P. v. Brown

Filed 12/29/06 P. v. Brown CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTICE L. BROWN,
Defendant and Appellant.
B187599
(Los Angeles County
Super. Ct. No. NA057904)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan
Comparet-Cassani, Judge. Affirmed as modified.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and
Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
_______________

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Artice L. Brown appeals from the judgment entered after a jury convicted him of
one count of rape, with a true finding as to a special allegation qualifying the conviction
for sentencing under California’s “One Strike” law, and one count of second degree
robbery. We modify the judgment to reflect an award of 859 days of actual custody
credit and, as modified, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Brown was charged by information with three counts of rape (Pen. Code, § 261,
subd. (a)(2)) 1
(counts 1, 2 and 3), each with the special allegation under the One Strike
law he had kidnapped the victim and the movement of the victim had substantially
increased the risk of harm to the victim above that level of risk necessarily inherent in the
underlying rape offenses (§ 667.61, subds. (a) & (d)(2)), and one count of robbery
(§ 211) (count 4). 2
The information also specially alleged Brown had served one prior
prison term within the meaning of section 667.5, subdivision (b).
2. Summary of the Evidence Presented at Trial
Jessica S., then 16 years old, spent the day of July 25, 2003 selling candy outside
several stores, earning between $150 and $200. Jessica was hearing impaired but had
some ability to read lips.
On her way home in the early evening she got off a bus in a residential area of
Long Beach to transfer to another bus. While waiting for the second bus, she decided to
visit a friend, who frequented a residential garage that could be entered from a nearby
alley. As Jessica walked to the alley, she was approached by Brown, who asked her if
she wanted to “kick it” with him. Feeling uncomfortable with Brown and sensing
something was wrong, Jessica told him she had to leave. She continued to walk toward
1
Statutory references are to the Penal Code unless otherwise indicated.
2
A fifth count for assault with a deadly weapon or by means of force likely to
produce great bodily injury (§ 245, subd. (a)(1)) was dismissed by the People prior to
trial.

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her friend’s garage, but Brown followed her and asked crudely whether she wanted to
have sex with him. When Jessica declined, Brown grabbed her and forced her to kiss
him; she smelled alcohol on his breath. Jessica broke free, screaming for help, and ran
down the alley and into her friend’s garage.
Although Jessica’s friend was not in the garage, two other men were there. Jessica
tried to explain to the men, who spoke mostly Spanish, that she was being followed and
needed help. Jessica hid behind a couch, while one of the men held the garage door
closed and the other picked up a crowbar. Brown forced his way through the door into
the garage, telling the men Jessica was his “lady” and he would beat them up if they got
involved. Brown found Jessica behind the couch and asked her to come with him. When
she refused, he slapped her face seven or eight times, as she struggled to break free.
Brown threatened to hit Jessica with his closed fist if she did not follow him.
Jessica ran two or three feet outside the garage, begging the two men to help her,
but Brown caught up to her and grabbed her. As she continued to scream for help,
Brown pulled Jessica -- while slapping her, threatening her with his fist and telling her to
be quiet -- into an alcove in the alley, 72 1/2 feet from her friend’s garage. Brown threw
Jessica against the gate at the back of the alcove, scratching her back. He then pushed
her to the ground, took off all of her clothes and forced her to have sex with him. When
Brown was done, he grabbed Jessica’s purse from her and ran away.
Brown was apprehended less than 100 yards from the scene, with $103 in cash and
a tube of mascara in the pocket of his pants. Jessica identified Brown in a field show-up
as her assailant. Her purse was found in a trashcan in the alley. Although the police
officer who had detained Brown did not observe any signs of intoxication, tests
administered approximately two hours after the incident revealed Brown had a blood
alcohol content of 0.12 or 0.13.
Jessica was taken to the hospital where she was given a sexual assault examination
by a forensic nurse. Jessica had numerous scrapes and scratches on her face, chest, arms,
hands, back, legs and feet. Her nose was red and swollen; and she had bruises under her
right eye and on the left side of her forehead and bumps on her head. An abrasion also

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was found at the entrance to Jessica’s vagina; and there was redness to her cervix. The
same nurse examined Brown, who had an abrasion on his left arm and an ulcer on his
penis. A swab of Jessica’s vagina revealed the presence of sperm, which matched
Brown’s DNA profile.
In his defense Brown presented the testimony of Dr. Arthur Kowell, a neurologist
and clinical professor at the UCLA School of Medicine, who had examined Brown in jail
in March 2005, referred him for a variety of diagnostic procedures and reviewed various
medical records and the police report in this case. According to Dr. Kowell, Brown
suffered from an organic brain dysfunction in the frontal lobe area; and two psychologists
had developed similar diagnoses for Brown. Dr. Kowell testified that dysfunction could
affect a person’s impulse control and Brown’s history demonstrated impulse control
problems and attention deficit hyperactivity disorder since childhood. Dr. Kowell also
testified a polysubstance abuse problem would aggravate impulse control issues.
Because Brown still had a blood alcohol content of 0.12 to 0.13 percent approximately
two hours after the incident, the level would have been higher at the time of the attack on
Jessica and would have intensified Brown’s impulse control problem. Based on
Dr. Kowell’s testimony, defense counsel argued to the jury Brown did not have the
specific intent necessary for a conviction on the robbery offense charged in count 4 or for
true findings on the One Strike allegations with respect to the underlying rape offenses
charged in counts 1, 2 and 3.
The parties stipulated Brown had been convicted on February 14, 2001 of
unlawful driving or taking a vehicle in violation of Vehicle Code section 10851 and proof
of that crime, which occurred on January 4, 2001, required the specific intent to
permanently or temporarily deprive the owner of his or her vehicle.
3. The Jury’s Verdict and Sentencing
The jury found Brown guilty of one count of rape (count 1) and one count of
second degree robbery (count 4). As to count 1, the jury found true the special allegation
under section 667.61, subdivision (d)(2), Brown kidnapped the victim and the movement

