Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge. Los Angeles County Super. Ct. No. PA046378
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Jeffrey Weaver.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant David Steinberg.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
ZELON, J.
Appellants David Steinberg (“Steinberg”) and Jeffrey Weaver (“Weaver”) (collectively “Appellants”) appeal their convictions following trials before separate juries. Steinberg was convicted of one count of first degree murder by means of lying in wait (Penal Code §§ 187, subd. (a), 190.2, subd. (a)(15)), two counts of attempted deliberate and premeditated murder (§§ 664, 187, subd. (a)), one count of assault with a semiautomatic firearm (§ 245, subd. (b)), one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)), and two counts of credit card fraud (§§ 484e, subd. (d), 484i, subd. (c)). Weaver was convicted of one count of second degree murder (§187, subd. (a)). Both Steinberg and Weaver challenge the sufficiency of the evidence supporting their convictions as well as certain monetary penalties imposed during sentencing. Steinberg also contends that the trial court made numerous erroneous rulings during the course of his trial and sentencing. For the reasons set forth below, we conclude that the trial court’s restitution order under section 1202.4 and its court construction penalty order under Government Code section 70372 must be reversed and the matter remanded for reconsideration on the issue of restitution. In all other respects, we affirm the judgment.
Unless otherwise stated, all further statutory references are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.The Charges
a. Steinberg
In an information filed on April 20, 2004, the Los Angeles County District Attorney’s Office charged Steinberg with the following counts: (1) one count of murder of Christopher Walsh (§ 187, subd. (a)); (2) one count of unlawful access card activity (§ 484i, subd. (c)); (3) one count of access card theft (§ 484e, subd. (d)); (4) one count of criminal threats (§ 422); (5) three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)); (6) two counts of attempted deliberate and premeditated murder of Alex Dixon (§§ 664, 187, subd. (a)); and (7) one count of assault of Moises Tovar with a semiautomatic firearm (§ 245, subd. (b).) Firearm enhancements were alleged as to each of the murder, attempted murder, and assault counts (§§ 12022, subd. (a), 12022.5, 12022.53, subds. (b)-(d).) With respect to the murder count, it was alleged that Steinberg intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)) and because the victim was a witness to a crime (§ 190.2, subd. (a)(10).) The information further alleged that Steinberg had two prior felony convictions within the meaning of section 667.5.
On September 10, 2007, the District Attorney filed an amended information that charged Steinberg with two additional counts of assault with a semiautomatic firearm (§ 245, subd. (b)) as lesser related offenses of the attempted murder counts.
Steinberg pled not guilty to all counts and denied all special allegations. The District Attorney subsequently dismissed two of the three counts charging Steinberg with possession of a firearm by a felon. For purposes of the remaining firearm possession count, Steinberg stipulated that he previously had been convicted of a felony.
After trial commenced, Steinberg withdrew his not guilty plea on the unlawful access card activity and theft charges and pled guilty to those two counts.
b. Weaver
In the same information, the District Attorney charged Weaver with the following counts: (1) one count of murder of Christopher Walsh (§ 187, subd. (a)); (2) one count of unlawful access card activity (§ 484i, subd. (c)); and (3) one count of access card theft (§ 484e, subd. (d).) Firearm enhancements were alleged as to the murder count (§§ 12022, subd. (a), 12022.53, subds. (b)-(d).) The information further alleged that Weaver intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)) and because the victim was a witness to a crime (§ 190.2, subd. (a)(10).) It also was alleged that Weaver had two prior felony convictions within the meaning of section 667.5.
Weaver pled not guilty to all counts and denied all special allegations. The District Attorney subsequently dismissed the charges against Weaver for unlawful access card activity and theft. Following a section 995 motion filed by Weaver, the trial court dismissed the special circumstance allegation charging Weaver with a witness killing.
II. Assault Of Moises Tovar
A. The Prosecution’s Case
Marta Wilson testified on behalf of the prosecution. In January 2003, Steinberg visited the home of Marta Wilson and her husband, Michael O’Hickey (“O’Hickey”), to speak with O’Hickey. O’Hickey was not at home, but Marta Wilson allowed Steinberg to wait inside for O’Hickey to return. While they were waiting, Moises Tovar (“Tovar”) arrived. As Marta Wilson and Tovar walked into the dining room where Steinberg was waiting, she saw Steinberg pointing a gun at Tovar. Steinberg ordered Tovar to sit down. He would not let Marta Wilson leave so she sat beside Tovar. Steinberg and Tovar spent the next hour arguing about “something that was taken from somebody.” Steinberg was agitated and repeatedly pointed the gun at Tovar as they argued. Once O’Hickey arrived, Steinberg and Tovar went outside to talk to him. The three men eventually hugged each other and left together. Later that evening, Marta Wilson told O’Hickey and their friend, Robert Hayes, about the incident. On cross-examination, Marta Wilson admitted she was under the influence of methamphetamine at the time of the incident and during a subsequent police interview, and that her drug use may have affected her memory as to the details of the incident.
Robert Hayes (“Hayes”) also testified on behalf of the prosecution. Hayes was in custody at the time of his testimony and had numerous prior felony convictions. He testified that Marta Wilson told him that Steinberg had held Tovar at gunpoint in her home. Armed with a crossbow and a handgun, Hayes confronted Steinberg about the incident a week later. Steinberg assured Hayes that he did not pull the gun on Marta Wilson and that Tovar had stolen from “the guys he did [a] heist with.”
b. The Defense Case
Steinberg testified on his own behalf about the incident involving Tovar. According to Steinberg, he had armed himself with a loaded.40 caliber Glock semiautomatic handgun before visiting the home of O’Hickey and Marta Wilson because he was concerned he might need to defend himself. He concealed the handgun in a book and carried it with him into O’Hickey’s house. As Steinberg was sitting at the dining room table, he saw Marta Wilson speaking with Tovar. The men made eye contact and Tovar began walking toward Steinberg while pulling up his shirt to expose a gun. Steinberg immediately grabbed his gun from the book and told Tovar, “don’t even think about it.” Steinberg took Tovar’s gun away and waited for O’Hickey. After O’Hickey arrived, Steinberg and Tovar were able to resolve their dispute amicably.
III. Attempted Murder Of Alex Dixon
A. The Prosecution’s Case
Alex Dixon (“Dixon”) testified on behalf of the prosecution. On the afternoon of January 29, 2003, Dixon, a former sheriff’s deputy, was returning to his townhouse. He was off-duty at the time and was not in uniform. As Dixon drove into his garage, he heard yelling from a nearby townhouse. Dixon took his holstered gun from his car and concealed it in his waistband under his shirt. Dixon then walked toward the noise in the alleyway where he met his neighbor, Christopher Walsh (“Walsh”).
Walsh assured Dixon that everything was fine and explained that he was moving. As the men talked, Dixon mentioned that he was a deputy and Walsh stated that he knew that because he had seen Dixon in uniform. Steinberg came out of the garage and walked beside Walsh. Steinberg did not say anything, but seemed to be upset at Dixon. While Dixon and Walsh continued to converse, Steinberg walked toward a Cadillac in the garage and appeared to reach into the car to retrieve something. Steinberg then walked around a Ford Explorer parked in front of the garage, yelled “freeze,” and started shooting at Dixon. Dixon’s gun was still concealed under his clothing when Steinberg fired the first shot. Dixon ducked for cover and drew his firearm. Steinberg then ran inside the townhouse, and as he was running away, he fired another shot at Dixon. Walsh shouted at Steinberg, “Why would you shoot at a deputy? You’re crazy.”
Desiree Manthe (“Manthe”) was in custody at the time of her testimony. Manthe testified that she and her friend, Amy Sheeley (“Sheeley”), were driving to Walsh’s townhouse one afternoon when Manthe saw that the police were surrounding the area. Manthe and Sheeley decided to drive away. As they were driving, Manthe saw Steinberg come out from behind a bush; he appeared to be scared. Manthe and Sheeley told Steinberg to get in their truck and they took him to Manthe’s house. Steinberg was rocking back and forth in the truck as they drove away and said a few times, “I thought it was a big fat nigger.”
Hayes was Manthe’s ex-boyfriend and was at her house when Steinberg arrived. Hayes saw Steinberg standing in the living room, shirtless and sweating. Steinberg seemed scared and told Hayes that “some shit just went down.” Hayes agreed to drive Steinberg to an apartment in North Hollywood. Once there, Steinberg told Hayes that he may have shot a cop. Steinberg said that he saw Walsh talking to a Black man and that he crept around a car, pulled out his pistol, shouted “freeze,” and fired two shots.
George Jassick (“Jassick”) was at the North Hollywood apartment when Hayes and Steinberg arrived. Steinberg told Jassick that he thought he shot a cop. According to Jassick, Steinberg said that he was in Walsh’s garage when a “Black guy came over and jumped his friend, [and] pinned him up against the car.” Steinberg also said that he came out with a gun and told the man to freeze, but the man reached for his gun so Steinberg fired and ran. Steinberg stated that he shot the man in self-defense.
During a subsequent investigation of the shooting, the police recovered two.40 caliber brass casings in the area surrounding Walsh’s townhouse. The police also found evidence that one bullet hit a drain pipe and a second bullet struck a stucco wall. Officers searched Walsh’s townhouse after the shooting and seized various weapons, including a.40 caliber Glock handgun. A criminalist determined that the two spent casings were fired from the Glock. The criminalist also opined that, based on the trajectory of the shot, the bullet impact point on the drain pipe was not the result of a warning shot fired into the air. Steinberg’s thumbprint was found inside the driver’s side front window of the Cadillac.
B. The Defense Case
The defense called two witnesses who resided in the same townhouse complex as Dixon and Walsh. Jennifer Gruber testified that, prior to the shooting, Walsh was a raucous neighbor who often created a commotion late at night and screamed racial slurs about African-American and Jewish people. Larry Crismond (“Crismond”) testified that, one or two days before the shooting, he heard Walsh speaking with an unidentified person and saying “fuck you, nigger” at someone. Crismond also testified that he believed Walsh and Dixon were not on friendly terms. On the day of the shooting, Crismond heard three shots fired close together, but did not hear any shouting or other sounds coming from the alley before the shooting began.
Steinberg testified about his involvement in the shooting. On January 29, 2003, he went to Walsh’s townhouse to retrieve a gun in a hollowed-out book that he had borrowed from Jassick. Steinberg placed the gun and book in his shoulder bag and was preparing to leave the townhouse. As Steinberg walked into the garage, he saw Dixon gesturing with a gun and shouting at Walsh. Walsh appeared to be scared and Steinberg believed that Walsh’s life was in danger. Steinberg walked past a Cadillac and Ford Explorer, placed his shoulder bag down, and took his gun out of the book and bag. He then pointed the gun at Dixon and told him to freeze. Dixon in turn pointed his gun at Steinberg. Steinberg fired one shot into the air and ran into the garage. When he saw Dixon assume a ready position with his firearm, Steinberg fired a second shot to dissuade Dixon from coming after him. Steinberg then ran into the townhouse and fled onto the street.
IV. Murder Of Christopher Walsh
A. The Prosecution’s Case
1. Witness Testimony
The prosecution called numerous witnesses to testify about the circumstances of Walsh’s disappearance and death. Marlon Grueskin (“Grueskin”) testified under a grant of use immunity. He was on probation at the time of his testimony and had unrelated charges pending against him. Grueskin had known Walsh, Steinberg, and Weaver for about a year before Walsh’s death. Grueskin and Walsh had been involved in various illegal activities, and Grueskin considered himself to be Walsh’s “right-hand man.” Walsh introduced Grueskin to Steinberg and indicated that Steinberg was in charge of their “crew,” which consisted of Steinberg, Walsh, Weaver, and Tony Shane Wilson, each of whom had another five to 10 individuals working under him. The crew modeled itself after the Mafia and held meetings at Steinberg’s apartment on Moorpark Street. Shortly after forming, the crew started producing fraudulent credit cards and collecting money and property on behalf of others from people that owed debts.
