THE PEOPLE v. LEONARD LLOYD (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Leonard Lloyd appeals from the judgment entered following his conviction for second degree murder with true findings on related firearm-use and criminal street gang allegations.   We remand for a new restitution hearing to determine the victims' losses and in all other respects affirm.

factual and procedural background

On the evening of May 6, 2006 Kevin Sullivan, an African-American man, hosted a party for his daughter at their home on Jefferson Boulevard in Carson.   Approximately 50 guests, mostly African-Americans, Hispanics and Samoans, attended the party, which ended shortly after 2:00 a.m. As the remaining guests said their goodbyes and started to walk toward their cars, several shots were fired.   Two women, who had been walking toward the corner, later testified they saw a man wearing a black, hooded sweatshirt, standing on the corner about three houses away, firing a handgun at the people mingling in the driveway of the home.   After scrambling out of the way, they headed back to the driveway where they found Sullivan bleeding profusely and gasping for air.   He died from a gunshot wound to his neck.

One of the women admitted she could not make out the face or race of the shooter, who had his hood pulled over his head;  but the second, Tammy Favazza, in an interview on the morning after the shooting with the investigating detective, Los Angeles County Sheriff's Deputy Mark Lillienfeld, described the shooter as Hispanic, dark, thin and bald and estimated his height as five feet six inches, or slightly shorter than Lillienfeld, who is approximately five feet seven or eight inches tall.   Shown photographs of potential suspects, Favazza identified the man depicted in the third photograph as the shooter, although she remembered also noticing the fifth photograph, a photograph of Lloyd.

Testifying at trial, Favazza once again hesitated over the same two photographs but insisted she recognized the shooter as the one depicted in the fifth photograph.   She also stated she had been able to see by the light of the gunshots that the shooter was of mixed race but mostly Hispanic (Lloyd is apparently of mixed race-African-American and Hispanic-the record is not clear), because the shooter's hood covered only half of his head, revealing short, textured hair, much like that of her children.   She then identified Lloyd as the shooter, even though Lloyd is 6 feet 4 inches tall and weighs more than 200 pounds.   Under cross-examination attacking the accuracy of her identification, Favazza admitted she had been under duress:  “It was a lot going on.   I'm trying to dodge bullets.   I'm looking at people running.   I'm getting pushed over to the side.   I'm seeing him shooting.   It's a bunch of things that were going on at once.”   Further, when she had spoken with Lillienfeld, she'd “been up all night long” and “[n]eeded sleep.”

Although no other eyewitness identified Lloyd as the shooter, others placed him at the party within a half hour of the shooting.   Edgar Gonzalez, the Sullivans' next-door neighbor, arrived home about 1:30 a.m. and saw Lloyd, whom he had known a long time from the neighborhood, sitting in the passenger seat of a silver or champagne-colored Honda.   Gonzalez knew Lloyd by the moniker “Hoodlum” and understood Lloyd to be a member of the neighborhood street gang, Dominguez 13.   Before Gonzalez entered his own home he saw Lloyd get out of the car, walk up to some party guests standing in the driveway of the Sullivans' house, and “chitchat[ ]” with them.   When Gonzalez looked out a couple of, minutes later, Lloyd was gone.   Shortly after 2:00 a.m., Gonzalez heard about six gunshots and went outside.   He heard someone say, “Fuck you, putos,” and saw a tall, skinny man wearing a black hooded sweatshirt running away down the street.   Gonzalez did not identify the person running down the street as Lloyd.¹

Gonzalez also testified that, a few days after the shooting, he was attacked and severely pistol-whipped by two members of the Dominguez 13 gang, Albert and Porky, whom he had also known for years in the neighborhood.   Porky accused him of being a snitch, and one of them announced, “Dominguez 13.”   Gonzalez was hospitalized after the attack and was forced to move from the neighborhood to protect his family.

Lloyd was also seen at the party by another partygoer, Robert Best. Best, who uses a wheelchair, was seated nearby when Lloyd approached another party-goer before the shooting.   Although Best identified Lloyd at trial as the person he saw and was the only witness to identify Lloyd in a lineup, he described the person he saw at the party as having an average build and acknowledged he did not believe the person was six feet four and one-half inches tall.   The person he saw did not have a gun, and he left the party before the shooting.   On redirect examination, Best was asked whether something happened to make him leave the party.   Best explained he left when he became afraid something would happen after the man he saw complained to Best's friend that they were in his neighborhood and were disrespecting him.   The court overruled the defense hearsay objection.   On recross-examination, however, defense counsel successfully elicited Best's concession he had not heard the comment himself and had been told of Lloyd's comment by the friend.   Defense counsel moved to strike the comment, but the court delayed ruling on the motion and asked the witness directly, “Is it accurate that you never heard the defendant tell your friend anything?”   When Best answered yes, the court invited defense counsel to renew his motion.   The court granted the motion to strike but denied the accompanying motion for a mistrial.

The People called two informants to testify Lloyd had admitted to the shooting.   The first, Jimmie Grove, was a longtime member of Dominguez 13, who claimed to no longer be affiliated with the gang.   Grove, who admitted to being a long-term drug user, testified he had known Lloyd for six or seven years.   On the evening of the murder, Grove testified Lloyd had been a passenger in his car (a silver Honda Accord) when they drove by a party held at a house on Jefferson Boulevard.   Lloyd asked Grove to stop the car in front of the house.   Lloyd got out and spoke to someone, then returned a few minutes later.   He said to Grove, “Black people are crazy having a party here in the hood.”

