Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03831
HULL, J.Following a home invasion robbery in which one of the inhabitants was killed, defendant Clark Robinson was convicted of murder (Pen. Code, § 187) and robbery (id., § 211) and was found to have used a firearm in connection with each offense (id., § 12022.53, subd. (b)). (Further undesignated section references are to the Penal Code.) He was sentenced on the murder count to life without the possibility of parole, plus 10 years for the firearm enhancement. Sentence on the robbery count was stayed pursuant to section 654.
Defendant appeals contending: (1) the trial court erred in admitting into evidence a prosecution witness’s prior inconsistent statements; (2) the trial court erred in denying defendant’s motion for new trial based on newly discovered evidence; (3) an agreement between the prosecution and a witness violated defendant’s due process rights; (4) an instruction on prior inconsistent statements was incomplete; (5) another instruction on statements made in connection with a conspiracy was not supported by the evidence; (6) the prosecutor committed misconduct in arguing guilt by association; (7) the convictions are not supported by substantial evidence; and (8) a parole revocation fine listed in the abstract of judgment must be stricken.
We conclude defendant has forfeited a number of his arguments for purposes of appeal, and the remaining arguments are without merit. We therefore affirm the judgment.
Facts and Proceedings
On Thursday, May 5, 2005, in the early evening hours, R.T. was hanging out in the Oak Park area of Sacramento when he overheard an acquaintance, Markus Mayers, and another man, Gerald Ellis, say something about doing a “lick” on the “pill man.” They asked R.T. to participate, but he declined.
In the parlance of the street, a “lick” is a robbery. The “pill man” was an individual named Donald Willis, who lived in Sacramento and purportedly sold pills containing methylenedioxymethamphetamine, commonly known as Ecstasy.
Mayers had been an acquaintance of Willis for many years and had visited his house perhaps a month earlier. He and Ellis mentioned that Willis used to live in their neighborhood but had gotten money and began acting “funny” and “big headed.”
R.T. hitched a ride to Oakland in Ellis’s car with Mayers, Ellis and a fourth man. They arrived at 77th Avenue in Oakland around 10:00 or 11:00 p.m. and got out of the car. Later, Mayers and Ellis told R.T. they were going back to Sacramento, but R.T. decided to stay in Oakland. In the early morning hours of Friday, May 6, R.T. saw Mayers and Ellis get back into the car with Carlos Foster and defendant and drive away.
At the time, Willis was living at 1019 Clinton Road in Sacramento with his girlfriend, A.J., and A.J.’s daughter D. Also present in the home that night were D.L. and D.L.’s boyfriend, R.S.
At approximately 5:30 a.m., on May 6, someone fired a shotgun into the side of the Willis home just below the master bedroom window. A.J. awoke to see a man climbing through the bedroom window holding a “Rambo gun” (the first intruder). The first intruder was followed closely by two others, the second intruder and the third intruder. The first and second intruder wore ski masks, but not the third intruder. The third intruder was armed with a handgun.
The first intruder immediately climbed onto the bed and began beating Willis on the head with his gun and asking where Willis kept his money. The second intruder walked through the bedroom and out the door, while the third intruder remained with the first. The first intruder eventually got off of Willis and searched through Willis’s pants, which Willis had left on the floor. The first intruder then forced Willis to get up and he and the third intruder walked Willis into a nearby bathroom.
The third intruder remained with Willis while the first intruder searched the home. Later, the first intruder came back into the bedroom and asked A.J. for Willis’s car keys. A.J. gave him the keys, and the first intruder walked out the front door of the house, followed at a distance by A.J. The first intruder ordered A.J. back into the house. The first intruder came back into the house and asked Willis where he was hiding the rest of the money. Willis directed him to a dresser drawer. The first intruder told A.J. to get the money from the drawer, and she did so. A little while later, the first intruder walked past the bathroom, said something to the third intruder, and then walked out of the house. The third intruder shot Willis in the head with the handgun and then he too left.
Willis was pronounced dead at the house at 6:05 a.m.
A.P. lived near Willis. That morning he was letting his cats outside when he heard a loud bang followed by screams. He heard footsteps and saw someone run past his house. A.P. then observed a car go by that matched the description of the one in which R.T. had traveled to Oakland. It was accelerating rapidly and had three or four people inside.
At the time of the murder, Ellis was living in Sparks, Nevada. C.B. is Ellis’s mother-in-law, Mayers’s aunt and the aunt of defendant’s sister. On the morning of May 6, C.B. was babysitting Ellis’s daughter at his house, because Ellis was supposed to be gone for a couple of days. However, at approximately 8:30 a.m., she saw someone walk into the back yard, followed by Mayers and defendant. She then saw Ellis walk into the house. At that point, C.B. departed. C.B. later identified the first person who came into the yard as Foster.
Later that day, Ellis borrowed a car from L.C., paying him $100, and telling L.C. he needed the car to pick up his family in Sacramento. Ellis told L.C. he would return the car later that evening. L.C.’s wife accompanied L.C. and Ellis to Ellis’s house to turn over the car. While there, she observed defendant, Mayers and a third man she did not recognize.