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substantially increased the risk of harm to the victim. It found Brown not guilty of the
rape offenses charged in counts 2 and 3.
The trial court sentenced Brown to an aggregate state prison term of 30 years to
life, consisting of the upper term of five years for the robbery charged in count 4, plus a
consecutive term of 25 years to life for the rape charged in count 1.
3
CONTENTIONS
Brown contends (1) the evidence is insufficient to support the jury’s true finding
on the special allegation under section 667.61, subdivision (d)(2); (2) the prosecutor
engaged in prejudicial misconduct by referring in her closing argument to Brown’s
demeanor at trial; (3) the trial court committed reversible error by asking defense counsel
twice not to ask leading questions of Brown’s expert witness on direct examination; and
(4) the trial court prejudicially erred by admitting evidence of his prior conviction for
unlawfully taking or driving a vehicle. With respect to his sentence, Brown contends
(1) the trial court’s imposition of the upper term on count 4 and consecutive sentences on
counts 1 and 4 violated his right to a jury trial under Blakely v. Washington (2004) 542
U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely); (2) he is entitled to one additional
day of actual custody credit; and (3) the $20 court-security fee should be stricken.
DISCUSSION
1. The Evidence Is Sufficient To Support the Jury’s True Finding on the Special
Allegation Under Section 667.61, Subdivision (d)(2)
a. Standard of review
In reviewing a challenge to the sufficiency of the evidence, we “consider the
evidence in a light most favorable to the judgment and presume the existence of every
fact the trier could reasonably deduce from the evidence in support of the judgment. The
test is whether substantial evidence supports the decision, not whether the evidence
proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th
408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d
3
The prison-prior allegation under section 667.5, subdivision (b), which was not
pursued by the People, was stricken by the trial court.

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577, 631.) Our sole function is to determine if any rational trier of fact could have found
the essential elements of the crime or the special allegation present beyond a reasonable
doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) The Supreme Court has held, “Reversal on this ground is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the jury’s finding].’” (Bolin, at p. 331, quoting People v. Redmond
(1969) 71 Cal.2d 745, 755.)
“Substantial evidence” in this context means “evidence which is reasonable,
credible, and of solid value -- such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578;
accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“When the sufficiency of the
evidence is challenged on appeal, the court must review the whole record in the light
most favorable to the judgment to determine whether it contains substantial evidence --
i.e., evidence that is credible and of solid value -- from which a rational trier of fact could
have found the defendant guilty beyond a reasonable doubt.”’ [Citations.]”].) “Although
the jury is required to acquit a criminal defendant if it finds the evidence susceptible of
two reasonable interpretations, one of which favors guilt and the other innocence, it is the
jury, not the appellate court, which must be convinced of his guilt beyond a reasonable
doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
b. Substantial evidence demonstrates Brown kidnapped Jessica and, as a
result, substantially increased the risk of harm to her
Pursuant to California’s One Strike law, a person convicted of rape in violation of
section 261, subdivision (a)(2), under one or more of the circumstances specified in
section 667.61, subdivision (d), must be punished by a state prison term of 25 years to
life. 4
(§ 667.61, subd. (a).) One of the circumstances specified in section 667.61,
4
“The purpose of the One Strike law is ‘to ensure serious and dangerous sex
offenders would receive lengthy prison sentences upon their first conviction,’ ‘where the
nature or method of the sex offense “place[d] the victim in a position of elevated
vulnerability.” [Citation.]’ [Citation.]” (People v. Alvarado (2001) 87 Cal.App.4th 178,
186.)

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subdivision (d) -- the one found true by the jury in connection with Brown’s conviction
for the rape of Jessica charged in count 1 -- is that “[t]he defendant kidnapped the victim
of the present offense and the movement of the victim substantially increased the risk of
harm to the victim over and above that level of risk necessarily inherent in the underlying
offense in subdivision (c).” (§ 667.61, subd. (d)(2).)
Whether the defendant’s movement of a victim is merely incidental to the
underlying rape offense is determined by the scope and nature of the movement,
including the actual distance the victim is moved (although no minimum distance is
required) and the environment in which the movement occurred. (People v. Rayford
(1994) 9 Cal.4th 1, 12; see People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152.)
“[I]ncidental movements are brief and insubstantial, and frequently consist of movement
around the premises where the incident began. [Citations.]” (People v. Diaz (2000) 78
Cal.App.4th 243, 247.) Whether the movement caused a substantial increase in the risk
of harm to the victim is dependent on “the decreased likelihood of detection, the danger
inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced
opportunity to commit additional crimes. [Citations.]” (Rayford, at p. 13; Dominguez, at
p. 1152.) The increased risk of harm may be physical or psychological and need not
necessarily materialize during the crime. (People v. Nguyen (2000) 22 Cal.4th 872, 886;
Rayford, at p. 14.)
Brown contends the evidence is insufficient to support the jury’s true finding on
the section 667.61, subdivision (d)(2), special allegation because his movement of Jessica
from the garage into the alcove in the alley was merely incidental to the rape and did not
substantially increase the risk of harm to her. 5
The evidence, however, establishes
5
The jury was instructed under CALJIC No. 9.54, “The defendant is accused in a
special allegation of violation of Penal Code section 667.61, subdivision [(d)(2)] of the
crime of kidnapping to commit forcible rape as to counts one, two and three. The
specific intent to commit forcible rape must be present when the kidnapping commences.
Kidnapping is the unlawful movement by physical force of a person, without the person’s
consent, for a substantial distance where the movement is not merely incidental to the
commission of the forcible rape and where the movement substantially increases the risk