Grove dropped Lloyd off about five minutes later and drove to a friend's house.   Around 3:00 or 4:00 a.m. Lloyd showed up at the friend's house.   He told Grove, “I let those tintos [² ] have it.   I lit that party up.”   Lloyd further stated he thought he had hit a couple of people.   Grove, who readily admitted his multiple convictions and prison terms, also acknowledged he had previously acted as an informant for law enforcement authorities.³  He further admitted he was consistently high on methamphetamine whenever he was out of prison and had been high for several days in a row on the day of the shooting.

Shortly after Lloyd's arrest in this case, Grove also was arrested.   One of the investigators on Lloyd's case, Detective Dawn Retzlaff, arranged for Grove and Lloyd to be incarcerated in the same jail cell, which had been equipped with a listening device.   The court allowed Grove to testify about his conversation with Lloyd in the cell.⁴  According to Grove, Lloyd, suspecting he might have been set up, insisted Grove disrobe to prove he was not concealing any kind of listening device.   He also directed Grove not to talk about “anything that had to do with what had happened.”

A second informant, Lorenzo Villicana, purported to corroborate Grove's testimony.   According to Villicana, he had been staying at a house close to the Sullivans on the night of the shooting when Lloyd came to the house looking “nervous.”   He admitted to Villicana he had “shot a Black dude” on Jefferson.   Villicana told Lloyd to sit down and relax and “keep your mouth shut.”   Villicana, however, was thoroughly impeached by defense counsel.   He admitted he was a convicted “drug-selling, drug addict,” a “dope fiend” who would “lie, cheat, steal, say, do anything to save [his] own rear end.”   He admitted he had previously gotten out of jail by testifying as an informant and believed that if he says what officers want him to say, he will get out of jail.   He contacted the officers on this case when he was incarcerated and offered to provide information.   He also admitted he had told the judge during the preliminary hearing the officers had told him what to say and he had then given that testimony.

Detective Colin Orpe testified as a gang expert.   Assigned to the Los Angeles County Sheriff's Department gang unit, his duties include investigation of Dominguez 13.   According to Detective Orpe, there are about 150 members of the gang, most of whom are Hispanic;  and its territory is bordered by Santa Fe Avenue, 223rd Street, Alameda Street and Dominguez Street.   The Sullivans' home is located within the gang's territory.   Orpe testified he was very familiar with Lloyd, a Dominguez 13 member whose gang moniker is Hoodlum, facts Lloyd had admitted to Orpe in the past.   Orpe also displayed a photograph of a Dominguez 13 tattoo on Lloyd's abdomen and photographs of Lloyd wearing a black hooded sweatshirt.

Detective Orpe testified gang members earn respect within the gang by committing crimes.   News of the crimes spreads by word of mouth, building a hierarchy within the gang and instilling fear in the community.   Violent crimes enhance a particular gang member's reputation.   Dominguez 13 engages in criminal activities ranging from vandalism to murder.   Orpe described two separate convictions involving Dominguez 13 members:  intimidation of a witness (Pen.Code, § 136.1, subd. (a)(2)) ⁵ ;  and attempted murder (§§ 187, 664).   After hearing a hypothetical question posing a crime similar to the one in this case, Orpe opined such a crime would have been committed for the benefit of a gang.

Lloyd did not testify on his own behalf or call any witnesses.   The jury returned a guilty verdict of second degree murder.   The jury also found true the special allegations Lloyd had personally and intentionally discharged a handgun that resulted in Sullivan's death and the shooting had been committed for the benefit of a criminal street gang.

Lloyd was sentenced to an aggregate indeterminate term in state prison of 40 years to life (15 years to life on the murder count, plus 25 years to life for the firearm-use enhancement).   The court imposed and stayed sentences on the additional firearm-use enhancements and stayed sentencing on the criminal street gang enhancement.   The court imposed a restitution fine of $8,000 pursuant to section 1202.4, subdivision (b), and imposed and stayed a parole revocation fine of $8,000 pursuant to section 1202.45.   Finally, at a separate restitution hearing, the court ordered restitution totaling $890,778.98 to the victim's wife and son pursuant to section 1202.4, subdivision (f).

contentions

Lloyd contends neither his murder conviction nor the true finding on the criminal street gang enhancement allegations are supported by substantial evidence;  the trial court erred in finding he had knowingly and voluntarily waived his right to the presence of counsel at the lineup and committed further error under Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246] by admitting evidence of Lloyd's statements to Grove in the jail cell;  and his lawyer provided ineffective assistance of counsel in failing to call exculpatory witnesses.   Lloyd also challenges two jury instructions and the victim restitution ordered by the court.

discussion

1. Substantial Evidence Supports Lloyd's Murder Conviction

To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.  [Citation.]  The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citation.]  In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.  [Citation.]  ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.  [Citation.]  We resolve neither credibility issues nor evidentiary conflicts;  we look for substantial evidence.  [Citation.]’  [Citation.]   A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury's verdict.”  (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Lloyd contends the evidence did not establish beyond a reasonable doubt he was the shooter.   He was never seen with a gun;  and Favazza, the one eyewitness to identify him as the shooter, failed to identify him in the photographic lineup or the live lineup.   When questioned after the shooting, she described the shooter as five feet six inches tall;  Lloyd is 10 inches taller.   She also admitted to being under duress during the shooting, which took place at night, and was exhausted at the time she described the shooter to the detectives.   Her subsequent in-court identification of Lloyd was rife with factors widely considered to undermine the reliability of eyewitness identifications of unknown persons.⁶

In short, Lloyd's challenge to the sufficiency of this evidence is that none of the People's witnesses who testified against him was credible.   Lloyd is correct that his defense counsel aggressively and effectively impeached Favazza, as well as Villicana, who agreed with every proposition thrown at him by any questioner and admitted his inherent inability to be truthful.   Moreover, as discussed below, Best's identification of Lloyd was tenuous and infected by an improper lineup procedure.   But Lloyd's defense was most damaged by the testimony of Gonzalez, who already knew him as Hoodlum and placed him at the party exactly as described by Best and Grove.   And, although Grove's credibility was impeached by his acknowledged heavy drug use and patent willingness to inform for his own benefit, his description of Lloyd's actions paralleled Gonzalez's testimony.   These issues of witness credibility were all presented to the jury, which apparently decided to believe Gonzalez and Grove, if not the others.   That is the jury's function, not ours.  (People v. Bolin (1998) 18 Cal.4th 297, 331;  People v. Zamudio, supra, 43 Cal.4th at p. 357.)