Ellis did not return the car as promised.
The next day, Oakland police officers arrested R.T. after they found him in possession of a handgun. R.T. claimed Foster had given him the gun seconds earlier.
On Sunday, May 8, at approximately 10:39 a.m., police officers discovered L.C.’s car parked on 76th Avenue in Oakland. Inside were defendant and Foster, both of whom were asleep. The officers approached and observed a handgun in the waistband of Foster’s pants and a shotgun between defendant’s legs. The officers secured the weapons and arrested the two men. They found a magazine clip and 13 bags of marijuana in the car and $587 on Foster. Defendant gave the officers a false name.
It was later determined a shotgun shell discovered in the Willis residence after the murder was fired from the shotgun found with defendant, and the bullet that killed Willis was fired from the handgun found in Foster’s waistband.
A.J. later identified Foster in a photographic lineup as the third intruder.
Mayers, Ellis, Foster and defendant were charged with murder and robbery. Foster was also charged with enhancements for having fired a firearm causing great bodily injury, defendant and Ellis were charged with enhancements for personally using a firearm in connection with the offenses, and Mayers was charged with enhancements for being armed. The four were tried together before three juries, one each for Mayers and Ellis and one for defendant and Foster.
As noted above, defendant was convicted as charged. He was sentenced on the murder count to life without the possibility of parole plus 10 years for the weapon enhancement. The term on the robbery count was stayed pursuant to section 654.
Discussion
I
Admissibility of R.T.’s Prior Statement
In May 2005, Detective Ron Garverick was working for the Sacramento County Sheriff’s Department and was involved in the investigation of the Willis murder. On May 8, Garverick drove to Oakland and interviewed R.T., who had been arrested the night before for possession of a firearm and was still in custody. In that interview, R.T. identified Willis as the “pill man” and volunteered that he knew what happened in connection with Willis’s murder. In particular, R.T. said he knew “what little circle did it.” R.T. said he overheard someone in Sacramento say they were going to “‘lick the pill man’” and wanted him to participate. R.T. said three or four people were involved, including Mayers and Ellis. R.T. said he rode to Oakland with Mayers and Ellis and saw them leave Oakland later that night with defendant and a “little short dude with dreds” named Carlos. R.T. said he always saw defendant and Carlos together and they always had guns. Finally, R.T. said the gun he was arrested with had been given to him seconds earlier by Carlos.
Sometime thereafter, a defense investigator interviewed R.T. in San Quentin Prison. R.T. told the investigator that Mayers did not say anything about doing a “lick.” R.T. said he lied to the police when he said otherwise on May 8 and further said he was high on Ecstasy at the time of that interview.
After learning that R.T. had partially recanted his May 8 statement, Garverick traveled to San Quentin to interview him again. By this time, Garverick was working as an investigator for the Sacramento County District Attorney and was accompanied by a deputy district attorney. During this interview, R.T. told Garverick that after he gave his first statement to the authorities, his “name’s fucked up.” R.T. complained that he had been told earlier the police would help him with outstanding warrants but they had done nothing. Garverick asked R.T. if the things he said earlier were true, and R.T. refused to say anything. R.T. asked what they were going to do for him and said he could help them if they helped him. R.T. eventually said Mayers had nothing to do with the murder and he would give Mayers an alibi.
At trial, R.T. testified that he entered into an agreement with the district attorney whereby a charge for violating probation would be dismissed if he testified truthfully in this matter. Part way into his testimony, R.T. asked to speak with his attorney. Thereafter, the prosecutor put on the record that R.T. was concerned he would be prosecuted for having made false statements to police investigators. The prosecutor indicated R.T. would not be prosecuted for anything he said to investigators if he testified truthfully at trial.
R.T. thereafter testified he rode to Oakland with Mayers and Ellis but that, after they arrived, Mayers and Ellis walked off and he never saw them again that night. R.T. testified he saw defendant that night, spoke with him briefly, and then saw defendant walk away. He did not see him again until the next evening. R.T. acknowledged receiving the handgun from Foster seconds before R.T. was arrested.
R.T. testified he did not tell police officers the truth when he was first interviewed. He said he lied about knowing the “circle” that did the “lick” on the “pill man.” He said that while he heard someone say something about doing a “lick,” it was not Mayers. Nor did Mayers ask him to participate. R.T. testified he told the officers Mayers was involved because they offered him money for names. R.T. said he told the officers three or four people were involved, because they showed him four pictures at the time. R.T. said he lied to the police because they offered him money, he was trying to get out of jail, and he was high on Ecstasy. R.T. said he smuggled drugs into the jail in his socks and had taken them before the interview. Although R.T. later testified he saw defendant and Foster leave in the car with Mayers and Ellis, he also said he did not see Mayers and Ellis drive away. R.T. said he lied to the police that he saw defendant and Foster drive off with Mayers and Ellis, because that is what the officers wanted to hear. R.T. testified that, during the first interview, he was trying to get information about the incident from the officers so he could feed it back to them in order to get a deal in order to get out of jail.
The prosecutor impeached R.T.’s trial testimony by playing a tape of his May 8 interview. The jury also heard a tape of R.T.’s later interview by Garverick in prison.