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Jessica, in trying to escape from Brown, ran two to three feet out of the garage before he
grabbed her and pulled her 72 1/2 feet down the alley to a secluded alcove, while
slapping and threatening her. Brown then threw Jessica against the gate at the back of the
alcove and pushed her to the ground before raping her. After completing the rape Brown
fought with Jessica for her purse and ran away, leaving Jessica naked in the alcove.
Based on both the distance Brown moved Jessica and his use of violence to effect
that movement, pulling Jessica from the open alley to the alcove was not merely
incidental to the underlying rape. (See, e.g., People v. Shadden (2001) 93 Cal.App.4th
164, 168-169 [movement not incidental when defendant moved rape victim nine feet
from public area of store to store’s private back room]; People v. Salazar (1995) 33
Cal.App.4th 341, 344, 348 [movement not incidental when defendant moved rape victim
out of public view by taking her 29 feet from outside walkway into motel bathroom].)
Contrary to Brown’s contention, his movement of Jessica is not similar to the defendant’s
of harm to the person moved over and above that necessarily present in the crime of
forcible rape itself. In this allegation, namely, kidnapping to commit forcible rape, the
risk of harm requirement refers to the risk of either physical or mental harm. Kidnapping
is also the unlawful compulsion of another person, without that person’s consent, and
because of a reasonable apprehension of harm to move for a substantial distance where
such movement is not incidental to the forcible rape, and where the movement
substantially increases the risk of harm to the person moved over and above that
necessarily present in the crime of forcible rape itself. Brief movements to facilitate the
crime of forcible rape are incidental to the commission of the forcible rape. On the other
hand, movements to facilitate the forcible rape that are for [a] substantial distance rather
than brief are not incidental to the commission of the forcible rape. In order to prove this
allegation, each of the following elements must be proved: A person was unlawfully
moved by the use of physical force; the movement of that person was caused with the
specific intent to commit forcible rape, and the person causing the movement had the
required specific intent when the movement commenced; three, the movement of the
person was without that person’s consent; four, the movement of the person was for [a]
substantial distance[,] that is a distance more than slight, brief or trivial; and five, the
movement substantially increased the risk of harm to the person moved over and above
that necessarily present in the crime of forcible rape itself. The People have the burden
of proving the truth of this allegation. If you have a reasonable doubt that it is true, you
must find it to be not true.”

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initial movement of the victim in People v. Diaz, supra, 78 Cal.App.4th at pages 248-
249, from a sidewalk to a grassy strip immediately adjacent to the sidewalk, in full view
of a major urban street. The initial movement in Diaz did not cause a substantial change
in the surroundings and may have been only a short distance from the location where the
defendant initially contacted the victim. Here, in contrast, Brown altered Jessica’s
surroundings by moving her a substantial distance out of the open alley to an alcove
where she could not been seen by someone passing by.
As to the increased risk of harm element of the special allegation, pulling Jessica
to the alcove, enclosed on three sides and out of sight of anyone walking by the alley,
decreased the risk Brown would be detected and made it more dangerous for Jessica to
attempt to escape and less likely she could succeed in doing so. In addition, by moving
her to the alcove, Brown inflicted greater injury on Jessica, both during and after the
move, ultimately forcing her to submit to him in fear he was going to break her neck.
There was thus ample evidence Brown’s movement of Jessica substantially increased the
risk of harm to her above that level of risk necessarily inherent in the underlying rape
offense in count 1. (People v. Shadden, supra, 93 Cal.App.4th at p. 170 [risk of harm to
victim substantially increased when defendant moves her out of public view, making it
“less likely for others to discover the crime” and decreasing the “odds of detection”];
People v. Salazar, supra, 33 Cal.App.4th at pp. 348-349 [defendant substantially
increased risk of harm to victim by confining and isolating her in a motel room bathroom
giving him “an enhanced opportunity to perpetrate any additional crimes he desired”].)
2. The Prosecutor’s Comments During Closing Argument on Brown’s Courtroom
Demeanor Did Not Constitute Reversible Error
a. The remarks were not so egregious or reprehensible as to amount to
misconduct under either the federal or state standard
Brown based his defense on the expert testimony of Dr. Kowell, arguing his
impulse control problems prevented him from forming the specific intent necessary to
convict him of robbery and to find true the special allegation he had kidnapped Jessica

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with intent to rape her. 6
During closing argument the prosecutor rebutted that contention,
noting the jury had observed Brown during trial and he had maintained control while
witnesses testified about what he had done, “Doesn’t sound like somebody who can’t
6
The jury was instructed under CALJIC No. 3.32, “You have received evidence
regarding a mental defect of the defendant Artice Brown. You should consider this
evidence solely for the purpose of determining whether the defendant actually formed the
required specific intent, which is an element of the crime charged in count 4 and the
special allegation of kidnapping.” The jury was also instructed under CALJIC No. 3.31,
“In the crime charged in count four, namely, second degree robbery, and the special
allegation of kidnapping, there must exist a union or joint operation of act or conduct and
a certain specific intent in the mind of the perpetrator. Unless this specific intent exists,
the crime and special allegation to which it relates has not been committed. The specific
intent required is included in the definitions of the crime of second degree robbery and in
the special allegation of kidnapping which are set forth elsewhere in these instructions.
The crime of second degree robbery requires the specific intent to permanently deprive
that person of property, and the special allegation of kidnapping requires the specific
intent to move the person for the purposes of committing a forcible rape.” With respect
to the robbery charge, the jury was instructed under CALJIC No. 9.40 a conviction for
robbery required proof “the property was taken with the specific intent permanently to
deprive that person of the property”; and, as explained, CALJIC No. 9.54 informed the
jury regarding the special allegation under section 667.61, subdivision (d)(2), “[t]he
specific intent to commit forcible rape must be present when the kidnapping commences”
and in order for the jury to find the allegation true the People were required to prove
“[t]he movement of [the victim] was caused with the specific intent to commit forcible
rape, and the person causing the movement had the required specific intent when the
movement commenced.”
Although not an issue in this case, there is some question whether a special
allegation under section 667.61, subdivision (d)(2), requires the kidnapping occur with
the specific intent to commit rape. (Compare People v. Jones (1997) 58 Cal.App.4th 693,
717 [“Nothing in [§ 667.61, subd. (d)(2),] explicitly requires that the defendant kidnap
the victim for the purpose of committing the sexual offense”]; Judicial Council of
California Criminal Jury Instructions (2006) CALCRIM No. 3175 [eliminating a specific
intent requirement for a § 667.61, subd. (d)(2), allegation] with People v. Jones (2001) 25
Cal.4th 98, 102 [describing the jury’s true finding on a § 667.61, subd. (d)(2), allegation
as a finding “that in order to facilitate the commission of the crimes [the defendant]
personally kidnapped the victim and that the movement substantially increased the risk of
harm”].)