2. Evidence of Best's Identification of Lloyd in the Live Lineup Should Not Have Been Admitted But Constitutes Harmless Error Under the Circumstances

Under the Sixth Amendment to the United States Constitution, a defendant has a right to have counsel present at a live lineup held after criminal proceedings have commenced.  (United States v. Wade (1967) 388 U.S. 218, 236-237 [87 S.Ct. 1926, 18 L.Ed.2d 1149];  Gilbert v. California (1967) 388 U.S. 263, 272-273 [87 S.Ct. 1951, 18 L.Ed.2d 1178];  see also Moore v. Illinois (1977) 434 U.S. 220 [98 S.Ct. 458, 54 L.Ed.2d 424];  Kirby v. Illinois (1972) 406 U.S. 682, 689 [92 S.Ct. 1877, 32 L.Ed.2d 411];  People v. Cook (2007) 40 Cal.4th 1334, 1352-1353.)   The rules requiring the presence of counsel “were adopted for two primary reasons:  to enable an accused to detect any unfairness in his confrontation with the witness, and to insure that he will be aware of any suggestion by law enforcement officers, intentional or unintentional, at the time the witness makes his identification.”  (People v. Williams (1971) 3 Cal.3d 853, 856.)   When a live lineup violates a defendant's Sixth Amendment rights, evidence of identifications made at the lineup is subject to a per se exclusionary rule.  (Gilbert, at pp. 272-273;  Wade, at pp. 236-237;  People v. Yokely (2010) 183 Cal.App.4th 1264, 1271-1272.)   A witness who participated in such an improper lineup may only identify the defendant at trial if the prosecution establishes by clear and convincing evidence that the in-court identification had an origin independent of the improper lineup.   (Wade, at p. 241;  Yokely, at 1272, 1276.)

Lloyd had retained private counsel to represent him following his arrest and before the live lineup was conducted.   Counsel was not present at the lineup, however;  and Lloyd contends the trial court erred in finding he had waived his right to counsel at the postindictment lineup.   The “key inquiry” to determine a valid Sixth Amendment waiver is whether the accused was “made sufficiently aware of his right to have counsel present ․, and of the possible consequences of a decision to forgo the aid of counsel.”  (Patterson v. Illinois (1988) 487 U.S. 285, 293-293 [108 S.Ct. 2389, 101 L.Ed.2d 261].)   Although advising a suspect of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] “typically does the trick” (Montejo v. Louisiana (2009) _ U.S. _ [129 S.Ct. 2079, 2085, 173 L.Ed.2d 955] ), “ultimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation.”  (People v. Cruz (2008) 44 Cal.4th 636, 667-668.)

Lloyd received a proper advisement of his Miranda rights,⁷ but claims his waiver was induced by the misleading statements of the officer who administered the warning.   According to Deputy Yvette Mattes, “We let the inmate know his attorney is not present for the lineup but he does have a court order to do a lineup, and we give him an option to either go forward with the lineup without his attorney and sign a waiver or if he does not want to go forward, he signs a refusal form.”   Further, because there is a court order, “[w]e tell him he cannot refuse the lineup, but he does have a right to have counsel present.”   After extensive questioning on this point, the court interrupted:

“THE COURT:  I'm confused.   You tell the inmate that he can't refuse to participate.

“[DEPUTY MATTES]:  Because it's a court order, Sir. Yes, Sir.

“THE COURT:  But then you tell him that he can refuse to participate if he signs something that says it's a refusal to participate.

“[DEPUTY MATTES]:  It's a refusal form, yes, Sir.

“THE COURT:  So, I don't understand.   You tell him that you can't refuse to participate, but then you say you don't have to participate.

“[DEPUTY MATTES]:  Right.   What it is, Sir, is we show them the court order and we tell them, Sir, you have a court order here to do a lineup.

“THE COURT:  Right.

“[DEPUTY MATTES]:  Now, if the court order doesn't tell us to physically force him to put him on the platform, we won't do that so we explain to the inmate that we're not going to physically force you to go up there, but technically you cannot refuse it because it's a court order to do the lineup.

“THE COURT:  Okay. So you tell him he has to do the lineup.

“[DEPUTY MATTES]:  Well, not exactly he has to.   We just tell him that he has a right to have counsel present there.

“THE COURT:  Forget the lawyer thing.

“[DEPUTY MATTES]:  Okay.

“THE COURT:  You tell him that you can't refuse to participate in the lineup, right?

“[DEPUTY MATTES]:  He cannot refuse the court order.

“THE COURT:  On cross-examination you said that you tell him he can't refuse to participate in the lineup, correct?

“[DEPUTY MATTES]:  Correct.

“THE COURT:  Then you say but if you don't want to participate, you have to sign this form which is a refusal.

“[DEPUTY MATTES]:  Correct.

“THE COURT:  So he can refuse to participate?

“[DEPUTY MATTES]:  Well, yeah, because we don't have a court order to forcefully put him on the platform to do the lineup.

“THE COURT:  So why do you tell somebody that you can't refuse to participate if in fact the reality is you can refuse to participate?