Defendant contends he was denied a fair trial when the trial court allowed the prosecution to impeach R.T. with his May 8 statements. Defendant argues R.T.’s prior statements were involuntary and, therefore, inadmissible.
The People contend defendant forfeited any claim in this regard by failing to object at trial. We agree.
“[A]s a general rule, ‘the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.]” (In re Seaton (2004) 34 Cal.4th 193, 198.)
Defendant contends he was not required to object. He argues the California Supreme Court held in People v. Underwood (1964) 61 Cal.2d 113 that a defendant need not request the trial court to determine the voluntariness of a witness’s prior statements in order to trigger the court’s obligation to do so, where the evidence of coercion is uncontroverted. The court did not so hold. In Underwood, the evidence of coercion was indeed uncontroverted. (Id. at p. 118.) However, the court did not hold this as sufficient to relieve the defense of the obligation to object. Rather, the court said that, despite defense counsel’s failure to make a sufficient and timely objection, the court was not prevented from reviewing the issue on appeal. (Id. at p. 126.) In other words, the court exercised its inherent power to consider the issue despite the defendant’s forfeiture.
Furthermore, in this case, evidence of coercion was not uncontroverted. Although R.T. testified that the police suggested he would receive money for names, R.T. also indicated he did not want money but a release from jail. R.T. was given no such promise. And R.T.’s claim that he was high on drugs during the interview, despite having been in jail since the night before, is at best suspect. And while it is possible R.T. was exaggerating what he knew in order to gain some advantage with the authorities, there is little to suggest R.T.’s statements on May 8 were not voluntary. The fact R.T.’s statements may have been false or exaggerated does not make them involuntary.
Defendant contends, in the alternative, that if defense counsel forfeited the issue by failing to object, he received ineffective assistance of counsel.
Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23 Cal.3d 412, 422.) This right “entitles the defendant not to some bare assistance but rather to effective assistance.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.)
“To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845.) The record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349.)
Defendant’s argument that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms is contained in a single sentence in which he asserts counsel’s failure to object “deprived [him] of his right to a fair trial because [R.T.]’s May 8, 2005, statement was coerced and, therefore, inadmissible at [defendant]’s trial.”
As we explained recently in People v. Mitchell (2008) 164 Cal.App.4th 442, at page 467: “‘[T]he mere failure to object rarely rises to a level implicating one’s constitutional right to effective legal counsel.’ [Citation.] If, as here, the record fails to show why counsel failed to object, the claim of ineffective assistance must be rejected on appeal unless counsel was asked for an explanation and failed to provide one or there can be no satisfactory explanation. [Citation.] ‘A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ [Citation.]”
Defendant’s ineffective assistance argument does not even begin to explain how his counsel’s failure to object fell below the standard of a reasonably competent attorney. Defendant does not address the issue of professional norms, merely assuming any mistake by counsel amounts to ineffective assistance. However, effective assistance does not mean perfect assistance. Every mistake by trial counsel does not thereby amount to ineffective assistance. Nor does defendant address whether there could have been a tactical basis for counsel’s failure to object.
“In evaluating a defendant’s claim of deficient performance by counsel, there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy. [Citation.] Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 979-980, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant also fails to establish prejudice. The record before us does not show R.T.’s statements on May 8 were involuntary or coerced. We recognize that the investigators suggested to R.T. that he would receive money for information. But, R.T. made it clear this was not all that he wanted. He wanted to get out of jail. However, the investigators told R.T. they had no power to make this happen. And, as we have indicated, R.T.’s claim to have been high on drugs during the interview is dubious at best. R.T. was not so high that he could not try and use the information he had to his advantage. Hence, if defense counsel had objected to the introduction of R.T.’s May 8 interview on the ground of coercion, it is not reasonably likely the court would have sustained the objection.
We conclude defendant forfeited his claim that he did not receive a fair trial by virtue of the introduction of R.T.’s May 8 statements in evidence, inasmuch as defense counsel failed to object. We further conclude defendant has not established counsel’s failure to object amounted to ineffective assistance.
II
Motion for New Trial
Following his conviction, defendant moved for new trial based on newly discovered evidence. The new evidence, according to defendant, was the fact that, following trial, the prosecution sought and obtained a judicial determination that R.T. had lied in his trial testimony. In effect, defendant argued, the prosecution knowingly presented false testimony at trial.
The trial court denied the motion, concluding there was nothing new about the fact R.T. presented false testimony at trial, and news that R.T. had been found to be a liar would not have affected the jury’s verdict.
Defendant contends the trial court abused its discretion in denying his motion for new trial, because the prosecutor put on the testimony of R.T. “which he believed to be untruthful” and then obtained a judicial determination that R.T. had been untruthful, thereby denying defendant a fundamentally fair trial.
“‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’ [Citation.]