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control their anger; that’s impulsive; doesn’t know what they are doing.”
7
On appeal
Brown contends the prosecutor’s reference to his demeanor during trial notwithstanding
his decision not to testify constitutes prejudicial misconduct.
“‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution only when it comprises a pattern of conduct so “egregious that it infects the
trial with such unfairness as to make the conviction a denial of due process.”’”
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves “‘“the use of
deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’
[Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Generally a prosecutor’s comment on a nontestifying defendant’s demeanor
during a trial on guilt is improper unless he or she merely asked the jury to ignore the
defendant’s conduct. (People v. Boyette (2002) 29 Cal.4th 381, 434 [“‘In criminal trials
of guilt, prosecutorial references to a nontestifying defendant’s demeanor or behavior in
the courtroom have been held improper on three grounds: (1) Demeanor evidence is
cognizable and relevant only as it bears on the credibility of a witness. (2) The
prosecutorial comment infringes on the defendant’s right not to testify. (3) Consideration
of the defendant’s behavior or demeanor while off the stand violates the rule that criminal
conduct cannot be inferred from bad character.’ [Citation.]”].) Accordingly, Brown is
correct the prosecutor should not have commented on his courtroom demeanor to rebut
Dr. Kowell’s expert testimony. Nevertheless, this brief statement did not rise to the level
7
The prosecutor stated in summation, “He [the defense expert] wants you to believe
the defendant is a zombie; he has no impulse control and that he doesn’t know the
consequences of what he’s [sic]. Remember I asked the doctor, if the defendant had been
cured [since] you treated him. The doctor said, no, he hadn’t seen him again since. You
have been able to watch the defendant throughout this trial. See him partake in the trial.
Know where to sit in the trial[,] not act out when there are people on the witness stand
talking about him, talking about what he did or even the doctor talking about his past. He
sits there quietly. Doesn’t sound like somebody who can’t control their anger; that’s
impulsive; doesn’t know what they are doing.”

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of prosecutorial misconduct under either the federal or state standard.
8
Brown does not
suggest the remark was anything more than an isolated comment, much less part of a
pattern of egregious conduct that infected his trial with such unfairness as to deny him
due process. (People v. Navarette, supra, 30 Cal.4th at p. 506.) In addition, nothing in
the record suggests the prosecutor used the remarks in a deceptive or reprehensible
attempt to persuade the jury of Brown’s guilt on the robbery charge and the One Strike
allegation so as to violate state law. (Ibid.)
9
b. Brown forfeited any claim the prosecutor’s remarks constituted
improper comment on his election not to testify
Although not expressly articulated as a claim of Griffin error, Brown’s contention
the prosecutor committed prejudicial misconduct by referring to his courtroom demeanor
implicitly suggests a claim the prosecutor’s closing argument was, in effect, an
impermissible comment on his election not to testify in violation of his rights under the
Fifth and Fourteenth Amendments to the United States Constitution. (See Griffin v.
California (1965) 380 U.S. 609, 615 [85 S.Ct. 1229, 14 L.Ed.2d 106] (Griffin) [neither
the People nor the trial court may convert defendant’s decision not to testify into
evidence of a defendant’s guilt; to do so impermissibly burdens defendant’s invocation of
his or her Fifth Amendment rights]; People v. Medina (1974) 41 Cal.App.3d 438, 457
[finding Griffin error when prosecutor’s comments had the effect of “urg[ing] the jury to
believe the testimony of the three accomplice witnesses because the defendants, who
8
As discussed in connection with Brown’s implicit suggestion the prosecutor’s
remarks constituted improper comment on his election not to testify, Brown’s claim of
prosecutorial conduct must also be rejected on the ground he forfeited it by failing to
object in the trial court. (People v. Samayoa (1997) 15 Cal.4th 795, 841 [“As a general
rule a defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion -- and on the same ground -- the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety”].)
9
The issue of prosecutorial misconduct is currently pending before the Supreme
Court in People v. Lopez, review granted July 19, 2006, S143615, which involves a
prosecutor’s reference to the “horrendous crimes” committed by Catholic priests during
closing argument in the trial of a priest accused of committing a lewd act on a child.

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were the only ones who could have refuted it, did not take the stand and subject
themselves to cross-examination and to prosecution for perjury”].) To the extent Brown
complains of an indirect infringement on his right not to testify, he has forfeited that
assertion by failing to object to the prosecutor’s remark at trial and to request the jury be
admonished to disregard the impropriety. (People v. Turner (2004) 34 Cal.4th 406, 421
[defendant’s failure to object to alleged Griffin error forfeited claim on appeal]; People v.
Medina (1995) 11 Cal.4th 694, 756; People v. Mincey, supra, 2 Cal.4th at p. 446.)
Contrary to Brown’s contention, nothing in the record suggests an objection by his
counsel would not have been sustained and followed immediately by an admonition to
the jury to disregard the argument or that these remedies would not have cured any
prejudice. (People v. Green (1980) 27 Cal.3d 1, 34 [“[T]he initial question to be decided
in all cases in which a defendant complains of prosecutorial misconduct for the first time
on appeal is whether a timely objection would have cured the harm. If it would, the
contention must be rejected”].) Accordingly, a timely objection was required.
c. Brown has not demonstrated prejudice as a result of his counsel’s
failure to object to the prosecutor’s remark
Recognizing the forfeiture problem, as an alternative to his claim of prosecutorial
misconduct, Brown urges us to hold his counsel’s failure to object to the prosecutor’s
comments constituted ineffective assistance of counsel. To prevail on this claim, Brown
must establish his counsel’s representation fell below an objective standard of
reasonableness and there is a reasonable probability that, but for counsel’s deficient
performance, the result of the trial would have been different. (Strickland v. Washington
(1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland); People v.
Williams (1997) 16 Cal.4th 153, 215.)
“‘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.’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a
presumption the challenged action “‘might be considered sound trial strategy’” under the
circumstances. (Strickland, supra, 466 U.S. at pp. 689, 694; accord, People v. Dennis