“[DEPUTY MATTES]:  We try to let them know it's a court order.   It's a court document.   We are trying to follow it.   We don't want to violate the court order and he is being ordered to be in a lineup, and we tell him to go ahead and go forward with the lineup or if he doesn't want to go up there and do it, we are not going to fight with him so he can just say I'm going to refuse it and sign the refusal form.

“THE COURT:  So you tell him that he can't refuse to participate, but you don't really mean that because he can refuse to participate, right?

“[DEPUTY MATTES]:  Well, technically, yeah, because we don't want to physically force him.”

With full appreciation for the difficulty of crafting judicial guidelines to safeguard a suspect's constitutional rights that can be effectively implemented by well-intentioned law enforcement personnel, this exchange may fairly be characterized as nonsensical.   Moreover, having retained private counsel, it is doubtful Lloyd understood or believed a public defender would have been assigned to assist him as suggested in the Miranda advisement.   A waiver elicited under these circumstances is inherently suspicious.  (See Miranda v. Arizona, supra, 384 U.S. at p. 476 [“any evidence that the accused was threatened, tricked, or cajoled into a waiver will ․ show that the defendant did not voluntarily waive his privilege”].)

Making matters worse, there was unquestionably a failure to provide adequate notice to defense counsel the lineup was scheduled to occur.  (See People v. Keim (1970) 8 Cal.App.3d 776, 779-780 & fn. 1 [decision to proceed with lineup in absence of counsel provided with inadequate notice violated defendant's Sixth Amendment right to counsel].)   According to Deputy Mattes, the sheriff's department generally provides two days' notice of scheduled lineups through the prosecutor on the case.   Here, whether inadvertent or not, defense counsel was not informed of the scheduled lineup until the day on which it was conducted.   Defense counsel acknowledged receiving a message the lineup was scheduled for 7:00 p.m. and said he advised the prosecutor he was not available and would try to have someone cover for him.   Notwithstanding this message, which clearly conveyed the lineup should not proceed without counsel present, Lloyd was pressured into a waiver when it became clear no alternative counsel would appear.⁸

Under these circumstances Lloyd's waiver does not rescue the lineup procedure in this case.   Evidence Lloyd had been identified by Best in the lineup should have been excluded, and the People should have been required to show by clear and convincing evidence Best's in-court identification was predicated on his independent recollection of Lloyd on the night of the shooting.  (See United States v. Wade, supra, 388 U.S. at p. 241;  People v. Yokely, supra, 183 Cal.App.4th at pp. 1272, 1276.)

Nonetheless, any error in admitting Best's identification of Lloyd was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L .Ed.2d 705].  (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [106 S.Ct. 1431, 89 L.Ed.2d 674] [conviction must be set aside unless it can be said that constitutional error was harmless beyond a reasonable doubt].)   The evidence that established Lloyd's presence at the Sullivans' home the night of the party was Gonzalez's identification of him and Grove's testimony he drove Lloyd by the party where Lloyd directed him to stop the car and got out to speak to one of the partygoers.   Best's identification added nothing of substance to that testimony.

3. Lloyd Has Forfeited His Claim of Massiah Error

“In Massiah v. United States [, supra,] 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], the high court held that once a judicial proceeding has been initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant.   [Citations.]  To prevail on a Massiah claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.  [Citations.]  ‘Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.’   [Citation.]  The requirement of agency is not satisfied when law enforcement officials ‘merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.’   [Citation.]  A preexisting arrangement, however, need not be explicit or formal, but may be inferred from evidence of the parties' behavior indicative of such an agreement.  [Citation.]  A trial court's ruling on a motion to suppress informant testimony is essentially a factual determination, entitled to deferential review on appeal.”  (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66.)

Lloyd contends the court committed Massiah error when it allowed Grove to testify to comments made to him by Lloyd when they were incarcerated in the same cell.   Lloyd, however, failed to object on this ground at the time the statements were admitted and thus forfeited the issue on appeal.  (See People v. Viray (2005) 134 Cal.App.4th 1186, 1208 [evidentiary objection based on Massiah violation waived on appeal in absence of timely objection];  Evid.Code, § 353.)   After completion of the trial, Lloyd raised the objection in a pleading the court treated as a motion for a new trial.   Evidentiary error, however, is not an authorized basis for a new trial motion.  (See § 1181;  People v. Memory (2010) 182 Cal.App.4th 835, 856, fn. 6[“[r]aising an evidentiary issue only belatedly in a motion for a new trial does not preserve the issue for appeal”];  People v. Dykes (2009) 46 Cal.4th 731, 794 [issue forfeited by failure to object and “was not revived by the filing of a motion for new trial”];  People v. Williams (1997) 16 Cal.4th 153, 254 [“subsequent arguments in a motion for new trial may [not] substitute for a timely objection”].)

4. Lloyd's Counsel Did Not Provide Ineffective Assistance by Failing To Secure the Testimony of Allegedly Exculpatory Witnesses

A defendant claiming ineffective assistance of counsel in violation of his Sixth Amendment right to counsel must show not only that his or her counsel's performance fell below an objective standard of reasonableness under prevailing professional norms but also that it is reasonably probable, but for counsel's failings, the result would have been more favorable to the defendant.   (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674];  In re Jones (1996) 13 Cal.4th 552, 561.)  “ ‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant.   The proof ․ must be a demonstrable reality and not a speculative matter.’ ”  (People v. Karis (1988) 46 Cal.3d 612, 656.)   There is a presumption the challenged action “ ‘might be considered sound trial strategy’ ” under the circumstances.  (Strickland, at p. 689;  accord, People v. Dennis (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[“[r]eviewing 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 [“ ‘[i]f 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’ ”].)