Grueskin began visiting Steinberg’s Moorpark Street apartment on a daily basis. Steinberg and Walsh both lived in the apartment, and shortly before Walsh’s death, Weaver started staying there on a nightly basis. Grueskin believed that Weaver was “extremely jealous” of Walsh because Walsh was popular. Grueskin also described Weaver as being Steinberg’s “right-hand man” and recalled that Weaver always followed Steinberg’s orders. Grueskin, Walsh, Steinberg, and Weaver all used methamphetamine on a daily basis, and the drug tended to make Steinberg paranoid.
Grueskin believed that Steinberg and Walsh initially were best friends. However, the two men gradually began arguing more and Walsh threatened to kill Steinberg. According to Grueskin, Steinberg and Walsh generally argued about the shooting of Dixon. Steinberg was concerned that Walsh was a “rat” and often commented about the short amount of time that Walsh spent in jail after the shooting. Walsh in turn carried around a copy of his statement to the police which indicated that he had not said anything about Steinberg’s involvement. Steinberg and Walsh also argued over drugs. About three weeks before Walsh’s death, Steinberg accused Walsh of taking 400 to 500 Ecstasy pills that Steinberg planned to sell.
At some point, Grueskin became concerned about Walsh when he could not reach him on his cell phone. Grueskin called the Moorpark Street apartment daily and, on the second day, Steinberg told Grueskin that he had “kicked” Walsh out of the apartment and that Walsh was no longer welcomed there. On the third day, Steinberg asked Grueskin to rent a U-Haul truck to move Walsh’s belongings out of the Moorpark Street apartment, but Grueskin refused. Grueskin later learned that Walsh was dead.
After Walsh’s death, Grueskin called Walsh’s older brother, Dennis Walsh. Grueskin was frightened of the Walsh family because he had heard the family was mob-connected. He decided to tell the Walsh family what he knew because Walsh was his best friend and Grueskin did not want the family to think he was involved. Dennis Walsh did not ask Grueskin to speak to the police, nor did he suggest that Grueskin lie to the police about Steinberg’s involvement in Walsh’s death.
Grueskin also testified that he and Weaver had an argument about Walsh a few months following his death. During the argument, Weaver stated that Walsh “deserved what he got.” Weaver then stated that “he did Chris” and that Grueskin had “better stop talking to the Walsh’s (sic)” or Weaver would “do the same thing” to him. Grueskin understood Weaver’s statement that he “did Chris” to mean that Weaver killed Walsh. On cross-examination, Grueskin admitted that he first told the police about Weaver’s confession a few months before trial and while in custody on an unrelated charge. During that interview, Grueskin did not initially disclose that Weaver had admitted being involved in Walsh’s death. It was only after Detective Fleming said that he was hearing that Weaver fired the final shot that Grueskin disclosed Weaver’s admission that he “did Chris.”
Tony Shane Wilson (“Wilson”) was charged with being an accessory after the fact in Walsh’s murder. At the time of his testimony, he also had numerous unrelated felony convictions. Wilson initially lied to the police about his involvement in Walsh’s death because he wanted to make sure he had immunity before he said anything to incriminate himself. After Wilson’s arrest, his counsel contacted the district attorney’s office to discuss a possible deal because Wilson was concerned that he was being “set up” for the murder and could face a third felony strike conviction. Wilson received a promise that he would serve no more than three years if he testified truthfully.
Wilson was a former high-ranking member of the Nazi Low Riders, a “White power” prison gang. Wilson no longer considered himself a member of the gang because he had testified in the Walsh case and believed he was a target for retaliatory attacks based on his testimony. In June 2003, Wilson became a member of a crew that was being formed by Walsh, Steinberg, Weaver, and others. Wilson had known Weaver for at least seven years and considered him a friend. Wilson met Steinberg and Walsh a few weeks before Walsh’s death. Wilson described Weaver as Steinberg’s “yes man” because he looked upon Steinberg as a leader and did whatever Steinberg wanted. Wilson stated that Walsh also spoke highly of Steinberg and wanted Steinberg to be in charge of their crew.
On one occasion, Wilson was with Steinberg when Steinberg received a call on his cell phone that seemed to upset him. After the call ended, Steinberg remarked to Wilson that “the guy is going to make me kill him” in reference to Walsh. Sometime thereafter, Wilson and Weaver were on their way to a collection job when Weaver received a call on his cell phone. Weaver told Wilson that he thought it was “something serious” and drove to Steinberg’s Moorpark Street apartment. When Wilson and Weaver arrived, Steinberg answered the door and said, “I had to shoot Chris.”
Upon entering the apartment, Wilson saw Walsh on his back, lying half on and half off the couch. Walsh appeared to be bleeding from his neck and was making a gurgling noise. Steinberg stated that when he confronted Walsh about some issue, Walsh became irate, threatened to kill Steinberg, and began searching for his gun. Steinberg said that he pulled out his own gun, shot Walsh three times from across the room, and stabbed Walsh three times in the neck. The men discussed whether Walsh would survive and Steinberg said that he would not. Wilson asked if any neighbors might have heard the shooting and Steinberg responded that he had turned up the radio “real loud.” Both Wilson and Weaver told Steinberg that they did not want anything to do with the matter and left the apartment together. Wilson believed that Walsh was still alive when he and Weaver left.
A few days later, Steinberg asked Wilson to help him with some heavy lifting at the Moorpark Street apartment. When Wilson walked into the apartment, he saw a blue recycling trash bin tipped over on the carpet with Walsh’s body partially inside. Steinberg asked Wilson to help him place the bin upright and Wilson reluctantly agreed. Wilson became worried that his fingerprints were now on the trash bin, but Steinberg reassured him that he would spray the bin with WD-40 to remove any prints. While he was helping Steinberg, Wilson observed that the couch that Walsh was lying on after the shooting had been replaced. Sometime thereafter, Wilson went back to the apartment and saw the trash bin, covered with cellophane and cardboard, on the patio. Steinberg and Wilson discussed the possibility of using a chemical substance called Red Devil Lye to get rid of Walsh’s body.
At trial, Wilson also testified about threats made against him by the Walsh family. Wilson stated that, on one occasion, Walsh’s brothers drove to a house where Wilson and Weaver were visiting. While one brother physically assaulted Weaver, the other told Wilson that he needed to testify about the gurgling sound that Walsh made when Wilson first saw him after the shooting. Wilson believed that the Walsh family was mob-connected. Wilson testified that on another occasion he thought that Walsh’s brothers were threatening his wife when they went to the bar where she worked. However, after talking to one brother over the telephone, Wilson concluded that they were not a threat to his wife and that he did not need to intervene on her behalf.
Kenneth Williams (“Williams”) testified about his dealings with Steinberg and Walsh. At the time of his testimony, Williams had prior felony convictions for drugs and firearms. Williams knew Walsh for about a year and described him as a heavy drug user. Four to eight weeks before his death, Walsh asked Williams to hold a.22 caliber semiautomatic Colt Challenger gun for him. Three days later, Walsh and Steinberg visited Williams at his house, and Walsh told him to give the gun to Steinberg, which Williams did.
Shortly before Walsh’s disappearance, Williams overheard Walsh talking on the telephone with Steinberg. Walsh called Steinberg a “kike” and a “son of a bitch,” and threatened Steinberg that he was “coming” for him and was “coming heavy, and... not coming alone.” Later that evening, Williams spoke with Steinberg about Walsh’s threat. Williams urged him to let it go because Walsh likely had been awake too long from drug use. Steinberg responded, “I was in prison. If somebody said they are going to come kill you, you don’t wait for them to come kill you.” Steinberg did agree to stay away from Walsh for a while as a favor to Williams, but also warned Williams, “If this happens again, I have to do something about it.”
After Walsh’s death, Williams was contacted by Dennis Walsh. Dennis Walsh did not threaten Williams, but he did want Williams to tell the police what he knew about Walsh’s death. When Williams first contacted the police, he was not under arrest and did not have any charges pending against him. Williams was arrested six months later on an unrelated drug charge and pled guilty. Williams was offered a shorter sentence if he testified in the Walsh case, but he did not believe that he actually received a more favorable sentence as a result of his testimony.
Jassick testified about events that took place after Walsh’s disappearance. Jassick was charged with being an accessory after the fact in Walsh’s murder and pled guilty. He testified that prior to June 27, 2003, Steinberg asked him if he had a steam cleaner. Jassick did not, but he agreed to let Steinberg use his heavy duty wet-dry vacuum cleaner, which he took to Steinberg’s Moorpark Street apartment later that day. Steinberg would not allow Jassick inside on that occasion, so Jassick left the vacuum at the door. Steinberg later called Jassick and told him that he could have the sectional couch that was in the apartment. When Jassick returned to the apartment, he saw that the couch had a stain that resembled wine, but he still agreed to take it. Jassick also saw that there was a stain on the rug.
A few days later, on June 27, 2003, Jassick rented a U-Haul truck at Steinberg’s request. Steinberg and Jassick took the truck to a storage unit on Erwin Street, where Steinberg selected some furniture, including a couch, that he wanted for the Moorpark Street apartment. Steinberg told Jassick that he would return the truck to U-Haul. However, Jassick later heard from the U-Haul company that the truck had not been returned, and Jassick ultimately returned the truck himself on July 1, 2003. As he was returning the truck, Jassick saw that a side-by-side refrigerator and other items were still inside. Jassick later told the police that he had possession of the sectional couch that had been in Steinberg’s apartment.
Carolyn Vasquez (“Vasquez”) had a romantic relationship with Steinberg. She testified that Steinberg once told her that he was a high ranking member of the Nazi Low Riders. When Vasquez asked Steinberg how he, as a Jewish person, could like anyone affiliated with that group, Steinberg stated that he was not Jewish and did not like Jewish people. Steinberg also told her that he “was not very fond of Black people.”
On June 25 or 26, 2003, Vasquez visited Steinberg at the Moorpark Street apartment. She saw that there was a wet-dry vacuum in the living room and that the sectional couch was no longer there. Vasquez asked Steinberg where Walsh was and Steinberg said he did not know. On June 27, 2003, while at the apartment, Vasquez again asked Steinberg about Walsh’s whereabouts. Steinberg responded that he did not want to talk about Walsh and that Walsh was no longer his roommate or friend. Vasquez and Steinberg then drove to Vasquez’s storage unit on Erwin Street to look at some furniture. Vasquez previously had given Steinberg the key to her storage unit so that he would have access to the furniture. On June 30, 2003, Steinberg asked Vasquez if he could store his couch in the unit and pay her for the monthly fee, but Vasquez did not agree.
On July 1, 2003, Vasquez learned that Steinberg had been arrested. The following day, she went to her storage unit, but had given her key to the unit to Steinberg. The office manager at the storage facility arranged for someone to open the lock. Once inside the unit, Vasquez saw several boxes with documents belonging to Walsh. She also saw a blue recycling trash bin covered with trash bags and duct tape. Vasquez smelled a foul odor coming from the trash bin and believed that the bin contained Walsh’s body. Vasquez placed a new lock on her storage unit and left. She then called Robert Harris (“Harris”), an agent with the Federal Bureau of Investigations, for whom Vasquez had worked as a confidential informant. Harris instructed Vasquez to meet him at the storage facility. When Vasquez arrived, Harris was waiting with detectives from the Los Angeles Police Department.
Diane Stewart (“Stewart”) testified before Weaver’s jury under a grant of use immunity. Stewart sought immunity on the basis that she had lied to the police during an interview in 2005. At trial, Stewart testified that she met Weaver in February 2003. They lived together for a period of time and were close friends. Early one morning, before Walsh’s body had been found, Weaver called Stewart at her motel room and sounded upset. He asked Stewart if he could come over. When Weaver arrived later that morning, he did not want to talk. He stayed at Stewart’s motel room for two to three days. At some point, Weaver told Stewart that Walsh was dead. Weaver said that he and Wilson had received a call to go to Steinberg’s apartment, and when they arrived, Steinberg was standing in the doorway with a gun in his hand and Walsh had been shot. Several months later, Stewart had another discussion with Weaver about Walsh’s death. Stewart asked Weaver directly whether he shot Walsh and Weaver said “no.”
