THE PEOPLE v. DASHAUN FINISTER

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DASHAUN FINISTER et al., Defendants and Appellants.

B218414

Decided: January 20, 2011

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant Dashaun Finister. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Michael Gregory Harris. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendants Dashaun Finister (Finister) and Michael Gregory Harris (Harris) appeal from the judgments entered after a jury convicted them of count 1, murder of Larry Fulton (Fulton) (Pen.Code, § 187, subd. (a)) 1 and count 2, attempted willful, deliberate, and premeditated murder of Steven Harvey (Harvey) (§§ 187, subd. (a), 664).

As to count 1, the jury found that Fulton's murder occurred while defendants were engaged in the commission of a robbery as defined in sections 211 and 212.5, a special circumstance described in section 190.2, subdivision (a)(17).   The jury found true the allegations that in the commission of each of the offenses, a principal:  (1) personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds.(d) & (e)(1));  (2) personally and intentionally discharged a firearm (§ 12022.53, subds.(c) & (e)(1));  and (3) personally used a firearm (§ 12022.53, subds.(b) & (e)(1).)   The jury also found true the allegation that defendants committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote the criminal conduct of the gang's members (§ 186.22, subd. (b)(1)(C)).  The allegation that Harris had sustained a prior serious or violent felony conviction within the meaning of section 667, subdivisions (a)(1) and (b) through (i), and section 1170.12, subdivisions (a) through (d) was dismissed upon motion of the prosecutor.

The trial court sentenced Finister and Harris each to life without possibility of parole plus 90 years to life in state prison as follows:  as to count 1, life in prison without parole due to the special circumstance (§ 190.2) plus a consecutive term of 25 years to life for the first degree murder conviction, plus a consecutive term of 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1);  as to count 2, a consecutive term of 15 years to life for the attempted murder conviction, plus a consecutive term of 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1).   As to both counts, the trial court imposed and stayed 10 years (§ 186.22, subd. (b)(1)(C) gang enhancement) pursuant to section 654.   Also as to both counts, the trial court stayed the section 12022.53, subdivisions (b) and (e) and the section 12022.53, subdivisions (c) and (e)(1) enhancements.

The trial court ordered both defendants to pay a $200 restitution fine under section 1202.4 and imposed and stayed a parole revocation fine in the same amount under section 1202.45.   The trial court also ordered both defendants to pay a $60 court security fine (§ 1465.8, subd. (a)(1).)

For each defendant, as to count 1, we strike the consecutive sentence of 25 years to life for the first degree murder conviction and retain the sentence of life without parole;  as to count 2, we strike the 15 years to life term for the attempted murder conviction and impose instead a life term with possibility of parole and impose a seven-year minimum parole eligibility term pursuant to section 3046, subdivision (a)(1);  as to both counts 1 and 2, we strike the 10-year gang enhancements imposed pursuant to section 186.22, subdivision (b)(1)(C);  and we strike the parole revocation fine imposed pursuant to section 1202.45.   As modified, we affirm.

CONTENTIONS

Harris contends that:  (1) the deliberation enhancement on his attempted murder conviction must be stricken because it was not alleged in the accusatory pleading;  (2) the trial court's imposition of both a vicarious gun enhancement and a gang crime enhancement on his attempted murder conviction is prohibited by statute;  (3) the trial court's exclusion of evidence that the central prosecution witness was released from custody immediately after testifying, violated his right to confrontation;  and (4) he joins in arguments raised by Finister affecting the judgment in his favor.

Finister contends that:  (1) the trial court erred in failing to sua sponte instruct the jury with CALCRIM No. 703 because the facts did not conclusively establish the identity of the shooter;  (2) an essential element of the felony-murder-robbery special circumstance and the felony-murder-burglary special circumstance was not submitted to the jury and the trial court was precluded from imposing punishment under section 190.2;  (3) the trial court erred in instructing the jury on the manner in which one of the witness's custody status could be considered;  (4) the trial court erred in sentencing Finister under both section 190 and section 190.2;  (5) the trial court erred in imposing two sentences for Fulton's murder;  (6) the trial court erred in adding a section 186.22 enhancement because there was no finding that Finister personally used a firearm;  (7) the trial court erred in imposing and staying a 10-year term under section 186.22, subdivision (b)(1)(C);  (8) the trial court erred in imposing a parole revocation fine;  (9) he was deprived of due process of law when the trial court imposed unauthorized sentences;  and (10) he joins in the arguments raised by Harris affecting the judgment in his favor.

The People contend that:  (1) the trial court improperly imposed and stayed a 10-year gang enhancement on both counts pursuant to section 186.22, subdivision (b)(1)(C) and should instead have imposed 15-year minimum parole eligibility terms pursuant to section 186.22, subdivision (b)(5);  and (2) the trial court improperly sentenced defendants on the first degree special circumstances murder and improperly imposed a parole revocation fine.

