Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. Nos. 2217955, 2217952, 2217961
Bruiniers, J.
Greshinal Green, Anissa Jordan, Lenora Robinson, and MacDonald Grady were jointly charged with murder, attempted robbery, robbery, conspiracy, and illegal possession of firearms. The People alleged that the foursome conspired to commit robbery, successfully committed two robberies, and then attempted to commit another. During the attempted robbery, Carlos Garvin was shot and killed. After a joint trial, a San Francisco jury acquitted Grady of all charges, but convicted Green, Jordan, and Robinson on the murder, robbery, conspiracy, and firearms possession counts. It acquitted Jordan of the attempted robbery of Garvin, but convicted her of his murder.
Appellants seek reversal of their convictions on a number of grounds, but as explained below, we find none of these meritorious and will affirm the judgments of conviction. Although we affirm the convictions, we agree with appellants that their sentences for conspiracy should be stayed. Further, as the People concede on appeal, appellants’ abstracts of judgment should be corrected with regard to their sentences and to the fines imposed by the trial court. We will therefore order the abstracts of judgment modified in accordance with this opinion.
Factual and Procedural Background
In summarizing the relevant facts, “we state the evidence in the light most favorable to the judgment below. [Citation.]” (In re Jesus O. (2007) 40 Cal.4th 859, 861.) Although we do not limit our review to the evidence favorable to respondent (People v. Johnson (1980) 26 Cal.3d 557, 577), “we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
The Robbery of Alston and Holmes
At approximately 11:30 p.m. on Saturday, May 14, 2005, Almondo Alston and his friend, Floyd Holmes, parked Alston’s car at the corner of Turk and Leavenworth Streets in San Francisco. The two men planned to go to Club 181, located at Eddy and Taylor Streets. Alston testified that they came with a woman he knew only as “Pooh.” Holmes said that the two men drove to the area alone but recalled Alston talking to a woman when they got out of the car.
In the record, the establishment also is referred to as “Suite 181.”
Alston testified that as they were walking down Leavenworth toward Eddy Street, two women approached the men from behind, and one of the women asked them if they had “E-tabs” or “X-tabs,” or “something like that.” Holmes described the woman who asked “about E-tabs or something” as having blonde braids. Alston thought the woman was asking for the drug “Ecstasy,” and either he or Holmes told her that they had none. Alston described one of the women as dark-skinned, about five feet eight or nine inches tall, and wearing a red, black, and green knitted “Rasta” hat. The other woman was light-skinned and approximately five feet ten inches to five feet eleven inches tall. Alston identified the shorter, dark-skinned woman as appellant Robinson and the taller, light-skinned woman as appellant Jordan.
According to Alston, after he and Holmes left the two women and continued walking, a man approached them from behind. Alston turned around, and a man whom Alston later identified as Green pointed a black revolver at Alston’s chest area. Alston described the gunman as having “nappy hair” or perhaps “little braids.” Green ordered Alston to lie down. Alston complied because he “didn’t want to get shot,” and he lay face down on the sidewalk. He then heard Green tell Holmes to get on the ground, and Holmes did so. Pooh, who was walking ahead of Alston and Holmes and was almost at the end of the block, was not involved in the incident.
Alston said one of the two women, Robinson, was directly involved in the robbery, and he thought “the taller woman” (Jordan) was further up the street with Pooh. Alston testified that Robinson told him and Holmes to stay down and not to move. She then went through Alston’s pants and jacket and took his car keys and about $90 in cash. After Robinson went through his pockets, she and Green “took off in [the] opposite direction” back toward Turk Street.
Holmes testified that he was robbed, but he was unable to recall what happened in detail and said repeatedly that he “didn’t see nothing.” According to Holmes, a man came up from behind him and put a gun to his head. Afraid for his life, he got down on the ground. His keys, cell phone, and $93 were taken from him, and a chain was snatched from around his neck. Holmes could not say whether the robbers went through his pockets. He testified that he had no idea who had robbed him, but he recalled seeing a red hat on one of the robbers as they left.
According to Alston’s testimony, after the incident he and Holmes headed back to Alston’s car along with Pooh, who had rejoined them. They did not go to the police to report the robbery. Five or ten minutes later, Alston heard sirens, and the group started walking towards Eddy and Jones Streets.
The Attempted Robbery and Murder of Garvin
At approximately 11:45 p.m. on that same evening, Alexander Crispi was in a parked “party bus” on Taylor Street that he and others had taken to Club 181. Crispi and his companions had been drinking, and Crispi had consumed seven to nine “swigs” or “shots” of Jack Daniels whiskey. Crispi said he was “a little bit buzzed” but that he could “hold [his] own.”
Crispi was looking out of the window of the bus and, from a distance of 25 to 30 feet, he saw a man walking north on Taylor and two men walking south on Taylor. One of the two men walking south was wearing a light-colored, hooded jacket with a fur collar, and the other, who had short dreadlocks or braids and facial hair, was wearing a black, puffy jacket with a hood. Crispi identified the latter man as Green. Crispi testified that “[i]t looked like the two gentlemen that were walking south were trying to block the gentleman that was walking north.” The two men “kind of pushed the one gentleman back as he was trying to walk up Taylor.” Crispi watched for perhaps five or ten seconds, and he thought that an argument or “an altercation, maybe a fight, like a drug deal,” was going on. He saw Green pull out a gun and shoot, from point-blank range, the man who had been walking northbound. Crispi described the gun as a silver or black chrome revolver. The victim, later identified as Garvin, fell to the ground after being shot, and Crispi saw Green reach into Garvin’s left pocket before Green and his companion “took off running south.” Crispi then lost sight of them. He estimated that the entire incident took between 10 and 30 seconds.
Gail Gatan also witnessed the attempted robbery and shooting of Garvin on the evening of May 14, 2005. On that evening, Gatan, her fiancé, and some friends came to San Francisco to celebrate Gatan’s birthday at Club 181. Gatan and her fiancé were in a car waiting to pull into a parking lot on Taylor Street when Gatan looked out the window and saw an altercation. There were three people across the street, “the victim and two other people.” The victim was a African-American male with dreadlocks, and he was arguing with two other people who “looked like two... black males.” Gatan testified that one of the two other people was wearing a red hat or beanie with some hair sticking out, and the other was “heavier set, a little more stockier,” with braided hair. At trial, Gatan identified the person with the red hat that she had originally thought was a male as Robinson and the second person as Green.
Gatan testified that she saw the three people shoving one another and then she heard a single gunshot. After hearing the gunshot, Gatan saw the victim fall to the ground and heard him “kind of groaning.” She saw the man she identified as Green kneel down and grab the victim, “as if he was reaching down for something.” Robinson was farther away from the victim and got a head start running down Taylor. Green followed Robinson as the two ran toward Turk Street, where they turned, and Gatan lost sight of them.
At trial, Gatan admitted to a number of inconsistencies in the various accounts she had given of the shooting. She first gave a statement to police approximately three to three and one-half hours after the incident. In the statement, Gatan incorrectly described the victim’s clothing as the clothing worn by one of the perpetrators. She initially told the police that she had heard “gunshots,” but at trial she testified she “just remember[ed] one.” She conceded that at different times between her statement on the night of the incident and her later preliminary hearing testimony she had variously described “the person in the red beanie” as sometimes smaller and sometimes larger than the other perpetrator. In a second statement she gave police before the preliminary hearing, Gatan told police that both of the suspects had taken things from the victim.
The Oshun Center, located at 101 Taylor Street, had security cameras working on the evening of the incident. Videos taken by those cameras showed, at approximately 11:41 p.m., Green and Robinson walking to the intersection of Turk and Taylor Streets and turning northbound onto Taylor. The video then showed Garvin, and later showed Green and Robinson back at the intersection of Turk and Taylor “in kind of a quickened walk.” Shortly after that, the video showed a police car crossing the intersection of Turk and Taylor toward Green and Robinson as the two walked westbound on Turk Street. The video then displayed a police car driving northbound on Taylor with lights and sirens on.
An assistant medical examiner testified that Garvin died of a single gunshot that entered his body at the left collarbone or clavicle and then lodged in his right chest cavity. On the ground near Garvin’s body, police found a cell phone with a $5 bill clipped to it.
The Arrest and Identification of Appellants
Officer Theresa Sangiacomo testified that she was on patrol in the Tenderloin on the evening of May 14, 2005. At about 11:45 p.m., Sangiacomo and her partner were stopped at the intersection of Turk and Taylor Streets when she saw two people running south on Taylor. The officer initially believed that the two people were African-American males. The first was a taller male wearing a dark blue hooded sweatshirt, while the second was shorter and wearing a “red floppy hat beret.”
Sangiacomo said that as the two individuals neared the corner, they appeared to look at the officers in the police car and then slowed their pace to a fast walk. The two people reached the corner of Turk and Taylor and turned westbound on Turk. When the officers moved their car to get a better look at the two, police dispatch sent out a broadcast that a person had been shot at 145 Taylor Street. The broadcast described the suspects as two African-American males, and Sangiacomo specifically recalled that it mentioned “a red hat, possibly a beret.”
Sangiacomo could no longer see the two people she had observed running and believed that they were hiding, so she directed her partner to back their patrol car up. The officers turned their spotlights on, and they saw a white, four-door Toyota Camry that had been parked at the curb start to enter traffic. The officers turned on the patrol car’s overhead lights and siren, and the Camry pulled over to the side of the street. Inside the Camry, the officers saw the two people whom they had observed on foot—Green, wearing a sweatshirt, Robinson, in a red hat, as well as two others, later identified as codefendant Grady and appellant Jordan. Robinson was in the front passenger seat, and Green was behind her “slouched or hunched” in the back seat. Grady was driving the Camry, and Jordan was seated behind him.
Numerous other police cars arrived to assist the officers, and appellants were ordered to get out of the car one at a time. The police then proceeded to conduct “cold show” identifications involving appellants. Police brought Crispi to the intersection of Turk and Jones. Crispi told police that the shooter had dreadlocks, and after being shown four or five individuals, Crispi pointed out two suspects but identified only Green as possibly being the man who shot Garvin.
As explained at trial, in a “cold show” witnesses to the incident are brought by the police to view certain individuals so that the witnesses can state whether or not the individuals were involved in the crime. (See United States v. Diaz (N.D. Cal. Oct. 30, 2006, No. CR 05-0167 WHA) 2006 WL 3086732, p.*2 [term “cold show” denotes “an informal identification lineup conducted in the field”].)
Alston testified that about five or ten minutes after he and Holmes were robbed, they heard sirens and he, Holmes, and Pooh began walking toward the sound of the sirens. At Turk and Jones, they saw some people in a Camry and watched police pull three of them out of the car. Alston said he and Holmes told the police they had been robbed and “probably” told police “[w]e think these are the people that robbed us.” According to Alston, he and Holmes stood together and identified Green, Jordan, and Robinson as their robbers. For his part, Holmes recalled going to Jones and Turk after the robbery, but he said he did not speak to the police, only Alston did.
Sangiacomo testified that during the lineup procedures, she secured the Camry and no one entered the car. Officer Nicholas Ferrando, who assisted with the felony traffic stop, testified that he eventually searched the Camry after the passengers were removed. Ferrando saw a handgun under the driver’s seat, but he did not touch it and only notified his lieutenant of its presence. Officer Jason Garden, who also searched the Camry, checked the passenger side of the car, looked under the seat, and “saw what appeared to be definitely a gun, but possibly two guns....” When the police completed the field identification procedures, the Camry was towed to a secure impoundment facility.
Police Interview of Alston and Holmes
The police interviewed Alston and Holmes at the Tenderloin police station. According to the interviewing officer, Alston may have said that it was dark during the robbery and initially said he did not recognize anyone, but he later said he had seen the perpetrators in a car after the incident. Holmes told the officers at least three times that one of the robbers had put a gun to his head. Holmes also told the police that it was the person in the red hat who had actually gone through his pockets and that the man with the gun had told the person in the red hat, “Make sure you got everything.”
In his trial testimony, Holmes said he could not recall telling the police that the armed man had made this statement to the person in the red hat. Holmes also could not remember telling police that it was the girl with the red beret who had gone through his pockets and taken his property, including his cell phone. He also testified that he could not recall telling the police that “the red hat girl, was like the main one” or that “it was the man [who] snatched the chain off [his] neck.”
On May 25, 2005, the police interviewed Holmes again. When he was shown a photograph of a red make-up bag belonging to Jordan, Holmes told police it was the bag that the “gold braids girl” had during the robbery. A photograph of appellant Jordan, taken the evening of her arrest, showed her with gold braids.