Lloyd contends his counsel provided ineffective assistance by failing to produce at trial, or establish the unavailability of, two witnesses who would have testified the shooter was no more than five feet eight inches tall.   Because Lloyd is six feet four inches tall, this evidence could have had a strong impact on the jury.   In support of his ineffective assistance argument, Lloyd points to several references in the record from which it appears his trial counsel may have been less than diligent in pursuing the testimony of these witnesses or establishing their unavailability so their preliminary hearing testimony could be read to the jury.

Whatever the level of Lloyd's counsel's diligence in this regard, the failure to present particular witnesses is ordinarily a matter of trial tactics.   Lloyd's counsel may have elected to rely exclusively on his direct attack on the witnesses who testified and to elicit, as he did, a concession from Deputy Ratzleff the investigators knew of this potentially exculpatory testimony and did not pursue it.   It is also entirely plausible Lloyd's counsel, who was privately retained, presented the choice to his client (or his client's family), who decided not to spend the funds necessary to locate the witnesses and bring them to court.   On direct review we necessarily must reject Lloyd's ineffective assistance of counsel claim.  (See Strickland v. Washington, supra, 466 U.S. at p. 689 [courts must presume challenged action “ ‘might be considered sound trial strategy’ ” absent evidence to contrary];  accord, People v. Dennis, supra, 17 Cal.4th at p. 541.)   If there is, in fact, an adequate evidentiary basis for this claim, Lloyd's remedy is to seek further review through a petition for writ of habeas corpus.

5. Substantial Evidence Supports the Jury's True Finding on the Criminal Street Gang Enhancement

To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crime at issue was committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members ․“ (§ 186.22, subd. (b)(1).)   To prove a gang is a “criminal street gang,” the prosecution must demonstrate it has as one of its “primary activities” the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and it has engaged in a “ ‘pattern of criminal gang activity’ ” by committing two or more such “ ‘predicate offenses.’ ” (§ 186.22, subds.(e), (f);  People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley ).)

To establish the elements required for this enhancement, the Supreme Court has repeatedly affirmed the use of expert testimony provided by law enforcement professionals who have experience in the area of gang culture and psychology.   (See, e.g., Gardeley, supra, 14 Cal.4th at p. 618 [expert testimony by police detective particularly appropriate in gang enhancement case to assist fact finder in understanding gang behavior];  People v. Gonzalez (2006) 38 Cal.4th 932, 944-946 [reaffirming Gardeley and admissibility of officer's expert testimony in the area of gang culture and psychology];  see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1208 [affirming admission of officer's expert opinion, based on hypothetical similar to facts in case, that sole gunman who displayed no gang signs during shooting acted to bolster gang and his own reputation in gang];  People v. Olguin (1994) 31 Cal.App.4th 1355, 1384[“[i]t is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes ‘respect’ ”].)

Lloyd challenges the evidentiary basis for the opinion expressed by Detective Orpe that the shooting was committed for the benefit of the Dominguez 13 gang.   He does not challenge Orpe's opinion Dominguez 13 is a criminal street gang or that he himself is a member of Dominguez 13.⁹  Instead, he argues Orpe offered only conclusions based on what he called “common knowledge” and failed to identify the factual basis for his opinion that such a shooting would have been committed with the specific intent to benefit a gang.

Generally, experts may state their opinion based upon facts given in a hypothetical question asking them to assume the truth of particular facts;  however, the hypothetical must itself be rooted in facts shown by the evidence.  (Gardeley, supra, 14 Cal.4th at p. 618.)  “ ‘Like a house built on sand, the expert's opinion is no better than the facts on which it is based.’ ”  (Ibid.;  accord, In re Frank S. (2006) 141 Cal.App.4th 1192, 1197.)   Whether Detective Orpe articulated his opinions as cogently as he might, there was more than sufficient evidence in the record to support his opinion.¹⁰  Gonzalez testified he heard someone shout, “Fuck you, putos,” at the time of the shooting, which took place in Dominguez 13 territory, and that the two Dominguez 13 gang members who assaulted him called him a snitch and announced, “Dominguez 13.”   Grove testified Lloyd told him before the shooting, “Black people are crazy having a party here in the hood,” and subsequently claimed to have let those “tintos” have it.   The jury was free to credit this testimony and concluded Lloyd acted with the specific intent to benefit the Dominguez 13 gang.

6. Lloyd's Challenges to CALCRIM Nos. 318 and 300 Are Meritless

Lloyd contends the court's use of two standard criminal jury instructions, CALCRIM Nos. 318 and 300, violated his constitutional right to due process.   Without determining whether either challenge is truly constitutional in nature, we conclude there was no violation of Lloyd's rights.

a. CALCRIM No. 318

Pursuant to CALCRIM No. 318, the jury was instructed:  “You have heard evidence of statements that a witnesses made before trial.   If you decide that the witness made that or those statements, you must-you may use that or those statements in two ways:  1. To evaluate whether the witness's testimony in court is believable;  and 2. As evidence the information in that or those earlier statements is true.”