FACTS AND PROCEDURAL BACKGROUND

The burglary

On January 31, 2008, Luz Gonzalez (Gonzalez) pulled into her driveway and noticed that the front door was ajar and the back door was wide open.   When she called her husband on her cell phone he assured her that he had locked the doors before leaving the house that morning.   Gonzalez walked into the house and saw that the house had been burglarized.   Missing possessions included a large screen television, a camera, jewelry, an iPod, cash, a .45-caliber Para-Ordnance semi-automatic pistol, a .380-caliber Colt Mustang rifle, and a .38-caliber Colt gun.   The guns were registered to Gonzalez's husband.   Prior to the burglary, Gonzalez's husband had loaded Winchester .45-caliber bullets into the .45-caliber pistol.   After the burglary, Gonzalez found the box of Winchester .45-caliber ammunition in a closet and turned it over to the police.

The murder and attempted murder

On February 1, 2008, Harvey returned home to his duplex residence after taking his son to school.   Harvey lived in the rear unit with his father, and his aunt lived in the front unit.   Harvey closed the screen door, but not the wooden door leading to the outside.   Harvey's cousin Fulton was waiting for Harvey in the living room.   The two sat down to play a video game.   Defendants then burst through the screen door, brandishing weapons and shouting “Give us all your money.   It's a stick-up.   It's not a game.   Give us the money.”   Harvey initially stared at defendants in astonishment.   Harvey got a good look at Finister and identified him from a photographic lineup and at trial.   Harvey testified at trial that Harris looked like the second man, but he was not 100 percent sure.

Finister was carrying either a nine-millimeter or .45-caliber handgun.   Harvey told defendants that he had about $600 in the dresser in his bedroom and that he did not have any weapons.   Defendants took Harvey and Fulton to the bedroom with guns pointed at and touching their hands which were clasped behind their heads.   Defendants said that they needed at least $1,000.   The defendants threatened to blow Harvey and Fulton's heads off if they did not give defendants the rest of the money.   Defendants assured Harvey and Fulton that the threats were made “on the hood cuz,” which is akin to a solemn oath made on the neighborhood.   Fulton then gave the men $100 from his wallet.   Defendants herded Harvey and Fulton into the hallway, where they stood shoulder to shoulder.   Harris was standing directly behind them and Finister was standing about six to ten feet away in the living room near the couch.   Harvey began to fidget with anxiety, which seemed to upset defendants.   Fulton assured them that Harvey was just jumpy and they intended to comply with defendants' demands.   Harvey and Fulton never resisted or struggled with defendants.   Defendants ordered Harvey and Fulton to kneel with their hands behind their heads.   Fulton immediately knelt, but Harvey continued to fidget.   Defendants argued between themselves about what to do with their captives.   One of the assailants said that they should take Harvey and Fulton with them.   The other shouted “No. Fuck that” and fired two shots as Harvey began to kneel next to Fulton.   One shot hit Fulton in the back of the head and the other hit Harvey in the leg.   Defendants then fled.   Harvey saw Fulton lying in a pool of blood and that his lips were moving.

Harvey's aunt saw defendants running out of the rear unit.   She summoned emergency services when she saw that Harvey was wounded.   Harvey and Fulton were taken to the hospital by ambulance.   Fulton had suffered a fatal bullet wound to the head.   The bullet entered the back of his head, perforated the right lung, and fractured the fourth cervical vertebrae.   Harvey suffered a bullet wound to his thigh and was hospitalized overnight.   He still had a scar at the time of trial.

The investigation

An expended .45-caliber bullet was recovered near the couch, a jacketed bullet fragment was found near a pile of clothing in the hallway, and an expended .45-caliber casing was also found in the hallway.   Harvey's father found another .45-caliber casing in a pile of clothing in the hallway the day after the shooting.   The casings were manufactured by Winchester.   The casings and cartridges had been fired from the same .45-caliber firearm.   The .45-caliber Para-Ordnance handgun is one of five weapons that could have fired these bullets.

Los Angeles County Sheriff's Department (LASD) Deputy Edmund Anderson testified that the casings and cartridges recovered from the Harvey house were consistent with the bullets found in Gonzalez's box of ammunition.   The bullet removed from Fulton's body was the same grain size as the Gonzalez ammunition.

Deputies arrested Finister at an apartment in Long Beach where Harris's girlfriend Madalion Bradley (Bradley) lived with Domenique Lewis (Lewis).   Items stolen from the Gonzalez residence were recovered from the same Long Beach apartment.   Harris, who was not arrested at that time, was outside the apartment when Finister was detained.

Harris's statements

Three weeks after Finister's arrest, Harris contacted authorities and arranged to meet LASD Deputy Todd Anderson in front of the Compton courthouse.   Harris admitted his membership in the Acacia Block Crips gang and that his moniker was “Rocca.”   He eventually admitted his involvement in the Gonzalez burglary and that he had stolen a large screen television, some jewelry, an MP3 player, an iPod, a gold .38-caliber pistol, a .380-caliber pistol, and a black .45-caliber Para-Ordnance semi-automatic pistol.   Harris said he put the items in a backpack and hid it near a canal, but thereafter could not find it.   Later Harris admitted that he took the .45- and .380-caliber pistols to Lewis and Bradley's Long Beach apartment.   He also claimed he gave the .45-caliber Para-Ordnance pistol to someone who sold it for $400 the day before the murder of Fulton.   Harris said he had given the gold gun to a person named “Weezie.”   Harris knew that a .45-caliber gun had been used in the murder and the location of the wounds on each victim, even though the police had kept that information from the public.   He also knew that one of the victims was named Steve.   As he was being arrested, Harris stated:  “I don't think that dude ever saw my face.”