Search of Appellants and Recovery of Evidence
The police searched appellants and their property. In Green’s possession, the police found Holmes’s keys, a “Reportee Follow-up” form belonging to Holmes, other items, and $3.05 in cash. In a purse that Jordan had acknowledged was hers, police found a number of items, including Holmes’s chain, the clasp of which was broken, as well as four gold rings, three silver earrings, and two other chains. Robinson was found with $342.18 and a red hat.
In the Camry, police found a Smith & Wesson.38-caliber special revolver under the rear of the driver’s seat. The Smith & Wesson contained four live.38-caliber cartridges, one fired casing, and one empty chamber. A police inspector testified that because the gun’s hammer was resting on the empty cartridge, he could determine that the last thing that had happened with the gun before it was found was that a bullet had been fired from it. Under the front passenger seat of the Camry, the inspector found a Beretta.22-caliber semiautomatic pistol with three live cartridges in its magazine. Also in the car were a purse, clipboard, and two cell phones, one of which belonged to Holmes.
Testing of Physical Evidence
The police swabbed and tested the guns and cell phones for the presence of DNA evidence. Testing revealed that the.38-caliber Smith & Wesson revolver had DNA from two individuals on the handles, consistent with Green and with Jordan. The two contributors could not be distinguished from each other. The DNA profile on the Smith &Wesson occurred in approximately one in 352,000 Caucasians in the United States, one in 186,000 African-Americans, one in 304,000 California Hispanics, and one in 1.7 million Asians.
The Beretta also had DNA evidence on it, and Robinson was identified as a potential source. The DNA profile from the Beretta swab occurred in approximately one in 596 trillion Caucasians in the United States, one in 14 trillion African-Americans, one in 40 trillion California Hispanics, and one in 1 quadrillion Asians.
Ballistics testing of the Smith & Wesson determined that it was the weapon used to kill Garvin.
Gun residue tests performed on appellants and Grady yielded no residue. Gunshot residue bags were placed on Green’s hands on three occasions, but Green succeeded in tearing the bags at least twice.
Charges and Pleas
On December 2, 2005, the District Attorney filed an eight-count information against appellants and Grady in the Superior Court for the City and County of San Francisco. Count 1 charged all three appellants and Grady with the murder of Garvin (Pen. Code, § 187), and alleged that Green had personally and intentionally discharged a revolver during the commission of the crime. (§ 12022.53, subd. (d).) The enhancement alleged against Jordan, Robinson, and Grady on this count was that a principal was armed with a revolver during the commission of the crime. (§ 12022, subd. (a)(1).) The special circumstance of murder during the commission of attempted robbery was alleged against Green and Robinson. (§ 190.2, subd. (a)(17)(A).)
Green is also named in the indictment as Douglas Anthony Teat. Prior to trial, it was stipulated that Greshinal Green and Douglas Anthony Teat are the same person.
All statutory references are to the Penal Code.
Count 2 charged all three appellants and Grady with attempted robbery of Garvin and alleged that Green personally and intentionally discharged a revolver during the commission of the crime. (§§ 212.5, subd. (c); 664; 12022.53, subd. (d).) A sentencing enhancement was again alleged against Jordan, Robinson, and Grady—that a principal was armed with a revolver during the commission of the crime. (§ 12022, subd. (a)(1).)
Counts 3 and 4 charged all three appellants and Grady with the robberies of Alston and Holmes (§ 212.5, subd. (c)), and alleged that Green personally used a revolver during the commission of the crimes. (§ 12022.53, subd. (d).) It was alleged against Jordan, Robinson, and Grady that a principal was armed with a revolver during the commission of these crimes. (§ 12022, subd. (a)(1).)
Count 5 charged all three appellants and Grady with conspiracy to commit robbery, and alleged ten overt acts relating to counts 1 through 4. (§ 182, subd. (a)(1).)
Remaining counts 6 through 8 charged Robinson, Green, and Jordan respectively with possession of a firearm as ex-felons. (§ 12021, subd. (a)(1).)
The information further alleged that appellants had suffered a number of prior convictions and had served prior prison terms. It alleged that Green and Robinson each had a prior, serious felony conviction (§ 667, subd. (a)) that constituted a “strike” under California’s “three strikes” law for which each had served a prior prison term. (§§ 667, subds. (d), (e); 667.5, subd. (b); 1170.12, subds. (b), (c).) The information alleged a second prior prison term against Green. Finally, the information alleged that Jordan had served two prior prison terms.
Green and Robinson both pleaded not guilty and denied both the enhancement and special circumstance allegations. Jordan also entered a plea of not guilty, and she denied the enhancement allegations.
Trial, Verdicts, and Sentencing
Appellants and Grady were tried jointly, and the presentation of evidence began on May 10, 2006, and ended two weeks later. On June 7, 2006, appellants waived jury trial on the prior conviction allegations. The jury returned its verdicts on June 28, 2006. Grady was acquitted of all charges. On count 1, the jury convicted Green, Jordan, and Robinson of first-degree murder, found true the attendant personal-use-of-a-firearm allegation against Green, and found true the allegations against Jordan and Robinson that a principal had been armed. The jury also found true the special circumstance allegation against Green and Robinson, finding that they committed the murder during the commission of an attempted robbery of Garvin.
The jury convicted Green and Robinson of all of the remaining charges. As to both Green and Robinson, the jury also found true the personal-use-of-a-firearm and arming allegations attendant to the count 2 attempted robbery and the counts 3 and 4 robbery charges. The jury acquitted Jordan of the count 2 attempted robbery charge, but convicted her of all remaining charges and found true the arming allegations attendant to the counts 3 and 4 robbery charges. As to the conspiracy charge, the jury found to be true six of seven overt acts set forth on the verdict form: that Green possessed a loaded Smith & Wesson.38 revolver on May 14, 2005 (Overt Act No. 1); that Robinson possessed a loaded.22 caliber semi-automatic handgun on May 14, 2005 (Overt Act No. 2); that Green pointed the Smith & Wesson.38 revolver at Holmes and Alston on May 14, 2005 (Overt Act No. 3); that Robinson took money from Alston and Holmes on May 14, 2005 (Overt Act No. 5); that Green shot Garvin with the Smith & Wesson.38 caliber revolver on May 14, 2005 (Overt Act No. 6); and that Green reached into Garvin’s pockets in front of 145 Taylor Street on May 14. 2005 (Overt Act No. 7).
As to each of the appellants, the jury was unable to reach a determination on Overt Act No. 4, which alleged that Green took a chain from Holmes on May 14, 2005.
On July 5, 2006, the court held a bifurcated trial on the prior conviction allegations. It found that Green had a prior serious felony conviction that also constituted a “strike” for which he had served a prior prison term. It further found true the allegation that Green had served a second prior prison term. As to Robinson, the trial court found that she had a prior serious felony conviction that constituted a “strike,” but it struck the allegation that Robinson had served a prior prison term. The trial court found one of the prior prison term allegations against Jordan to be true, but found the second not true as there was no evidence to support it.
The trial court held Green’s sentencing hearing on September 22, 2006. It sentenced Green to 25 years to life on the count 1 murder conviction, which it doubled to 50 years to life because of his prior “strike,” and added consecutive terms of five years for his prior serious felony conviction, and 25 years for his personal use of a firearm during the murder. The court stayed the one-year sentence on the prior prison term finding attendant to count 1. Because of the jury’s finding that Green committed the murder during the commission of an attempted robbery, the trial court ruled that the 80-years-to-life sentence was to be served without possibility of parole. The court imposed a “total principal determinate term” of four years for the count 2 conviction, to be served concurrently with count 1. On count 3, the court found that the operative facts supporting this conviction were not the same as those supporting counts 1 and 2 and that the offense was not committed on the same occasion as the offenses in counts 1 and 2. It imposed a one-year term for this count, which it doubled and ordered to run consecutive to the sentences for counts 1 and 2. The court noted that the true finding on the personal use of a firearm allegation required imposition of an additional consecutive term of 10 years, but sentenced Green to three and one-third years because “this is a consecutive subordinate term.” On count 4, the court imposed a two-year term to run consecutive to the sentence imposed under counts 1 and 2. The court ordered Green to serve a six-year sentence on the count 5 conspiracy conviction and a four-year sentence on the count 7 felon-in-possession of a firearm conviction, both terms to run concurrently with each other and the sentence on counts 2, 3, and 4.
Jordan and Robinson were sentenced on December 11, 2006, and January 8, 2007, respectively. Green, Jordan, and Robinson all filed timely appeals.
We discuss the details of Jordan’s and Robinson’s sentences in part VIII, post.
Discussion
Appellants present numerous claims of error on appeal. We will address the issues they raise in roughly the order in which they arose during the proceedings below. Appellants make certain arguments individually but make others jointly. Where one of the appellants has joined in an argument made by another, we have noted the joinder. (See Cal. Rules of Court, rule 8.200(a)(5) [permitting a party to “join in or adopt by reference all or part of a brief in the same or a related appeal”].) We turn now to appellants’ claims of error.
I. Consolidation Did Not Deprive Green of Due Process.
Green contends his joint trial with Robinson deprived him of due process. His claim is based on statements made by Robinson’s counsel during his opening statement and closing argument. For the reasons that follow, we reject Green’s argument.
A. Background
At the beginning of his opening statement, counsel for Robinson told the jury that “Lenora Robinson did not shoot anybody.” He argued that Robinson was not present when Garvin was shot and that she did not want anyone shot or robbed. Referring to his client, counsel continued: “How did she end up in that chair? There’s something called the truth. It’s a word you haven’t heard yet today, I don’t think. The truth. I want to tell you what happened.” Later in his opening statement, Robinson’s counsel asserted, “Mr. Green shot the man dead. I’m not trying to play prosecutor here. I don’t know why he did it. I don’t know if it was justified or not. It was dark, but witnesses saw. Plenty of people saw what happened. They saw a struggle. They saw him shoot. They saw him run down the street. [¶] Proof that he did it? Well, there’s a bullet in Mr. Garvin which they can match to this gun, a.38 revolver, and that gun is found in the car, right next to Mr. Green. Mr. Green’s DNA is on that gun. It’s pretty simple. [¶]... When Mr. Green shot the man, he ran. Lenora looked up the street, heard the shot, and realized it’s time to go, because my ride for Oakland is leaving, and it’s leaving... in a hurry, and if I’m not on it, I’m going to be stuck here. And that’s about the last thing you want to do when somebody has just been shot by someone you know, that you have been riding in a car with. So she runs down the street, too, and they get in the car.”
The next morning, counsel for Jordan moved for a mistrial, a motion in which Green’s counsel joined. Jordan’s counsel contended that Robinson’s counsel had committed prejudicial misconduct by claiming in his opening statement that “he knew the truth” and thus implying to the jury that the other defense counsel “basically [were] all liars.” Green’s attorney said that he was “stunned” when he heard Robinson’s counsel say “that his client was off somewhere selling drugs and that my client walked up and for no reason just shot Mr. Garvin.” He said he did not believe that cocounsel would be able to support this claim with evidence. After reviewing the transcript of the opening statement, the trial court denied the motion for mistrial based on Robinson’s counsel’s claim that he had made the statements in good faith and that admissible evidence would support them.
At trial, however, he presented no evidence in Robinson’s defense. Green then renewed his motion for a mistrial. He argued that Robinson’s attorney had made “a very inflammatory statement” during his opening and that the statement, in essence, amounted to testimony from an attorney who could not be cross-examined. He also argued the statement was problematic because counsel had made it “as a codefendant’s lawyer who presumably has some knowledge of the underlying facts of the case, perhaps some information his client has given him” and because it was tied to the attorney’s assertion “that he was speaking the truth and the [other defense counsel] weren’t....” The trial court again denied the motion for a mistrial, noting that the challenged statement “was one remark” and that the jury had been instructed that the statements of counsel are not evidence. The trial court stated it would instruct the jury again on that point.
On June 6, 2006, counsel for Grady, Jordan, and Robinson made closing arguments to the jury. Prior to summation on behalf of Robinson, Green’s attorney objected to what Robinson’s counsel had disclosed he intended to argue about Green—that the evidence showed Green had committed manslaughter. He again contended that Robinson’s counsel would imply to the jury “that he knows something that the jury doesn’t know” and complained that he could not cross-examine counsel. Counsel for Green insisted repeatedly he would object in front of the jury if Robinson’s attorney mentioned Green. Robinson’s counsel responded that he did not intend to profess that he possessed any special knowledge and stated that he would only comment on the evidence from his perspective, claiming that he was ethically bound to do so. The trial court noted that it would be concerned if counsel were to suggest he had inside knowledge and admonished counsel to stick to the evidence. But the trial court concluded that “the evidence and everything that logically flows from the evidence... is free game for all the attorneys to argue” and stated it was “in no position to limit anybody’s right to defend his or her client.”