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(1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for
ineffective assistance of counsel only when the record demonstrates there could have
been no rational tactical purpose for counsel’s challenged act or omission. (People v.
Lucas (1995) 12 Cal.4th 415, 442 [“Reviewing courts reverse convictions on direct
appeal on the ground of incompetence of counsel only if the record on appeal
demonstrates there could be no rational tactical purpose for counsel’s omissions”];
People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘If the record sheds no light on why
counsel acted or failed to act in the manner challenged, “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation,” [citation], the contention [that counsel provided ineffective assistance] must
be rejected.’”].) “[R]arely will the failure to object establish incompetence of counsel,
because the decision whether to raise an objection is inherently tactical. [Citation.]”
(People v. Lewis (2001) 25 Cal.4th 610, 678.)
In considering a claim of ineffective assistance of counsel, it is not necessary to
determine “‘whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.’” (In re Fields (1990) 51
Cal.3d 1063, 1079, quoting Strickland, supra, 466 U.S. at p. 697.) 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. (People v. Williams, supra, 16 Cal.4th at p. 215; People v.
Ledesma (1987) 43 Cal.3d 171, 217-218; see People v. Mesa (2006) 144 Cal.App.4th
1000, 1008.)
In this case, even if the prosecutor’s remarks constituted Griffin error and Brown’s
counsel had no valid tactical reason for failing to object and request an admonition,
10
10
Although we need not decide the issue, Brown’s counsel may well have made a
tactical choice not to highlight the prosecutor’s words and, instead, to focus the jury on
Dr. Kowell’s testimony. (People v. Welch (1999) 20 Cal.4th 701, 754 [trial counsel’s

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15
Brown’s ineffective assistance of counsel claim must be rejected because he has failed to
demonstrate a reasonable probability the outcome of his trial would have been different
absent that error. The trial court instructed the jury under CALJIC No. 2.60 that a
defendant in a criminal trial has a constitutional right not to testify and it must not draw
any inference from the fact a defendant does not testify or permit the matter to enter into
its deliberations, as well as CALJIC No. 2.61 that, in deciding whether to testify, the
defendant may rely on the state of the evidence and the failure, if any, of the People to
prove beyond a reasonable doubt every essential element of the crime charged.
Additionally, the jury was instructed statements by the prosecutor are not evidence
(CALJIC No. 1.02) and the verdict must be based on evidence actually received at trial
and not from any other source (CALJIC No. 1.03). Moreover, Dr. Kowell admitted on
cross-examination some of the diagnostic tests given to Brown did not reveal any
abnormalities and the test that did reveal an abnormality will indicate abnormalities of
some sort in a large majority of the general population, casting in doubt the defense
theory Brown’s impulse control problems prevented him from forming the requisite
specific intents for the robbery charge and the One Strike allegation. Given Dr. Kowell’s
own concessions, the strength of the evidence against Brown on the specific intent issues,
and the brevity of the prosecutor’s remarks, which did not involve any direct comment on
Brown’s failure to testify, we are convinced Brown’s counsel’s failure to object to the
prosecutor’s comment on Brown’s courtroom demeanor did not adversely affect the
outcome of his trial. (People v. Waidla (2000) 22 Cal.4th 690, 719.)
3. The Trial Court Did Not Commit Reversible Error By Requesting Defense
Counsel Not To Ask Leading Questions
Brown contends the trial court committed reversible error by requesting his
counsel twice during the direct examination of Dr. Kowell, his expert witness, not to ask
failure to object to alleged prosecutorial misconduct tactical because “[h]e could
reasonably have determined that the risks of raising the objection and offending or
annoying the jury outweighed whatever benefit might have been obtained from
prosecutorial remarks that were little likely to prejudice his client”].)

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16
leading questions.
11
Brown maintains the trial court’s admonishment of his counsel was
improper because an expert witness may be asked leading questions on direct
examination and the “erroneous chastising” led the jury to believe Dr. Kowell was being
coached and cast “grave doubt” on the expert’s testimony.
As an initial matter, Brown forfeited his claim any judicial error violated his rights
by failing to object and request an admonition to the jury. (People v. Sturm (2006) 37
Cal.4th 1218, 1237 [“As a general rule, judicial misconduct claims are not preserved for
appellate review if no objections were made on that ground at trial”]; People v. Snow
(2003) 30 Cal.4th 73, 77-78.) Contrary to Brown’s contention, the trial court’s alleged
improper requests to his counsel do not indicate an objection would have been futile or an
admonition to the jury would have failed to cure any misconduct. (People v. Sanders
(1995) 11 Cal.4th 475, 531 [“‘[d]efendant’s failure to object at trial . . . particularly where
(as here) such action would have permitted the court to clarify any possible
misunderstanding resulting from the comments, bars his claim of error on appeal.’
[Citation.] ‘The purpose of the rule requiring timely objection is to give the trial court
the opportunity to cure any error, if possible, by an admonition to the jury.’
[Citation.]”].) The requests by the trial court here certainly do not suggest the “evident
hostility” between the court and defense counsel necessary to render an objection and
jury admonition futile. (See Sturm, at p. 1237.)
Independent of the issue of forfeiture, Brown’s argument lacks any merit. The
trial court has both the inherent right and statutory duty to control the proceedings of a
trial. (People v. Burnett (1993) 12 Cal.App.4th 469, 475; § 1044 [“It shall be the duty of
the judge to control all proceedings during the trial, and to limit the introduction of
11
During Dr. Kowell’s direct examination, after a series of questions in which the
expert essentially responded “correct,” the trial court requested, “If you could not use so
many leading questions and let him testify more, please, I’d appreciate it because you are
on direct.” Defense counsel responded, “I apologize.” Soon thereafter defense counsel
asked another series of questions prompting responses of “yes” or “correct” from
Dr. Kowell; and the trial court stated, “If you could ask him what his opinion is instead of
asking a leading question, I’d appreciate it.” Defense counsel responded, “Okay.”