Lewis's statements and testimony

In February 2008, Lewis was interviewed by detectives while she was in custody.   She told them that Finister and Harris were at her apartment with a group of other people.   Finister and Harris claimed that they had shot someone and Finister admitted he was the shooter.   At trial, Lewis testified that she had met Finister a few months before the murder.   Harris and Finister, also known as “Baby Tray,” visited her apartment occasionally.   On the day of the Gonzalez burglary, defendants brought a large screen television and jewelry to Lewis's apartment, claiming the items had been taken during a burglary they had just committed.   Five days after the Fulton murder, Lewis heard defendants talking about shooting someone during a home invasion robbery.   Finister said that when the victim tried to stop him, he shot the victim.   When Lewis asked Finister why he did not just shoot the victim in the knee, both defendants hung their heads.   Lewis saw defendants with a black handgun before the day of the murder and noticed them spending more money than usual after the murder.   She also testified that she told the truth to the detectives.   She denied telling the police what they wanted to hear just so she could get out of jail.

Gang expert and other witness testimony

LASD Deputy Frederick Reynolds (Deputy Reynolds) testified as a gang expert that defendants were members of the Acacia Block Crips gang.   The Acacia Block Crips gang makes its money by selling drugs and committing robberies and burglaries.   Deputy Reynolds opined that defendants committed the murder and attempted murder in order to benefit the Acacia Block Crips because they swore “on the hood,” and used a high level of violence during the crime.   He testified that gang members maintain respect for the gang by committing murders.

Weezie was arrested after the Gonzalez burglary but before Gonzalez reported the crime to the police.   One of Gonzalez's guns was recovered from Weezie when he was arrested.   Weezie was incarcerated in juvenile hall on the day Fulton was murdered.

Robert Royce (Royce), a private investigator engaged by the defendants, testified that he interviewed Lewis while she was in custody and that she told him she did not tell the police the truth and that she would say anything they wanted to hear in order to get out of jail.   Lewis said that she did not tell the police that Harris was in possession of a handgun while in her apartment.   Royce told her he would report her statements to defense attorneys.

DISCUSSION

I. Harris had notice of the deliberation enhancement

Harris contends that because the information did not include a separate enhancement allegation as to count 2, alleging that the attempted murder was willful, deliberate or premeditated, the true finding on the enhancement allegation must be stricken.   We disagree.

Initially, we agree with respondent that Harris failed to challenge the sufficiency of the information in the trial court and has waived that issue on appeal.  (People v. Ramirez (2003) 109 Cal.App.4th 992, 997.)   Even if there was not a waiver, Harris cannot prevail with his argument because he acquiesced to the jury instructions and verdict forms referencing attempted willful, deliberate, premeditated murder.   Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.  [Citation.]  (People v. Thomas (1987) 43 Cal.3d 818, 823.)   The same rules apply to enhancement allegations.   [Citation.]  (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438 (Haskin ).)  “An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense.  (Ibid.)

Here, the information charged both defendants in count 2 with the crime of ATTEMPTED MURDER, in violation of PENAL CODE SECTION 664/187(a), a Felony, and charged that they did unlawfully, and with malice aforethought [attempt] to murder [Harvey], a human being.   Count 2 also alleged that the offense was a serious felony within the meaning of section 1192.7, subdivision (c) and a violent felony within the meaning of section 667.5, subdivision (c), and weapons enhancements pursuant to sections 12022.53, subdivisions (d) and (e)(1);  12022.53, subdivisions (c) and (e)(1);  and 12022.53, subdivisions (b) and (e).   Count 2, however, did not allege that the crime attempted was willful, deliberate, and premeditated murder.

A defendant convicted of attempted murder is subject to a determinate sentence of five, seven, or nine years. (§ 664, subd. (a).)  If, however, “the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. (§ 664, subd. (a).)  Section 664, subdivision (a) further provides that [t]he additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.

People v. Ward (2005) 36 Cal.4th 186, 219 (Ward ) instructs us that when a defendant accepts the jury instruction and the jurys finding on an allegedly uncharged special circumstance with no objection, he acquiesces in the special-circumstance finding and no amendment of the information is necessary.   In Ward, the information charged the defendant with the multiple-murder special circumstance codified in section 190.2, subdivision (a)(3) which requires “ ‘multiple murder when all the offenses in question are tried in the same proceeding.’ ”  (Ward, supra, at p. 218.)   When the defendant successfully severed two of the murder charges, however, section 190.2, subdivision (a)(3) was no longer applicable.  (Ward, at p. 218.)   The trial court, however, correctly recognized that the multiple-murder special circumstance of section 190.2, subdivision (a)(2) did apply, and instructed the jury on its elements.   (Ward, at p. 219.)   Significantly, for our purposes, our Supreme Court held that by accepting the jury instruction and the jury's finding on the allegedly uncharged special circumstance, the defendant acquiesced in the special-circumstance finding and no amendment of the information was necessary.   (Ibid.)