Closing argument for Robinson included the following discussion of Green:
“Mr. Green. Well, he’s in a little bit of trouble here. And the reason he’s in trouble is because they’ve proved that this gun killed Carlos Garvin. They’ve got the bullets. And there is a witness, however you may wish to judge that witness, who says, ‘I saw Mr. Green pull out that gun and shoot Mr. Garvin.’ And Mr. Garvin is very dead. [¶] And Mr. Green ran down the street, and he was caught a minute or two later, and his DNA is on the gun. [¶] And there is a cop who comes in here and testifies two or three times, he was tearing off the bags that they put on your hands to see if there’s gunshot residue on them. [¶] Now, that’s a very serious situation for Mr. Green. What does that prove? Well, if you accept the People’s evidence, that definitely proves that he shot the man. [¶] What is that? Is that a murder? Is that something else? That’s where these theories come in. That’s why these theories are not particularly helpful because, on the one hand, the District Attorney is saying this is a first-degree murder. [¶] Do we have any evidence of that, that Carlos Garvin was hated by Mr. Green, and Mr. Green took a notion to deliberate and premeditate and, with malice aforethought, go up and take his life? No, we don’t have any of that. [¶] How about a second-degree murder? No. [¶] What we have is some evidence that Mr. Green shot the man. We have some evidence that there was a fight, a tussle, an argument. We don’t know what it was about. [¶] The law, as the judge gave it to you, tells you pretty clearly: If you kill someone in a fight but you don’t mean to, or it was an accident, it could be manslaughter; it could be justifiable or excusable homicide. I don’t know. I wasn’t there. Lenora wasn’t there. [¶] I bring that up only to prove to you, only to show you this huge gaping hole in the prosecution’s case. [¶] So if you don’t like that one, here, I have another one for you: It’s called felony murder. Let’s assume that this was in the course of an attempted robbery. Okay. Let’s see, where is this attempted robbery? What is your evidence for that? [¶] Well, actually, the evidence is not very compelling. [¶] Mr. Green had three dollars in his pocket. Three dollars when they caught him. Carlos Garvin, right by his head there, we have it in one of these pictures, as he lay dying, had a clip with at least a five-dollar bill in it, and a cellphone. [¶] Now, if the prosecution was correct and Mr. Green killed that man for money, why wouldn’t he pick up that five dollars? That would have doubled his assets right there. If he picked up the cellphone, his net worth would have gone up like Google stock. Why is this, in the course of a robbery? There is no evidence of that. [¶] Conspiracy. Where’s the agreement? Where is the plan? Where is any of this? It isn’t there. [¶] And that’s all I have to say about the other three people, because my interest is Lenora.”
Despite his earlier representations, Green’s attorney made no objection to the foregoing statements.
B. Legal Standards
The Legislature has expressed a statutory preference for joint trials. (People v. Lewis (2008) 43 Cal.4th 415, 452.) Section 1098 provides in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” Joint trials are preferred because they promote economy and efficiency and because they serve the interests of justice by avoiding possibly inconsistent verdicts. (E.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) A joint trial is particularly appropriate where, as here, multiple defendants are charged with common crimes involving common events and victims. (People v. Lewis, supra, at pp. 452–453.) The superior court enjoys discretion to order separate trials (People v. Coffman and Marlow, supra, at p. 40), and severance may be appropriate “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted.) Often, however, “less drastic measures than severance, such as limiting instructions,... will suffice to cure any risk of prejudice.” (People v. Coffman and Marlow, supra, at p. 40, citing Zafiro v. United States (1993) 506 U.S. 534, 539.)
C. The Remarks of Codefendant Robinson’s Counsel Were Not Improper and Did Not Prejudice Green.
Green does not argue that the trial court erred in denying his initial motion for severance. Instead, he contends his is a case “where, because of the consolidation, a gross unfairness has occurred such as to deprive [him] of a fair trial or due process of law. [Citation.]” (People v. Turner (1984) 37 Cal.3d 302, 313, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149–1150.) He argues cocounsel’s remarks demonstrated to the jury that one of the defense attorneys was convinced that the People had proven that Green was the shooter. According to Green, these remarks were “especially prejudicial to appellant because they not only emphasized each item of evidence that pointed to appellant’s guilt, but they also suggested an untenable theory that appellant was guilty of manslaughter rather than murder.” Green asserts that his trial was grossly unfair, because there was an “intolerable risk” the jury was improperly influenced by Robinson’s counsel’s damaging remarks. We must disagree for several reasons.
The argument Green makes on appeal is somewhat different from the one made by his trial counsel below. Green’s attorney then claimed Robinson’s counsel’s remarks were prejudicial because the jury might infer that her attorney’s remarks were based on information Robinson had given him but that had not been revealed to the jury.
First, defense counsel is given “wide latitude” in closing argument and has a right to present to the jury his views on the deductions or inferences warranted by the facts. (People v. Farmer (1989) 47 Cal.3d 888, 922, 923, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) Robinson’s attorney was therefore entitled to comment on his view of the evidence and to ask the jury to draw reasonable inferences from it. It follows the trial court was correct in refusing to limit cocounsel’s right to defend his client by making fair comments on the evidence.
Second, the California Supreme Court has made clear that “a defendant’s natural tendency to shift blame onto a codefendant is not in itself a sufficient ground for severance.” (People v. Pinholster (1992) 1 Cal.4th 865, 933, citing People v. Turner, supra, 37 Cal.3d at pp. 312–313.) In People v. Pinholster, the Supreme Court held the defendant had not been deprived of a fair trial or denied due process where a codefendant’s counsel had argued there was ample evidence of the defendant’s guilt but that “the evidence was shakier” as to the codefendant’s guilt. (People v. Pinholster, supra, at p. 933.) Thus, even if we accept that Robinson’s closing argument reflected her attorney’s belief that the evidence showed Green was guilty of shooting Garvin, that does not necessarily compel the conclusion that Green was deprived of a fair trial.
Third, as our colleagues in Division Two explained in People v. Morganti (1996) 43 Cal.App.4th 643 at page 673, counsel’s closing “was after all only argument and not evidence.” Like Green, the defendant in People v. Morganti contended comments made by a codefendant’s counsel during closing argument had deprived him of due process. (Id. at pp. 672–673.) Counsel for Morganti’s codefendant had argued that “ ‘the evidence in this case shows no doubt that Mr. Morganti committed the crime of murder, and arson,’ ” and that the codefendant was guilty as an accessory after the fact. (Id. at p. 673.) On appeal, Morganti claimed the argument by codefendant’s counsel “was tantamount to a confession and necessarily implicated Morganti in the murder.” (Id. at p. 675.) He further asserted he had been deprived of his right to confront adverse witnesses because he could not cross-examine the codefendant’s counsel. (Ibid.) The court rejected these arguments because counsel’s closing argument was not evidence, and therefore codefendant’s counsel was not a witness whom Morganti was entitled to confront. (Ibid.) The same is true here. Robinson’s attorney’s remarks were only the argument of counsel, not evidence, and this mitigated any prejudicial impact his closing argument could have had. (See People v. Pinholster, supra, 1 Cal.4th at pp. 933–934.)
Green’s trial counsel recognized this fact explicitly. In explaining his intention to object to Robinson’s closing argument, Green’s attorney acknowledged that “what [her attorney] says is not evidence.”
Finally, the trial court specifically instructed the jury that “[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” The trial court repeated this admonition to the jury immediately prior to closing on behalf of Green, and Green’s attorney himself then stressed to the jury that the statements of counsel are not evidence but argument. In accordance with settled law, “we presume that the jury ‘meticulously followed the instructions given.’ [Citation.]” (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) We therefore also presume that the jury viewed Robinson’s attorney’s remarks “ ‘as words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 441.)
For all these reasons, we reject Green’s claim that codefendant counsel’s remarks deprived him of a fair trial.
II. Robinson Was Not Deprived of Effective Assistance of Counsel
Robinson claims that her conviction must be reversed because her trial counsel provided ineffective assistance. She bases her argument on four alleged instances of deficient performance, only two of which require significant discussion. Robinson asserts her counsel was ineffective because he: (1) made remarks prejudicial to her case in both his opening statement and closing argument; (2) failed to move for a mistrial or severance when counsel for codefendant Jordan failed to introduce certain witnesses; (3) failed to file a motion for new trial; and (4) failed to make any arguments at Robinson’s sentencing hearing. None of Robinson’s claims of ineffective assistance of counsel has merit.
A. Standard of Review
It is Robinson’s burden to demonstrate, by a preponderance of the evidence, that she is entitled to relief on the grounds of ineffective assistance of counsel. (E.g., People v. Ledesma (1987) 43 Cal.3d 171, 217–218.) To do so, she must show that (1) her counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) she was prejudiced by the deficient performance. (People v. Lucas (1995) 12 Cal.4th 415, 436.) It is difficult to carry this burden on direct appeal from a conviction (id. at p. 437), because the trial record often does not indicate why trial counsel acted or failed to act in the manner he did. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–268.) And we may not reverse a conviction on the grounds of ineffective assistance of counsel unless the record affirmatively discloses that counsel had no rational tactical purpose for the act or omission in question. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Where the record sheds no light on the issue, we must affirm unless there could be no conceivable reason for counsel’s act or omission. (Ibid.) Furthermore, our review of trial counsel’s performance is deferential (People v. Ledesma, supra, at p. 216), and there is a strong presumption that counsel’s actions fell within the wide range of reasonable professional assistance. (People v. Lucas, supra, at p. 437.)
B. Remarks Regarding Robinson’s Alleged Involvement in Drug Dealing
Robinson’s first claim of ineffective assistance of counsel is based on two statements made by her trial counsel. In his opening statement, her attorney told the jury: “I’m sorry to tell you that Lenora’s business is drugs.” And in closing argument, he attempted to explain why his client possessed a gun by saying, “[s]he’s out there in the drug business.” Robinson claims she was prejudiced by these remarks because there was no evidence introduced at trial showing that she had any connection to drugs.
We disagree that these remarks constitute ineffective assistance of counsel. From the record, and particularly from closing argument, it seems clear that counsel’s defense strategy was to acknowledge Robinson’s presence near the scene of Garvin’s murder on the evening of May 14, 2005, but to argue that his client was in the area only to sell drugs. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1216 [noting that “a strong indication of defense counsel’s reasoning appears in closing argument to the jury”].) He argued that Robinson “didn’t kill anybody. Didn’t want anybody killed. Didn’t know anybody was going to get killed. She didn’t rob anybody, and she didn’t try to rob anybody.” But to support his claim that Robinson had no intent to kill or rob, her attorney had to explain to the jury why a gun bearing Robinson’s DNA was found in the Camry. He therefore argued that Robinson “had a gun, yes. She’s out there in the drug business. She had a gun. The gun was never seen, never used, never anything.”
Counsel apparently hoped to convince the jury that Robinson possessed the gun only for her own protection in carrying out her drug business, rather than because she intended to participate in the robberies or murder carried out by her companions. This hardly seems an unreasonable tactical choice. Indeed, the California Supreme Court has held that defense counsel is not ineffective even when acknowledging a defendant’s actual culpability on some counts charged, where counsel does so in part “to preserve his credibility in arguing mitigation.” (People v. Bolin (1998) 18 Cal.4th 297, 334–335.) The attorney may reasonably have believed that it would be common knowledge to a San Francisco jury that the Tenderloin is an area in which drug dealing frequently occurs, and he claimed Robinson was there to sell drugs to explain both her presence in the area and her possession of a firearm. (See People v. Thurman (1989) 209 Cal.App.3d 817, 822 [recognizing that firearms are commonly used in the drug trade]; Giannis v. City and County of San Francisco (1978) 78 Cal.App.3d 219, 221 [recognizing the Tenderloin as a high crime area].) Thus, since the record does not affirmatively disclose that there was no rational tactical purpose for this decision, we must reject Robinson’s argument. (See People v. Jones, supra, 29 Cal.4th at p. 1254.)