Stewart’s testimony at trial was inconsistent with a prior statement that she made to the police on June 1, 2005. Weaver’s jury heard a tape recording of Stewart’s police interview and also received transcripts of the interview. At the time of her interview, Stewart had been arrested in Ventura County on an unrelated charge. While in custody, she asked to speak with Detective John Fleming. On June 1, 2005, Detective Fleming and another detective interviewed Stewart at the Ventura County Jail. During the interview, Stewart said that Weaver had told her that “he shot the last shot.” Stewart also told the detectives that Weaver had said that he helped Walsh when he shot him because Walsh had been sitting in pain for days and Weaver put him out of his misery. Stewart later was transferred to the Los Angeles County Jail where she was re-interviewed by the detectives and the prosecutor. In the second interview, Stewart said that she wanted to clear her conscience and again stated that Weaver had confessed that he fired the final shot because Walsh was in pain.
At trial, however, Stewart repeatedly testified that she did not tell the truth about Weaver’s involvement in Walsh’s death during her interviews with the detectives. According to Stewart, she lied when she said that Weaver had admitted that he shot Walsh because Walsh was in pain. She also lied when she said that Weaver had told her that they put Walsh in a refrigerator while he was still alive and fired the last shot sometime later. Stewart testified that she did not tell the detectives the truth because she was in jail at the time and hoped that her false statements about Weaver would help her in her own case. Stewart also indicated that she was a heavy methamphetamine user around the time of Walsh’s death and her interviews with the police, but had stopped using drugs shortly before trial.
Stewart further testified that after Walsh’s death she received threatening calls from Dennis Walsh. In his telephone messages, Dennis Walsh called Stewart a “two-bit whore” and accused her of hiding Weaver. He also threatened to report her to the immigration authorities and told her that she needed to talk to the police about what she knew. Stewart admitted that Dennis Walsh never told her to lie to the police or suggested that she say that Weaver fired the last shot at Walsh.
Detective Fleming testified for the prosecution about his dealings with Stewart. He arrested Stewart the night before the preliminary hearing on a material witness warrant because he had information that she was not planning to come to court. At that time, Stewart was afraid of testifying and told Detective Fleming, “I can’t be watched forever, and if I go to jail, I’m worse off than if I am outside.” Detective Fleming also testified that during his June 1, 2005 interview with Stewart at the Ventura County Jail, Stewart described Weaver’s involvement in Walsh’s death. Stewart recounted that Weaver told her that Steinberg had opened the door with a gun in hand and said that he had to shoot Walsh. Stewart further reported that Weaver said that he saw Walsh lying “like a vegetable” when he first walked in, that Walsh had been put in a freezer while he was still alive, and that Weaver believed that shooting Walsh put him out of his pain. Stewart told Detective Fleming that she feared Weaver would harm her because he considered her to be a main witness against him in the Walsh case.
At trial, Weaver’s jury also heard wiretapped telephone conversations between Weaver and his friend, Troy Wilcox, a suspect in a federal drug investigation. During those conversations, Weaver expressed concern that Stewart had talked to the police while she was in custody. In another call, however, Weaver indicated that he was not worried about charges being filed against him in the Walsh case because he was innocent.
After Stewart’s arrest in Ventura County, Detective Fleming had her transferred to the Los Angeles County Jail, where she was later re-interviewed. On September 8, 2007, Stewart met with Detective Fleming and the prosecutor to review her prior tape recorded statements in preparation for trial. During her trial preparation meeting, Stewart stated for the first time that she had lied when she said that Weaver had admitted to firing the last shot.
2. Physical Evidence
Walsh’s body was recovered from the blue recycling trash bin inside Vasquez’s storage unit. The trash bin had been wrapped in layers of plastic cloth, bubble wrap, duct tape, and masking tape. A green foam was found on the rim of the trash bin and an aerosol can of “Space Invader Expanding Foam” was found near the bin. Inside the storage unit, the police also recovered a briefcase containing Walsh’s California identification card, a false California driver’s license with Walsh’s photograph, and an arrest report for Walsh related to the Dixon shooting. Steinberg’s fingerprints were matched to prints lifted from furniture inside the storage unit and to prints lifted from bubble wrap and plastic bags found near the trash bin. No fingerprints could be obtained from the bin itself which had an oily surface consistent with WD-40. The police later seized the refrigerator that had been left in the U-Haul truck. The refrigerator was very clean and did not contain any traces of blood.
Walsh’s cause of death was multiple gunshot wounds. He had five bullet wounds to the head and shoulder and a sharp cutting injury to the jaw bone, but no visible defensive wounds. Four of the bullet wounds had a downward trajectory and were consistent with the shooter coming from behind and firing the shots while Walsh was on a couch. It did not appear that Walsh or the shooter was moving at the time of those shots. The fifth bullet wound was to the top of the head above the ear and its trajectory was different from the other four shots, indicating that either Walsh or the shooter had altered positions. While two shots to the shoulder likely were sustained while Walsh was still alive, the coroner could not determine whether the other bullet wounds occurred before or after death. At least three bullets were fired from a.22 caliber long rifle, which could have been a Colt Challenger, but the other two bullets could not be traced to a particular type of firearm. Walsh probably died between June 26 and June 28, 2003. At his time of death, Walsh had amphetamine, methamphetamine, cocaine, and alcohol in his system.
On June 30, 2003, the police conducted a warrantless search of Steinberg’s Moorpark Street apartment. The items seized included two watches and other jewelry from the master bedroom, a baseball cap bearing Walsh’s name from a second bedroom, and a stack of blank credit cards from the bathroom. On July 2, 2003, the police conducted another search of the apartment pursuant to a warrant. During the second search, officers collected blood and tissue splatter from the carpet and wall, and a wet-dry vacuum cleaner containing a reddish-brown liquid from the patio. The stains on the carpet and wall, the substance in the vacuum, and the sectional couch taken from Jassick’s residence tested positive for blood. Walsh’s DNA was found on the blood samples taken from the wall and the couch.
b. The Defense Case
1.Steinberg’s Defense
Robert Dragusica (“Dragusica”) testified on behalf of Steinberg. Dragusica was a member of the Nazi Low Riders and a friend of Wilson. Dragusica testified that, after Walsh was shot, he was asked by his roommate, Kimberly Hamwell (“Hamwell”), to dispose of a gun that he believed may have belonged to Wilson. Dragusica retrieved a.22 caliber gun from Hamwell’s house and threw it into the ocean.
Steinberg testified on his own behalf. He first met Walsh in high school. They became friends again in November 2002 and began working on a credit card fraud scheme. Steinberg also was involved in dealing cocaine and Ecstasy, but denied that he and Walsh ever tried to create a larger criminal organization with Steinberg as its leader. In June 2003, Steinberg moved into the Moorpark Street apartment and invited Walsh to stay with him. Walsh was a heavy drug user at the time and he and Steinberg had a tumultuous relationship. However, Steinberg denied that they argued about the Dixon shooting. Instead, Walsh was proud that he had not talked to the police about the shooting and showed Steinberg a copy of a police report to prove it.
Steinberg last saw Walsh on June 22, 2003, shortly before Walsh left to attend a convention. That same evening, Steinberg saw Wilson and Grueskin inside the Moorpark Street apartment moving some furniture into Walsh’s Ford Explorer. Steinberg was not suspicious at the time because Walsh was supposed to move furniture from Vasquez’s storage unit into the apartment the following week. Vasquez previously had given Steinberg permission to use her storage unit, and both Steinberg and Walsh had a key to the unit. They had been using Vasquez’s unit to store various items, including Ecstasy pills. After Walsh’s disappearance, Steinberg repeatedly tried to contact Walsh on his cell phone, but was unable to reach him.
On June 24, 2003, Steinberg gave the sectional couch in his apartment to Jassick. Although the couch belonged to Walsh, Steinberg decided to get rid of it because it was stained. Steinberg first noticed stains on the couch and carpet on June 23, 2003, and believed they came from a pizza party the night before. Steinberg borrowed Jassick’s vacuum to clean the carpet and placed it on the patio for Jassick to retrieve. Steinberg denied that there ever was a blue trash bin inside his apartment or on his patio. He also denied that the refrigerator found in the U-Haul truck rented by Jassick had been in his apartment. Steinberg admitted that a fake Rolex watch found in his jewelry box belonged to Walsh, but stated that he was holding it for Walsh and had intended to return it to him. On June 27, 2003, after Walsh’s disappearance, Steinberg discovered that some Ecstasy pills were missing. He searched Vasquez’s storage unit for the pills, and in the process, he left his fingerprints on various items inside the unit. Steinberg did not see a trash bin inside the storage unit during his search.
At trial, Steinberg denied that Weaver and Wilson ever came to his apartment in response to a telephone call about Walsh. He also denied telling them that he had to shoot Walsh. Steinberg testified that he had no personal knowledge about Walsh’s death.
ii. Weaver’s Defense
Weaver called Dr. Terrance McGee, a specialist in addiction medicine. Dr. McGee testified that methamphetamine severely affects a user’s central nervous system and can diminish the ability to recall reality. He opined that a methamphetamine addict who was incarcerated probably would show signs of depression and would do whatever it took to get access to the drug, including lying to the police to gain freedom.
Weaver also called Detective Fleming to testify about his dealings with Grueskin. Detective Fleming admitted that Grueskin did not tell him that Weaver had fired the final shot at Walsh until he told Grueskin his theory of the case. Detective Fleming also acknowledged that Grueskin was in custody during that interview and that Grueskin had asked for a “quid pro quo” with respect to a pending case. Detective Fleming further testified that he intended to appear at Grueskin’s upcoming sentencing hearing to request a more favorable sentence because of his testimony in this case.
Kevin McCarthy (“McCarthy”) knew both Weaver and Walsh. McCarthy testified that after Walsh’s death Dennis Walsh contacted him and demanded that they meet. Dennis Walsh told McCarthy several times that he believed Weaver fired the final shot. McCarthy told Dennis Walsh that he also had heard that about Weaver, but he did not have any firsthand information about Walsh’s death. Dennis Walsh never threatened McCarthy or told him to lie to the police.
V. Verdict and Sentencing
On December 11, 2007, Steinberg’s jury reached a verdict. The jury acquitted Steinberg of the charge of making criminal threats, but found him guilty on all other counts. As to the murder count, the jury found true the special circumstance allegation that Steinberg committed the murder of Walsh by means of lying in wait, but it was unable to reach a decision on the witness killing allegation. As to the attempted murder counts, the jury found that the attempted murder of Dixon was committed with deliberation and premeditation. The jury also found true each of the firearm enhancement allegations. Steinberg was sentenced to a total term of life without the possibility of parole, plus 59 years, two consecutive life terms, and one consecutive term of 25 years to life.
On December 13, 2007, Weaver’s jury reached a verdict. The jury found Weaver guilty of second degree murder, and found true each of the firearm enhancement allegations. Weaver was sentenced to a total term of 40 years to life, consisting of 15 years to life on the murder count, plus 25 years to life on one of the firearm enhancements. Steinberg and Weaver each filed a timely notice of appeal.
DISCUSSION
I. Sufficiency Of The Evidence On The Convictions
Steinberg and Weaver each challenge the sufficiency of the evidence supporting their convictions. In reviewing the sufficiency of the evidence to support a conviction, “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) We draw all reasonable inferences in support of the judgment and “‘“presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509.) We do not, however, reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The test on appeal is not whether we believe that the evidence established the defendant’s guilt beyond a reasonable doubt, but whether “‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Davis, supra, at p. 509.) With these principles in mind, we turn to Appellants’ arguments about the sufficiency of the evidence supporting their convictions.
A. Steinberg’s Conviction For The Murder Of Walsh
Steinberg contends that his conviction for the murder of Walsh must be reversed because it was not supported by the testimony of a single credible witness. We conclude, however, that there was substantial testimonial and physical evidence to support Steinberg’s murder conviction.
Wilson testified that Steinberg admitted to shooting Walsh. According to Wilson, when he and Weaver arrived at Steinberg’s apartment, Steinberg was standing at the door and told them that he had to shoot Walsh. Once inside the apartment, Wilson observed Walsh bleeding and gurgling on the couch. Steinberg said that he shot and stabbed Walsh during an argument because Walsh had threatened to kill him and started searching for his gun.
