Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF030270A
BLEASE, Acting P. J.
A jury convicted defendant David James Bonde of first degree murder, and found that the murder was committed to avoid arrest, in the commission or attempted commission of a robbery, and in the commission or attempted commission of a carjacking. The jury also found true the allegation that defendant personally used a deadly weapon, a knife, in the commission of the offense. The trial court sentenced defendant to life without the possibility of parole plus one year for use of a deadly weapon.
Defendant argues the trial court erred in allowing the prosecution to have him reenact the murder with a rubber knife, that there was insufficient evident to sustain the robbery and carjacking special circumstances, that the trial court improperly imposed a parole revocation fine, and that he was improperly awarded conduct credits. We shall amend the judgment to correctly reflect custody credits, and to strike the parole revocation fine, but shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Early Christmas morning, 2006, after a night of drinking and smoking methamphetamine, defendant’s friends dropped him off near his sister’s house in Manteca. He was walking down Virginia Street around 2:00 or 3:00 a.m. when he spotted an older model white Chevrolet pickup. He decided to hot wire the pickup. He used a knife he had just purchased to cut the wires and start the pickup.
The pickup belonged to Ryan Gomes, who lived on Virginia Street with Amy Campbell and their son Clayton. The family was awakened by the loud noise of the truck when defendant started it. When Gomes realized someone was taking his truck, he ran outside, still wearing his pajamas. The truck stalled, and Gomes ran up to the truck window and asked defendant why he (defendant) was stealing his truck. He told defendant the police were on their way.
Defendant got out of the truck, took the knife from between his teeth, stepped toward Gomes, and said, “Come on” and “What are you going to do about it?” Defendant attacked Gomes with the knife, stabbing him three times in his chest and once in his back. Gomes died of shock and hemorrhage due to multiple stab wounds.
After defendant was arrested, he gave several videotaped interviews to the police, in which he admitted to stabbing Gomes. These were played for the jury.
DISCUSSION
I
Demonstration with Rubber Knife
Defendant argues the trial court erred in allowing the prosecutor to have defendant demonstrate the stabbing using a rubber knife. Defendant argues that pursuant to Evidence Code section 352, the probative value of the demonstration was substantially outweighed by the probability of undue prejudice, and that the demonstration rendered his trial fundamentally unfair in violation of his state and federal due process rights.
Defendant testified in detail on direct examination as to his actions during the stabbing. He testified that he could tell by Gomes’s voice when he approached the truck that Gomes was angry, and that Gomes opened the door of the pickup and tried to pull him out. Defendant testified that he was afraid of Gomes, and that Gomes tried to hit him. Defendant testified that as Gomes came at him, he (defendant) grabbed Gomes and thought he hit Gomes, but as it turned out, he actually stabbed him. He let go of Gomes, but Gomes kept coming after him. Defendant demonstrated in some detail how Gomes, holding his fists out in front of him, came after him. However, he did not remember stabbing Gomes the last three times until later when he was reflecting on the incident.
The prosecutor informed the trial court that he had a rubber knife that was approximately the same size as the knife defendant used to stab Gomes, and that he intended to have defendant show how he used the knife against Gomes. Defense counsel objected that the demonstration with the rubber knife would be inflammatory because it would cause the jury to “envision” and “reliv[e]” the murder.
The trial court noted that originally it had been concerned that the rubber knife blade was longer than the actual knife, but that the rubber blade had been cut down to the approximate length of the real knife. Defense counsel noted for the record that the rubber knife had a thicker handle and a hilt, making it significantly different from the real knife in those respects. The trial court stated that those facts did not affect the probative value, that the real knife was in evidence, and that the rubber knife would be made an exhibit. Thus, the jury was not misled as to the nature of the knife defendant actually used.
The prosecutor thereafter had defendant demonstrate how he took the knife out of his mouth and stabbed Gomes. The point of the demonstration, presumably, was to show that defendant could not have stabbed Gomes directly into the back if, as he claimed, Gomes had been charging him.
All relevant evidence is admissible at trial. (Evid. Code, § 351.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The trial court may nevertheless exclude relevant evidence if it determines the probative value of the evidence is substantially outweighed by the probability that it will create a substantial danger of undue prejudice. (Evid. Code, § 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.) We review the trial court’s decision to admit the evidence for abuse of discretion. (People v. Riggs (2008) 44 Cal.4th 248, 290.) We find no abuse of discretion in this case.