C. Failure to Move for a Mistrial or Severance
Robinson next argues her trial counsel was ineffective because he failed to move for a mistrial or severance after counsel for codefendant Jordan failed to call a number of witnesses whom he had mentioned in his opening statement. In his opening, Jordan’s trial counsel named several individuals and seemed to suggest they could provide testimony that would show that Jordan was not involved in the murder of Garvin. In fact, he called none of these witnesses. Robinson now claims that her attorney’s failure to move for a mistrial or severance when it became apparent “that these promised witnesses would not be testifying constituted prejudicial ineffective assistance of counsel.” We disagree.
First, we have difficulty evaluating this claim because Robinson has failed to support it with sufficient argument. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) We would therefore be fully justified in dismissing it out of hand. (E.g., People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37 [rejecting contention “perfunctorily asserted without any analysis or argument in support”].) Robinson’s brief does not even explain the basis on which she believes her counsel should have moved for a mistrial or severance. Nor does she tell us why she believes such motions would have been successful.
Second, Robinson claims on appeal that Jordan’s attorney “told the jury that these witnesses would be helpful to the defense,” but our review of the transcript discloses that Jordan’s counsel claimed for the most part the witnesses named would provide testimony helpful to Jordan, not Robinson. Moreover, Robinson’s claim that her codefendant’s attorney “promised” to call these witnesses is simply not borne out by the transcript.
Third, even if we were to assume, contrary to what appears in the record, that the attorney both “promised” to call these witnesses and that they would have been “helpful to the defense,” the record does not affirmatively disclose that there was no reasonable tactical reason for Robinson’s attorney’s failure to move for “mistrial or severance.” (See People v. Jones, supra, 29 Cal.4th at p. 1254.) Robinson has therefore not met her burden of showing that her attorney provided ineffective representation. (People v. Ledesma, supra, 43 Cal.3d at pp. 217–218.) Her counsel may well have concluded that if the jury recalled the portion of the codefendant’s opening statement regarding these witnesses, the jury would not have held his failure to call them against Robinson, whom that attorney did not represent. Her attorney may also have reasoned that because the jury was instructed that the statements of counsel are not evidence, the jury would not consider reference by another attorney to these individuals during its deliberations. (See, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 635 [jury presumed to follow instructions].) And Robinson’s counsel could quite reasonably have decided that a motion to sever would be unsuccessful because he could not demonstrate that the codefendant’s failure to call these witnesses had resulted in such gross unfairness to Robinson that she was deprived of a fair trial or due process of law. (See People v. Turner, supra, 37 Cal.3d at p. 313.) Counsel is not ineffective for failing to make motions that would have been unavailing. (People v. Lewis (1990) 50 Cal.3d 262, 289.)
Robinson makes two additional claims of ineffective assistance of counsel. Both arguments are cursory, and we dispose of them without extended discussion. (See People v. Rojas (1981) 118 Cal.App.3d 278, 290.) Robinson contends that her attorney should have filed a motion for new trial based on insufficiency of the evidence. As we explain below (see part IV, post), the verdicts against Robinson were sufficiently supported by the evidence, and Robinson identifies no other possible basis for a motion for new trial. Her counsel’s representation was not ineffective because he did not file a motion that would have failed. (People v. Lewis, supra, 50 Cal.3d at p. 289.) Robinson’s claim that her lawyer was ineffective because he did not file a sentencing memorandum or argue at sentencing fails because Robinson does not tell us what arguments should have been made or why they would have resulted in a more favorable sentence for her. “Conclusory allegations [of ineffective assistance of counsel] made without any explanation of the basis for the allegations do not warrant relief....” (People v. Karis (1988) 46 Cal.3d 612, 656.)
III. Claimed Instructional Errors
Appellant Jordan, joined by appellant Robinson, makes lengthy claims of instructional error. Jordan asserts that: (1) the trial court erred by instructing the jury on a legally inadequate theory of felony murder; (2) even if the instructions did not unambiguously convey a legally inadequate theory of felony murder, they were misleading and ambiguous with regard to whether appellants must have had the intent required as coconspirators in the Garvin robbery and to have been guilty of that robbery to be convicted of felony murder; (3) the trial court erred by refusing to instruct the jurors that they had to agree unanimously that appellants specifically conspired to commit the attempted robbery of Garvin to be found guilty of felony murders; (4) the trial court erred by failing to instruct the jurors sua sponte that appellants could not be convicted of felony murder unless they possessed the requisite intent and were guilty of the attempted robbery of Garvin; and (5) the trial court erred in giving CALCRIM No. 417 (Jan. 2006 ed.) because it may have misled the jury into thinking that the natural and probable consequences doctrine played a role in coconspirator liability for statutory felony murder. In her supplemental opening brief, Jordan contends that her trial counsel was ineffective because he failed to request that the jury be instructed that it was required to find Jordan guilty of the count 2 attempted robbery of Garvin in order to find her guilty of first degree murder under a felony-murder theory. As we explain below, we disagree with the claim that the instructions were erroneous. Consequently, we reject all of the foregoing claims.
Jordan does not argue for reversal on the ground of inconsistent verdicts. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 600 [inherently inconsistent verdicts are allowed to stand; defendant receives the benefit of the acquittal on the count on which he was acquitted but must accept the burden of conviction on the count on which the jury convicted].) That is, she does not claim that because the jury acquitted her of the count of attempted robbery of Garvin, her conviction for his murder must therefore be reversed. Instead, she contends the verdicts were not inconsistent in light of the instructions, which in her view presented the jury with a legally invalid theory of felony murder.
A. Standard of Review
When we review a claim of instructional error, “we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Where, as here, an appellant claims that instructions are deficient, “[w]hat is crucial... is the meaning that the instructions communicated to the jury. If that meaning was not objectionable, the instructions cannot be deemed erroneous. [Citation.]” (People v. Benson (1990) 52 Cal.3d 754, 801.) We determine the correctness of jury instructions from the trial court’s entire charge, and we must also consider the arguments of counsel in assessing the probable impact of the instructions on the jury. (People v. Young (2005) 34 Cal.4th 1149, 1202.) Thus, the ultimate question is “whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of [the] trial, and the arguments of counsel. [Citations.]” (People v. Dieguez, supra, at p. 276–277.)
B. The Instructions and Arguments of Counsel
An understanding of the claimed instructional errors requires us to set forth at some length the instructions at issue. In addition, we recount some of the arguments of counsel that bear on the claimed instructional errors.
The trial court informed the jury that appellants and their codefendant, Grady, were “being prosecuted for murder under two theories: [¶] One, malice aforethought as to the perpetrator, and aiding and abetting as to the co-participants; and second theory, felony murder.” As set forth in the factual background, the evidence showed that Green shot and killed Garvin, and that Robinson was physically present and participated directly in the attempted robbery. There was no evidence, and the prosecution did not argue, that Grady and Jordan were personally present at the time of the Garvin incident. As to Jordan, Robinson, and codefendant Grady, the trial court gave the jury a modified version of CALCRIM No. 540B (Jan. 2006 ed.) concerning first-degree felony murder where a “coparticipant allegedly committed the fatal act.” The court instructed the jury:
“Defendants may also be guilty of murder under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator.
“To prove that a defendant is guilty of first-degree murder under this theory, the People must prove that:
“1. A defendant attempted to commit robbery or aided and abetted the commission of attempted robbery, or was a member of a conspiracy to commit robbery;
“2. A defendant intended to commit robbery, or intended to aid and abet the commission of robbery, or intended that one or more of the members of the conspiracy commit robbery;
“3. If the defendant did not personally commit attempted robbery, then a perpetrator personally committed attempted robbery; and
“4. While committing attempted robbery, the perpetrator did an act that caused the death of another person;
“5. There was a logical connection between the act causing the death and the attempted robbery. The connection between the fatal act and the attempted robbery must involve more than just their occurrence at the same time and place.
“A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.
“To decide whether a defendant committed attempted robbery, a violation of Penal Code Section 664/212.5(c), please refer to the separate instructions that I have given you on that crime. You must apply those instructions when you decide whether the People have proved first-degree murder under this theory of felony murder.
“To decide whether a defendant aided and abetted the commission of robbery, please refer to the separate instructions that I have given you on aiding and abetting a crime. You must apply those instructions when you decide whether the People have proved first-degree murder under this theory of felony murder.
“To decide whether a defendant was a member of a conspiracy to commit robbery before the time of the act causing death, please refer to the instructions that I have given you on conspiracy. You must apply those instructions when you decide whether the People have proved first-degree murder under this theory of felony murder. However, you cannot convict a single -- let me say again. However, you cannot convict a single defendant of first-degree felony murder on a theory of participation in a conspiracy to commit robbery unless you have found two or more defendants guilty of such a conspiracy.
“The defendant must have intended to commit robbery or aided and abetted the commission of robbery or have been a member of a conspiracy to commit robbery before or at the time of the act causing death.
“If you find that a defendant did not aid and abet or did not enter into a conspiracy to commit robbery until after the act which caused death of another person, then you must find such defendant not guilty of murder and not guilty of attempted robbery.
“It is not required that a defendant be present when the act causing death occurs.”
As Jordan notes in her brief, her trial counsel made no objection to this instruction.
The trial court explained that “[t]he defendants are charged in Count Five with conspiracy to commit robbery.” Having told the jury to refer to the instructions on conspiracy to determine “whether a defendant was a member of a conspiracy to commit robbery before the time of the act causing death,” the trial court also gave the jury a slightly modified version of CALCRIM No. 415 (Jan. 2006 ed.). It instructed the jury: “To prove that a defendant is guilty of this crime [conspiracy], the People must prove that: [¶] 1. A defendant intended to agree and did agree with one or more of the other defendants to commit robbery; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit robbery; [¶] 3. One of the defendants, or both of them, or all of them, committed at least one of the alleged overt acts to accomplish robbery; and [¶] 4. At least one of the overt acts was committed in California.” The jury was further instructed that “An overt act is an act by one or more members of the conspiracy that is done to help accomplish the agreed-upon crime. The overt act must happen after the defendant has agreed to commit the crime.” The court went on to list seven overt acts alleged in the information, the last two of which were “Greshinal Green shot Carlos Garvin with the Smith & Wesson.38 caliber revolver in front of 145 Taylor Street on May 14th, 2005” and “Greshinal Green reached into Carlos Garvin’s pockets in front of 145 Taylor Street on May 14th, 2005.”
In closing argument, the prosecutor stressed that the defendants were engaged in a single conspiracy to commit robberies, a conspiracy that included the robberies of Alston, Holmes, and Garvin. For example, after discussing the robberies of Alston and Holmes, the prosecutor told the jury: “You go forward in our conspiracy because it doesn’t stop, the conspiracy to rob these targets in San Francisco doesn’t stop. Because we know, based on our evidence presented in our courtroom, that Greshinal Green and Lenora Robinson approached Carlos Garvin, prevented him from leaving,... revolver is pulled, the very same revolver that was used on Mr. Alston and Mr. Holmes. [¶]... [¶] How do we know that the robbery conspiracy was continuing? Because Mr. Green rifled Carlos’s pockets.” The prosecutor also referred to “this overall conspiracy [to] commit robberies here in San Francisco that night....” Later in his closing, he called it “a conspiracy to rob folks in San Francisco” and specifically argued that the Garvin attempted robbery was part of that conspiracy. After discussing the attempted robbery and murder of Garvin, the prosecutor argued pointedly to the jury that Jordan was a member of the conspiracy at the time Garvin was killed: “There is no doubt that still part of the conspiracy, Anissa Jordan was in Mr. Grady’s car when Carlos Garvin was shot. Why is that important? Because only two folks’ DNA is on this gun, Anissa Jordan, Greshinal Green, nobody else.” (Italics added.)
Jordan acknowledges in her opening brief that “the prosecutor argued that a general conspiracy to commit robbery was the factual underpinning for the murder charge....”
C. The Instructions Were Neither Inadequate Nor Misleading.
A defendant may only be guilty of felony murder under a coconspirator liability theory if the defendant conspired to commit the predicate felony during which the killing occurred and intended that one or more members of the conspiracy commit the predicate felony. (People v. Dominguez (2006) 39 Cal.4th 1141, 1158–1159; People v. Pulido (1997) 15 Cal.4th 713, 723.) Jordan contends that CALCRIM No. 540B did not explain to the jury that conviction for felony murder under a coconspirator liability theory required an intent to commit the underlying felony (here, the attempted robbery of Garvin) and that no other instruction filled that gap.