Similarly, People v. Toro (1989) 47 Cal.3d 966, 976 (Toro ), overruled on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, footnote 3, held that where an information is amended at trial to charge an additional offense, and the defendant neither objects nor moves for a continuance, an objection based on lack of notice may not be raised on appeal.  [Citations.]  There is no difference in principle between adding a new offense at trial by amending the information and adding the same charge by verdict forms and jury instructions.   Thus, a failure to promptly object to verdict forms and jury instructions “will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice.”  (Toro, supra, at p. 976.)   In that case, the defendant was charged by information with attempted murder and assault with a deadly weapon.   In addition to the charged offenses, the jury was instructed on, and received verdict forms for, the offenses of attempted voluntary manslaughter, battery with serious bodily injury, simple battery, and simple assault.  (Id. at pp. 970-971.)   The defense did not object to the proposed instructions, the verdict forms, or claim unfair surprise with respect to the verdict options provided to the jury, leading our Supreme Court to conclude that “the failure to object constituted an implied consent to the jurys consideration of the lesser related offense and a waiver of any objection based on lack of notice.  (Id. at p. 978.)

Here, neither defendant objected below to the information on the basis that it failed to provide adequate notice or that he was subject to the enhanced punishment for attempted willful, deliberate, premeditated murder as set forth in section 664, subdivision (a).   Nor did either defendant object when the jury was instructed with CALCRIM No. 601, that “If you find the defendant guilty of attempted murder under count 2, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.”   In fact, the record shows that CALCRIM No. 601, attempted murder:  deliberation and premeditation, was “given as requested” by the trial court.   Moreover, defendants did not interpose an objection either to the verdict forms or at time of sentencing on the attempted willful, deliberate, premeditated murder charge.   It follows that the defendants consented to the jury instruction and the jurys finding on the uncharged allegation in count 2, attempted willful, deliberate, premeditated murder, and no amendment of the information was necessary.

People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo ), cited by Harris, does not advance his argument that the true finding on the enhancement allegation must be stricken.   In that case, the defendant was charged under section 667.61 (the One Strike law) with having used a firearm while kidnapping and committing sex offenses against two separate victims.   Sentencing under the One Strike law requires that at least two of the circumstances enumerated in the statute be pled and proved.   The information, however, only alleged two circumstances, one of which was firearm use, and did not allege a multiple-victim circumstance.   After the jury returned a guilty verdict, the trial court at sentencing substituted a multiple-victim circumstance for each of the firearm use circumstances to support the imposition of One Strike sentences.   The trial court used the gun use findings to impose two additional 10-year terms under section 12022.5, subdivision (a).   Our Supreme Court reversed and held:  Sentencing error occurred because defendant was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled circumstances of multiple victims to support the One Strike terms, and further imposed two 10-year section 12022.5(a) enhancements that could otherwise not have been imposed but for the purported substitution.  (Mancebo, supra, at p. 753.)  Mancebo is distinguishable because the defendant in that case was given notice of the unpled circumstance for the first time at sentencing, unlike here, where defendants impliedly consented to the attempted willful, deliberate, premeditated murder allegation after review of the jury instructions and verdict forms.

Nor is Haskin, supra, 4 Cal.App.4th 1434 cited by Harris, helpful to him.   In that case, the Court of Appeal found the defendant did not consent to a five-year section 667 enhancement under which he was sentenced after pleading guilty to a section 667.5, subdivision (b) enhancement.   The allegation regarding the section 667.5, subdivision (b) enhancement merely put him on notice that the People were seeking to prove that he served a prior prison term for burglary.   At the sentencing hearing, the defendant was sentenced under the section 667 enhancement which required that the defendant be previously convicted of a serious felony.   But, burglary is not deemed a serious felony unless it is of an inhabited dwelling house.  (Haskin, supra, at p. 1439.)   In admitting the truth of the section 667.5, subdivision (b) enhancement allegation, the defendant did not admit he had committed a burglary of an inhabited dwelling house.   Unlike here, the Court of Appeal found nothing in the record to suggest that [the defendant] impliedly consented to have the court consider the section 667.5, subdivision (b) allegation as a nonincluded section 667 enhancement.  (Haskin, at p. 1440.)

We conclude that because the defendants consented to the jury instructions, the verdict forms, and the jury's finding on the uncharged allegation in count 2, attempted willful, deliberate, premeditated murder, no amendment of the information was necessary and the true finding on the enhancement allegation need not be stricken.

II. The trial court erred in sentencing defendants on the gang enhancements and the attempted murder

A. The trial court cannot impose an enhancement pursuant to section 186.22 in addition to an enhancement imposed pursuant to section 12022.53, subdivision (e)(1) unless the person personally used or personally discharged a firearm in the commission of the offense

Harris and Finister contend that the trial court improperly imposed 10-year gang enhancement terms on both counts pursuant to section 186.22, subdivision (b)(1)(C) because their sentences on those counts were already enhanced by a 25-year-to-life term pursuant to section 12022.53, subdivisions (d) and (e)(1).   Respondent concedes that the trial court erred in imposing the 10-year enhancement terms pursuant to section 186.22, subdivision (b)(1)(C) and urges that the enhancement terms must be stricken.