“In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
Defendant cites United States v. Hinkson (2008) 526 F.3d 1262, vacated, 547 F.3d 993 (Hinkson), in which the defendant was prosecuted for soliciting the murder of three federal officials and the government’s star witness was the person allegedly solicited. That witness wore a Purple Heart lapel pin on the witness stand and testified about his military record. The prosecution argued the defendant’s knowledge of the witness’s military history showed he was serious about pursuing the murders. (Id. at p. 1265.) After trial, the defense obtained conclusive evidence the witness had lied about his military record. A three-judge panel of the Circuit Court of Appeals concluded the defendant was entitled to a new trial based on this newly discovered evidence. (Ibid.)
After defendant filed his briefs in this matter, the decision in Hinkson was vacated for rehearing en banc. Hence, the decision no longer has precedential value. At any rate, the present matter is distinguishable from Hinkson. In Hinkson, there was nothing to suggest the defense was aware during trial that the witness was lying about his military record. This was new evidence first discovered after trial. Here, it was obvious to everyone during trial that the prosecution believed R.T. was lying in his trial testimony. The prosecution repeatedly confronted R.T. with his prior inconsistent statements and even called R.T. a liar in closing argument. R.T.’s trial testimony was also internally inconsistent. At one point, R.T. testified he did not hear anyone say anything about doing a “lick.” However, immediately thereafter, R.T. testified somebody said something about doing a “lick,” but it was not Mayers or Ellis. At another point, R.T. testified he spoke with defendant in Oakland on the evening of May 4, defendant walked away, and R.T. did not see him again until the next night. However, R.T. later testified he saw defendant and another leave the area with Mayers and Ellis. R.T. testified he heard someone say something about the “pill man” acting “funny,” then later testified nobody said anything about the pill man acting funny. Finally, R.T. testified he did not even remember speaking with the detectives on May 8 because he was high on drugs, yet remembered repeatedly lying to the detectives in order to try to gain some type of advantage and remembered trying to pump the detectives for information so he could feed it back to them.
Defendant’s complaint here is not that he should have been granted a new trial because he first discovered after trial that R.T. lied on the stand or that the prosecution obtained a judicial determination that he lied. This information would not have assisted defendant. The jury already concluded R.T. lied on the stand.
Defendant’s real complaint is that the prosecution knowingly presented perjured testimony. According to defendant, the prosecution knew R.T. would lie on the stand yet called him as a witness anyway in order to impeach him with his prior statements, thereby getting those statements before the jury. Defendant argues once the prosecution suspected R.T. was lying, it was required to request an interruption in the proceedings in order to determine if R.T. was committing perjury and, if so, to allow the defense to move to strike all of his testimony, thereby eliminating any justification for impeachment.
In People v. Seaton (2001) 26 Cal.4th 598 (Seaton), Dr. Hunter testified as an expert for the prosecution. After the penalty phase verdict, the prosecution gave the defendant three internal memoranda critical of Dr. Hunter. The memoranda had been written after the guilt phase verdict but before the penalty phase trial. (Id. at pp. 646-647.) The defendant argued the prosecutor was required to disclose this information earlier. (Id. at p. 648.) The court ultimately concluded there had been no misconduct, because there was nothing in the record to suggest the prosecutor was aware of such information before it was disclosed. However, the court cautioned: “Notwithstanding the lack of any duty to disclose their internal doubts regarding the accuracy of expert testimony when those doubts arise during trial, prosecutors remain under the solemn obligation to present evidence only if it advances rather than impedes the search for truth and justice. Ordinarily, attorneys ‘may ethically present evidence that they suspect, but do not personally know, is false.’ [Citation.] But the prosecutor is ‘“the representative... of a sovereignty... whose interest... in a criminal prosecution is not that it shall win a case, but that justice shall be done”’ [citation], and the prosecutor may not become the ‘architect of a proceeding that does not comport with [the] standards of justice.’ [Citation.] A prosecutor who, before trial, seriously doubts the accuracy of an expert witness’s testimony should not present that evidence to a jury, especially in a capital case.” (Id. at pp. 649-650.)
The present matter does not involve any improper use of perjured testimony by the prosecution to advance its cause. First, it is unclear on this record if the prosecution knew R.T. would lie on the stand. Shortly after the murder, R.T. had given information to the police that was damaging to defendant and the others. Later, R.T. was visited in prison by a defense investigator and apparently revised his account in a way more favorable to the defendants. R.T. was then visited by members of the prosecution team. R.T. refused to affirm his earlier statements to police, complaining that he had expected to receive some benefit from his earlier statements but instead remained in prison. He told the prosecution team they would not get anything from him because they put him in prison. At one point, R.T. said he would testify for Mayers and provide him with an alibi. However, when the prosecution investigator suggested to R.T. that if Mayers has a way out of this case then he (Mayers) would be cleared, R.T. responded: “He ain’t got no way out, because he was with that dumbass. Them motherfuckers is dumb.”
R.T.’s prior statements to the investigators suggested he might lie in his trial testimony to protect Mayers. However, the prosecution could well have believed that, once placed under oath on the stand, R.T. would instead tell the truth about what he knew in order not to compound his own problems.