Multiple witnesses testified about Steinberg’s motive and opportunity to kill. At the time of Walsh’s death, Steinberg and Walsh were sharing the Moorpark Street apartment and were partners in various criminal pursuits. Grueskin testified that the relationship between Steinberg and Walsh began to deteriorate shortly after the Dixon shooting. Steinberg was concerned that Walsh had told the police about his involvement in the shooting and also accused Walsh of stealing drugs from him. Wilson similarly testified that Steinberg had been angry with Walsh and once stated that Walsh was “going to make me kill him.” Williams in turn testified that he heard a heated argument between Steinberg and Walsh shortly before Walsh’s disappearance, and that in reference to a threat made by Walsh, Steinberg said that “[i]f somebody said they are going to come kill you, you don’t wait for them to come kill you.” Williams further testified that he gave a.22 caliber Colt Challenger firearm to Steinberg a few weeks before Walsh’s death.
Several witnesses also testified about Steinberg’s attempts to cover up the crime. Wilson recounted that Steinberg placed Walsh’s body in a blue recycling trash bin and that they discussed how to best dispose of the body. Jassick testified that in late June 2003 Steinberg borrowed Jassick’s heavy duty wet-dry vacuum to clean the carpet in the Moorpark Street apartment and also offered Jassick a stained couch from the apartment. Vasquez testified that Steinberg had access to her storage unit and that he asked her in late June 2003, if he could continue to use the unit to store some furniture. On July 2, 2003, about a week after Walsh’s disappearance, Vasquez visited the storage unit and found a foul-smelling blue recycling trash bin, along with documents belonging to Walsh.
The physical evidence corroborated the witness testimony. Walsh’s body was found in the trash bin inside Vasquez’s storage unit. He had five gunshot wounds to the head and shoulder area and a sharp cutting injury to the jaw bone. Four of the shots were consistent with the shooter coming from behind and firing the weapon at a downward angle, as would have been the case with Walsh lying on the couch. At least three shots were fired from a.22 caliber firearm, which could have been a Colt Challenger. Walsh’s DNA was found on blood stains on the couch and the wall in the Moorpark Street apartment. Steinberg’s fingerprints were found on bubble wrap and plastic bags around the trash bin containing Walsh’s body.
In challenging the sufficiency of the evidence, Steinberg argues that the prosecution’s witnesses were without any credibility because they were convicted felons and drug abusers with serious criminal histories and because they expected favorable deals in their own cases in exchange for their testimony. Steinberg also asserts that many witnesses were coerced into testifying against him because of threats or favors by the Walsh family.
It is true that the prosecution’s principal witnesses had histories of criminal activity and drug addiction. Both Jassick and Wilson had been charged as accessories in Walsh’s murder before they agreed to testify against Steinberg. Wilson and Williams had multiple prior felony convictions and arguably were able to secure more favorable sentences in their own cases based on their testimony in this case. Grueskin was on probation at the time of his testimony and hoped to receive help from the police on unrelated charges that were pending against him. In addition, many witnesses admitted to being heavy methamphetamine users at the time of Walsh’s murder.
It is also true that the Walsh family was forceful in its efforts to find witnesses and to convince them to testify in this case. Grueskin and Wilson both believed that the Walsh family was mob-connected. Grueskin was frightened of the family and told them what he knew because he did not want them to think he was involved. Wilson felt that Walsh’s brothers were threatening both him and his wife and he feared that they would kill him. Williams was contacted multiple times by Walsh’s brothers who wanted him to talk to the police, and Dennis Walsh tried to help Williams in his pending drug possession case because he was a witness in this case. On the other hand, the witnesses also testified that the Walsh family did not ask them to lie about Steinberg’s involvement, but instead wanted them to tell the truth about what they knew.
Dennis Walsh, an attorney, was most directly involved in the investigation and prosecution of Walsh’s murder. In fact, Dennis Walsh so intruded into the prosecution’s handling of the case that the prosecutor had him banned from the courtroom for two years and ordered not to further contact witnesses.
Ultimately, Steinberg’s argument amounts to a challenge to the credibility of witnesses. However, it was for a jury, not this court, to judge the witnesses’ credibility. While we must ensure that the evidence is reasonable, credible and of solid value, “‘“[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment....”’ [Citation.]” (People v. Lewis, supra, 26 Cal.4th at p. 361.) It is the exclusive province of the jury “‘to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.’ [Citation.]” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) If the verdict is supported by substantial evidence, we must accord due deference to the jury and not substitute our evaluation of a witness’s credibility for that of the trier of fact. (Ibid.)
Here, the jury heard an extensive amount of evidence about the witnesses’ criminal and drug related histories and the Walsh family’s efforts to compel witnesses to testify against Steinberg. The jury was also instructed on the factors to be considered when weighing the credibility of witnesses, including prior felony convictions, past criminal conduct, and testimony given under a grant of use immunity. As a result, the jury had ample opportunity to reject the testimony of the prosecution’s witnesses on the basis that their prior convictions, drug addictions, or fear of retaliation by the Walsh family rendered their testimony unbelievable. Instead, the jury, acting within its exclusive province, chose to accord credibility to the witnesses’ testimony and the corroborating physical evidence. Steinberg’s challenge to the sufficiency of the evidence supporting his murder conviction therefore fails.
B. Steinberg’s Conviction On The Lying-In-Wait Special Circumstance
Steinberg argues, in the alternative, that the evidence was insufficient to support the special circumstance finding that Walsh’s murder was committed by means of lying in wait. The lying-in-wait special circumstance is defined as “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage....” (People v. Morales (1989) 48 Cal.3d 527, 557.) A sufficiency of evidence challenge to a special circumstance finding is reviewed under the same standard applied to a conviction. (People v. Mayfield (1997) 14 Cal.4th 668, 790.)
The concealment of purpose that is required to support a lying-in-wait finding is “‘that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise.... [Citation.]’” (People v. Morales, supra, 48 Cal.3d at p. 555.) Concealment may be shown where the “‘“defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.”’ [Citations.]” (People v. Sims (1993) 5 Cal.4th 405, 432-433.) Although the watching and waiting must be “substantial” to support a lying-in-wait finding, the precise period of time spent waiting is not critical or subject to a fixed time limit. (People v. Moon (2005) 37 Cal.4th 1, 23.) A “relatively short” period of time may suffice if it negates any inference that the murder was “the result of panic or sudden impulse.” (Id. at p. 24.) Where a concealment of purpose is coupled with a period of watchful waiting that immediately precedes a surprise attack, the elements of the lying-in-wait special circumstance are met. (People v. Morales, supra, at pp. 556-557.)
Steinberg contends that the concealment of purpose element was not satisfied here because the only evidence that Walsh was shot while lying on a couch came from Wilson, who was not present at the shooting. Contrary to Steinberg’s claim, however, Wilson’s testimony that Walsh was on the couch was corroborated by physical evidence. Walsh’s DNA was found on a blood-stained sample that was taken from the couch. Furthermore, four of the five gunshot wounds that Walsh sustained were consistent with him lying on a couch and being shot from behind while neither Walsh nor the shooter was moving. The jury reasonably could infer that Steinberg concealed his purpose by approaching Walsh from behind and then firing his weapon multiple times while Walsh was lying defenseless on the couch.
Steinberg also claims that there was no evidence to establish that he spent a period of time watching and waiting for an opportunity to attack. However, several witnesses testified that Steinberg and Walsh increasingly argued in the weeks preceding the murder because Steinberg believed that Walsh had stolen drugs from him and might be a witness against him in the Dixon shooting case. Williams, in particular, testified that Walsh threatened Steinberg only weeks before his death, telling Steinberg that he was “coming” for him and was “coming heavy and... not coming alone.” When Williams urged Steinberg to let the threat go, Steinberg stated that “[i]f somebody said they are going to come kill you, you don’t wait for them to come kill you.” Based on the witness testimony, the jury reasonably could infer that, once Walsh threatened Steinberg, Steinberg began a substantial period of watchful waiting for an opportune time to attack and then did so when he saw Walsh lying on the couch.
C. Steinberg’s Convictions On The Attempted Murder Of Dixon
Steinberg next asserts that there was insufficient evidence to support the attempted murders of Dixon as premeditated and deliberate. “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) An attempted murder is “premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” (People v. Stitely (2005) 35 Cal.4th 514, 543.) “Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection.” (People v. Cook (2006) 39 Cal.4th 566, 603.) “‘“The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” [Citations.]’” (People v. Bolin (1998) 18 Cal.4th 297, 332.)
Steinberg claims that the evidence did not establish premeditation or deliberation as to the first gunshot because Dixon told the police that Steinberg would have had a clear shot at him if he had fired through a car window and because Steinberg shouted “freeze” before firing the first shot. Steinberg reasons that he would not have shouted “freeze” if he intended to kill Dixon and that he only fired his weapon after he saw Dixon drawing his gun. Steinberg further contends that there was no evidence of premeditation or deliberation as to the second gunshot because Dixon told the police that the second shot may have been a warning shot and because Dixon had his weapon drawn when Steinberg fired a final shot as he was fleeing.
Dixon’s testimony, however, supports a conclusion by the jury that the shootings were not the result of a rash impulse, but rather were deliberate acts which occurred after an opportunity for reflection. Dixon testified that he was engaged in casual conversation with Walsh when Steinberg entered the garage area, reached into the Cadillac to retrieve something, and walked around the Ford Explorer toward the area where Walsh and Dixon were talking. Steinberg then shouted “freeze” and started shooting at Dixon. Contrary to Steinberg’s claim, Dixon testified that his firearm was still concealed under his clothing at the time Steinberg shouted “freeze” and fired the first shot. As the first shot was fired, Dixon ducked for cover while drawing his weapon. Steinberg then ran toward the townhouse, and as he was running away, he fired another shot at Dixon.
Although Dixon told the police that Steinberg would have had a clearer shot through a car window, his statement does not demonstrate that Steinberg’s decision to shout “freeze” and to fire his weapon from a different position was without reflection. Dixon was clear in his testimony that Steinberg was pointing his gun directly at Dixon when he fired the first shot and that Dixon’s weapon was still concealed under his clothing at the time. Dixon’s statement to the police that the last shot was “like a warning shot” also fails to show a lack of deliberation on the part of Steinberg. Dixon testified at trial that he misspoke when he described the last shot as a warning shot and that he meant it was a wild shot. Dixon further testified that when Steinberg fired the final shot as he was running away, he was pointing his gun directly at Dixon and fired the shot as if to make sure that Dixon did not follow him. While Steinberg’s version of the shooting conflicted with that of Dixon, the jury was responsible for evaluating the credibility of the witnesses and resolving the conflicts in the evidence. (People v. Lewis, supra, 26 Cal.4th at p. 361; People v. Ochoa, supra, 6 Cal.4th at p. 1206.) The jury obviously chose to credit the testimony of Dixon. Substantial evidence thus supported Steinberg’s convictions for premeditated and deliberate attempted murder.
D. Steinberg’s Conviction On The Assault Of Tovar
Steinberg also challenges the sufficiency of the evidence supporting his assault conviction. An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) An assault does not require a specific intent to cause injury, but “only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.) “To point a loaded gun in a threatening manner at another... constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
Steinberg argues that his assault conviction was based solely on the testimony of Marta Wilson, whom he contends was not credible. Steinberg primarily focuses on an inconsistency between Marta Wilson’s trial testimony and her pretrial statement to the police about where she was during the confrontation between Steinberg and Tovar. At trial, Marta Wilson testified that she was sitting with Tovar in the dining room during the time that Steinberg held his gun on Tovar. In her interview with the police, she stated that she went to the kitchen to wash dishes while Steinberg held Tovar at gunpoint. However, it was for the jury to resolve the conflicts in the evidence and to evaluate whether Marta Wilson’s testimony at trial was more credible. (People v. Lewis, supra, 26 Cal.4th at p. 361; People v. Ochoa, supra, 6 Cal.4th at p. 1206.) It was also for the jury to decide whether Marta Wilson’s admitted drug abuse made her an unreliable witness. The jury reasonably could have concluded that Marta Wilson testified truthfully at trial, and that despite being under the influence of drugs at the time, she was certain she saw Steinberg holding Tovar at gunpoint.