Section 186.22, subdivision (b)(1)(C) authorizes the sentencing court to impose an additional term of 10 years on defendants who commit violent felonies to further the aims of street gangs.   The trial court's power to impose an enhancement under section 186.22, subdivision (b)(1)(C) is limited by section 12022.53, subdivision (e)(2).   Section 12022.53, subdivision (e)(2) provides that an enhancement for participation in a criminal street gang pursuant to section 186.22, subdivision (b)(1)(C) shall not be imposed on a person in addition to an enhancement imposed pursuant to section 12022.53, subdivision (e) “unless the person personally used or personally discharged a firearm in the commission of the offense.”

Here, the defendants were not found to have personally used or discharged a firearm, and they cannot be sentenced to both enhancements.   They can only receive the 25-year-to-life enhancement under section 12022.53, subdivision (e)(1).   The 10-year gang sentence enhancement must be stricken from counts 1 and 2.

B. The trial court should have imposed a life term for the attempted willful, deliberate, premeditated murder and a seven-year minimum parole eligibility term pursuant to section 3046, subdivision (a)(1)

Finister urges that the trial court erred in sentencing defendants to 15 years to life instead of a life term as required for attempted willful, deliberate, premeditated murder pursuant to section 664, subdivision (a).2  He further contends that when a defendant is sentenced to a life term, under section 186.22, subdivision (b)(5), the trial court must impose a 15-year minimum parole eligibility term for the true finding on the gang enhancement.   Respondent concedes the point.   We conclude that the trial court erred by sentencing defendants to 15 years to life for the attempted willful, deliberate, premeditated murder instead of a life term with the possibility of parole.   However, we do not agree that a 15-year minimum parole eligibility term must be imposed, but instead conclude that a seven-year minimum parole eligibility date should be imposed pursuant to section 3046, subdivision (a)(1).

Pursuant to section 664, subdivision (a):  “[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.   Finister argues, and the People concede, that when a defendant is sentenced to a life term, section 186.22, subdivision (b)(5) applies and requires the imposition of a minimum term of 15 years before the defendant may be considered for parole. (§ 186.22, subd. (b)(5);  People v. Lopez (2005) 34 Cal.4th 1002, 1004.)

However, Division 5 of this Appellate District held that a defendant is subject to the seven-year minimum parole eligibility date in section 3046, subdivision (a)(1), rather than the 15-year minimum parole eligibility term specified in section 186.22, subdivision (b)(5).  (People v. Salas (2001) 89 Cal.App.4th 1275, 1283 (Salas ).)   In Salas, the defendant received a life sentence for count 1, attempted willful, deliberate, and premeditated murder. (§ 664, subd. (a).)  In that case, under section 186.22, subdivision (b)(5), the trial court ordered defendant serve a minimum 15-year term before he could be paroled.   As to count 1, the court imposed a consecutive term of 25 years to life for firearm use pursuant to section 12022.53, subdivision (d).  The defendant also received a sentence for conspiracy to commit murder as charged in count 2, which was stayed pursuant to section 654, subdivision (a).  (Salas, supra, at p. 1280.)   As we have found in the instant case, the Salas court held that because the defendant was never found to have personally used a firearm, the section 186.22, subdivision (b)(5) 15-year minimum parole eligibility term was inapplicable.  (Salas, at p. 1281.)   The Salas court found, however, that the minimum parole eligibility term of seven years under section 3046, subdivision (a) 3 applied.  “Absent a determination the accused is subject to the enhanced sentencing provisions of section 186.22 or some other provision of law, a sentence for willful, deliberate, and premeditated murder is for a life term with a minimum wait for parole of seven years. (§ 3046, subd. (a)(1).)”  (Salas, supra, at p. 1280.)   We agree with Salas.

We conclude that the judgments must be modified to reflect that as to counts 1 and 2, the 10-year gang enhancement sentence imposed pursuant to section 186.22 shall be stricken;  as to count 2, a life term with possibility of parole shall be imposed instead of a 15-year-to-life term for attempted willful, deliberate, premeditated murder, and defendants are subject to a seven-year minimum parole eligibility date pursuant to section 3046, subdivision (a)(1).

III. The trial court did not improperly exclude evidence that Lewis was released from custody after she testified or err in instructing with a modified version of CALCRIM No. 337

A. Relevant proceedings below

Lewis was in custody when she first spoke with investigating officers and when she was interviewed by a defense investigator.   At trial, Lewis appeared before the jury wearing a jail uniform.   On direct examination she testified that she had been arrested and kept in custody in order to testify in the instant case.   On cross-examination she testified that she had been arrested five months earlier and was in custody only because she failed to appear in court for the current matter.   During cross-examination, Lewis admitted that she did not want to be in custody, and that she would say what was necessary to get out of custody.   At one point, Lewis said she would have lied if it was necessary to get out of custody, but later clarified that she told the truth to the detectives.

Lewis testified that she did not know when she was going to be released, but knew that she could not be kept in jail for the rest of her life.   After her testimony, outside the presence of the jury, the prosecutor asked the trial court if Lewis could be released because “she's in custody only on this.”   The trial court stated “The only reason she is being held is because of this trial, and if she's completed her testimony, then there's no reason why she cannot be released from custody.”   Neither defense counsel objected to Lewis's release.   The prosecutor objected to Harris's counsel's request that the trial court take judicial notice of Lewis's release in front of the jury when trial reconvened.   The trial court did not specifically address the request, but upon receiving negative replies to its question “Anything else?” concluded proceedings for the day.