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17
evidence and the argument of counsel to relevant and material matters, with a view to the
expeditious and effective ascertainment of the truth regarding the matters involved”].) In
this regard, “‘[a] court may control the mode of questioning of a witness and comment on
the evidence and credibility of witnesses as necessary for the proper determination of the
case. [Citations.] Within reasonable limits, the court has a duty to see that justice is done
and to bring out facts relevant to the jury’s determination. [Citation.] A court commits
misconduct if it persistently makes discourteous and disparaging remarks so as to
discredit the defense or create the impression it is allying itself with the prosecution.’
[Citation.]” (People v. Raviart (2001) 93 Cal.App.4th 258, 269.) We “‘evaluate the
propriety of judicial comment on a case-by-case basis, noting whether the peculiar
content and circumstances of the court’s remarks deprived the accused of his right to trial
by jury.’” (People v. Sanders, supra, 11 Cal.4th at pp. 531-532.)
Nothing about the trial court’s two requests of defense counsel in this case
suggests the court was discrediting the defense or creating the impression it had aligned
itself with the prosecution. (People v. Raviart, supra, 93 Cal.App.4th at p. 269.) Even if
defense counsel’s leading questions to Dr. Kowell were technically permissible (People
v. Campbell (1965) 233 Cal.App.3d 38, 44), the trial court had the inherent power to
control the mode of questioning to accomplish the “effective ascertainment” of the issues
relevant to the jury’s determination. (§ 1044.) Indeed, the trial court’s requests to
defense counsel may well have been intended to help the defense by allowing the jury to
hear Dr. Kowell’s explanation of Brown’s diagnosis and its potential impact on Brown’s
behavior, rather than counsel’s summation of the opinion in question form.
12
It was not
the trial court’s requests but rather the leading questions being asked by defense counsel
that created the risk the jury would conclude Dr. Kowell was being coached. The trial
12
As one leading treatise remarks with respect to the use of leading questions in the
direct examination of an expert witness, “Asking leading questions (typically followed by
a series of monotonous ‘yes’ replies) is not the best technique to persuade the jury.”
(Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2006) ¶
11:44, p. 11-14.4.)

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18
court’s limited and courteous requests to defense counsel in no way deprived Brown of
his right to a jury trial. (People v. Sanders, supra, 11 Cal.4th at pp. 531-532.)
In any event, even if the court’s requests could be construed as improper, they
were harmless even under the most stringent beyond-a-reasonable-doubt standard of
prejudice. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d
705].) The jury’s rejection of the defense theory that Brown’s impulse control problems
prevented him from forming the specific intent required for the robbery charge and the
One Strike allegation was consistent with the evidence: Brown forced Jessica to kiss him
and asked her crudely to have sex with him during their initial street encounter before he
struggled with her in the garage and pulled her across the alley to the alcove where he
raped and robbed her. That evidence amply demonstrates Brown had the specific intent
both to rape Jessica when he started to kidnap her and to permanently deprive her of her
property when he took her purse. Moreover, as noted, it likely was of benefit to Brown
for his counsel not to ask leading questions of his only witness. In addition, any
impropriety in the trial court’s requests was mitigated by the instruction to the jury under
CALJIC No. 17.30, “I have not intended by anything I have said or done, or by any
questions that I may have asked, or by any ruling I may have made, to intimate or suggest
what you should find to be the facts, or that I believe or disbelieve any witness. If
anything I have done or said has seemed to so indicate, you will disregard it and form
your own conclusion.” It is presumed the jurors followed that instruction. (People v.
Sanchez (2001) 26 Cal.4th 834, 852.)
4. The Trial Court Did Not Prejudicially Err By Permitting the Admission of
Evidence of Brown’s Prior Felony Conviction
Once Brown’s counsel indicated he planned to present testimony from Dr. Kowell
that Brown had a brain dysfunction causing impulse control problems and to use that
testimony to argue to the jury Brown lacked the specific intent required for a conviction
of robbery and for a true finding on the One Strike allegation, the People sought to
introduce evidence that Brown had a prior felony conviction, by virtue of a guilty plea,
for the unlawful taking or driving of a vehicle, a specific intent crime. (See People v.

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19
Garza (2005) 35 Cal.4th 866, 876 [“A person can violate [Vehicle Code] section
10851(a) ‘either by taking a vehicle with the intent to steal it or by driving it with the
intent only to temporarily deprive its owner of possession (i.e., joyriding)’”].) Overruling
Brown’s objection to admission of the evidence based on Evidence Code sections 1101,
subdivision (b), and 352,
13
the trial court allowed the People to ask Dr. Kowell on cross-
examination whether he had considered the fact of the prior conviction in reaching his
opinion about Brown. In addition, the parties stipulated Brown had been “convicted . . .
of the crime of unlawful driving or taking of a vehicle, in violation of Vehicle Code
section 10851A, a felony, on February 14, 2001, and that that crime was committed on
January 4th of 2001, and that crime is a specific intent crime, and the intent required is
either to permanently or temporarily deprive the owner of their vehicle.” On appeal
Brown contends admission of evidence regarding his prior felony conviction constitutes
an abuse of the trial court’s discretion under Evidence Code sections 1101, subdivision
(b), and 352.
No abuse of discretion occurred. Contrary to Brown’s contention, the evidence
was not impermissible character evidence under Evidence Code section 1101,
subdivision (b), because it was not admitted for the purpose of proving Brown had a
criminal disposition.
14
(See People v. Felix (1993) 14 Cal.App.4th 997, 1004-1005
13
The trial court ruled, “Two reasons I find [evidence of the prior conviction]
admissible: I find it admissible under [section 28, subdivision (d), of article 1 of the
California] Constitution which says all relevant evidence is admissible and it is
admissible in point of fact since the defense’s argument is that he does not have the
ability to form a specific intent. Number two reason I find it admissible: When the
defendant entered a plea, he admitted all the elements of the offense and one element of
the offense is specific intent and, therefore, it is admitted by the defendant.” The trial
court later reaffirmed its ruling, reasoning the prior conviction “goes to the gravamen of
the defense of the defendant’s inability, alleged inability, to form a specific intent.”
14
Evidence Code section 1101, subdivision (b), provides, “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether the
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act

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20
[“Evidence of prior offenses is not admissible simply as character evidence, i.e., to show
a propensity to commit crimes in general or a particular class of crimes”].) Rather, the
evidence was relevant and admissible to rebut Dr. Kowell’s testimony that Brown had
impulse control problems and the defense’s ensuing argument that he lacked the specific
intent necessary for a robbery conviction and a true finding on the special allegation
under section 667.61, subdivision (d)(2). (People v. Carter (2005) 36 Cal.4th 1114, 1166
[“all relevant evidence is admissible unless excluded under the federal or California
Constitution or by statute. [Citations.] Relevant evidence is . . . [that] ‘having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.’ The test of relevance is whether the evidence tends
‘“logically, naturally, and by reasonable inference” to establish material facts such as
identity, intent, or motive’”].) The jury was specifically instructed to consider the
evidence only as it related to the issue of Brown’s specific intent for the robbery and One
Strike allegation,
15
an issue Brown made relevant by his defense at trial. (See Carter, at
pp. 1166-1167 [trial court has broad discretion in determining relevance of evidence];
People v. Sanders, supra, 11 Cal.4th at p. 512 [“‘trial court is vested with wide discretion
in determining relevance’”].)
Brown’s argument fares no better under Evidence Code section 352.
16
A trial
court should not exclude highly probative evidence unless the undue prejudice is
unusually great. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) “Undue
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act.”
15
The trial court instructed the jury, “Certain evidence was admitted for a limited
purpose. Evidence of the conviction of Vehicle Code section 10851 may be considered
by you as to whether the defendant has the capacity to form a specific intent.”
16
Evidence Code section 352 provides, “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate an undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”