Lloyd contends the instruction violates due process because it effectively instructs the jury it must consider the earlier statement to be true.   As Lloyd acknowledges, this argument was rejected by the Third District in People v. Hudson (2009) 175 Cal.App.4th 1025:  “By stating that the jury ‘may’ use the out-of-court statements, the instruction does not require the jury to credit the earlier statements even while allowing it to do so.  [Citation.]  Thus, we reject defendant's argument that CALCRIM No. 318 lessens the prosecution's standard of proof by compelling the jury to accept the out-of-court statements as true.”  (Hudson, at p. 1028.)   The Hudson court also rejected the alternate argument that CALCRIM No. 318 “disallows the jury from using ‘the evidence of a prior out-of-court statement as evidence the information in that statement is false.’ ”  (Ibid.) “[T]he ‘ “correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ ”  (Ibid.;  see also People v. Golde (2008) 163 Cal.App.4th 101, 119-120 [“CALCRIM No. 318 tells the jurors how they may use the prior statements ‘[i]f [they] decide that the witness made those statements․'  Thus, the ‘may’ comes into play only after the jurors have found the statements were made.   The instruction does not allow the jurors to ignore evidence.”];  People v. Felix (2008) 160 Cal.App.4th 849, 859 [“[b]ecause the jury received CALCRIM No. 220 and other pertinent instructions ․, [v]iewed in context, [CALCRIM No. 318] provided proper guidance about how the jury may use witness testimony, and did not encourage it to neglect or ignore the testimony”];  cf.  People v. Friend (2009) 47 Cal.4th 1, 41-42 [upholding CALJIC No. 2.13 (predecessor to CALCRIM No. 318) on similar grounds;  “ ‘the instruction in no way directs the jury to accept prior statements as the truth;  it merely covers the hearsay exceptions ․ in a neutral fashion’ ”].)   Lloyd has provided no persuasive reason for us to depart from the Third District's analysis upholding the use of CALCRIM No. 318.

b. CALCRIM No. 300

CALCRIM No. 300 provides, “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.”   Lloyd argues this instruction improperly suggests a defendant is obligated to put on evidence and no other instruction clarifies he or she has no obligation whatsoever to put on evidence.   Accordingly, he contends, this instruction relieves the prosecution of its burden of proving its case beyond a reasonable doubt.

This argument has been repeatedly rejected.  (See, e.g., People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190;  People v. Anderson (2007) 152 Cal.App.4th 919, 937-938;  People v. Felix, supra, 160 Cal.App.4th at p. 858;  People v. Golde, supra, 163 Cal.App.4th at pp. 104, 117;  cf.   People v. Simms (1970) 10 Cal.App.3d 299, 313 [CALJIC No. 2.11].)

As in those decisions, the jury was properly instructed on the burden of proof and the presumption of innocence (CALCRIM No. 220) and a defendant's right not to testify (CALCRIM No. 355).   There was “no reasonable likelihood that the jury misunderstood CALCRIM No. 300 ․ [citations] ․ [and] we apply the usual presumption that jurors are able to correlate, follow, and understand the court's instructions.”  (People v. Ibarra, supra, 156 Cal.App.4th at p. 1190.)   Accordingly, the jury was properly instructed.

7. Rehearing Is Required for the Victim Restitution Claim

Article I, section 28, subdivision (b)(13)(A), of the California Constitution provides, “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” ¹¹  Victim restitution is governed by section 1202.4, which provides in part, “in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require the defendant make restitution to the victim or victims in an amount established by court order, based upon the amount of loss claimed by the victim or victims or any other showing to the court․  The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).)

The statutory restitution provisions are to be construed broadly to achieve the goals of public safety, victim compensation and offender rehabilitation.   (People v. Carbajal (1995) 10 Cal.4th 1114, 1126;  People v. Mearns (2002) 97 Cal.App.4th 493, 500-501.)   We review restitution orders for abuse of discretion.  (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano ).)  “Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim's economic loss.   To facilitate appellate review of the trial court's restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.”  (Id. at pp. 663-664.)   If there is a “ ‘factual and rational basis' ” for the amount ordered, no abuse of discretion is present.   (Mearns, at p. 499;  Carbajal, at p. 1126.)

The award challenged here was made in four parts:  (1) the trial court awarded $73,059.98 to the State Victim Compensation Fund, an amount that included reimbursement for the board's payment of funeral expenses, counseling for the victim's wife and son and wages for the days of work the victim's wife missed during trial;  (2) a further award of $21,728 in lost wages for the victim's wife not covered under the $70,000 cap of the State Victim Compensation Fund;  (3) an award of $585,287.50 to the victim's wife for loss of support through the victim's age of retirement (17 years);  and (4) an award of $210,703.50 to his nine-year-old son for loss of support through the age of 18.   In its minute order the court detailed the methodology for its calculations:  “Loss of support was calculated on the decedent's annual salary of $46,823.00 until retirement, some 17 years in the future.   The minor child and widow are each entitled to one half of this amount until the minor reaches age 18.   After this, [the widow] is awarded the full $46,823.00 per year for the final 8 years until decedent would have retired.”

Lloyd contends the restitution hearing deprived him of his right to due process because he was not allowed to cross-examine witnesses, including the victim's wife, who testified in support of the awards and was precluded from submitting additional evidence challenging both the wife's assertion of her status (that is, whether she really was married to the victim) and the wages actually earned by her and her deceased husband.

Section 1202.4, subdivision (f)(1), provides, “[t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.”   Nonetheless, “ ‘a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.’ ”  (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048;  In re Brittany L. (2002) 99 Cal.App.4th 1381, 1392.)   The rules of evidence do not apply in the same manner:  Hearsay is allowed to assist in the determination of restitution amounts.  (People v. Cain (2000) 82 Cal.App.4th 81, 87.)   The defendant does not have a Sixth Amendment right to confront and cross-examine the witnesses (see Cain, at p. 87), although the court retains discretion to allow cross-examination if appropriate.  (See People v. Prosser (2007) 157 Cal.App.4th 682, 692.)  “Courts have premised this [limitation] on the understanding that restitution hearings are sentencing hearings.”  (Giordano, supra, 42 Cal.4th at p. 662, fn. 6.) “ ‘ “A defendant's due process rights are protected when the probation report gives notice of the amount of restitution claimed ․, and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing.” ’ ”  (Cain, at p. 86;  see Prosser, at p. 692.)   Generally, a “trial court violates the defendant's due process right at a hearing to determine the amount of restitution [only when] the hearing procedures are fundamentally unfair.”  (Cain, at p. 87.)