The trial court instructed the jury with CALCRIM No. 337 that:  “When [Lewis] testified, she was in custody.   Do not speculate about the reason.   You must completely disregard this circumstance in deciding the issues in this case.   Do not consider it for any purpose or discuss it during your deliberations.   [Evaluate] the witness's testimony according to the instructions I have given you.”

During closing argument, Harris's counsel argued that Lewis was in custody when she testified.   After describing her testimony as inconsistent, he argued that she was willing to say anything in order to get out of custody.   Finister's counsel argued that Lewis changed her story several times and that she said whatever the police wanted to hear.   He also stated that Lewis was released right after she finished testifying.   On objection by the prosecutor, the trial court admonished the jury that argument of counsel is not evidence.

B. The trial court did not improperly exclude evidence that Lewis was released from custody after she testified or err in instructing with a modified version of CALCRIM No. 337

Harris urges that the trial court improperly excluded evidence that Lewis was released from custody after her testimony.   Both defendants contend that the trial court erred in instructing the jury with a modified version of CALCRIM No. 337.   We disagree with their contentions.

Harris's contention that the trial court's refusal to take judicial notice of the fact that Lewis would be released from custody constitutes error is forfeited for his failure to request a final ruling on the issue.  (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1181.)   However, even assuming Lewis's pending release from custody was a proper subject for judicial notice under Evidence Code section 452,4 we conclude that any failure on the part of the trial court to take judicial notice of the fact that Lewis was to be released from custody after testifying was not an abuse of discretion.   (People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)   The record shows that counsel thoroughly cross-examined Lewis on her custody status and elicited statements from her that she would say anything to get out of custody.   Moreover, during closing argument, counsel argued that Lewis had been willing to say anything to get out of custody and that she was released after testifying.

Accordingly, the trial court did not abuse its discretion in failing to admit cumulative evidence.  (Evid.Code, § 352 [court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury];  People v. Williams (2009) 170 Cal.App.4th 587, 611.)

Nor do we agree with Finister that the trial court erred in instructing with a modified version of CALCRIM No. 337.   First, defense counsel did not object to the instruction and has waived this issue on appeal.  (People v. Valdez (2004) 32 Cal.4th 73, 113 [a defendant may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete].)   The record shows that the trial court listed the instructions to be given, stating that “if there's any objections, please let me know.”   Indeed, after mentioning CALCRIM No. 337, the trial court stated:  “I changed it to in-custody rather than physical restraint.”   Neither defense counsel objected to the instruction.   Furthermore, the record shows that CALCRIM No. 337 was “given as requested” by the trial court.

Nevertheless, Finister contends that “[t]he discussions regarding jury instructions are not part of the record and apparently were not reported.   It is, therefore, not certain whether Finister objected to the [court's] modification of CALCRIM No. 337.”   In the absence of a record, one can only surmise why the trial court gave a modified version of CALCRIM No. 337.   But, Lewis's appearance in jail garb may have been the reason the trial court gave the modified version of CALCRIM No. 337 which is usually used when the witness is in restraints.  (People v. Duran (1976) 16 Cal.3d 282, 291-292.)   Still, Finister contends he was prejudiced because the instruction given compelled the jury to disregard his argument that Lewis would say anything in order to get out of custody.   As given, the instruction stated that:  “When [Lewis] testified, she was in custody.   Do not speculate about the reason.   You must completely disregard this circumstance in deciding the issues in this case.   Do not consider it for any purpose or discuss it during your deliberations.   [Evaluate] the witness's testimony according to the instructions I have given you.”   Finister argues that instead, the trial court should have instructed the jury that when Lewis was in custody the jury could not speculate about the reason, and “[t]he fact that a witness is in custody does not by itself make a witness more or less believable.   Evaluate the witness's testimony according to the instructions I have given you.”

But it is unclear that the latter instruction would have materially assisted Finister's argument, because the jury was instructed that Lewis's custodial status should not affect her credibility.   Also the fact that Lewis's release from custody was not content-dependant has some significance as to the relevance of her release.   From the record it appears that Lewis was released because she had given her testimony, not given testimony in favor of one side or another.   In any event, we conclude that in light of the overwhelming evidence of defendants' guilt, it is not reasonably probable the defendants would have obtained a more favorable result if the latter instruction rather than the former had been given.  (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)   Finister was unequivocally identified by Harvey as one of the assailants.   Although he was not completely sure, Harvey stated that Harris looked like the second perpetrator.   Items stolen from the Gonzalez burglary were traced to Lewis's residence.   The bullets used in the murder were consistent with ammunition from the Gonzalez's house.   Lewis testified that Harris and Finister had bragged about killing someone during a home invasion robbery.   During cross-examination, counsel for Harris and Finister were able to elicit testimony from Lewis that she was in custody because of the current case, and that she would say anything to get out of custody, though she later clarified her statement to say that she told the detectives the truth.   Furthermore, Harris's statements and knowledge of the details of the murder and attempted murder implicated him in the crimes, as did his statement:  “I don't think that dude ever saw my face.”