Steinberg’s claim that Marta Wilson could not identify him as the perpetrator at trial is also without merit. The record reflects that Marta Wilson was admittedly nervous at the start of her trial testimony and initially stated that she did not know if she saw the person who pointed the gun at Tovar in the courtroom. However, when asked to examine each person in the courtroom carefully, she identified Steinberg as the perpetrator. Her testimony also was corroborated by Hayes, who testified that Marta Wilson told him shortly after the incident that Steinberg had held Tovar at gunpoint in her house. Based on the witnesses’ testimony, Steinberg’s assault conviction was supported by substantial evidence.
e. Weaver’s Conviction On The Murder Of Walsh
Weaver challenges the sufficiency of the evidence supporting his conviction for the second degree murder of Walsh. He argues that his conviction must be reversed because the prosecution’s case against him was based almost exclusively on the out-of-court admissions of two witnesses which were not solid and credible. We conclude, however, that the testimony of the witnesses and the corroborating physical evidence was sufficient to support Weaver’s conviction.
Grueskin testified at trial that Weaver admitted to shooting Walsh. According to Grueskin, after Walsh’s death, he and Weaver had an argument during which Weaver stated that Walsh “deserved what he got” and that he “did” Walsh. Weaver threatened to “do the same thing” to Grueskin if he did not stop talking to the Walsh family. The defense sought to challenge Grueskin’s credibility by showing that he was a lifelong criminal and methamphetamine addict with a motive to lie. In particular, defense counsel elicited testimony that the first time Grueskin told the police about Weaver’s admission was when he was in custody and that he did not disclose Weaver’s involvement in the murder until after it was suggested by Detective Fleming. Grueskin also admitted that he told the police what he knew about the Walsh case in the hope that it would help him in his own cases, and that he had lied to law enforcement authorities in the past in order to help himself.
Weaver accordingly offered evidence at trial from which a jury could conclude that Grueskin was not a credible witness. However, that credibility judgment was to be made by the jury, not this court. A witness’s testimony may be rejected on appeal only when it is “physically impossible” or “inherently improbable.” (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296.) To be inherently improbable, “‘the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.’” (People v. Mayberry (1975) 15 Cal.3d 143, 150.) Furthermore, the falsity of the witness’s testimony must be apparent without resorting to inferences or deductions. (Ibid.) Here, Grueskin’s testimony was neither physically impossible nor inherently improbable. It ultimately was up to the jury to weigh the credibility of Grueskin as a witness and to decide whether to accept his account of Weaver’s admission as true.
Stewart’s pretrial statements to the police also supported Weaver’s conviction for murder. In an interview with Detective Fleming while in custody on an unrelated charge, Stewart stated that Weaver had confessed to firing the final shot at Walsh after Steinberg had shot him in order to put Walsh out of his pain and misery. At trial, Stewart recanted her prior statement to the police and claimed that she had lied about Weaver’s admission because she was in jail on a drug charge at the time and hoped that the lie would help her in her own case. Stewart testified at trial that Weaver had denied any involvement in Walsh’s death. According to Stewart’s trial testimony, Weaver told her that when he and Wilson arrived at Steinberg’s apartment, Steinberg was standing in the doorway with a gun in his hand and that Walsh already had been shot. Stewart later asked Weaver whether he shot Walsh and Weaver said that he did not.
Weaver’s jury heard Stewart’s testimony at trial as well as her pretrial tape recorded interview with the police. The jury also heard Detective Fleming’s testimony about his dealings with Stewart and her prior statements to him that she feared for her life if forced to testify. As this Court has stated, “[j]urors are the sole judges of a witness’s credibility and they are rightfully suspicious of trial testimony which deviates 180 degrees from what the witness told the police....” (People v. Jackson (2005) 129 Cal.App.4th 129, 167.) In this case, the jury had to choose between Stewart’s pretrial statement to the police and her contradictory testimony at a public trial. The jury reasonably could have concluded that Stewart’s statements to the police were more credible and ascribed her conflicting statements at trial to her fear of testifying publicly against Weaver. It was the province of the jury, as the sole arbiter of credibility, to decide whether to accept Stewart’s prior inconsistent statement as true.
Wilson’s testimony also provided some support for Weaver’s conviction. Although Wilson recounted that Walsh already had been shot by the time he and Weaver arrived at Steinberg’s apartment, his testimony did not refute the prosecution’s theory that Weaver fired the last shot at Walsh sometime later. Wilson also testified that, after the shooting, Weaver was concerned about being charged with second degree murder and suggested that they tell the police that Walsh was already dead when they first saw him. Wilson further corroborated Grueskin’s testimony that Weaver always followed Steinberg’s orders. Wilson similarly described Weaver as a follower and Steinberg’s “yes man” because Weaver did whatever Steinberg wanted him to do. The testimony of Wilson and Grueskin thus supported that Weaver also had a motive for shooting Walsh.
While the physical evidence did not connect Weaver directly to the crime, it did support for the prosecution’s theory that another person fired the final shot. The evidence showed that four of the five gunshot wounds to Walsh had the same downward trajectory and were consistent with the shooter coming from behind while Walsh was lying on the couch. The fifth shot to the top of the head was from a different, nearly level trajectory and was consistent with Walsh or the shooter changing positions. Based on the physical and testimonial evidence, the jury reasonably could have concluded that Steinberg fired the first four shots from behind while Walsh was on the couch and that Weaver fired the final fatal shot to Walsh’s head at a different time. In sum, Weaver’s conviction for second degree murder was supported by substantial evidence.
II. Denial Of Motion To Sever Dixon Attempted Murder Counts Under Section 954
Steinberg contends that the trial court erred and deprived him of due process when it denied his motion to sever the two counts on the attempted murder of Dixon from the other charges alleged against him. This contention lacks merit.
The law prefers consolidation of charges. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) Section 954 sets forth the statutory rules governing consolidation of criminal counts, and provides, in pertinent part, that “[a]n accusatory pleading may charge... two or more different offenses of the same class of crimes or offenses, under separate counts,... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately....” (§ 954.) Here, the crimes of murder, attempted murder, and assault are of the same class of “assaultive crimes against the person.” (People v. Lucky (1988) 45 Cal.3d 259, 276.) Where the threshold statutory requirements for consolidation are met, a defendant can establish error in the denial of a motion to sever only upon “a clear showing of potential prejudice.” (People v. Stanley (2006) 39 Cal.4th 913, 934; People v. Manriquez (2005) 37 Cal.4th 547, 574.) We review a trial court’s decision to deny severance under the deferential abuse of discretion standard. (People v. Stanley, supra, at p. 934; People v. Manriquez, supra, at p. 574)
The determination of prejudice is dependent on the particular circumstances of the individual case. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) “‘Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]’” (Ibid.) In evaluating potential prejudice, we must examine the record before the trial court at the time of its ruling. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244; People v. Cummings (1993) 4 Cal.4th 1233, 1284.) “A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process.” (People v. Stitely, supra, 35 Cal.4th at p. 531.)
Cross-admissibility is often the dispositive factor. “If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.” (People v. Soper (2009) 45 Cal.4th 759, 774-775.) Here, evidence from the shooting of Dixon would have been admissible in a separate trial on the murder of Walsh to show motive and intent. The prosecution’s theory in the Walsh case was that Steinberg killed Walsh, in part, because he believed Walsh would testify against him in the Dixon case. Steinberg notes the jury ultimately did not find the witness killing special circumstance to be true. However, in reviewing the denial of a motion to sever, we must consider the record before the trial court at the time of its ruling. (People v. Cummings, supra, 4 Cal.4th at p. 1284 [“the propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard”].) At the time the trial court denied severance, there was information supporting the theory that Steinberg’s motive in Walsh’s murder was that Walsh was a witness to the attempted murder of Dixon. Because complete cross-admissibility is not required, the admissibility of evidence in the Dixon case on the issue of intent in the Walsh case was sufficient to justify joinder of the counts. (People v. Cunningham (2001) 25 Cal.4th 926, 985 [“complete cross-admissibility is not necessary to justify the joinder of counts”].)
The other factors also fail to demonstrate prejudice. Neither the Dixon attempted murder case nor the Walsh murder case was more likely than the other to inflame the jury. Both cases involved crimes of violence against an unsuspecting victim who was taken by surprise. Dixon was engaged in casual conversation and his firearm was concealed under his clothing when Steinberg suddenly shouted “freeze” and started shooting. Walsh was reclining on the couch in the apartment he shared with Steinberg when he was shot in the head and shoulder repeatedly from behind. While it is true that the Dixon case concerned the attempted murder of a sheriff’s deputy, Dixon was off-duty at the time of the shooting and his status as an officer was then unknown to Steinberg. To the extent that the jury was likely to be inflamed, the circumstances of either offense were equally as likely to influence the jury.
Moreover, there was no substantial disparity in the strength of evidence between the two cases that would make one comparatively stronger or weaker than the other. Although the Dixon case was based largely on the testimony of one witness, that witness was Dixon, a former law enforcement officer whom the jury was likely to find credible. The Walsh case was based on the testimony of witnesses with more credibility issues because of their criminal backgrounds, but there were multiple witnesses who testified about Steinberg’s motive, admissions, and cover-up efforts, and their testimony was corroborated by physical evidence connecting Steinberg to the crime. Because Steinberg cannot make a clear showing of potential prejudice in the joinder of these charges, the trial court did not abuse its discretion in denying the motion to sever.
III. Denial Of Motion To Suppress Evidence Seized In Search
Steinberg also argues that the trial court erred and violated his Fourth Amendment rights by denying his motion to suppress evidence seized in two searches of his Moorpark Street apartment. The trial court denied the suppression motion on the grounds that Steinberg did not have a legitimate expectation of privacy in the apartment because it had been procured by fraud. The trial court further found that the evidence seized in the warrantless search would be admissible under the doctrine of inevitable discovery. On appeal, we need not decide whether the trial court erred in finding that Steinberg did not have a legitimate expectation of privacy in the apartment. Even assuming that Steinberg had a legitimate privacy interest, we agree with the trial court that the doctrine of inevitable discovery applied to the evidence seized in the initial warrantless search and that the subsequent search of the apartment was conducted pursuant to a valid warrant. .
A. Searches Of The Moorpark Street Apartment
At the hearing on the suppression motion, Detective Fleming testified about the searches of the Moorpark Street apartment. After the shooting of Dixon, arrest warrants were issued for Steinberg and Walsh, and Detective Fleming undertook to determine their whereabouts. On June 30, 2003, he received information that Walsh was missing and that Steinberg might have been involved. Detective Fleming began speaking with several individuals who knew Steinberg and Walsh, and he learned that they were both living at the Moorpark Street apartment. When Detective Fleming arrived at the apartment later that day, Steinberg had been arrested and was seated in a police vehicle. Steinberg told Detective Fleming that the police could search the apartment if his parole agent was present.
It later was learned that Steinberg was not on parole at the time of the search and that his correctional records incorrectly had listed his discharge date as July 28, 2003. Steinberg’s actual date of discharge from parole was March 9, 2003. On appeal, the parties agree that the June 30, 2003 search was not a valid parole search because Steinberg was not on parole at the time of the search.
On June 30, 2003, after Steinberg’s parole agent arrived, the police conducted a warrantless search of the apartment and seized various items. Among the items seized were two watches from a jewelry box in the master bedroom, paperwork from a nightstand in the master bedroom, a baseball cap bearing Walsh’s name from a second bedroom, a handgun laser site from the living room, a telephone book from the kitchen, and a stack of blank credit cards from the bathroom. One of the watches seized was a fake Rolex watch that the police believed belonged to Walsh. During the search, Detective Fleming also observed a U-Haul truck parked on the street, and upon opening the truck, he saw a refrigerator without its shelves inside.
On July 2, 2003, Jassick came to the police station accompanied by Patty Vandall (“Vandall”). Officer Orlando Martinez met with Vandall who reported that Steinberg’s couch was in her home and that she believed it had blood on it. Vandall also stated that Jassick had rented a U-Haul truck for Steinberg and that the U-Haul company had called because the truck had not been returned. Later that day, Officer Martinez went to Vandall’s residence and waited for Detective Fleming to obtain a warrant to retrieve the couch. The couch subsequently was seized pursuant to a search warrant.