At any rate, unlike the testimony of Dr. Hunter in Seaton, which assisted the prosecution, the perjured testimony of R.T. was damaging to the prosecution. Thus, even if the prosecution knew R.T. would lie, it did not present those lies in order to gain an unfair conviction. Rather, the prosecution presented the testimony safe in the knowledge that, if R.T. lied, he could be impeached with his prior inconsistent statements. In this way, the prosecution was able to get everything before the jury and let the jury sort out which version of R.T.’s account was accurate, thereby advancing rather than impeding the search for truth and justice.
Adopting defendant’s argument would mean, for example, the prosecution would be prohibited from putting on the stand a victim of spousal abuse who had recanted her earlier statements to the police. That is not the law. Where the prosecution has witness statements that are damaging to the defendant, the prosecution is not precluded from introducing those statements in evidence simply because the witness has now changed her mind or purports to remember things differently. A problem arises where the prosecution has a witness who will testify adversely to the defendant and the prosecution has reason to believe the witness may not be telling the truth. That is not the case here.
Defendant nevertheless contends he was denied a fair trial, because the prosecutor argued inconsistent and irreconcilable theories to the three juries. According to defendant, the prosecutor argued to Ellis’s jury that it did not matter where the conspiracy to commit the home invasion commenced, whereas to defendant’s jury he argued that, based on R.T.’s initial statements to investigators, the conspiracy began in Sacramento, where Mayers and Ellis said something about doing a lick on the pill man and asked R.T. to participate. Defendant argues that, in his trial, “it was essential for the prosecutor to have [R.T.] testify that Mayers began the plan while in Sacramento and that [R.T.] saw [defendant] and Foster climb into the car with Ellis and Mayers; otherwise, the prosecutor had no direct evidence linking [defendant] to committing the crime.”
This is much ado about nothing. We are not faced here with a case in which the prosecution was trying to hold defendant liable for the crimes of others simply because he was a member of a conspiracy to commit the crimes. Defendant was being prosecuted for committing the crimes himself. Furthermore, even if this were a case of conspiracy, it is immaterial whether the conspiracy commenced in Sacramento or several hours later in Oakland and who initiated it. The conspiracy would still have been in effect from the time defendant got into Ellis’s car in Oakland until the crimes were completed. What matters here is that substantial circumstantial evidence pointed to defendant as one of the participants. Thus, the trial court did not abuse its discretion in denying defendant’s motion for new trial.
III
R.T.’s Agreement to Testify
Defendant contends he was entitled to a new trial based on the prosecution’s use of a coercive agreement with R.T. to testify in conformance with his May 8 statement to police. The agreement in question required R.T. to testify truthfully at trial. Defendant argues “it is obvious from the sequence of events that it was always the case that [R.T.]’s benefits were contingent upon his testifying in conformity with what he told the detectives on May 8, 2005, or else.”
The People respond that defendant forfeited this argument by failing to raise it below in connection with his new trial motion. We agree.
“A motion for new trial may be granted only upon a ground raised in the motion. [Citations.] ‘[A] defendant waives his right to a new trial upon all grounds included within the provisions of [section 1181] unless he specifies the grounds upon which he relies in his application therefor.’ [Citation.] Allowing a court to grant a new trial on a ground not raised by the moving party would be the equivalent of allowing the court to grant a new trial on its own motion, an act which the court is without authority to do. [Citations.]” (People v. Masotti (2008) 163 Cal.App.4th 504, 508.)
The argument is also forfeited because defendant failed to object to R.T.’s testimony on this ground. (See Evid. Code, § 353.) A claim that certain testimony was coerced is not cognizable on appeal in the absence of a timely objection in the trial court. (People v. Hillhouse (2002) 27 Cal.4th 469, 489.) The requirement of an objection at trial ensures that the opposing party will be given an opportunity to address the objection and prevents the non-objecting party from engaging in gamesmanship. (In re Seaton, supra, 34 Cal.4th at p. 198.)
Defendant argues he did not know the agreement with R.T. would violate his due process rights until mid-way through the case and after he had an opportunity to object. Not so. Defendant was aware of R.T.’s deal with the prosecution to provide truthful testimony. Defendant also knew, as soon as the prosecution did, about the agreement that R.T. would not be prosecuted for making false statements to detectives. This was put on the record near the beginning of R.T.’s testimony. Defendant had ample opportunity to object if he believed the deal would coerce R.T. into giving testimony favorable to the prosecution.
In any event, the agreement with R.T. did not coerce him into giving testimony favorable to the prosecution. On the contrary, R.T. contradicted his earlier statements to the detectives and gave testimony less damaging to defendant and the others. Hence, defendant was not prejudiced by the agreement.
IV
CALCRIM No. 318
The jury was instructed pursuant to CALCRIM No. 318 as follows: “You have heard evidence of statements that witnesses made before trial. If you decide that a witness made those statements, you may use those statements in two ways: [¶] One, to evaluate whether the witness’ testimony in court is believable; and [¶] Two, as evidence [that] the information in those earlier statements is true.”
Defendant contends this instruction undermined his right of confrontation by permitting the jury to consider any inconsistency between the testimony and prior statements of R.T. only to evaluate whether the trial testimony was believable, not to evaluate whether the prior statements were believable.