We disagree. As the United States Supreme Court has observed, “[j]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” (Boyde v. California (1990) 494 U.S. 370, 380–381.) Reviewing the instructions given in the context of the entire trial record and the arguments of counsel (People v. Dieguez, supra, 89 Cal.App.4th at p. 276), we conclude that there is no reasonable likelihood that the jurors would have concluded that they could convict Jordan of felony murder under a coconspirator liability theory without finding that she was part of a conspiracy to commit the attempted robbery of Garvin and intended that one or more of her confederates commit that attempted robbery. The final three elements of CALCRIM No. 540B as read to the jury provided: “3. If the defendant did not personally commit attempted robbery, then a perpetrator personally committed attempted robbery; and [¶] 4. While committing attempted robbery, the perpetrator did an act that caused the death of another person; [¶] 5. There was a logical connection between the act causing the death and the attempted robbery.” From this, the jury would have understood that to find Jordan guilty of felony murder under a coconspirator liability theory, it would have to find that she was a member of a conspiracy to commit the attempted robbery of Garvin.
In addition, the trial court instructed the jurors to refer to the conspiracy instructions to determine “whether a defendant was a member of a conspiracy to commit robbery before the time of the act causing death....” CALCRIM No. 415 informed the jury that the defendants were charged with conspiracy to commit robbery and the court listed Green’s shooting of Garvin and his reaching into Garvin’s pockets as two of the possible overt acts they might find in furtherance of the overall conspiracy. The instructions thus made plain that the attempted robbery of Garvin was part of the single, overall conspiracy with which appellants were charged. We presume that the jury was capable of understanding and correlating both the instructions on felony murder and the instructions on conspiracy. (E.g., People v. Sanchez (2001) 26 Cal.4th 834, 852.) When it did so, the jury would have understood that to convict Jordan of felony murder as a coconspirator, it would have to find (1) that she intended to agree and did agree with one or more of her codefendants to commit robberies that included the attempt to rob Garvin and (2) that she intended that one or more of her codefendants would commit that robbery. Finally, the jury did find that codefendant Green’s actions in shooting Garvin, and in reaching into his pockets following the shooting, were overt acts in support of the conspiracy and were done to “help accomplish the agreed-upon crime.” After hearing and reading the instructions as a whole, it is not reasonably likely the jury could have concluded, as Jordan argues, that it could convict her of the murder of Garvin solely by finding that she was a member of a conspiracy to rob Alston and Holmes.
For similar reasons, we reject Jordan’s argument that the trial court erred in refusing to instruct the jury that it must unanimously agree that she conspired to commit an attempted robbery of Garvin before she could be found guilty of felony murder as a coconspirator. We note first that no such instruction was requested below. Instead, Jordan’s trial counsel simply joined in an objection by Grady’s counsel that the jury should be required to agree on one overt act. And as we have explained above, it is not reasonably likely the jury could have read the instructions on felony murder and conspiracy together and have concluded that it could convict Jordan of felony murder without agreeing that she had conspired to commit both the Alston/Holmes robberies and the attempted robbery of Garvin.
The fact that the jury chose not to convict Jordan of the attempted robbery reflects nothing more than a factually inconsistent verdict, which may be a result of “ ‘mistake, compromise, or lenity.’ ” (People v. Avila, supra, 38 Cal.4th at p. 600, citing United States v. Powell (1984) 469 U.S. 57, 65.)
D. Jordan’s Claims Regarding CALCRIM No. 417 Are Forfeited.
Jordan, joined by Robinson, argues that the trial court violated her federal constitutional rights to due process and jury trial by instructing the jury on CALCRIM No. 417. The basis of this claim is Jordan’s view that CALCRIM No. 417 may have led the jury to conclude that the natural and probable consequences doctrine played a role in coconspirator liability for felony murder. As Jordan explains, “the jurors may have concluded that appellant could be guilty of felony murder if she conspired to commit the Alston/Holmes robbery and the attempted robbery and/or felony murder – commission of an act causing death during the attempted robbery – was a natural and probable consequence of the agreed upon Alston/Holmes robbery.”
In the trial court, however, when defense counsel were asked whether they objected to CALCRIM No. 417 as written, no one raised the objection that Jordan now presents on appeal. Instead, counsel for Grady stated that she had put her objections on the record and continued, “I think there’s two conspiracies. I think the jury should be required to agree on one overt act.” Jordan’s trial counsel joined in that objection without more. Having failed to raise this claim below, Jordan may not now assert it on appeal. (See, e.g., People v. Stitely (2005) 35 Cal.4th 514, 546; 1 Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:229, p. 8-155.)
E. Jordan’s Counsel Was Not Ineffective for Failing to Request the Instructions Jordan Now Seeks.
We disagree with Jordan’s claim that her trial counsel was ineffective for failing to request an instruction that the jury must unanimously agree that she conspired to commit the attempted robbery of Garvin before she could be found guilty of felony murder as a coconspirator. As explained above, on direct appeal, we may not reverse a conviction on the grounds of ineffective assistance of counsel unless the record affirmatively discloses that counsel had no rational tactical purpose for the act or omission in question. (People v. Jones, supra, 29 Cal.4th at p. 1254.) Where the record sheds no light on the issue, we must affirm unless there could be no conceivable reason for counsel’s act or omission. (Ibid.) Moreover, even if, after our review of the record, “we have serious doubt that a satisfactory explanation could be provided, [but] we are unable to conclude that it could not,” we must reject an ineffective assistance of counsel claim. (People v. Ledesma, supra, 43 Cal.3d at p. 218.)
Here, her attorney did not explain why he did not request the instruction Jordan now seeks. He may not have requested it because he concluded, as we have, that the instructions were adequate. Since the record sheds no light on why counsel failed to request the instruction, and we cannot say that no satisfactory explanation could be provided, we must reject Jordan’s claim. (See People v. Jones, supra, 29 Cal.4th at p. 1254; People v. Ledesma, supra, 43 Cal.3d at p. 218.)
To the extent Jordan’s claim of ineffective assistance of counsel is based on her attorney’s failure to object to the giving of CALCRIM No. 417, we again conclude that Jordan has failed to meet her burden of showing that her counsel was ineffective. (People v. Ledesma, supra, 43 Cal.3d at pp. 217–218.) The record does not reveal why he made no such objection, but he may simply have believed that the jury would understand that the natural and probable consequences doctrine could not substitute for the findings required by CALCRIM No. 540B. In addition, counsel may have assumed that the jury would understand from the trial court’s instructions that CALCRIM No. 417 applied to the count 5 conspiracy charge, rather than to the count 1 murder charge.
F. Any Error Was Harmless Beyond a Reasonable Doubt.
Even if we agreed with Jordan’s claims that the instructions were erroneous, we would conclude that any such error was harmless. In People v. Chun, supra, another felony-murder case, our high court explained that one way a reviewing court may find an instructional error harmless beyond a reasonable doubt is by relying on other portions of the jury’s verdict that demonstrate that the jury employed a legally valid theory to convict the defendant. (People v. Chun, supra, 45 Cal.4th at p. 1203.) It noted, however, that this is not the only way to do so. (Ibid.) It also found that a test stated by Justice Scalia in his concurring opinion in California v. Roy (1996) 519 U.S. 2 “is adaptable to the reasonable doubt standard of direct review.” (People v. Chun, supra, at p. 1204.) Quoting Justice Scalia, the California Supreme Court set forth the test: “ ‘The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.’ ” (Ibid., quoting California v. Roy, supra, at p. 7 (conc. opn. of Scalia, J.).) Put another way, “[i]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for [a valid theory of murder,] the erroneous felony-murder instruction was harmless.” (People v. Chun, supra, 45 Cal.4th at p. 1205.)
On April 7, 2009, at the request of Jordan’s counsel, we permitted supplemental briefing assessing the effect of the California Supreme Court’s recent decision in People v. Chun (2009) 45 Cal.4th 1172 on whether the instructional errors claimed by Jordan are harmless.
We conclude that the record before us leaves no doubt that the jury made the findings Jordan claims were omitted by the allegedly erroneous CALCRIM No. 540B. That is, we are convinced that the jury found that (1) the attempted robbery of Garvin was an object of the conspiracy of which Jordan was a part, and (2) she intended that one or more members of the conspiracy commit the attempted robbery of Garvin. First, the jury convicted Jordan of the conspiracy charged in count 5. That conviction required the jury to find that Jordan: (1) intended to agree and did agree with one or more of the other defendants to commit robbery; (2) at the time of the agreement, Jordan and one of more of the other alleged members of the conspiracy intended that one of them would commit robbery; and (3) one or more of the defendants committed at least one of the alleged overt acts to accomplish robbery. (CALCRIM No. 415.) Second, as we have explained above, the conspiracy to rob charged in count 5 of the information included the attempted robbery of Garvin, and the final two overt acts listed, which the jury found true, were Green’s shooting of Garvin and his reaching into Garvin’s pockets. The prosecutor emphasized during closing argument that the defendants were engaged in a single conspiracy to rob and specifically argued that Jordan was a member of the still-ongoing conspiracy when Garvin was killed. And as we make clear in the following section of this opinion, there was ample evidence to support the jury’s finding of Jordan’s participation in that conspiracy. Thus, the jury convicted Jordan of involvement in a conspiracy that, according to the charges, evidence, and argument, included the attempted robbery of Garvin.
When the trial court and counsel discussed proposed jury instructions, counsel for Grady contended that “this is a case where two discrete conspiracies are alleged.” She asserted that the robberies of Alston and Holmes were the subject of one conspiracy, and the attempted robbery of Garvin was the subject of another. She expressed the view that the prosecutor would argue that there were two discrete conspiracies. The prosecutor stated that he did not intend to so argue, and the trial court agreed that only one conspiracy was charged. In his closing argument the prosecutor argued that there was a single conspiracy, and that the felony murder of Garvin resulted from an attempted robbery in furtherance of that conspiracy.
In addressing the effect of the harmless error analysis adopted in People v. Chun, Jordan repeats the argument made in her opening brief that the instructions permitted the jury to find her guilty of murder if they found that she conspired to commit the Alston/Holmes robberies; that she knew that Green, her coconspirator in those robberies, would commit another robbery or was likely to do so; that Green committed the count 2 attempted robbery; and that there was a logical connection between the act causing death and the Garvin attempted robbery. But her supplemental brief does not come to grips with the jury’s finding that she was guilty of a single conspiracy to rob, and that at least two of the overt acts in furtherance of that conspiracy directly involved the attempted robbery and shooting of Garvin. Nor does it address why her conviction of a single conspiracy to rob embracing the robberies of Alston and Holmes, as well as the attempted robbery of Garvin, would not demonstrate that the jury made the findings necessary to convict her on a valid theory of coconspirator felony-murder liability.
In sum, we conclude that “other aspects of the verdict or the evidence leave no reasonable doubt” that the jury found that Jordan conspired to commit the attempted robbery of Garvin charged in count 2 and that she intended for one or more members to commit the robbery of Garvin. (See People v. Chun, supra, 45 Cal.4th at p. 1205.) Thus, even if we found the challenged instructions erroneous (which we do not), we would still find the error harmless beyond a reasonable doubt.
IV. Substantial Evidence Supports the First-Degree Murder Convictions of Jordan and Robinson.
Both Jordan and Robinson contend the first-degree murder verdicts against them are not supported by substantial evidence. Although both appellants base their claims on the alleged insufficiency of the evidence, their arguments differ. We will outline each appellant’s particular arguments and analyze them separately.
A. Standard of Review
In reviewing appellants’ challenges to the sufficiency of the evidence, we do not determine the facts ourselves. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Instead, our task is to examine the whole record in the light most favorable to the judgment and to discern “whether it discloses substantial evidence—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. [Citations.]” (Ibid.) Thus, “ ‘[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found [that] the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’ ” (People v. Johnson, supra, 26 Cal.3d at p. 576.) The standard of review is the same in cases in which the People rely primarily on circumstantial evidence. (People v. Guerra, supra, at p. 1129; People v. Bean (1988) 46 Cal.3d 919, 932.) If we determine that a rational jury could find the essential elements of the crime proven beyond a reasonable doubt, this satisfies the due process clauses of both the federal and California Constitutions. (People v. Memro (1995) 11 Cal.4th 786, 861.)
In conducting our review, we must bear in mind that it is the jury’s role to determine the credibility of witnesses and the truth or falsity of the facts upon which a determination depends. (People v. Barnes (1986) 42 Cal.3d 284, 303.) We may not substitute our judgment for that of the jury, and if the evidence reasonably supports the jury’s findings, we may not reverse the judgment merely because we believe that the evidence might also support a contrary finding. (See People v. Ceja (1993) 4 Cal.4th 1134, 1139.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Bean, supra, 46 Cal.3d at pp. 932–933.)