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21
prejudice” refers not to evidence that proves guilt, but to evidence that prompts an
emotional reaction against the defendant and tends to cause the trier of fact to decide the
case on an improper basis: “The prejudice which exclusion of evidence under Evidence
Code section 352 is designed to avoid is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence,
the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352
applies to evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues. . . .’” (People v.
Karis, supra, 46 Cal.3d at p. 638.) A trial court’s determination pursuant to Evidence
Code section 352 likewise is reviewed for an abuse of discretion. (People v. Barnett
(1998) 17 Cal.4th 1044, 1118.)
As the trial court found, evidence of the prior felony conviction for a specific
intent crime rebutted Brown’s defense he lacked the capacity to form the specific intent
necessary to convict him of robbery or to find true the One Strike allegation. By pleading
guilty to unlawful taking or driving a vehicle under Vehicle Code section 10851, Brown
admitted the elements of the crime, including the requisite specific intent. (People v.
Enos (1973) 34 Cal.App.3d 25, 40-41 [“A voluntary plea of guilty is the equivalent of a
conviction of the crime and includes an admission of every element of the crime”].)
Thus, the probative value of the evidence was high. Moreover, the conviction was from
February 2001, fairly close in time to the instant offenses. In fact, Brown was on parole
for the prior conviction at the time he raped Jessica and stole her purse. Furthermore, the
nature of the prior conviction -- unlawful driving or taking a vehicle -- was not likely to
inflame the jury and sway it to convict Brown of the rape and robbery of Jessica. In
addition, as explained, the trial court guarded against the possibility of undue prejudice
by appropriately limiting the jury’s use of Brown’s prior felony conviction to the specific

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22
intent issue on which it was relevant; and it is presumed the jury followed the court’s
instruction. (People v. Sanchez, supra, 26 Cal.4th at p. 852.)
17
5. Imposition of the Upper Term on Count 4 and Consecutive Terms on the Rape
and Robbery Convictions Did Not Violate Brown’s Right to a Jury Trial
In sentencing Brown the trial court imposed the upper term of five years on the
robbery charged in count 4 and elected to impose consecutive terms on the rape charged
in count 1 and the robbery charged in count 4.
18
(§§ 669, 1170; see § 667.61, subd. (g)
17
Based on our rejection of Brown’s claims of error, we necessarily reject his
contention cumulative errors and resulting prejudice mandate the reversal of his
conviction for the robbery charged in count 4 and the striking of the jury’s true finding on
the special allegation under section 667.61, subdivision (d)(2).
18
The trial court explained it selected the upper term on count 4 because “the victim
was particularly vulnerable. Not only was she deaf, she was 16 years of age.” (See Cal.
Rules of Court, rule 4.421(a)(3).) In general, in sentencing Brown the trial court stated,
“I heard the trial. I heard the evidence. This was one of the worst rape cases I ever
heard. This young girl was 16 years old. She was deaf. She was helpless. She was a
beautiful young girl, too, in point in fact. The photographs of the beating that the
defendant committed, the beating, specifically, he did to the face was so great that when I
looked at the photographs, which I did after the jury came back with their verdict, I did
not recognize her as the person who testified in the courtroom. Her face was swollen out
of shape. There were contusions, black eyes. There was no way I could possibly have
depicted that individual who testified as the individual who the defendant beat and raped.
The enormity of the crime is almost too overwhelming to consider. She was walking on
the street, just having sold candy to get some money for herself, in the daytime, and the
defendant accosts her, talks to her, and in a very crude manner asks her to have sex with
him in the daytime. She doesn’t know him. She tries to get away. She walks and she
goes down this alley because she knows a friend of hers frequents a garage there.
Unfortunately, she gets in the garage, and there are two male Hispanics but her friend
isn’t present. And the male Hispanics do not, in fact, help her. She may have hoped that
they were going to help here, but they do not, in fact, help her, and point out to the
defendant where she is as she’s hiding behind a couch. He beats her in the face with his
closed fists and takes her, either physically or not, out of the garage. She runs. He grabs
her. He drags her to the secluded part of the alley, and in broad daylight in a public
place, somewhat secluded by this fencing around them, takes all her clothes off. This is a
16-year-old child who’s deaf. And then he rapes her and then he robs her, and then he
leaves her beaten, raped, and robbed in broad daylight, naked. There are not many words
that one can use to describe an individual like that, but none of them are nice. Therefore,

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23
[One Strike law does not require consecutive sentencing for additional, nonsexual
offenses; “[t]erms for other offenses committed during a single occasion shall be imposed
as authorized under any other law, including Section 667.6, if applicable”].) Brown
contends the trial court’s imposition of the upper term on count 4 and consecutive terms
on counts 1 and 4 based on factual determinations made by the court, not the jury,
violated his right to a jury trial under Blakely, supra, 542 U.S. at page 301, in which the
United States Supreme Court reaffirmed its holding in Apprendi v. New Jersey (2000)
530 U.S. 466 that, “‘other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt . . . .’” (See also United States v. Booker
(2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621.)
The contention a defendant’s constitutional right to a jury trial is violated by the
trial court’s identification of aggravating factors and imposition of an upper term was
rejected in People v. Black (2005) 35 Cal.4th 1238, 1244, in which the California
Supreme Court held “the judicial factfinding that occurs when a judge exercises
discretion to impose an upper term sentence or consecutive terms under California law
does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
As the Court explained, “The jury’s verdict of guilty on an offense authorizes the judge to
sentence a defendant to any of the three terms specified by statute as the potential
punishments for that offense, as long as the judge exercises his or her discretion in a
reasonable manner that is consistent with the requirements and guidelines contained in
statutes and court rules.” (Id. at pp. 1257-1258.) According to the Court, the same
reasoning applies to a trial court’s decision to sentence consecutively. (Id. at pp. 1261-
1264.)
Brown does not contend the trial court exercised its discretion in an unreasonable
fashion or the sentence imposed was in any way inconsistent with the requirements of the
it is the intention of this court to sentence the defendant to the highest term that the law
allows on this case.”