Defendant has again forfeited this argument by failing to object below. Where a party claims on appeal that a legally correct instruction was too general or incomplete, and in need of clarification, the party must show that he requested modification, clarification or amplification in the trial court; otherwise the contention is forfeited. (People v. Valdez (2004) 32 Cal.4th 73, 113.) There is nothing in the record to suggest defendant requested that CALCRIM No. 318 be modified to allow for inconsistencies between pretrial and trial statements to be used to evaluate the veracity of the pretrial statements.
Defendant contends the argument is not forfeited, because no objection is necessary where the error affects the defendant’s substantial rights. He cites section 1259, which states in relevant part: “The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
Defendant cites People v. Anderson (1994) 26 Cal.App.4th 1241 (Anderson), where the Court of Appeal observed: “It is said that the failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.] Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim--at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. Accordingly, it seems far better to state straightforwardly, as we now do, that an appellate court may ascertain whether the defendant’s substantial rights will be affected by the asserted instructional error and, if so, may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court.” (Id. at p. 1249.)
In effect, the court in Anderson concluded that, because it may review instructional error notwithstanding the lack of an objection if the defendant’s substantial rights are affected, and the defendant’s substantial rights are affected if the error resulted in a miscarriage of justice, i.e., it is reasonably probable the defendant would have obtained a more favorable result absent the error, it is best to just skip the preliminaries and go straight to the question of whether any error in giving the instruction was prejudicial.
Section 1259 gives the appellate courts discretion to consider instructional errors where the defendant’s substantial rights are affected and he failed to object. Hence, we are under no obligation to consider such a claim. However, assuming the Anderson approach is correct, we conclude defendant’s substantial rights were not affected by the instruction. Defendant’s claim boils down to this: Because CALCRIM No. 318 tells the jury it may consider out-of-court statements in evaluating whether the witness’s testimony in court is believable, it precludes the jury from doing the opposite, i.e., considering the witness’s in court testimony in evaluating whether the out-of-court statements are believable. However, it defies logic to suppose a reasonable jury would conclude a witness’s in-court testimony was untruthful based on contrary out-of-court statements without first determining if the out-of-court statements were truthful. It further defies logic to suppose a reasonable jury would determine out-of-court statements were truthful without first comparing them with the witness’s in-court testimony. In other words, a reasonable jury would compare the conflicting statements, and the circumstances under which they were given, and decide which is more likely to have been truthful. CALCRIM No. 318 does not preclude the jury from engaging in such analysis; it merely fails to outline it with specificity.
Furthermore, even if the jury had been confused by the instruction as defendant concludes, this confusion is not likely to have affected the outcome of the case. In light of the many internal inconsistencies in R.T.’s trial testimony, it is not reasonably likely the jury would have been influenced by that testimony in deciding whether R.T.’s out-of-court statements were truthful. Therefore, we concluded defendant has forfeited his argument regarding CALCRIM No. 318 and that, since there was no error in the instruction, his substantial rights were not affected in this instance.
V
CALCRIM No. 418
The trial court instructed the jury pursuant to CALCRIM No. 418 as follows:
“In deciding whether the People have proved the defendant committed any of the crimes charged, you may not consider any statement made out of court by any of the other alleged coconspirators in the case unless the People have proved by a preponderance of the evidence that:
“1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made;
“2. The person who made the statement was a member of and participating in the conspiracy when he made the statement;
“3. The person who made the statement made the statement in order to further the goal of the conspiracy;
“AND
“4. The statement was made before or during the time that the defendant was participating in the conspiracy.
“A statement means an oral or written expression, or nonverbal conduct intended to be a substitute for an oral or written expression.
“Proof by a preponderance of evidence is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not the fact is true.
“You may not consider statements made by a person who was not a member of the conspiracy even if the statements helped accomplish the goals of the conspiracy.”
Defendant contends the foregoing instruction should not have been given, because there was no evidence to support it. According to defendant, “there was no substantial evidence of any statement made during the course of the conspiracy.” He further argues that, although R.T. told investigators he overheard Mayers say something about doing a lick on the pill man and asked R.T. to participate, this “cannot serve to establish a conspiracy because the conspiracy hearsay exception requires independent evidence of a conspiracy” and this discussion occurred before any conspiracy came into existence. Defendant argues that, “[w]ithout substantial evidence of a declaration made by a co-conspirator while participating in a conspiracy, it was error to instruct on the conspiracy exception to the hearsay rule.”
Once again, defendant failed to object to the instruction he now challenges. In fact, during the discussion of the instructions before they were read to the jury, the trial court put on the record:
“THE COURT:... 416 and 418, a fair amount of discussion on this. It’s fair to say the People do not request this instruction.
“MR. KINDALL [the prosecutor]: That is correct, so long as the People are able to argue that the other two statements are conspiracy. I’m sure that’s
“THE COURT: That was the understanding.
“MS. CAMMISA [counsel for Mayers]: Yes.
“THE COURT: They were being deferred....”