On July 2, 2003, Detective Fleming received information that Walsh’s body may have been found in a storage unit. Detective Fleming went to the storage unit that afternoon where he met Vasquez and two federal agents. Vasquez indicated that she was involved with Steinberg. Inside the storage unit, Detective Fleming observed a blue trash bin that had been sealed with a drop cloth, duct tape, masking tape, and green foam. He also found paperwork pertaining to Walsh. Later that day, Detective Fleming sought a search warrant for the Moorpark Street apartment. In his July 2, 2003 affidavit in support of the warrant, Detective Fleming set forth the results of the initial search and investigation described above.
On July 2, 2003, the police conducted a search of the Moorpark Street apartment pursuant to a warrant, and seized duct tape, drop cloths, plastic trash bags, and other miscellaneous items. Officers also collected blood and tissue splatter from the carpet and wall and a wet-dry vacuum cleaner containing a reddish-brown substance from the patio. The stains on the carpet and wall and the substance in the vacuum tested positive for blood, and the blood splatter on the wall was matched to Walsh’s DNA.
At the hearing on the suppression motion, Detective Fleming was asked whether, assuming he had not searched the apartment on June 30, 2003, he would have sought a search warrant for the apartment after finding what he believed to be Walsh’s body inside the storage unit. Detective Fleming agreed that he would have sought a warrant because he had obtained independent information that both Walsh and Steinberg had been residing at the apartment, that Steinberg was connected to Vasquez’s storage unit, and that it was rumored that Steinberg had killed Walsh.
b. Doctrine Of Inevitable Discovery
In reviewing the ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Brendlin (2008) 45 Cal.4th 262, 268; People v. Ayala (2000) 24 Cal.4th 243, 279.) In determining whether, on the facts found by the trial court, a search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Brendlin, supra, at p. 268; People v. Ramos (2004) 34 Cal.4th 494, 505.)
“The Fourth Amendment protects an individual’s reasonable expectation of privacy against unreasonable intrusion on the part of the government.” (People v. Jenkins (2000) 22 Cal.4th 900, 971.) Evidence obtained in violation of the federal constitutional right to be free from unreasonable search and seizure must be excluded. (People v. Williams (1999) 20 Cal.4th 119, 125.) The exclusionary rule also requires exclusion of any derivative evidence that is the product of the primary evidence or that is an indirect result of the unlawful search “up to the point at which the connection with the unlawful search becomes ‘so attenuated as to dissipate the taint.’ [Citation.]” (Murray v. United States (1988) 487 U.S. 533, 537.)
The inevitable discovery doctrine acts as an exception to the exclusionary rule. It permits the admission of otherwise excluded evidence “if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police....” (Nix v. Williams (1984) 467 U.S. 431, 447.) The purpose of the exception is “to prevent the setting aside of convictions that would have been obtained without police misconduct.” (People v. Robles (2000) 23 Cal.4th 789, 800.) The prosecution bears the burden of proving by a preponderance of the evidence that the information otherwise unlawfully obtained would have been inevitably discovered. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62.) There must be a “reasonable probability that [the challenged evidence] would have been procured in any event by lawful means.” (People v. Boyer (1989) 48 Cal.3d 247, 278, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
In this case, we conclude that, assuming Steinberg had a legitimate expectation of privacy in the Moorpark Street apartment, the evidence seized in the June 30, 2003 warrantless search of the apartment would have been admissible under the inevitable discovery doctrine. Prior to the warrantless search, police had initiated an investigation into Walsh’s disappearance. Detective Fleming had received information that Walsh was missing under suspicious circumstances and that Steinberg was rumored to be involved. Detective Fleming also had received information that both Steinberg and Walsh had been residing at the Moorpark Street apartment.
After the warrantless search of the apartment, the police obtained additional information about Walsh’s disappearance that was independent of any evidence seized in the initial search. In particular, the police received independent information from Vandall that Jassick had possession of a couch belonging to Steinberg and the couch had a stain resembling blood. The police thereafter received additional independent information that Walsh’s body may have been found in a storage unit and that Steinberg recently had access to the unit.
Based on the independent information obtained by the investigating officers, the police knew that both Steinberg and Walsh had been residing at the Moorpark Street apartment, knew that Walsh had been reported missing, knew that Steinberg had given away a couch with a stain that resembled blood, and knew that a suspicious trash bin and documents related to Walsh had been found in a storage unit accessible to Steinberg. It is more than reasonably probable that this independent information alone would have led the police to obtain a search warrant for the Moorpark Street apartment where they would have discovered the evidence seized in the initial warrantless search. The evidence from the June 30, 2003 warrantless search was thus admissible under the inevitable discovery doctrine.
We also conclude that the police would have had probable cause to obtain a warrant for the July 2, 2003 search of the apartment even in the absence of the evidence seized in the warrantless search. The affidavit in support of the warrant only briefly mentioned some of the items seized in the initial search. Those items, such as Walsh’s Rolex watch, car keys, and cap, supported the belief that Walsh had been residing at the apartment, but the police had information to that effect prior to the warrantless search. The vast majority of the affidavit recounted the information that the police received from various independent sources about Walsh’s disappearance. It described how Detective Fleming first learned from Walsh’s attorney that Walsh was missing under suspicious circumstances and that Steinberg might be involved, how he learned from Jassick that Steinberg had given away a couch with an apparent blood stain on it, and how he learned from Vasquez that there was a odorous trash bin in her storage unit to which Steinberg had the only key. Even excising the portion of the affidavit that pertained to the items seized in the warrantless search, the affidavit contained sufficient information to establish probable cause for the warrant. (People v. Weiss (1999) 20 Cal.4th 1073, 1081 [after excising all tainted information, a warrant must be upheld on review “if the remaining information establishes probable cause”].)
Therefore, because the evidence seized in the initial search was admissible under the inevitable discovery doctrine and the evidence from the subsequent search was seized pursuant to a valid warrant, the trial court did not err in denying the motion to suppress.
IV. Evidentiary Rulings On The Admission Of Evidence Against Steinberg
Steinberg further challenges the following evidentiary rulings made by the trial court: (1) admission of evidence of jailhouse attacks on two witnesses; (2) admission of evidence regarding Steinberg’s reading material; and (3) allowance of argument about a green substance found on a watch in Steinberg’s jewelry box. Steinberg asserts that the admission of such evidence was unduly prejudicial under the Evidence Code and deprived him of his constitutional right to due process.
A trial court generally has broad discretion concerning the admission of evidence. (People v. Cole (2004) 33 Cal.4th 1158, 1197; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question....’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 805.) The trial court’s exercise of discretion “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Rodrigues, supra, at pp. 1124-1125.) Under Evidence Code section 352, evidence is unduly prejudicial if it “uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.” (People v. Crittenden (1994) 9 Cal.4th 83, 134.) “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) In this case, we conclude that the trial court did not abuse its discretion or violate due process in admitting the challenged evidence.
A. Jailhouse Attacks On Witnesses
Prior to the prosecution’s opening statement, Steinberg’s counsel moved to exclude evidence that two witnesses, Wilson and Hayes, were assaulted in jail around the time they testified at the preliminary hearing. The defense argued that there was insufficient evidence connecting Steinberg to the assaults and that the evidence was prejudicial and inflammatory. The prosecution responded that there was sufficient circumstantial evidence that Steinberg was responsible for the crimes and that the nature of the attacks was consistent with a witness’s throat being cut for being a “snitch.” The prosecution reasoned that the evidence was relevant to its theory that Walsh was murdered because he also had been a witness against Steinberg. The trial court agreed and admitted the evidence, finding that it was highly probative circumstantial evidence that outweighed its prejudicial effect.
Wilson subsequently testified that, while he and Steinberg were in jail, Steinberg passed him a transcript of a police interview with Hayes, and after reading the transcript, Wilson believed Hayes would get “hit” for talking to the police. On another occasion, Wilson asked Steinberg about the possibility of Weaver testifying, and Steinberg told Wilson to find out where Weaver was being housed because he could have Weaver “hit in jail or out.” Wilson also recounted that, the day after he testified at the preliminary hearing, his face was cut from ear to chin in a jailhouse attack that resulted in over 100 stitches. Hayes similarly testified that, the day before his preliminary hearing testimony, his face was cut from ear to cheekbone while he was in jail. The inmate who attacked Hayes stated that it was “for giving the testimony against David.”
The trial court reasonably could have concluded that the probative value of the evidence substantially outweighed its prejudicial effect. First, evidence of threats against a witness are relevant to the witness’s credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142; People v. Burgener (2003) 29 Cal.4th 833, 869.) “For such evidence to be admissible, there is no requirement to show threats against the witness were made by the defendant personally....” (People v. Guerra, supra, at p. 1142.) “It is not necessarily the source of the threat -- but its existence -- that is relevant to the witness’s credibility.” (People v. Burgener, supra, at pp. 869-870.) “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.)
Moreover, in this case, there was circumstantial evidence connecting Steinberg to the jailhouse attacks. Before Hayes was assaulted, Steinberg showed Wilson a transcript of Hayes’ statement to the police. Steinberg also told Wilson that he could have Weaver “hit in jail or out.” Both Hayes and Wilson were attacked shortly before or after their preliminary hearing testimony, and in both cases, their faces were cut along the throat area while they were in custody. Hayes’s attacker specifically told him that the assault was in retaliation for his testimony against Steinberg.
Because there was sufficient evidence linking Steinberg to the jailhouse attacks, such evidence was likewise relevant to showing Steinberg’s intent in Walsh’s murder. While evidence of uncharged offenses is inadmissible to demonstrate bad character or criminal disposition, it may be admitted to prove a material fact at issue, such as common plan, identity, or intent. (Evid. Code, § 1101; People v. Ewoldt (1994) 7 Cal.4th 380, 401-403.) To be admissible under Evidence Code section 1101, the charged and uncharged offenses must be sufficiently similar. (People v. Ewoldt, supra, at pp. 402; People v. Kipp (1998) 18 Cal.4th 349, 369.) However, “‘[t]he least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be “sufficiently similar [to the charged offenses] to support the inference that the defendant ‘“probably harbored the same intent in each instance.” [Citations.]’”’ (People v. Lewis (2001) 25 Cal.4th 610, 636-637.)
Here, the prosecution’s theory in the Walsh murder case was that Steinberg murdered Walsh because he believed Walsh would testify against him in connection with the Dixon shooting. There was witness testimony to support that, prior to Walsh’s death, Steinberg and Walsh increasingly argued over whether Walsh had talked to the police about Steinberg’s involvement in the shooting. The physical evidence also established that, apart from the five gunshot wounds, Walsh suffered a sharp cutting injury to his jaw bone. The murder of Walsh and the assaults on Wilson and Hayes were thus sufficiently similar to support the prosecution’s theory that Steinberg’s intent in each instance was to silence witnesses against him. Given its substantial probative value as weighed against its prejudicial effect, the trial court did not err in admitting evidence of the jailhouse attacks.
B. Steinberg’s Choice Of Reading Material
During the prosecution’s cross-examination of Steinberg, defense counsel objected to several questions about a list of names and reading material that had been seized from Steinberg’s bedroom. The list included the names of Hitler, Goring, Machiavelli, and Spengler. The trial court overruled the objections. The prosecutor proceeded to ask Steinberg whether he was familiar with the individuals identified on the list and whether he believed they had “extreme views on race.” Steinberg agreed that some of them did.
We conclude that the trial court did not err in overruling the objections. The prosecution’s theory in the Dixon case was that Steinberg tried to kill Dixon because Dixon is African-American. As our Supreme Court has recognized, “[e]xpressions of racial animus by a defendant towards the victim and the victim’s race, like any other expression of enmity by an accused murderer towards the victim, is relevant evidence in a murder... case.” (People v. Quartermain (1997) 16 Cal.4th 600, 628; see also People v. Lindberg (2008) 45 Cal.4th 1, 45-46 [evidence of written material found in defendant’s bedroom that referred to White supremacist organizations was relevant to whether defendant had racial motive for killing victim].) Here, the questions about Steinberg’s reading material and views on race were relevant to show that he harbored a racial animus toward non-whites. Such evidence in turn could support a racially-based motive for the Dixon shooting and rebut Steinberg’s claim that he acted solely in self-defense.