B. Jordan
Jordan asserts that the trial court instructed the jury on only two theories of liability for first-degree murder—“an aiding and abetting, natural and probable consequences theory and coconspirator/aiding and abetting liability for felony murder.” She claims first that there is insufficient evidence from which a jury could conclude that Green committed a premeditated and deliberate murder of Garvin. Jordan then argues that the People failed to present sufficient evidence of her intent to sustain a conviction under either a coconspirator liability theory or an aiding and abetting theory. She concedes that the evidence “at least arguably raises an inference that [she] had knowledge that Green was most likely going to attempt to commit another robbery after the robbery of Alston and Holmes,” but contends that there was no substantial evidence that she intended to agree that Green commit additional robberies and intended that her coconspirators commit more robberies. Jordan contends “the prosecution had to prove that [she] either agreed to commit an additional robbery after the Alston/Holmes robbery and intended that it be committed (for coconspirator liability) or had knowledge that Green was going to commit another robbery and intended to aid and abet it (for aiding and abetting liability).” In her view, the evidence does not suffice to support a finding of the requisite intent.
Contrary to Jordan’s assertions, we conclude there was substantial evidence to support a finding that she was a member of a conspiracy to commit robberies, including the attempted robbery of Garvin, and that she intended that one or more members of the conspiracy commit the robbery of Garvin. On the evening of May 14, 2005, a man and two women robbed Alston and Holmes. The robbery victims testified that as they were walking towards Eddy Street on Leavenworth in San Francisco, two women, one of whom had gold braids, walked up and asked for “E-tabs or something like that.” Alston identified Jordan as one of the women, and a photo of Jordan taken after her arrest showed that she had gold braids. The other woman was identified as Robinson, and the man as Green. During that robbery, Holmes’s chain was stolen, and it was later found in Jordan’s handbag when she was arrested. The attempted robbery and murder of Garvin occurred at Taylor Street and Eddy Street within approximately fifteen minutes, and approximately two blocks, of the robbery of Alston and Holmes. Jordan was apprehended moments later, within a block of the Garvin shooting, in a vehicle fleeing the scene and in the company of the two individuals (Green and Robinson) identified in the Garvin confrontation. The gun used to rob Alston and Holmes and to kill Garvin was found under the driver’s seat of the Camry in front of where Jordan was seated, and DNA found on the gun matched Jordan’s.
From this evidence the jury could certainly have concluded that Jordan was part of a group which had conspired to commit robberies on the evening of May 14, 2005. (See People v. Jones (1986) 180 Cal.App.3d 509, 517 [proof of assent to conspiracy must usually be inferred from facts and circumstances].) She participated directly in the robbery of Alston and Holmes, helping to divert their attention so that Green could approach the victims unnoticed. The cooperation between Jordan and her two confederates permitted the jury to infer that the robbery was preplanned. Because Green and Robinson then immediately set out to commit another robbery while Jordan returned to the getaway car with some of the stolen property, the jury could reasonably conclude that Jordan was not only aware that another robbery would be committed, but that she agreed that it would be committed and intended that her accomplices commit it. The commission of multiple offenses is in no way inconsistent with the existence of a single overall agreement. (People v. Vargas (2001) 91 Cal.App.4th 506, 553–554.) As the gun used to kill Garvin was found under the car seat in front of Jordan and had DNA matching hers on it, the jury could have concluded that she had agreed to conceal the weapon as the group attempted to escape.
Jordan’s arguments in opposition all view the evidence in a light favorable to her. We are required, however, to view the evidence in the light most favorable to the verdicts. (E.g., People v. Guerra, supra, 37 Cal.4th at p. 1129.) For purposes of our review, it does not matter that other, perhaps equally reasonable conclusions might be drawn from the evidence. (See People v. Bean, supra, 46 Cal.3d at p. 933.)
C. Robinson
Robinson makes two alternative arguments. She claims first that there was insufficient evidence to establish that she was the person standing next to Green when Garvin was shot and killed. She then argues that even if there is substantial evidence to support a finding that she was the person with Green, the evidence establishes no more than “her mere presence at the scene.” Robinson is wrong on both counts.
Robinson’s first argument fails because Gail Gatan’s trial testimony placed Robinson at the scene with Green when the latter shot and killed Garvin. While Robinson’s brief on appeal focuses on what were unquestionably inconsistencies in Gatan’s testimony (see fn. 1, ante), it appears the jury credited Gatan’s identification of Robinson. From our perspective, that is the end of the matter, because “[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1181, italics added.) Moreover, Gatan testified that one of the individuals who participated in the attempted robbery of Garvin was wearing “a red hat, like a red beanie,” and as Robinson concedes in her brief, when she was arrested, she was wearing “a red floppy hat or beret.” Nor did Gatan’s testimony stand alone. The People also introduced videotape evidence that showed Robinson at the scene with Green both before and after Garvin’s murder. In short, there was ample evidence to support the jury’s finding that Robinson was the person next to Green when Green killed Garvin.
Robinson’s argument that the evidence shows, at most, her presence at the scene fails for similar reasons. Crispi testified that Green and his companion “were trying to block [Garvin who] was walking north” and that the two “kind of pushed [Garvin] back as he was trying to walk up Taylor.” Gatan said that she saw an “altercation across the street” between “the victim and two other people.” While Crispi did not identify Robinson as the person with Green, a fact Robinson emphasizes, Gatan did, and the jury could therefore have concluded that Robinson and Green physically stopped Garvin and were trying to rob him. This is further supported by testimony from Crispi and Gatan that Green went through Garvin’s pockets after the shooting. Robinson then fled the scene with Green, and the two of them attempted to escape together in the Camry. Thus, contrary to Robinson’s contention, substantial evidence supports the jury’s finding that she participated in the attempted robbery of Garvin.
Our conclusion that substantial evidence supports the felony-murder convictions of both Jordan and Robinson necessarily disposes of their claim that the trial court erred in instructing the jury on felony-murder liability because the theory was factually inadequate.
V. The Trial Court Properly Denied Robinson’s Marsden Motion and Motion for Continuance.
On the day of her sentencing hearing, Robinson made a motion to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). After the trial court denied her Marsden motion, Robinson moved for a continuance so that she could obtain new counsel. The trial court denied that motion as well. Robinson now claims that both rulings were in error. We review the trial court’s denial of both motions under the deferential abuse of discretion standard. (People v. Cole (2004) 33 Cal.4th 1158, 1190 [Marsden motion]; People v. Rhines (1982) 131 Cal.App.3d 498, 506 [motion for continuance to obtain new counsel].) Applying that standard, we conclude that no error occurred.
A. The Marsden Motion
At her Marsden hearing, Robinson articulated a number of complaints about her counsel’s representation, including his alleged lack of communication, his failure to provide certain witnesses she deemed critical to her defense, and her disagreement with him over the grounds for a motion for new trial. On appeal, however, she makes only a single claim of error. She contends the trial court should have inquired into the grounds for the new trial motion and asserts that we should remand so that the trial court may make that inquiry.
During her Marsden hearing, the trial court gave Robinson the opportunity to explain the reasons underlying her request for substitute counsel. Robinson gave a general list of the problems she had with her lawyer, and she specifically raised the issue of the new trial motion. On that score, Robinson said, “And the reason why he wants to do a motion for a new trial, I understand. I would like to do that, too, but not on these grounds. I have other grounds that need to be addressed, which I don’t think he can do because we don’t communicate, and I asked him in June: Could you come and talk to me about these things, and we just can’t go further.” After listening to Robinson’s complaints, the court posed specific questions about the matters that she had raised. The court then asked counsel to respond to Robinson’s criticisms. Addressing the issue of the new trial motion, he conceded that he and Robinson disagreed on a number of things, including the grounds for such a motion. He explained, “She has done a great deal of research, has supplied me with the research, and I have looked at all of it, but she and I view the case differently....” The trial court then gave Robinson an opportunity to respond to counsel’s explanation and asked her whether there was anything else that had not been covered. She essentially declined, and the court denied her Marsden motion.
We conclude the trial court did not abuse its discretion. A criminal defendant is entitled to have her appointed counsel discharged if she can show either that counsel is not providing adequate representation or that defendant and her counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (E.g., People v. Cole, supra, 33 Cal.4th at p. 1190.) To determine whether a defendant can make such a showing, “the trial court must permit the defendant to explain the basis of [her] contention and to relate specific instances of counsel’s inadequacy.” (Ibid.) The record on appeal leaves us with no doubt that the trial court fulfilled its responsibility in this regard. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 95 [“The record demonstrates that the court provided defendant with ample opportunity to detail his concerns and state the grounds for his motion. After hearing defendant’s complaints, the trial court allowed counsel to respond. Trial counsel addressed defendant’s specific concerns by describing what he had done in the case....”].) The trial court gave Robinson the opportunity to explain why she thought her counsel’s representation was inadequate. It questioned her about the matters she raised and permitted her attorney to respond. After hearing counsel’s explanation, the trial court solicited Robinson’s views on what the attorney had said.
Despite this careful inquiry, Robinson suggests the hearing was inadequate because the court did not explore the grounds on which she would have filed a motion for new trial. But as the California Supreme Court has explained, “a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.” (People v. Hines (1997) 15 Cal.4th 997, 1025.) Our high court has held that if a trial court has afforded a defendant “ample opportunity to set forth her complaints regarding counsel’s representation” and has “allowed counsel to respond,” the trial court is “not required to do more.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) Robinson cites no authority for her argument that the trial court was required to probe the grounds on which she would have filed a motion for a new trial, and as our discussion indicates, the controlling case law is to the contrary. In this case, the trial court conducted a sufficient inquiry into Robinson’s complaints about her counsel.
The burden of showing that new counsel should be appointed rested on Robinson. (People v. Smith (1993) 6 Cal.4th 684, 695, 696.) As the trial court recognized, the disagreement between Robinson and her attorney regarding the grounds for a new trial motion was essentially one over “tactics, which, by itself, is insufficient to compel discharge of appointed counsel.” (People v. Cole, supra, 33 Cal.4th at p. 1192; see also People v. Welch, (1999) 20 Cal.4th 701, 728 [“A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.”].) As a consequence, the trial court could properly find that Robinson did not meet her burden of showing that her representation was inadequate or that she and her counsel were embroiled in an irreconcilable conflict.
Although Robinson does not raise on appeal her complaints about her counsel’s alleged lack of communication and failure to call certain witnesses, we note that such claims would not have sufficed to establish a need for substitute counsel. (See People v. Welch, supra, 20 Cal.4th at pp. 728–729 [disagreements over trial strategy do not constitute “irreconcilable conflict” requiring substitution of counsel]; People v. Silva (1988) 45 Cal.3d 604, 622 [“the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence”].)
B. The Motion for Continuance
After the trial court denied Robinson’s Marsden motion, counsel informed the court that his client wanted to hire new counsel, and he moved for a continuance so that she could hire a new attorney. The trial court asked Robinson for the name of her new attorney, and she responded, “I’m going to go and do that research right now.” Her attorney then submitted on the issue, and the trial court stated, “the jury returned this verdict June 28th. This is January 8th. Time for sentence is here. [¶] I’m going to sentence her. It’s dilatory, as far as I’m concerned. She doesn’t have the name of an attorney, there’s no reasonable expectation she will have one if I give her a continuance.” Robinson’s oral requests for a continuance of two weeks and one week were both denied.
Robinson contends the trial court’s denial of her request for a continuance violated her Sixth Amendment right to counsel. We disagree. As noted above, the trial court’s decision to grant or deny a continuance to permit a defendant to retain different counsel is a matter of discretion (People v. Crovedi (1966) 65 Cal.2d 199, 206), and the court may deny a continuance where the defendant is “unjustifiably dilatory” in obtaining counsel. (People v. Byoune (1966) 65 Cal.2d 345, 346.) “The resolution of the issue depends upon the circumstances of each case.” (People v. Rhines, supra, 131 Cal.App.3d at p. 506.) Of particular relevance are the reasons presented to the trial court at the time the requested continuance is denied. (People v. Byoune, supra, at p. 347, citing Ungar v. Sarafite (1964) 376 U.S. 575, 589.)