It is uncertain which of the two instructions--CALCRIM No. 416 or CALCRIM No. 418--the People had not requested, or whether the court misspoke and meant to say the People had not requested either instruction. Both instructions deal with conspiracy. It is also uncertain what the court meant by saying, “[t]hey were being deferred.” However, there is nothing in this discussion, or anywhere else in the record, to suggest any of the defendants objected to CALCRIM No. 418.
Moreover, it is clear defendant’s substantial rights were not implicated by the instruction. The question here is not whether hearsay statements by co-conspirators were properly admitted. There is, in fact, no suggestion any hearsay statements were admitted. The statements by Mayers that were overheard by R.T. were not hearsay, as they were not admitted for the truth of the matter asserted. It is what Mayers said, not whether what Mayers said was true, that was at issue.
Furthermore, CALCRIM No. 418 is designed to protect a criminal defendant by instructing the jury not to consider statements made by co-conspirators unless certain conditions are met. The worst that can happen from a defendant’s standpoint is that the jury will find the conditions have been met and consider statements by co-conspirators in deciding whether the People have proven the defendant committed the crimes. Without the instruction, the jury would be under a general obligation to consider such evidence, along with all other evidence presented in the case, in deciding if the People met their burden of proof.
Finally, as discussed earlier, the question here was never about whether defendant entered into a conspiracy with the other three to rob the “pill man.” The question was whether defendant was one of the three individuals who entered the victim’s home that night. R.T.’s out-of-court statement that he saw defendant get into the car with the others in Oakland, along with the other evidence linking defendant to the crimes, supported the jury’s findings in this regard. The jury never had to find there was a conspiracy to commit the robbery in order to find defendant guilty of the crimes.
VI
Guilt By Association
Defendant contends the prosecutor committed misconduct by essentially arguing to the jury guilt by association. Defendant contends “[t]he prosecutor argued to the jury that by considering the respective heights and ages of the defendants and then comparing the relationships among the defendants, the jury could infer guilt” and that “[t]he prosecutor argued the relationships among the defendants proved their guilt.”
Once again, defendant forfeited this argument by failing to object at trial. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Defendant did neither here.
“A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
None of the foregoing exceptions to the general rule applies here. There is no reason to believe an objection and request for admonition would have been futile or would not have cured any possible harm. To the extent the prosecutor argued guilt by association, the trial court could easily have corrected the situation.
Defendant contends his counsel’s failure to object amounted to ineffective assistance. We disagree. Counsel had no obligation to object where such objection would have been futile. Here, an objection would have been futile, because the prosecutor did not, in fact, argue guilt by association.
This was a case of circumstantial evidence. Three people entered the victim’s home on the morning of May 6. The evening before, two men, Mayers and Ellis, said something about doing a lick on the pill man, i.e., the victim. Defendant and Foster were later seen getting into Ellis’s car with Ellis and Mayers in Oakland. They were next seen together in Sparks, Nevada, three hours after the murder. They borrowed a car in Sparks, and defendant and Foster were found in the car two days later in Oakland in possession of two of the weapons used in the home invasion.
The prosecutor pointed out the relationships among the four perpetrators not to argue guilt by association but to argue it is logical to conclude defendant and Foster were the ones who accompanied Mayers and Ellis, inasmuch as they met the descriptions of the perpetrators, were with Mayers and Ellis both before and after the crimes, and just happened to be related to them in some way. There was nothing improper in the prosecutor’s argument.
VII
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to prove beyond a reasonable doubt he committed the charged offenses and that the charged enhancements are true. According to defendant, the evidence established, “at most,” that he was associated with the other defendants “primarily after the crimes were committed.”
In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) “‘The 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.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez, supra, 32 Cal.4th at p. 104.)
Defendant argues “the evidence implicating [him] is based primarily on his association with Foster after the crimes were committed.” Defendant acknowledges he and Foster were arrested in Oakland two days after the murder and were in possession of 13 baggies of marijuana, which provides a reasonable explanation for why they also possessed cash and had recently made purchases. Defendant also acknowledges that C.B. observed Ellis, Mayers, Foster and defendant at Ellis’s home in Sparks three hours after the murder, but asserts it only takes two hours to drive from Sacramento to Sparks, leaving an extra hour during which “any number of things could have happened including switching people out on San Carlos, a house to which everyone was connected by blood or marriage.” Defendant argues this evidence “at most” shows he may have been an accessory after the fact based on his presence in Nevada with the others and with Foster at the time of his arrest.
Defendant’s argument is based on a one-sided view of the evidence that leaves out a number of inconvenient facts. For example, defendant and Foster were not just arrested in Oakland two days after the murder in possession of cash and marijuana. They were also in possession of two weapons, the shotgun used to blow a hole in the wall below the victim’s bedroom window, and the handgun used to kill the victim. Foster was also wearing shoes that matched shoe prints found at the scene. And then there’s the fact the car defendant and Foster were in was the one borrowed by Ellis in Sparks the day after the murder. Defendant also ignores the out-of-court statements of R.T. that he saw defendant and Foster get into the car with Mayers and Ellis in Oakland the night of the murder and that he had earlier heard Mayers say something about doing a lick on the pill man. And finally, we have the descriptions of the intruders by the victims, which tend to match defendant, Foster and Ellis. A.J. in fact picked Foster out of a photographic lineup, and R.T. stated defendant and Foster are always together and always have guns.