Of course, the burden of providing an adequate factual basis for the claim remains on the restitution claimant.  (Giordano, supra, 42 Cal.4th at p. 664.)   The evidentiary threshold, however, is not rigorous;  the uncorroborated assertions of the crime victim and the recommendations of the governmental officer charged with documenting the claim constitute prima facie evidence of a restitution value.  (People v. Prosser, supra, 157 Cal.App.4th at pp. 684-685;  see also People v. Foster, supra, 14 Cal.App.4th at p. 946.)  “Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.”  (Prosser, at p. 691.)

Lloyd's assertion the general procedures used at restitution hearings violated his constitutional rights was considered and rejected by the Supreme Court in Giordano, supra, 42 Cal.4th 644.   There, the Court considered the legitimacy of an order awarding the decedent's wife restitution for loss of support in the amount of $167,711.65, a figure calculated by multiplying the decedent's average annual earnings over the three years prior to his death by five years.¹²  (Id. at pp. 665-666.)   Likening the award to a wrongful death judgment, the Court upheld it as falling within the discretion of the trial court, even if it lacked “methodological [ ]precision.”  (Id. at p. 666.)   As the Court explained, calculation of an award for loss of support “will necessarily depend on the particular circumstances before the court.   Generally, the calculation of the loss of support may be informed by such factors as the earning history of the deceased spouse, the age of the survivor and decedent, and the degree to which the decedent's income provided support to the survivor's household.”  (Id. at p. 665.)

The record from the restitution hearing in this case is not sufficient for us to review the adequacy of the evidentiary support for the substantial sums awarded, even under the relaxed guidelines established in Giordano, supra, 42 Cal.4th 644.   Moreover, although we decline to find any error of constitutional scale, the trial court appears to have unduly limited Lloyd's ability to present evidence-from expert or percipient witnesses-relating to the victim's employment and salary history.   In addition, use of the victim's gross income in the court's computations, rather than after-tax net income, may have improperly inflated the award by more than $200,000.

“The abuse of discretion standard is “deferential,” but it “is not empty.”   (People v. Williams (1998) 17 Cal.4th 148, 162.)   In light of the size of this award, the trial court's “methodological imprecision” warrants a new hearing with appropriate evidentiary justification for the victim's and his wife's salary history and an assessment of the other factors enumerated in Giordano.   Accordingly, we vacate the restitution award.

DISPOSITION

The order for restitution is vacated and the matter remanded for a new hearing on the amount of losses suffered by the victim's wife and son.   In all other respects the judgment is affirmed.

We concur:

FOOTNOTES

FN1. In an exchange with defense counsel during cross-examination, Gonzalez admitted he had told Lillienfeld the day after the shooting the person he had seen running down the street had not been Lloyd.   At trial he appeared to back away from that statement, insisting he had only told Lillienfeld the shooter was taller than him (more than six feet) and skinny..  FN1. In an exchange with defense counsel during cross-examination, Gonzalez admitted he had told Lillienfeld the day after the shooting the person he had seen running down the street had not been Lloyd.   At trial he appeared to back away from that statement, insisting he had only told Lillienfeld the shooter was taller than him (more than six feet) and skinny.

FN2. Grove testified the word “tintos” refers to “Black people” or, more specifically, “Black gang members.”.  FN2. Grove testified the word “tintos” refers to “Black people” or, more specifically, “Black gang members.”

FN3. Grove stated he did not receive anything in exchange for his cooperation and testimony in this case..  FN3. Grove stated he did not receive anything in exchange for his cooperation and testimony in this case.

FN4. Before Grove testified, the court ruled the prosecution could introduce excerpts from the taped conversation between Grove and Lloyd.   The prosecutor elected not to introduce the tape during Grove's testimony and, instead, to use it during the testimony of Detective Retzlaff.   Defense counsel, however, raised a foundational challenge to Retzlaff's knowledge regarding creation of the tape, which the court sustained.   As a result, the tape was never played for the jury..  FN4. Before Grove testified, the court ruled the prosecution could introduce excerpts from the taped conversation between Grove and Lloyd.   The prosecutor elected not to introduce the tape during Grove's testimony and, instead, to use it during the testimony of Detective Retzlaff.   Defense counsel, however, raised a foundational challenge to Retzlaff's knowledge regarding creation of the tape, which the court sustained.   As a result, the tape was never played for the jury.

FN5. Statutory references are to the Penal Code unless otherwise indicated..  FN5. Statutory references are to the Penal Code unless otherwise indicated.

FN6. See, e.g., Thompson, Beyond a Reasonable Doubt?   Reconsidering Uncorroborated Eyewitness Identification Testimony (2008) 41 U.C.Davis L.Rev. 1487 (labeling eyewitness testimony “notoriously inaccurate” and calling for a corroboration requirement);  Woocher, Note:  Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan. L.Rev. 969, 976-989 (describing reasons why eyewitness testimony is unreliable);  Wells & Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science:  Thirty Years Later (Feb.2009) 33 Law & Hum. Behav. 1 (presenting social science data demonstrating reliability factors typically considered by courts not actually indicative of reliability of eyewitness identification);  Koosed, Reforming Eyewitness Identification Law and Practices To Protect the Innocent (2009) 42 Creighton L.Rev. 595..  FN6. See, e.g., Thompson, Beyond a Reasonable Doubt?   Reconsidering Uncorroborated Eyewitness Identification Testimony (2008) 41 U.C.Davis L.Rev. 1487 (labeling eyewitness testimony “notoriously inaccurate” and calling for a corroboration requirement);  Woocher, Note:  Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan. L.Rev. 969, 976-989 (describing reasons why eyewitness testimony is unreliable);  Wells & Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science:  Thirty Years Later (Feb.2009) 33 Law & Hum. Behav. 1 (presenting social science data demonstrating reliability factors typically considered by courts not actually indicative of reliability of eyewitness identification);  Koosed, Reforming Eyewitness Identification Law and Practices To Protect the Innocent (2009) 42 Creighton L.Rev. 595.