Initially, we agree with the trial court that the fact that the rubber knife had a hilt and a slightly thicker handle did not affect the probative value of the evidence. We would add that these facts did not render the evidence inflammatory, either. The trial court indicated the knife was approximately the same size as the knife defendant actually used, and the jury was aware that the rubber knife was for demonstrative purposes only, and was not the actual knife used in the stabbing.
The demonstration was highly probative with respect to defendant’s assertion of imperfect self defense. The jury was instructed that defendant was guilty of the lesser offense of voluntary manslaughter if he acted in the actual but unreasonable belief that he was in imminent danger of great bodily injury, and the immediate use of deadly force was necessary to defend against the danger. Defendant argued that for this reason, he was guilty not of murder, but of voluntary manslaughter.
The demonstration was a part of the prosecution’s attempt to show on cross-examination that the stabbing was not the result of a fight between defendant and Gomes, but of an attack on an unarmed, barefoot, pajama-clad victim who was attempting to flee a knife attack when he was stabbed in the back and killed. The demonstration was intended to show that the wounds Gomes received were inconsistent with defendant’s story as to how the knifing occurred.
Defendant argues the reenactment was not accurate because the knife was different and because he could not remember the details of the encounter. However, as previously stated, the knife was not so different in size as to be inflammatory or affect the probative value of the demonstration. Defendant demonstrated the stabbing to the best of his recollection. This was not a case of a third-party reenactment of a crime. Defendant’s demonstration of what he remembered doing was no different from his retelling what he did on the witness stand.
Demonstrative evidence is admissible despite some prejudicial effect as long as it “‘tends to prove a material issue or clarify the circumstances of the crime.’” (People v. Fitzgerald (1972) 29 Cal.App.3d 296, 316.) The demonstration here was admissible despite the slight prejudicial effect of seeing defendant reenact the murder because it clarified the circumstances related to the claimed defense. In short, the evidence was not more prejudicial than probative, and the trial court did not abuse its discretion in admitting the evidence.
To the extent defendant raises a federal constitutional claim distinct from his claim pursuant to Evidence Code section 352, the claim is forfeited by failing to identify such ground for objection in the trial court. (People v. Riggs, supra, 44 Cal.4th at p. 292.)
II
Special Circumstance Evidence
Defendant argues the evidence was insufficient to support the true findings for the special circumstances that the murder was committed to prevent a lawful arrest, or while defendant was engaged in the commission, attempted commission, or immediate flight after committing or attempting to commit robbery and carjacking. Defendant reasons the evidence was insufficient because he no longer had the intent to rob or take Gomes’s truck at the time he stabbed Gomes.
Defendant ignores the plain language of Penal Code section 190.2, subdivision (a)(17), which indicates the special circumstances is applicable if the murder is committed during “the immediate flight after committing, or attempting to commit” the robbery or carjacking. Even if defendant no longer intended to take the pickup when he attacked Gomes, the attack occurred as defendant was attempting to flee the pickup. This is sufficient for purposes of the felony-murder special circumstance. (People v. Boss (1930) 210 Cal. 245, 250.)
III
Parole Revocation Fine
The trial court imposed and stayed a $10,000 parole revocation restitution fine pursuant to Penal Code section 1202.45. Such a fine may not be imposed for a term of life in prison without the possibility of parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) We will strike the fine.
IV
Custody Credits
The trial court granted defendant 497 actual days credit for time served plus 74 days of good-time/work-time credit for a total of 571 days. Defendant correctly notes that he is not eligible for good-time/work-time credits pursuant to Penal Code section 2933.2, subdivision (a), which prohibits a defendant convicted of murder from accruing good-time/work-time credit. We shall therefore amend the judgment to reflect an award of a total of 497 days of custody credits.
DISPOSITION
The judgment is modified to strike the $10,000 Penal Code section 1202.45 parole revocation restitution fine. The trial court is directed to amend the abstract of judgment to reflect this modification and to show an award of 497 total credits for actual days served and no local conduct credits, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.