The prosecution’s questions also were not so inflammatory that their probative value was substantially outweighed by the potential for undue prejudice. The testimony about Steinberg’s choice of reading material and views on race was a small portion of the evidence presented against him. Although Steinberg claims that this entire line of questioning was “character assassination, “evidence is not “‘unduly prejudicial’ under the Evidence Code merely because it... casts [a defendant] in a bad light.” (People v. Robinson (2005) 37 Cal.4th 592, 632.) The trial court did not abuse its discretion or deny Steinberg due process in overruling the objections.
C. Green Substance On The Watch
Steinberg’s third evidentiary challenge concerns argument about a green substance found on a fake Rolex watch. The watch had been seized from Steinberg’s jewelry box and Steinberg testified that it had belonged to Walsh. After Steinberg’s testimony, the prosecutor noticed that there was a green substance on the back of the watch that she believed was consistent with the green substance found on several items recovered near the trash bin containing Walsh’s body. The prosecutor wanted to recall Detective Fleming to testify about the similarity between the substances. Defense counsel objected on the grounds that, unless there was a chemical analysis of the substance on the watch, it would invite speculation.
The trial court sustained the objection to calling Detective Fleming to testify about the substance, but did allow the prosecution to recall the detective to testify about where he found the watch in Steinberg’s bedroom. The trial court also ruled that because the watch and other items were in evidence, both the prosecution and the defense could comment on such evidence during closing argument and call upon the jury to decide whether the substances were similar. During her closing argument, the prosecutor described the green substance that was used to seal the trash bin containing Walsh’s body and then asked the jury to “[t]ake a real good look at that watch. You are going to see green goo on it.”
Steinberg contends that the trial court erred in allowing counsel to comment on the substance on the watch during closing argument because there was no expert foundation to establish that the substance on the watch was the same as the substance used to seal the trash bin. Steinberg’s contention does not withstand scrutiny. In its ruling, the trial court was careful to exclude any lay witness testimony about whether the substances on the watch and the other items were similar. The court also made clear that the prosecution “won’t be able to argue it is the same substance.” Instead, counsel could “call upon the jury to make up its own mind” by asking the jurors to “look at what [the substance] looks like.” Thus, contrary to Steinberg’s claim, the trial court did not allow evidence or argument that the substances were the same. The court simply allowed both counsel to argue that the jurors could see for themselves whether there was any similarity and decide what weight, if any, to accord such evidence.
V. Denial Of Motion To Dismiss Dixon Attempted Murder Counts Under Section 1387
Steinberg claims that the trial court violated the Sixth Amendment and section 1387 by denying his motion to dismiss the two counts on the attempted murder of Dixon on the grounds that those charges had been twice dismissed by the prosecution and then re-filed in the present case. We conclude, however, that the trial court properly denied Steinberg’s motion to dismiss pursuant to section 1387.1.
Section 1387 is commonly referred to as the “two-dismissal rule.” (People v. Salcido (2008) 166 Cal.App.4th 1303, 1309; People v. Mason (2006) 140 Cal.App.4th 1190, 1195.) It provides, in relevant part, that “[a]n order terminating an action... is a bar to any other prosecution for the same offense if it is a felony... and the action has been previously terminated....” (§ 1387, subd. (a).) Section 1387.1 sets forth an exception to this rule. It states that “[w]here an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect. In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith.” (§ 1387.1, subd. (a).)
“‘Excusable neglect’ is a legal term of art common in the law....‘Simply expressed, “[e]xcusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.”’ [Citation.]” (People v. Massey (2000) 79 Cal.App.4th 204, 210-211.) “The application of section 1387.1 is generally a discretionary determination for the judge which should be afforded great weight unless clear abuse of discretion is demonstrated.” (Id. at p. 211; see also People v. Mason, supra, 140 Cal.App.4th at p. 1196 [excusable neglect finding reviewed for abuse of discretion].) “‘“Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”’” (People v. Woods (1993) 12 Cal.App.4th 1139, 1149.)
The record reflects that the district attorney twice dismissed charges filed against Steinberg in connection with the shooting of Dixon. On September 25, 2003, an information was filed charging Steinberg with two counts of assault with a deadly weapon (§ 245) with firearm enhancements alleged as to each count (§ 12022.5). Trial was set for December 4, 2003. On November 20, 2003, the prosecutor and defense counsel met to examine the evidence seized during a search of Walsh’s townhouse. During that meeting, defense counsel indicated that he intended to present an identity defense and to call an eyewitness identification expert to testify. The prosecutor stated that she thought it would be necessary to examine a hat seized in the search for DNA evidence because it was believed the hat was worn by the shooter. The following day, the court signed an order directing Steinberg to submit a saliva sample, but he refused to comply. Steinberg subsequently agreed to submit a sample on or after November 25, 2003. On December 3, 2003, the prosecutor dismissed the case pursuant to section 1382 because she wanted the hat examined for DNA evidence.
On December 16, 2003, the district attorney filed a second information in connection with the Dixon shooting, charging Steinberg with three counts of assault with a deadly weapon (§ 245) with firearm enhancements (§ 12022.5). Trial was set for March 18, 2004. On or about February 4, 2004, Steinberg was arraigned on separate charges for the murder of Walsh. As the investigation of Walsh’s murder proceeded, the prosecutor began to believe that the Dixon shooting case and the Walsh murder case were intertwined. On March 4, 2004, the district attorney amended the Walsh murder complaint to add two counts charging Steinberg with the attempted murder of Dixon. On March 18, 2004, the prosecutor dismissed the Dixon shooting case pursuant to section 1382, indicating that those charges had been incorporated into the Walsh murder case.
Steinberg filed a motion to dismiss the counts on the attempted murder of Dixon on the grounds that they were barred by section 1387’s two-dismissal rule. The trial court denied the motion pursuant to section 1387.1, finding that the two prior dismissals were due to excusable neglect by the prosecution and did not amount to bad faith. Steinberg raises two arguments on appeal.
First, Steinberg asserts that section 1387.1 does not apply because neither of the two prior filings charged him with a violent felony within the meaning of section 667.5. Each prior filing charged Steinberg with assault with a deadly weapon (§ 245), which is not a violent felony under section 667.5, and a personal use firearm enhancement (§ 12022.5), which is a violent felony under section 667.5 if it has been “charged and proved.” (§ 667.5, subd. (c)(8).) Steinberg reasons that because the firearm enhancement was not “proved” at the time of dismissal, it did not fall within the definition of a “violent felony” for purposes of section 1387.1. Steinberg’s reading of the statute is too narrow. By incorporating section 667.5’s definition of a “violent felony,” section 1387.1 simply seeks to limit its scope to the type of crimes that the Legislature decided warranted special consideration in sentencing. (See People v. Henson (1997) 57 Cal.App.4th 1380, 1386 [“‘The legislative intent in enacting subdivision (c) of Section 667.5... was to identify these “violent felonies” and to single them out for special consideration in several aspects of the sentencing process.’”].) The “charged and proved” terminology of section 667.5 “safeguard[s] the defendant’s right to notice of the facts the prosecution intends to prove as well as the due process requirement that the People actually prove the facts required either for imposing an increased penalty or for making decisions regarding the severity of the sentence,...” (People v. Garcia (2004) 121 Cal.App.4th 271, 279.) It does not, however, take an alleged personal use firearm enhancement outside the definition of “violent felony” for purposes of section 1387.1. The two prior filings against Steinberg thus satisfied section 1387.1’s “violent felony” requirement.
Second, Steinberg argues that the trial court erred in finding excusable neglect because the prosecution’s prior dismissals were not due to neglect, but to a post-filing change in tactics. We find no abuse of discretion in the trial court’s ruling. With respect to the first dismissal, the evidence reflected that the prosecutor first became aware that defense counsel was intending to present an identity defense a few weeks before trial. Based on that information, the prosecutor decided that a hat which may have been worn by the shooter should be submitted for DNA testing because if it contained Steinberg’s DNA, it could negate his identity defense. She promptly obtained a court order for Steinberg’s DNA, but Steinberg refused to comply. Although he subsequently agreed to submit a sample, the results of the DNA analysis were not available in time for trial. Arguably, the prosecutor should have realized the potential relevance of the hat earlier in the case and had it examined for DNA evidence well in advance of the trial date. But a reasonably prudent attorney could have made the same omission and the prosecutor’s delay did not reflect bad faith. Under these circumstances, the trial court did not abuse its discretion in finding that the first dismissal was due solely to excusable neglect and that the district attorney was entitled to file a third complaint in connection with the Dixon shooting.
Because the requirements of section 1387.1 are satisfied as long as “either of the prior dismissals... were due solely to excusable neglect” and Steinberg does not contend that either dismissal constituted bad faith, we need not consider whether the dismissal of the second filing also was the result of excusable neglect. (§ 1387.1, subd. (a); People v. Massey, supra, 79 Cal.App.4th at p. 212 [“section 1387.1 allows a refiling where either of the two prior dismissals were the result of excusable neglect”].)
VI. Consecutive Sentences On Dixon Attempted Murder Counts Under Section 654
Steinberg also contends that the trial court violated section 654 and his due process rights when it imposed consecutive sentences on the two counts of the attempted murder of Dixon. We disagree because there was substantial evidence to support the trial court’s finding that each shot fired at Dixon constituted a separate act subject to separate punishment.
Section 654 provides that “[a]n 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.” (§ 654, subd. (a).) The statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of conduct constitutes a single act within the meaning of section 654 depends upon the “intent and objective” of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of the offenses were incidental to, or were the means of accomplishing or facilitating one objective, the defendant may receive only one punishment. (Ibid.) If, on the other hand, the defendant is found to have harbored separate and multiple criminal objectives, he or she may be punished for each offense even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The question of whether the defendant harbored a “single intent” is a factual determination to be made by the sentencing court. (People v. Harrison (1989) 48 Cal.3d 321, 335.) On appeal, we must sustain the trial court’s factual determinations if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Steinberg claims that the two shots fired at Dixon were part of an indivisible course of conduct because, under the prosecution’s theory of the case, the sole objective was to kill an African-American. Steinberg points out that both shots were fired from the same general location of Walsh’s garage and that the final shot was fired seconds after the first. In People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), however, the Court of Appeal considered a similar factual scenario and held that consecutive sentences were proper. The defendant in Trotter stole a taxi cab. (Id. at p. 366.) As he was being pursued by a police officer on the freeway, the defendant fired a shot at the officer’s vehicle. (Ibid.) A minute later, he fired a second shot at the vehicle, and a few seconds later, he filed a third shot. (Ibid.) In concluding that each shot was a separate act, the court noted that the defendant’s conduct became more egregious with each successive shot. (Id. at p. 368.) “Each shot required a separate trigger pull,” and all three shots “were volitional and calculated, and were separated by periods of time during which reflection was possible.” (Ibid.) The court reasoned that a defendant should not be rewarded under section 654 “‘where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his... assaultive behavior.’” (Ibid.)
The same reasoning applies here. Steinberg’s conduct became more egregious with each successive shot at Dixon. Each shot posed a separate and distinct risk to Dixon and evidenced a separate intent to do violence. Each shot also reflected a separate volitional act, requiring a separate aim and pull of the trigger. Although the shots were relatively close in time, they were not uncontrollable. After the first shot, Steinberg had the opportunity to reflect on his actions and to retreat without firing again. Instead, as he was fleeing, Steinberg decided to fire another shot directly at Dixon. Because Steinberg made the choice to fire his weapon again, he cannot avoid multiple punishment for his actions. The trial court accordingly did not err in imposing consecutive sentences on the two attempted murder counts.