FN7. Lloyd signed a waiver form that confirmed he had been advised in part:  “I've further been advised of my right to counsel.   That my attorney may be present at the lineup as an observer.   If I have no funds to hire one now the public defender will represent me and also attend the lineup.   I understand my right to an attorney but it is not my desire to have one present.”.  FN7. Lloyd signed a waiver form that confirmed he had been advised in part:  “I've further been advised of my right to counsel.   That my attorney may be present at the lineup as an observer.   If I have no funds to hire one now the public defender will represent me and also attend the lineup.   I understand my right to an attorney but it is not my desire to have one present.”

FN8. Although the United States Supreme Court has instructed, “the decision to waive [the right to counsel] need not itself be counseled,” Montejo v. Louisiana, supra,_ U.S. at p. _ [129 S.Ct. at p.2085], the deputies in this case were aware defense counsel had opposed them proceeding with the lineup in his absence.   This understanding, coupled with the confusing instructions by the deputy in charge of soliciting the waiver and the tardy notice provided defense counsel, compels us to invalidate the waiver..  FN8. Although the United States Supreme Court has instructed, “the decision to waive [the right to counsel] need not itself be counseled,” Montejo v. Louisiana, supra,_ U.S. at p. _ [129 S.Ct. at p.2085], the deputies in this case were aware defense counsel had opposed them proceeding with the lineup in his absence.   This understanding, coupled with the confusing instructions by the deputy in charge of soliciting the waiver and the tardy notice provided defense counsel, compels us to invalidate the waiver.

FN9. The fact a person belongs to a criminal street gang does not, in itself, establish that any offense he or she commits benefits the gang.   (Gardeley, supra, 14 Cal.4th at pp. 623-624 [membership in a gang alone is not sufficient to establish violation of § 186.22, subd. (b) ];  In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 [§ 186.22, subd. (b)(1), “does not criminalize mere gang membership” without proof of the predicates for the enhancement].)   Gang members can and do commit crimes for personal reasons not intended to benefit the gang.  (See, e.g., People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [gang members can commit crime “on a frolic and detour unrelated to the gang”];  People v. Ramon (2009) 175 Cal.App.4th 843, 851.).  FN9. The fact a person belongs to a criminal street gang does not, in itself, establish that any offense he or she commits benefits the gang.   (Gardeley, supra, 14 Cal.4th at pp. 623-624 [membership in a gang alone is not sufficient to establish violation of § 186.22, subd. (b) ];  In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 [§ 186.22, subd. (b)(1), “does not criminalize mere gang membership” without proof of the predicates for the enhancement].)   Gang members can and do commit crimes for personal reasons not intended to benefit the gang.  (See, e.g., People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [gang members can commit crime “on a frolic and detour unrelated to the gang”];  People v. Ramon (2009) 175 Cal.App.4th 843, 851.)

FN10. Detective Orpe opined, “He is inside of his own gang neighborhood committing a shooting․  Shooting someone inside your own neighborhood is-not only is everybody inside that party seeing who you are․  He's not only promoting his name, but he is promoting his gang inside that ․ party.   Inside the neighborhood.   People-it's such a small neighborhood, people are going to hear who does a shooting when they do that shooting.   All of a sudden, his name-and on the hierarchy standard, he is going to be getting points and he is going to be going up the ladder as someone who is willing to shoot and kill․  To a gang member, that's highly prized.”Elsewhere, Orpe testified, “The violent crime on the community-it keeps people from wanting to come forth to testify.   It instills fear throughout the people in the neighborhood.   They don't-when they see something going on, they don't want to report it because of fear of the gang coming after them.”.  FN10. Detective Orpe opined, “He is inside of his own gang neighborhood committing a shooting․  Shooting someone inside your own neighborhood is-not only is everybody inside that party seeing who you are․  He's not only promoting his name, but he is promoting his gang inside that ․ party.   Inside the neighborhood.   People-it's such a small neighborhood, people are going to hear who does a shooting when they do that shooting.   All of a sudden, his name-and on the hierarchy standard, he is going to be getting points and he is going to be going up the ladder as someone who is willing to shoot and kill․  To a gang member, that's highly prized.”Elsewhere, Orpe testified, “The violent crime on the community-it keeps people from wanting to come forth to testify.   It instills fear throughout the people in the neighborhood.   They don't-when they see something going on, they don't want to report it because of fear of the gang coming after them.”

FN11. This provision was added to the Constitution in 1982 by Proposition 8, the initiative also known as the Victims' Bill of Rights.  (See People v. Giordano (2007) 42 Cal.4th 644, 652.).  FN11. This provision was added to the Constitution in 1982 by Proposition 8, the initiative also known as the Victims' Bill of Rights.  (See People v. Giordano (2007) 42 Cal.4th 644, 652.)

FN12. The trial court used five years in its calculation because the court in People v. Harvest (2000) 84 Cal.App.4th 641, 645, had used a five-year period for a similar award.   The Court in Giordano acknowledged that number appeared to have been arbitrarily selected.  (See Giordano,supra, 42 Cal.4th at p. 666, fn. 8.).  FN12. The trial court used five years in its calculation because the court in People v. Harvest (2000) 84 Cal.App.4th 641, 645, had used a five-year period for a similar award.   The Court in Giordano acknowledged that number appeared to have been arbitrarily selected.  (See Giordano,supra, 42 Cal.4th at p. 666, fn. 8.)

WOODS, J. JACKSON, J.