A party challenging sufficiency of the evidence must summarize the evidence on the point, both favorable and unfavorable. (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208.) Failure to do so may be considered a forfeiture of the argument on appeal. (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832.) At any rate, the record below contains sufficient evidence, beyond defendant’s relationship with the other perpetrators, to support his conviction.
VIII
Cumulative Error
Defendant contends the cumulative impact of the trial court’s errors requires reversal. However, having found no errors, we have no occasion to consider cumulative impact.
IX
Parole Revocation Fine
The abstract of judgment reflects a restitution fine of $10,000 pursuant to section 1202.4 and a suspended parole revocation fine in the same amount pursuant to section 1202.45. However, at the sentencing hearing, the trial court made no mention of a parole revocation fine.
Defendant contends that where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. He further argues a parole revocation fine is not authorized in a case where a sentence of life without the possibility of parole is imposed.
Regarding defendant’s first point, it is of course true that the court’s oral pronouncement controls over a minute order or abstract of judgment. But that is not the issue. In People v. Price (2004) 120 Cal.App.4th 224, the Court of Appeal said: “Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.” (Id. at p. 242.) However, the foregoing analysis necessarily depends upon whether the reporter’s transcript accurately reflects what was said in the trial court. Just as the clerk’s transcript may contain clerical errors, the reporter’s transcript may contain transcription errors. In People v. Smith (1983) 33 Cal.3d 596, the California Supreme Court rejected a mechanical approach to conflicts between the reporter’s and clerk’s transcripts. Where the record cannot be harmonized, “‘that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’” (Id. at p. 599.)
In this matter, it does appear, as defendant argues and the People concede, the reporter’s transcript should prevail. Unlike an incorrect or missing word or the like, it cannot reasonably be argued the trial judge imposed a parole revocation fine and the court reporter completely failed to include any mention of it. We therefore conclude the trial court failed to impose the fine.
The People contend the trial court was nevertheless statutorily obligated to impose a parole revocation fine and its failure to do so resulted in an unauthorized sentence that may be corrected on appeal. Section 1202.45 reads: “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....” (Italics added.) This parole revocation fine must be suspended unless and until parole is revoked. (§ 1202.45.)
In People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), the defendant was convicted of first degree murder and sentenced to life without the possibility of parole plus an enhancement of 10 years. He was also convicted of second degree murder and sentenced to an indeterminate term plus an enhancement of four years. (Id. at p. 1181.) The Court of Appeal concluded a parole revocation fine was inappropriate under these circumstances. Despite the remote possibility the defendant might be pardoned on the first degree murder charge and ultimately paroled on the second degree murder charge, the court concluded “the language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fine is to be imposed. Section 1202.45 indicates that it is applicable to a ‘person... whose sentence includes a period of parole.’ At present, defendant’s ‘sentence’ does not allow for parole. When we apply a commonsense interpretation to the language of section 1202.45 [citations], we conclude that because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed.” (Oganesyan, at p. 1185; see also People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687.)
However, in People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), the California Supreme Court concluded the fact a defendant is sentenced to death on one count does not preclude a parole revocation fine where the defendant is sentenced on other counts to determinate terms. (Id. at p. 1075.) The court noted section 1202.45 says a parole revocation fine is required whenever a defendant’s sentence includes a period of parole. Section 3000, subdivision (a)(1), provides that “[a] sentence pursuant to Section 1168 or 1170 shall include a period of parole....” (Italics added.) The high court distinguished Oganesyan as not involving a sentence that included a determinate term.
Section 1202.45 requires a parole revocation fine whenever a sentence includes a period of parole, and section 3000, subdivision (a)(1), requires a period of parole for any sentence imposed pursuant to section 1170, i.e., a determinate term. In making this determination, we look at each count separately to determine if the sentence on any one count qualifies. (Brasure, supra, 42 Cal.4th at p. 1075.)
Defendant was sentenced on count two to a determinate term of six years, plus an enhancement of 10 years. Although this term was stayed pursuant to section 654, it was nevertheless imposed. Sections 1202.45 and 3000 require a parole revocation fine whenever a determinate term is imposed. Therefore, a parole revocation fine was mandatory.
This court may correct an unauthorized sentence whenever it comes to our attention. (People v. Crooks (1997) 55 Cal.App.4th 797, 811.) We therefore modify defendant’s sentence to include a parole revocation fine pursuant to section 1202.45 in the same amount as the restitution fine, i.e., $10,000. Because this fine is already reflected in the abstract of judgment, there is no need for that document to be amended in this regard. However, we note the abstract fails to include the six-year term or the enhancement imposed on count two. It should be corrected accordingly.
Disposition
The judgment is modified to add a parole revocation fine pursuant to Penal Code section 1202.45 in the amount of $10,000. Although this modification is already reflected in the abstract of judgment, the trial court is directed to amend the abstract of judgment to reflect that defendant was sentenced on count two to a term of six years plus an enhancement of 10 years, with this term stayed. The court is further directed to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.