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24
Penal Code or the California Rules of Court. 19
Blakely, therefore, provides no basis to set
aside or modify Brown’s sentence. However, while this case was pending on appeal, the
United States Supreme Court granted certiorari in People v. Cunningham (Apr. 18, 2005,
A103501 [nonpub.opn.], certiorari granted sub nom. Cunningham v. California (Feb. 21,
2006) ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47], a case involving the effect of
Blakely, supra, 542 U.S. 296 and United States v. Booker, supra, 543 U.S. 220 on
California sentencing law. Accordingly, although we deny Brown’s Blakely claim under
the authority of Black, we do so without prejudice to any relief to which he might be
entitled based on the United States Supreme Court’s decision in Cunningham.
6. Brown Is Entitled to 859 Days of Actual Custody Credit
A defendant is entitled to credit for all days spent in custody from the date of
arrest to the date of sentencing. (§ 2900.5.) Brown was arrested on July 25, 2003 and
sentenced on November 29, 2005, entitling him to 859 days of actual custody credit.
Because the trial court awarded Brown only 858 days of actual custody credit,
20
we
19
Brown contends in one sentence of his opening brief the trial court failed to state
any reasons for its decision to sentence him consecutively. However, Brown did not
object to his sentence on that ground in the trial court. Moreover, other than the passing
reference in his opening brief, Brown fails to argue on appeal he is entitled to any relief
based on a purported failure of the trial court to state its reasons for imposing consecutive
terms, choosing instead to limit his challenge to the imposition of consecutive sentences
to an alleged Blakely violation. Accordingly, Brown has forfeited any challenge to the
imposition of consecutive sentences based on an alleged failure of the trial court to state
reasons for its sentencing choice. (People v. Gonzalez (2003) 31 Cal.4th 745, 755-756
[failure to object to discretionary sentencing choices in trial court forfeits issue on
appeal]; People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124 [challenge to sentence
based on trial court’s failure to state reasons for consecutive sentences forfeited on appeal
when no objection made in the trial court]; People v. Stanley (1995) 10 Cal.4th 764, 793
[“‘[E]very brief should contain a legal argument with citation of authorities on the points
made. If none is furnished on a particular point, the court may treat it as waived, and
pass it without consideration. [Citations.]’ [Citations.]”].) In any event, the trial court’s
general statement in sentencing Brown sets forth reasons for imposing consecutive
sentences on the robbery and rape convictions. (See fn. 18 above.)
20
As the People acknowledge, the error apparently resulted from the failure to
include February 29, 2004 -- leap day -- in the calculation.

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25
modify his sentence to reflect 859 days of actual custody credit and order the abstract of
judgment corrected. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 [incorrect
calculation of legally mandated custody credit is an unauthorized sentence that may be
corrected at any time].)
7. The Court-security Fee Need Not Be Stricken
In sentencing Brown the trial court imposed a $20 court-security fee. (§ 1465.8,
subd. (a)(1) [“To ensure and maintain adequate funding for court security, a fee of twenty
dollars ($20) shall be imposed on every conviction for a criminal offense, including a
traffic offense, except parking offenses . . . .”].) Brown contends the fee must be stricken
because the offenses for which he was convicted were committed before the effective
date of the statute and the statute does not expressly provide it is to apply retroactively.
(See § 3 [“No part of [the Penal Code] is retroactive, unless expressly so declared”].)
In People v. Wallace (2004) 120 Cal.App.4th 867 Division Five of this court held
imposition of the $20 court-security fee on a defendant whose crimes were committed
prior to the effective date of section 1465.8, subdivision (a)(1), did not violate federal or
state ex post facto principles because the minimal fee is nonpunitive and furthers the
purpose of the statute to “insur[e] appropriate funding levels for court operations and
providing a more rational process for planning court security.” (Wallace, at p. 878.)
Subsequently, Division Two of the First District held that, apart from ex post facto
principles, the court-security fee as imposed on a defendant whose crimes were
committed before the effective date of section 1465.8, subdivision (a)(1), “attached a new
legal consequence to, and increased [the defendant’s] liability for, conduct that occurred
before [the statute] became effective” and, therefore, could not be applied retroactively.
(People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006
(S141415) (Carmichael).) Division One of the First District then addressed both the ex
post facto and retroactivity issues and declined to strike imposition of the fee on either
ground. (People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006
(S142508) (Alford).) With respect to the retroactivity issue, the court in Alford
concluded, “The last act or event necessary to trigger the legal consequence of the court

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26
security fee was defendant’s conviction, although that was of course necessarily
dependent upon his earlier commission of the offense. More importantly, as we have
observed, the purpose and impact of section 1465.8 are nonpunitive: to promote and fund
court security, when necessary. [Citation.] And because the court security fee does not
constitute punishment for past crimes, we do not perceive any unfairness that attends the
lack of notice of a change in the law following the commission of the offense.
[Citation.]” 21
(Alford, at p. 624.)
We believe the better approach to the retroactivity issue is that taken by the
appellate court in Alford. Because it was Brown’s conviction that triggered imposition of
the fee and section 1465.8, subdivision (a)(1), serves the nonpunitive purpose of
promoting and funding court security, the statute need not expressly state it is to be
applied retroactively in order for the fee to be imposed on a defendant whose crimes were
committed prior to its effective date. In rejecting Brown’s request to strike imposition of
the court-security fee, however, we do so without prejudice to any relief to which he may
be entitled based on the Supreme Court’s opinion in Alford.
DISPOSITION
The judgment is modified to reflect an award of 859 days of actual custody credit.
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
JOHNSON, J. WOODS, J.
21
In granting review of Alford and Carmichael, the Supreme Court stated it would
address in Alford whether “the trial court security fee mandated by Penal Code section
1465.8 [can] be imposed on a defendant who committed his or her crime before the
effective date of the statute without violating the state and federal constitutional
prohibitions against ex post facto laws”; the Court deferred briefing in Carmichael
pending its decision in Alford.

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