Steinberg also argues that the prosecution abused its discretion in charging him with two counts of attempted murder. In light of our conclusion that each shot fired at Dixon constituted a separate and distinct act, Steinberg’s claim of prosecutorial abuse of discretion likewise fails. In any event, it is well-established that “[p]rosecutors have broad discretion to decide whom to charge, and for what crime.” (People v. Lucas (1995) 12 Cal.4th 415, 477.)
VII. Instruction To Deadlocked Jury To Continue Deliberations
Steinberg next argues that the trial court deprived him of his constitutional right to a fair jury trial by giving the jury a de facto Allen charge (Allen v. United States (1896) 164 U.S. 492). We conclude that Steinberg’s claim fails because the trial court’s instruction to the jury to continue deliberations was not a de facto Allen charge.
On the morning of Monday, December 3, 2007, the jury began deliberations. Deliberations continued until Friday, December 7, 2007, when the foreman for Steinberg’s jury sent the court a note stating as follows: “After 4 1/2 days of deliberation, I feel we are hopelessly deadlocked. Eleven jurors unanimously agree on seven of eight counts.... One juror hold[s] a completely opposite point of view. We feel that further deliberation will not change the votes.... [¶] We need your guidance on how to proceed.”
The prosecution wanted the court to instruct the jury to continue deliberations, whereas the defense asked the court to inquire of the individual jurors as to whether further deliberations would be fruitful. The court decided that it was too early in the deliberations to make individual inquiries and that the jury should be excused for the afternoon with instructions to resume deliberations on Monday. The court then called in the jury and instructed as follows:
“[Y]ou have indicated to the court the split. I have discussed the matter with the attorneys. I note that this trial took several months, and you have been deliberating since the beginning of the week. [¶] I also know that it is Friday afternoon. The weather outside is frightful, and I think it best that we excuse you for the weekend. And we ask you to simply forget about this case over the weekend, each of you, and to come back Monday morning and to resume your deliberations on this case as you have been deliberating earlier. [¶] So that is all the guidance you get for the little money you paid me this afternoon. But I think it is best in view of your hard work in this case and the length of the trial that you just shut off the deliberations right now and that you come back and resume Monday, and we see what happens on Monday.”
The jury resumed deliberations on Monday, December 10, 2007. The following day, the jury reached a verdict.
The trial court’s authority to instruct a deadlocked jury in a criminal case to continue deliberations derives from section 1140. (People v. Whaley (2007) 152 Cal.App.4th 968, 979.) Section 1140 states that “[e]xcept as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless... at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” (§ 1140.) The trial court is therefore required to determine in its “sound discretion” whether there is a reasonable probability of agreement by the jury. (People v. Miller (1990) 50 Cal.3d 954, 994.) Directing the jury to continue deliberations is proper where the court reasonably concludes that “such direction would be perceived ‘“as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.” [Citation.]’ [Citation].” (People v. Proctor (1992) 4 Cal.4th 499, 539.)
The leading California case on instructions to be given to a deadlocked jury is People v. Gainer (1977) 19 Cal.3d 835 (Gainer). In Gainer, the California Supreme Court disapproved of a “‘dynamite’” or “‘Allen’” charge to the extent that the charge (1) admonishes minority jurors to reexamine their views in light of the opinions held by the majority, and (2) informs the jurors that the case must be decided sometime so that if they fail to reach a verdict, there will be a retrial. (Id. at p. 852.) The first error “directs the jurors to include an extraneous factor in their deliberations, i.e., the position of the majority of jurors at the moment” and erodes the right of the parties “to the individual judgment of each juror on the issue of guilt.” (Id. at p. 848.) The second error incorrectly suggests to the jurors that if they fail to agree on a verdict the case must inevitably be retried, which misstates the law because it overlooks that the prosecution has the option of dismissing the action. (Id. at pp. 851-852.) An instruction referring to the expense and inconvenience of a retrial is “equally irrelevant to the issue of defendant’s guilt or innocence, and hence similarly impermissible.” (Id. at p. 852, fn. 16.)
The Attorney General asserts that Steinberg forfeited any claim of error because he failed to object to the trial court’s instruction to the jury to continue deliberations. Steinberg argues that, while he did not expressly object to the instruction, his counsel asked that the court make individual inquiries of the jurors rather than instruct them to resume deliberations. Even assuming that Steinberg did not forfeit his claim of error, his claim still fails because the trial court’s instruction was not a de facto Allen charge.
In instructing the jurors to continue deliberations, the trial court did not advise the jury that it was required to reach a verdict, did not indicate that a re-trial would be required if a verdict was not reached, and did not suggest that the minority juror should reconsider his or her position in light of the majority. The court simply instructed the jurors to take the weekend off and to continue deliberations on Monday. The mere fact that the court was aware that the jury was deadlocked 11 to one at the time it ordered further deliberations did not make its instruction impermissibly coercive. (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 264-265 [no coercion where trial court instructed jury deadlocked at 11 to one to continue deliberations]; People v. Whaley, supra, 152 Cal.App.4th at pp. 983-984 [no coercion where trial court instructed jurors to resume deliberations after jury reported that it was deadlocked 11 to one].)
Steinberg suggests that the trial court’s comment about the length of the trial was a de facto Allen charge because it implicitly warned the minority juror that he or she should vote with the majority to avoid a waste of judicial resources. We disagree. The court merely observed that the case had been tried over several months and that the jury had been deliberating for several days. There is nothing in that statement to support the assertion that the court was directing the minority juror to reevaluate his or her position in favor of the majority or placing any constraints on the juror’s individual responsibility to consider all of the evidence. The court simply instructed the jury as a whole to continue deliberations after taking a break over the weekend. The trial court’s instruction was well within its discretion and did not violate Steinberg’s right to a fair trial by jury.
VIII. Restitution Order Against Steinberg And Weaver
Steinberg and Weaver both raise arguments about the amount of restitution they were ordered to pay under section 1202.4. Steinberg asserts that the trial court should have ordered that the direct victim restitution award be joint and several. Weaver argues that, if joint and several liability is imposed, he should be afforded a hearing on both the direct victim restitution award under section 1202.4, subdivision (f) and the restitution fund fine under section 1202.4, subdivision (b). As set forth below, we conclude that the trial court’s restitution order must be reversed and the matter remanded for reconsideration on this issue.
Section 1202.4 governs the payment of restitution by persons convicted of a crime. Subdivision (b) of the statute states that “[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so....” (§ 1202.4, subd. (b).) Subdivision (f) requires the defendant to make restitution directly to the victim “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct.” (§ 1202.4, subd. (f).) Although section 1202.4, subdivision (f) does not expressly mandate that restitution be joint and several, California courts have held that the statute authorizes a sentencing court to order co-defendants convicted of the same offense to pay direct victim restitution jointly and severally. (People v. Leon (2004) 124 Cal.App.4th 620, 622; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.)
In this case, Weaver was sentenced first. At his sentencing hearing, the trial court asked whether there was any restitution to be paid to the Walsh family. The prosecutor responded that the victim’s restitution fund had reimbursed the family for its expenses. The court did not order Weaver to pay any direct victim restitution under section 1202.4, subdivision (f), but did impose a restitution fund fine in the amount of $10,000 under section 1202.4, subdivision (b).
A month later, Steinberg was sentenced. At Steinberg’s sentencing hearing, the prosecutor stated that it was her understanding that the Walsh family was requesting restitution in the amount of $12,000. Dennis Walsh represented to the court that the victim’s restitution fund had reimbursed the family for cremation fees, but that the family had paid an additional $12,000 in mortuary expenses. The trial court ordered Steinberg to pay direct victim restitution to Walsh’s mother in the amount of $12,000 under section 1202.4, subdivision (f). The court also imposed a restitution fund fine against Steinberg in the amount of $10,000 under section 1202.4, subdivision (b).
The Attorney General concedes that the trial court’s direct victim restitution order should have been joint and several. The record reflects that the trial court was poised to order Weaver to pay direct victim restitution when the prosecutor mistakenly advised the court that there were no direct victim expenses to be paid. When Steinberg later was sentenced, the prosecutor had been informed that the Walsh family was requesting $12,000 in un-reimbursed funeral expenses and the trial court ordered Steinberg to pay that amount in direct victim restitution. It thus appears likely that the trial court would have ordered Weaver to pay direct victim restitution as well had it been advised that the Walsh family was seeking restitution.
We also agree with Weaver, however, that he was entitled to a court hearing on the amount of direct victim restitution to be paid. Section 1202.4, subdivision (f) specifically provides that “[t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) Because no direct victim restitution was requested by the prosecution or ordered by the trial court at Weaver’s sentencing hearing, Weaver never had an opportunity to contest any award of direct victim restitution. Additionally, because a direct victim restitution award was not considered, we cannot conclude that the trial court would have ordered Weaver to pay the maximum restitution fund fine under section 1202.4, subdivision (b) had it ordered him to pay any direct victim restitution under section 1202.4, subdivision (f). Instead, these determinations should be made by the trial court in the first instance.
The Attorney General argues that Weaver’s appropriate remedy in this matter is a motion before the trial court to modify the amount of restitution. Although it is true that, under section 1202.4, subdivision (f)(1), a defendant may move to modify a restitution order, Weaver still must be afforded a hearing under the provisions of the statute before any direct victim restitution award is imposed. Accordingly, we conclude that the matter must be remanded to the trial court for reconsideration on the amount of restitution to be paid by Weaver under section 1202.4, subdivisions (b) and (f), and whether any direct victim restitution to be paid by Weaver and Steinberg should be joint and several.
Weaver also challenges a reference in the abstract of judgment providing that he was ordered to pay $10,000 in victim restitution pursuant to section 1203.04. Weaver contends, and the Attorney General concedes, that the trial court did not impose this restitution fine at the sentencing hearing and that section 1203.04 is a repealed statute. Therefore, on remand, the trial court also must strike any reference to a $10,000 victim restitution fine under section 1203.04.
IX. Construction Penalty Order Against Steinberg And Weaver
Weaver argues that the trial court also erred in imposing state court construction penalties against him and Steinberg because a restitution fine is not an authorized fine on which to base a construction penalty. The Attorney General concedes that the court construction penalties were unauthorized, and we agree.
At Weaver’s sentencing hearing, the trial court ordered him to pay a state court construction penalty in the amount of $5,000 pursuant to Government Code section 70372. Weaver’s court construction penalty was based on a $10,000 restitution fine imposed under section 1202.4, subdivision (b), and on a $10,000 parole revocation fine imposed under section 1202.45. At Steinberg’s sentencing hearing, the trial court similarly ordered Steinberg to pay a state court construction penalty in the amount of $5,070 pursuant to Government Code section 70372. Steinberg’s court construction penalty was based on a $10,000 restitution fine imposed under section 1202.4, subdivision (b), and on a $140 court security fee imposed under section 1465.8.
However, pursuant to legislative amendments to Government Code section 70372, the state court construction penalties authorized by the statute do not apply to any restitution fine. (Gov. Code, § 70372, subd. (a)(3)(A).) Thus, a construction penalty may not be based on restitution fines imposed under sections 1202.4 and 1202.45, or on court security fees imposed under section 1465.8. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372; People v. McCoy (2007) 156 Cal.App.4th 1246, 1257.) The construction penalties ordered against Weaver and Steinberg accordingly must be stricken.
X. Cumulative Error
Steinberg last contends that the cumulative effect of the claimed errors deprived him of due process of law and a fair trial. We disagree. Whether considered individually or for their cumulative effect, none of the errors alleged by Steinberg affected the process or accrued to his detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565.) As our Supreme Court has observed, a defendant is “entitled to a fair trial but not a perfect one. [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1009.) In this case, Steinberg received a fair trial. There was no cumulative error requiring reversal.
DISPOSITION
The restitution order against Steinberg and Weaver made pursuant to section 1202.4 is reversed and the matter is remanded to the trial court for reconsideration on (1) the amount of restitution to be paid by Weaver under section 1202.4, subdivisions (b) and (f), and (2) whether any direct victim restitution to be paid by Weaver and Steinberg under section 1202.4, subdivision (f) should be joint and several. On remand, the trial court further is directed to strike the $10,000 victim restitution fine imposed against Weaver under section 1203.04 and the state court construction penalties imposed against both Steinberg and Weaver under Government Code section 70372. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.