
unconstitutional.” (Black, supra, 41 Cal.4th at p. 815.)
Based on his criminal history, defendant was not legally
entitled to the middle term sentence. The upper term was the
statutory maximum to which he was exposed. Therefore, the
court’s consideration of additional aggravating circumstances,
such as taking advantage of a position of trust, did not raise
the authorized sentence. Rather, it was an appropriate
consideration in the exercise of the court’s sentencing
discretion.
B. Multiple Punishment
Defendant argues that the court sentenced him on the
principal count, robbery, and then improperly sentenced him to
concurrent terms for assault and false imprisonment in violation
of the multiple punishment ban set forth in section 654.
Section 654 does not prohibit separate punishment where the
false imprisonment or assault is independent of another crime.
(People v. Webber (1991) 228 Cal.App.3d 1146, 1172.) There is
abundant evidence here to support the court’s implied factual
finding that defendant entertained more than one criminal
objective. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
We accept defendant’s notion that he entertained but one
objective when he initially assaulted Megan with the butt of his

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gun, and that was to rob her. He succeeded in knocking her
unconscious, and his friends took all her property and put it
into the truck. But according to Megan, defendant and Stowe
kept her on the ground for several hours kicking her, shooting
the gun near her, and restraining her. Thus, the additional
assaults and false imprisonment were not part and parcel of the
plan to rob her. The brutality was gratuitous. While Megan’s
testimony was subject to considerable dispute, it provided
support for the trial court’s conclusion that defendant either
aided and abetted the others or personally participated in an
assault of Megan and the restraint that amounted to false
imprisonment completely divorced from his original objective to
take her cash.
C. Double Jeopardy
In his reply brief, defendant acknowledges that in
People v. Sloan (2007) 42 Cal.4th 110 (Sloan) and People v.
Izaguirre (2007) 42 Cal.4th 126 (Izaguirre), the Supreme Court
rejected his argument that enhancement allegations should be
considered in determining whether a lesser offense is
necessarily included in a charged offense and, therefore, that
he was improperly convicted multiple times for the same offense
in violation of the double jeopardy clause of the Fifth
Amendment. The elements of the offense of robbery did not
include proof that he personally used a dangerous and deadly
weapon and inflicted great bodily injury upon Megan. In the
absence of the enhancement allegations, there is no double
jeopardy issue. As defendant properly notes, we are required to

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follow the Supreme Court precedent set forth in Sloan and
Izaguirre. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
RAYE , J.
We concur:
SIMS , Acting P.J.
BUTZ , J.

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