We conclude that the trial court did not improperly exclude evidence that Lewis was released from custody after she testified or erred in instructing with a modified version of CALCRIM No. 337.

IV. The trial court was not required to instruct sua sponte with CALCRIM No. 703 as to Finister.   Any failure to instruct with CALCRIM No. 703 as to Finister and Harris was harmless beyond a reasonable doubt

Finister contends that because the evidence did not establish that he was the actual shooter, the trial court had a sua sponte duty to give CALCRIM No. 703 which instructs the jury that an accomplice to the underlying felony who is not the actual killer, but is found to have acted with reckless indifference to human life and as a major participant in the commission of the underlying felony, will be sentenced to death or life in prison without the possibility of parole.   We disagree.   The evidence was such that the jury could have found that Finister was the shooter, and thus the trial court did not need to instruct with CALCRIM No. 703.   Even if the trial court erred in failing to instruct with CALCRIM No. 703 as to both Finister and Harris, other instructions were given by which the jury necessarily found that Finister and Harris assisted in the felony murder with the intent to kill.

Finister first contends that because the discussion regarding jury instructions was not reported, it is not possible to determine if Finister requested CALCRIM No. 703.   But, as previously discussed, when the trial court read the list of instructions to be given and asked counsel if there were any objections, neither defendant offered clarifying instructions.

In a felony-murder special-circumstance crime, a person other than the actual killer is subject to the death penalty or life without parole if that person was a major participant in the underlying felony (here robbery) and either intended to kill or acted with reckless indifference to human life.  (People v. Cleveland (2004) 32 Cal.4th 704, 751, 753.)   Finister contends that the trial court erred in failing to give, sua sponte, CALCRIM No. 703, which instructs the jury that if it decides that the defendant is guilty of first degree murder but was not the actual killer, then, when it considers the special circumstance of robbery, it must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.5

Finister argues that the prosecutor did not prove Finister shot Fulton because Lewis's testimony was inconsistent concerning the identity of the shooter;  the prosecutor did not argue that Lewis had identified Finister as the shooter;  and the prosecutor did not charge either defendant with personal use of a weapon under section 12022.53, subdivisions (b), (c) or (d).  We conclude that the jury could infer from the evidence that Finister was the shooter.   At trial, Lewis confirmed that she told detectives that Finister shot Fulton.   She testified that she confronted Finister and asked him why he had to shoot the victim.   The passages that Finister cites to in support of his argument that Lewis suggested neither Finister nor Harris was the shooter or that both were the shooters do not support his interpretation.   At one point, Lewis testified:  “I said that as far as either one of them just coming out saying, ‘Yeah, I killed them’ ․ I never heard that come out they mouth.”   Lewis's testimony that both defendants hung their heads came immediately after she testified that she asked Finister “Why did you tell anybody?”   He responded, “Well, what am I going to do?”   Moreover, in closing argument, the prosecutor argued that Finister shot Fulton in the head and Harvey in the leg.   Accordingly, we conclude that the trial court did not have a sua sponte duty to instruct with CALCRIM No. 703 as to Finister.

Assuming that the evidence did not establish that Finister was the shooter and that the jury could conclude from the evidence that Finister or Harris was the aider and abettor to the other, we find that the trial court's failure to instruct with CALCRIM No. 703 was harmless beyond a reasonable doubt.   (People v. Hardy (1992) 2 Cal.4th 86, 192-193 [failure to instruct jury that it was required to find codefendant intended to kill if he only aided in the murder was harmless error because jury found true the allegations that codefendant was the actual killer or intentionally aided the actual killer in an intentional killing under other instructions];  People v. Williams (1997) 16 Cal.4th 635, 689 [when a trial court fails to instruct the jury on an element of a special circumstance allegation, the prejudicial effect of the error must be measured under the test set forth in Chapman v. California (1967) 386 U.S. 18, 24].)

Here, the jury was instructed with CALCRIM No. 600 that “To prove that the defendant is guilty of attempted murder, the People must prove that:  [¶] 1. The defendant took at least one direct but ineffective step toward killing another person;  [¶] AND [¶] 2. The defendant intended to kill that person.   [¶] ․ [¶] ․ In order to convict the defendant of the attempted murder of Steve Harvey, the People must prove that the defendant not only intended to kill Larry Fulton but also either intended to kill Steven Harvey, or intended to kill anyone within the kill zone.   If you have a reasonable doubt whether the defendant intended to kill Larry Fulton by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Steve Harvey.”  (Italics added.)   Thus, given CALCRIM No. 600, if the jury found either defendant was an aider and abettor, it necessarily found he intentionally aided and abetted the actual killer, who was himself motivated by the intent to kill.   By finding defendants guilty of the attempted willful, deliberate, premeditated murder of Harvey, the jury found that the defendants intended to kill Fulton.   Therefore, a failure to give CALCRIM No. 703 was harmless because the jury had necessarily found intent to kill under another properly given instruction.  (People v. Hardy, supra, 2 Cal.4th at p. 192.)   Accordingly, we also reject Finister's argument that he was deprived of a jury finding on an element in violation of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [“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”].)