Several factors persuade us that Robinson has failed to carry her burden of demonstrating an abuse of the trial court’s discretion. (People v. Rhines, supra, 131 Cal.App.3d at p. 506.) First, she did not request a continuance until her January 8, 2007 sentencing hearing, although she claimed to have been dissatisfied with her representation since at least the previous June. Indeed, Robinson complained at her Marsden hearing that her lawyer had “failed to communicate with [her] practically throughout the whole procedure....” Second, when she made her request for a continuance, Robinson had not yet retained other counsel, nor had she even identified a particular attorney whom she wished to retain. This factor also supports the trial court’s denial of her request for a continuance. (See People v. Johnson (1970) 5 Cal.App.3d 851, 858–859 [no abuse of discretion in denial of request for continuance where defendant had identified private counsel but counsel had never contacted the court]; People v. Farley (1968) 267 Cal.App.2d 214, 220–221 [no abuse of discretion where “Defendant told the court he did not have private counsel but would like to ‘get’ one and admitted that he had not tried to obtain a private lawyer”].) Finally, there is no evidence in the record that Robinson was financially able to afford private counsel, another factor supporting the trial court’s decision to deny her request. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367 [“There is no evidence defendant attempted to retain counsel, or had even taken steps to secure funds to hire private counsel”]; see People v. Crovedi, supra, 65 Cal.2d at p. 207 [“the courts should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney,” italics added].) In fact, at sentencing, the trial court specifically found that Robinson did not have the present ability to pay for the cost of appointed counsel. As the People correctly argue, the “participation of retained counsel was wholly speculative,” and the trial court cannot be faulted for refusing to grant a continuance on such “nebulous grounds.” (People v. Johnson, supra, 5 Cal.App.3d at p. 859.)
VI. Substantial Evidence Supports the Imposition of Separate Sentences on Green and Robinson for Murder and Attempted Robbery.
Robinson contends the trial court violated section 654 by imposing a sentence of life without parole for her conviction of the murder of Garvin (count 1) and separately imposing a concurrent sentence for her conviction of attempted robbery (count 2). Green was also concurrently sentenced on both convictions and joins in this argument. Robinson asserts that “[b]oth the murder charged in count 1 and attempted robbery were part of a single course of indivisible conduct carried out to fulfill a single objective,” but she does not elaborate further on this argument. The People contend that substantial evidence supports the trial court’s finding that the shooting of Garvin was not merely incidental to the attempted robbery. In his reply brief, Green, joined by Robinson, argues that separate sentences are improper because the evidence shows the attempted robbery was not completed when Garvin was shot, and thus the murder and attempted robbery were carried out to achieve a single objective. We hold that substantial evidence supports the trial court’s imposition of separate sentences.
When it sentenced Green, the trial court “note[d] that the crimes charged in Counts 1 and 2 and their objectives were predominantly independent of each other; although, I’m ordering them to run concurrent, specifically the murder and the attempted robbery of Carlos Garvin.” At Robinson’s sentencing hearing more than three months later, the trial court did not make a specific finding that the murder of Garvin was incidental to the attempted robbery. Addressing Robinson’s sentences for the crimes alleged in counts one and two, the trial court stated, “this is really surplusage, whether or not I find the objectives are primarily independent of each other, they’re going to run concurrently.”
Section 654, subdivision (a) provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” This provision “is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. [Citations.]” (People v. Bauer (1969) 1 Cal.3d 368, 376.) A defendant’s intent and objective are factual questions for the trial court (People v. Coleman (1989) 48 Cal.3d 112, 162), and its findings must be sustained on appeal if they are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730–731.)
On the record before us, we cannot say the trial court’s finding is unsupported by substantial evidence. After they completed the robbery of Alston and Holmes, Green and Robinson accosted Garvin, blocking him as he walked down the street and “kind of push[ing him] back.” There was an altercation or a struggle, and then Garvin was shot. From this evidence, the trial court could reasonably infer that Green and Robinson had attempted to rob Garvin but that the latter had refused to surrender his property to them. After Garvin’s apparent refusal, Green then shot the victim at point-blank range. The trial court could properly find the attempted robbery was complete once Garvin declined to give Green and Robinson his property. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299 [attempted robbery was complete where victim refused to hand over his money, although victim did not attempt physically to resist his armed attacker].) “It was only after this that [Green], from point blank range, determined for his own purposes to punish [Garvin], or to assuage his own thwarted desires by seeking other and different gratification, by firing directly into [Garvin’s] chest.” (Id. at pp. 1299–1300.) The evidence supports the trial court’s conclusion that the objectives of the crimes charged in counts 1 and 2 were primarily independent of each other. (See People v. Cleveland (2001) 87 Cal.App.4th 263, 271–272 [upholding separate sentences for robbery and attempted murder where robbery involved use of more force than required to achieve its objective]; People v. Macias (1982) 137 Cal.App.3d 465, 469–470 [separate sentences properly imposed where defendant stabbed victim after she resisted his attempt to force her to assist him in escaping from correctional facility; stabbing after refusal showed separate criminal intent].) Consequently, the separate sentences imposed for the count 1 murder and the count 2 attempted robbery do not violate section 654, subdivision (a).
Citing Cunningham v. California (2007) 549 U.S. 270, Robinson also contends that the trial court’s imposition of consecutive sentences on counts 3 and 4 violated her constitutional right to jury trial. Robinson argues that “to sentence a defendant to consecutive terms, a court must necessarily determine facts that were neither presented to, nor found true beyond a reasonable doubt by a unanimous jury.” She asserts that this violated her Sixth Amendment right to a jury trial because it permits the trial court to impose consecutive sentences based on facts or factors neither found by the jury nor proved true beyond a reasonable doubt. Robinson acknowledges that the California Supreme Court has already rejected the argument she makes here (People v. Black (2007) 41 Cal.4th 799, 820-823), and concedes that we are bound by our high court’s decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but states that she “wishes to preserve this issue for further review.” We agree with Robinson that we must follow People v. Black, supra, 41 Cal.4th 799, and we therefore reject her argument. (See also Oregon v. Ice (2009) 555 U.S. ___, ___ [129 S.Ct. 711, 717–719] [Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, finding of facts necessary to imposition of consecutive, rather than concurrent, sentences for multiple offenses].)
VII. The Sentences for Conspiracy Must Be Stayed.
Jordan, joined by Green and Robinson, contends section 654 required the trial court to stay the sentence for conspiracy (count 5), because the conspiracy had no objective independent of the substantive offenses of which appellants were convicted. She asserts that the judgment must be modified to stay the sentence for conspiracy. The People respond that there is substantial evidence to support the trial court’s implied finding that the conspiracy had an objective apart from the robberies and attempted robbery for which appellants were punished. In the People’s view, the trial court could infer from the evidence that appellants had conspired to commit “an evening full of robberies” and would have done so had they not been captured after the murder of Garvin. Our review of the case authority on this issue convinces us that appellants are correct.
Section 654’s prohibition against multiple punishments makes it improper “to sentence a defendant for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for conspiracy as well as for that offense. [Citation.]” (In re Cruz (1966) 64 Cal.2d 178, 180–181.) Thus, as relevant here, section 654 makes punishment for both the conspiracy and the underlying substantive offenses impermissible when the conspiracy contemplated only the acts performed in the substantive offenses. (People v. Ramirez (1987) 189 Cal.App.3d 603, 615; see People v. Lawley (2002) 27 Cal.4th 102, 171 [defendant may not be punished for both murder and conspiracy to commit murder where murder was sole object of the conspiracy]; In re Cruz, supra, 64 Cal.2d at p. 181 [defendant may not be punished for conspiracy to commit grand thefts where conspiracy had no objective other than grand thefts of which defendant was convicted].) On the other hand, “[p]unishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses. [Citations.]” (People v. Ramirez, supra, at pp. 615–616; see People v. Vargas, supra, 91 Cal.App.4th at pp. 570–571 [consecutive prison terms for murder and conspiracy to commit murder do not violate § 654 where defendant’s prison gang conspired to kill not only victim of charged offense but other persons as well, in addition to gang’s overriding conspiracy].)
Without questioning the rule that punishment may be imposed for both conspiracy and substantive offenses if the conspiracy’s objectives extend beyond the specific substantive offenses charged, Green argues that the rule applies only in cases in which the record contains evidence of additional contemplated, uncompleted, or uncharged substantive offenses. We agree. The reported cases that have upheld punishment for both conspiracy and the underlying substantive offenses have all cited evidence of additional offenses beyond those of which the defendants were convicted. For example, in People v. Moringlane (1982) 127 Cal.App.3d 811, a sentence for both murder and conspiracy to commit murder was upheld because the conspiracy had two intended victims (Silva and Rico), but the defendant was convicted of the substantive offense of murdering a third person (McDowell). (Id. at p. 819.) Similarly, in People v. Amadio (1971) 22 Cal.App.3d 7, the court held that defendants could be punished separately for both conspiracy and substantive offenses of receiving stolen property because the list of stolen property in the conspiracy count was broader than that in the receiving stolen property counts. (Id. at p. 15.) The court in People v. Collins (1966) 242 Cal.App.2d 626 upheld separate punishments for conspiracy to commit theft and theft because the prosecution presented evidence of other thefts that were not charged. (Id. at pp. 630, 640.) The People have referred us to no case in which a conspiracy was found to have objectives that were broader or different from the specific substantive offenses where there was no evidence presented of other contemplated or uncharged offenses. Accordingly, we conclude that appellants’ sentences for conspiracy must be stayed.
We also note that no overt acts were alleged or proven here relating to any other offenses.
VIII. Jordan and Robinson Are Entitled to Modification of Their Abstracts of Judgment.
Jordan, joined by Robinson, argues that her abstract of judgment regarding her indeterminate sentence must be modified to delete the statement that the indeterminate sentence for her count 1 murder conviction is to be served after completion of the determinate sentences imposed for counts 3, 4, 5, and 8. The People agree with Jordan’s reasoning and concede she is entitled to the modification she seeks. They further agree that Jordan’s argument applies to Robinson, but in a somewhat different manner. As we explain below, we will order the abstracts of judgment modified.
Each appellant has two abstracts of judgment, one for determinate sentences and one for indeterminate sentences.
A. Jordan
The trial court imposed an indeterminate sentence of 25 years to life on Jordan for the count 1 murder conviction, plus one additional year each for the firearm and prior prison term findings. It then sentenced Jordan to: a three-year term for the count 3 robbery conviction, “to be served concurrently with the sentence in Count One;” a three-year term for the count 4 robbery conviction, “to be served concurrently with the sentences in Counts One and Three;” a three-year term on the count 5 conspiracy conviction, “to be served concurrently with the sentences in Counts One, Three and Four;” and a two-year term on the count 8 conviction for illegal possession of a firearm by an ex-felon, “to be served concurrently with the sentences in Counts One, Three, Four and Five.” After making the order for concurrent terms, the court then contradictorily ordered “the determinate sentences imposed in Counts Three, Four, Five and Eight to be served before the indeterminate term for sentence imposed in Count One, pursuant to Penal Code section 669.” (Italics added.)
On Jordan’s abstract of judgment for her determinate sentences, boxes indicating concurrent sentencing for counts 3, 4, 5, and 8 are all checked. On the following page, the abstracts states, “The determinate sentences in counts 3, 4, 5, 8 are all concurrent to the indeterminate sentence in count 1.” But the first page of the abstract of judgment for her indeterminate count 1 murder conviction also contains the statement, “Sentence in CNT1 to be served after serving determinate sentences in CNT 3, 4, 5, 8.” On the next page, the abstract again states, “The determinate sentences in counts 3, 4, 5, 8 are all concurrent to the indeterminate sentence in count 1.”
Section 669 provides in pertinent part: “Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person’s eligibility for parole....” (§ 669, italics added.) Here, the trial court first ordered the determinate terms to run concurrently with the life term, and therefore the quoted portion of section 669 does not apply. Accordingly, we will order the trial court to modify Jordan’s abstract of judgment for her indeterminate sentence to delete the statement: “Sentence in CNT1 to be served after serving determinate sentences in CNT 3, 4, 5, 8.”
B. Robinson
The trial court sentenced Robinson to 25 years to life on the count 1 murder conviction, doubled that term to 50 years to life because of Robinson’s prior strike, and added consecutive terms of five years for her prior serious felony conviction and one year for the finding that a principal was armed during the murder, for a total of 56 years to life. Because the jury found true the special circumstance that Robinson committed the murder during the commission of an attempted robbery, the court ordered that the sentence for count 1 be served without possibility of parole. On count 2, the court ordered Robinson to serve a concurrent four-year term, staying sentence on the attendant arming and prior conviction findings. The trial court then imposed a consecutive two-year term for the robbery conviction in count 3 and a two-year term for the count 4 robbery conviction, the latter term to run concurrently with the sentence on count 3. The court sentenced Robinson to six years for the count 5 conspiracy conviction and “order[ed] this to run concurrent with all the rest of the sentences.” Finally, the court imposed a four-year sentence for the count 6 possession of a firearm, which it ordered to run “concurrent with all the other counts.”
The trial court again then ordered “the determinate sentence imposed on all these counts to be served before the indeterminate sentence which was imposed in Count One pursuant to Penal Code Section 669.” The clerk’s minutes state, “THE COURT ORDERS: That the determinate terms imposed in Counts 2, 3, 4, 5 & 6 shall be served first before the indeterminate sentence pursuant to 669PC[.]” But neither of Robinson’s abstracts of judgment reflects a section 669 order. Because the trial court ordered the sentences on counts 2, 5, and 6 to run concurrently with the sentence on count 1, Robinson’s sentences on those counts cannot be served prior to the indeterminate sentence on count 1. The trial court also ordered the concurrent two-year term imposed for counts 3 and 4 to run consecutive to the sentences on counts 1, 2, 5, and 6.
We therefore agree with the People that Robinson’s abstracts of judgment should be modified to specify that her count 1 sentence of life without possibility of parole, and the concurrent terms on counts 2, 5, and 6, shall not begin to run until after completion of the two-year sentence imposed on counts 3 and 4. We order the trial court to modify the abstracts of judgment accordingly.
We note that in her reply brief, Robinson does not contest the People’s proposed modification of her abstracts of judgment.
IX. All Appellants Are Entitled to Modification of Their Abstracts of Judgment Regarding Restitution.
Jordan argues that the trial court erroneously imposed a restitution fine in excess of the statutory maximum and that the clerk added an additional amount to the restitution order in her abstracts of judgment. She contends we should remand this matter to the trial court for a new sentencing hearing at which an appropriate restitution fine may be set. Robinson joins in this argument. The People agree that Jordan and Robinson are entitled to modification of their abstracts of judgment. In addition, although Green did not raise the issue in his opening brief, the People concede that the law also requires modification of his abstracts of judgment. After outlining the restitution statutes and our standard of review, we will address the modifications appropriate for each appellant separately.
As discussed post, restitution errors occur on both the determinate and indeterminate abstracts of judgment for each appellant.
A. The Restitution Statutes and Standard of Review
Under section 1202.4, subdivision (b)(1), in every case in which a person is convicted of a crime, the trial court must impose “a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” The amount of the restitution fine is set at the discretion of the trial court and is to be “commensurate with the seriousness of the offense....” (§ 1202.4, subd. (b)(1).) The statute specifies that the restitution fine “shall not be less than two hundred ($200) dollars, and not more than ten thousand dollars ($10,000), if the person is convicted of a felony....” (Ibid.) In People v. Blackburn (1999) 72 Cal.App.4th 1520, the Fourth District held that $10,000 is the maximum fine that may be imposed under section 1202.4, subdivision (b)(1), regardless of the number of counts or victims involved. (Id. at p. 1534.)
Section 1202.4 also requires the trial court to order direct restitution to the victim’s family. (§ 1202.4, subds. (a)(3)(B), (f), (k)(1), (3).) Where the victim’s family has suffered “economic loss as a result of the defendant’s conduct” (§ 1202.4, subd. (f)), the court shall order “full restitution.” (§ 1202.4, subd. (g).) If the amount of the victim’s economic losses cannot be ascertained at the time of sentencing, “the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined.” (§ 1202.46.)
In addition to the restitution fine required by section 1202.4, subdivision (b), section 1202.45 mandates the imposition of an additional parole revocation restitution fine. (§ 1202.45.) At the time of appellants’ sentencing, that section provided in relevant part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation fine shall be suspended unless the person’s parole is revoked.” (§ 1202.45, as amended by Stats. 2004, ch. 223, § 4.)
Section 1202.45 was amended by Statutes 2007, chapter 302, section 15 to include language not relevant to the issues raised in these appeals.
We review the trial court’s restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663, 665.) On appeal, we presume that the trial court’s order is correct, and on matters as to which the record is silent, we must indulge all intendments and presumptions in support of the order. (Id. at p. 666.) Despite this generally deferential standard of review, “[a] restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court’s discretion.” (People v. Woods (2008) 161 Cal.App.4th 1045, 1049.
B. Jordan
When it sentenced Jordan, the trial court did not set a specific amount of restitution to be paid to Garvin’s family, but it retained jurisdiction over that issue in the event that Garvin’s family made a claim for a particular sum. The court ordered Jordan to pay a $40,000 fine to the State Restitution Fund under section 1202.4, subdivision (b)(1). The trial court then stated, “The minimum fine on Count Four is $500. So I will set an amount of $40,500; that is $10,000 times the four felony counts, as well as Count Four, $500.” The court also imposed a parole revocation restitution fine under section 1202.45 “in the same amount as that just imposed,” or $40,500.
The clerk’s minutes of the sentencing hearing record the imposition of a $40,500 restitution fine under section 1202.4, subdivision (b)(1), but they also state that “[d]efendant shall pay a restitution fine in the amount of $200 pursuant to PC 1202.4. An additional restitution fine in the same amount is imposed pursuant to PC 1202.45. This additional restitution fine shall be suspended unless the person’s parole is revoked.” Jordan’s abstracts of judgment show the $40,500 restitution fine, a $200 fine “per PC 1202.4(b) forthwith per PC 2085.5,” and a $200 fine “per PC 1202.45 suspended unless parole is revoked.”
Jordan argues, and the People concede, that the trial court’s section 1202.4, subdivision (b)(1) restitution fine should not have exceeded $10,000 under People v. Blackburn, supra, 72 Cal.App.4th at page 1534. Jordan also argues, and the People do not contest, that the court clerk had no authority to impose a second $200 restitution fine. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387–388.) Jordan asks us to remand the matter to the trial court for a new sentencing hearing so that the trial court may set “a fair restitution fine amount” and correct the abstract of judgment. The People assert that remand is unnecessary because the record makes clear that the trial court would not impose anything less than the maximum statutory restitution fine of $10,000. Jordan responds that remand is required because the trial court did not understand the scope of its sentencing discretion.
We agree that remand is unnecessary. An appellate court may decline to remand for resentencing “where doing so would be an idle act that exalts form over substance.” (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) This is true even in cases in which a trial court misunderstands the scope of its discretion. (Ibid.) Here, the trial court attempted to impose the maximum fine permissible on each of four felony counts of which Jordan was convicted. In addition, the trial court stated its reasons for “setting the amount in excess of the minimum fine.” It noted that Jordan would have the ability to pay because she would presumably be employed while in prison. It then referred to the seriousness of the offenses, which “involve[d] murder and the robbery of three separate individuals.” The court continued by explaining that it had also considered the letter it had received from Garvin’s mother which “notes not just her personal loss of the victim to herself, as losing a child, but notes the loss to the victim’s sister; the fact he [Garvin] has two young children who will now have to go through life with no father in their life....” This record demonstrates clearly to us that the trial court would not impose anything less than the maximum $10,000 restitution fine. In these circumstances, we will simply order modification of the abstracts of judgment. (See People v. Blackburn, supra, 72 Cal.App.4th at pp. 1534, 1536.)
Jordan’s abstracts of judgment should therefore be modified to reduce the section 1202.4, subdivision (b)(1) restitution fine to $10,000. The abstracts should also be modified by striking the additional $200 fine “per PC 1202.4(b) forthwith per PC 2085.5.” Finally, the abstracts should be modified to reflect that the parole revocation restitution fine is $10,000, rather than $200, because section 1202.45 requires that the parole revocation restitution fine be set at “the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (See People v. Smith (2001) 24 Cal.4th 849, 852, 854 [Court of Appeal may correct erroneous amount of § 1202.45 fine without remanding for further proceedings in presence of defendant].)
Jordan has not addressed the amount of the parole revocation restitution fine in her briefs.
C. Green
At Green’s sentencing hearing, the trial court ordered Green “to pay a restitution fine to the State Restitution Fund in the amount of $50,000. That is $10,000 times the five felony counts for which he was convicted.” The court properly recognized that it could not impose a parole revocation fine because Green’s sentence did not provide for a period of parole. Although required to do so by section 1202.4, the trial court did not order Green to pay direct restitution to the victims, and the People did not object to this oversight.
Because the prosecutor did not object below, we may not impose the restitution fine on appeal. (People v. Tillman (2000) 22 Cal.4th 300, 303.)
The clerk’s minutes note the imposition of the $50,000 restitution fine under section 1202.4, subdivision (b)(1), and in addition they state that “[d]efendant shall pay a restitution fine in the amount of $200 pursuant to PC 1202.4. An additional restitution fine in the same amount is imposed pursuant to PC 1202.45. This additional restitution fine shall be suspended unless the person’s parole is revoked.” Green’s abstract of judgment regarding his determinate sentences shows: (1) the $50,000 section 1202.4, subdivision (b)(1) restitution fine, (2) a $200 fine “per PC 1202.4(b) forthwith per PC 2085.5,” and (3) a $200 fine “per PC 1202.45 suspended unless parole is revoked.” Green’s abstract of judgment for his indeterminate sentence shows the latter two restitution fines.
The People concede that the trial court’s imposition of a section 1202.4, subdivision (b)(1) restitution fine in excess of $10,000 was legal error under People v. Blackburn, supra, 72 Cal.App.4th at page 1534. They assert that the record makes clear that the trial court would not have imposed a fine of less than $10,000, and Green does not disagree. We will therefore order Green’s abstracts of judgment modified to reduce the restitution fine imposed under section 1202.4, subdivision (b)(1) to $10,000 and to strike the erroneous $200 parole revocation fine.
D. Robinson
In sentencing Robinson, the trial court stated that she would be ordered to pay restitution in accordance with section 1202.4, subdivision (a)(3)(B), but it declined to set any specific amount at that time. It did, however, retain jurisdiction over the issue. The court imposed a section 1202.4, subdivision (b)(1) restitution fine of $10,000, and it correctly noted that no parole revocation fine could be imposed because Robinson’s sentence did not include a period of parole.
Despite the trial court’s oral pronouncement, both of Robinson’s abstracts of judgment reflect not only the $10,000 restitution fine actually imposed by the court but also a $1,200 fine “per PC 1202.4(b) forthwith per PC 2085.5” and a $1,200 fine “per PC 1202.45 suspended unless parole is revoked.” The additional $1,200 fines are legally unauthorized, and the People concede that they must be stricken. (See § 1202.45 [only defendant “whose sentence includes a period of parole” liable for parole revocation restitution fine]; People v. Blackburn, supra, 72 Cal.App.4th at p. 1534 [restitution fine under § 1202.4, subd. (b)(1) may not exceed $10,000].) In addition, we note that where the abstracts of judgment contradict the trial court’s oral ruling, the oral pronouncement is controlling. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415–1416; see also People v. Zackery, supra, 147 Cal.App.4th at pp. 388–389.) We will therefore order the trial court to modify Robinson’s abstracts of judgment to delete the unauthorized $1,200 fines.
Disposition
The judgments are affirmed. In addition, the trial court is directed to stay the sentences of all appellants on the count 5 conspiracy convictions and to modify appellants’ abstracts of judgment in accordance with this opinion.
In a separate petition for writ of habeas corpus, Appeal No. A121967, appellant Jordan has claimed that her trial counsel provided ineffective assistance. We have denied that petition by separate order filed this date.
We concur: Simons, Acting P. J., Needham, J.
Gatan also admitted that she had testified differently on some matters at the preliminary hearing. There, she had identified Green as the person who was wearing the red hat, while at trial she testified that Robinson wore the red hat. At trial, she incorrectly claimed that at the preliminary hearing she had identified Robinson as the person wearing the red hat. Later in her trial testimony, however, she admitted that at the preliminary hearing she had said that Robinson was definitely not the person in the red hat. She also admitted to her confusion over the gender of the person wearing the red hat. Gatan testified at trial that she initially thought the two individuals who fled the scene were men. She acknowledged that at the preliminary hearing she had identified Grady as the person who kneeled over the victim and had identified Green as the person in the red hat, because she had expected to identify two African-American males, and Grady and Green were the only two African-American men in the courtroom wearing orange.