We conclude that the trial court need not have instructed the jury sua sponte with CALCRIM No. 703 as to Finister, and that in any event, any failure to instruct with CALCRIM No. 703 as to Finister and Harris was harmless beyond a reasonable doubt in light of the jury's findings considering they were instructed with CALCRIM No. 600.

V. The 25-year-to-life term on count 1, first degree murder, must be stricken

Finister and Harris contend, and respondent concedes, that as to count 1, the trial court improperly imposed a sentence of life without parole for the special circumstance allegation pursuant to section 190.2 6 and a consecutive sentence of 25 years to life for the first degree murder conviction because “ ‘where two statutory provisions proscribe the “same offense,” a legislature does not intend to impose two punishments for that offense.’ ”   (Whalen v. United States (1980) 445 U.S. 684, 691-692.)   Accordingly, we must strike the 25-year-to-life term on count 1. (People v. Massie (1998) 19 Cal.4th 550, 563.)

VI. The parole revocation fine must be stricken

Finister and Harris contend, and respondent concedes, that the trial court improperly imposed a parole revocation fine on each of them pursuant to section 1202.45.   A parole revocation fine is inappropriate where the defendant's overall sentence does not anticipate a period of parole.  (People v. Petznick (2003) 114 Cal.App.4th 663, 687.)   The sentences imposed do not contain any determinate terms and therefore the parole revocation fine imposed pursuant to section 1202.45 must be stricken.

DISPOSITION

The judgments as to each defendant are modified to reflect that:  as to count 1, the consecutive sentence of 25 years to life for the first degree murder conviction is stricken and the term of life without parole for the special circumstance pursuant to section 190.2 is retained;  as to count 2, the 15 years to life term is stricken and a life term with possibility of parole for attempted willful, deliberate and premeditated murder is imposed instead;  also as to count 2, a seven-year minimum parole eligibility term is imposed pursuant to section 3046, subdivision (a)(1);  as to counts 1 and 2, the 10-year gang enhancement terms imposed pursuant to section 186.22, subdivision (b)(1)(C) are stricken;  and the parole revocation fine, imposed pursuant to section 1202.45, is stricken.   In all other respects, the judgments are affirmed.   The trial court is ordered to send a corrected copy of the abstract of judgments to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Finister observes that it is likely the trial court misspoke and intended to impose a life term with a 15-year minimum parole eligibility as required by section 664 and section 186.22, subdivision (b)(5)..  FN2. Finister observes that it is likely the trial court misspoke and intended to impose a life term with a 15-year minimum parole eligibility as required by section 664 and section 186.22, subdivision (b)(5).

FN3. Section 3046, subdivision (a) states:  “No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following:  [¶] (1) A term of at least seven calendar years.  [¶] (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.”.  FN3. Section 3046, subdivision (a) states:  “No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following:  [¶] (1) A term of at least seven calendar years.  [¶] (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.”

FN4. Evidence Code section 452 provides, in part, that “Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:[ ] ․ [ ] (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. [¶] (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”.  FN4. Evidence Code section 452 provides, in part, that “Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:[ ] ․ [ ] (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. [¶] (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

FN5. CALCRIM No. 703 Special Circumstances:  Intent Requirement for Accomplice After June 5, 1990-Felony Murder (Pen.Code, § 190.2(d)), provides:  “If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of , you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.“In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the People must prove either that the defendant intended to kill, or the People must prove all of the following:“1. The defendant's participation in the crime began before or during the killing;“2. The defendant was a major participant in the crime;AND“3. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life.“[A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.]“[The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance[s] of _ to be true.]“[If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find (this/these) special circumstance[s] true, you must find either that the defendant acted with intent to kill or you must find that the defendant acted with reckless indifference to human life and was a major participant in the crime.]“If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that (he/she) acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance[s] of _< insert felony murder special circumstance[s]> to be true.   If the People have not met this burden, you must find (this/these) special circumstance [s] (has/have) not been proved true [for that defendant].”.  FN5. CALCRIM No. 703 Special Circumstances:  Intent Requirement for Accomplice After June 5, 1990-Felony Murder (Pen.Code, § 190.2(d)), provides:  “If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of , you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.“In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the People must prove either that the defendant intended to kill, or the People must prove all of the following:“1. The defendant's participation in the crime began before or during the killing;“2. The defendant was a major participant in the crime;AND“3. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life.“[A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.]“[The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance[s] of _ to be true.]“[If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find (this/these) special circumstance[s] true, you must find either that the defendant acted with intent to kill or you must find that the defendant acted with reckless indifference to human life and was a major participant in the crime.]“If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that (he/she) acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance[s] of _< insert felony murder special circumstance[s]> to be true.   If the People have not met this burden, you must find (this/these) special circumstance [s] (has/have) not been proved true [for that defendant].”

FN6. Section 190.2 provides:  “(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:  [¶] ․ [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:  [¶] (A) Robbery in violation of Section 211 or 212.5.[¶] ․ [¶] (c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.[¶] (d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.”.  FN6. Section 190.2 provides:  “(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:  [¶] ․ [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:  [¶] (A) Robbery in violation of Section 211 or 212.5.[¶] ․ [¶] (c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.[¶] (d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.”

_, P.J. BOREN _, J. DOI TODD