Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA289995, Barbara R. Johnson, Judge.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Marcus Borges appeals from the judgment entered following his conviction by jury of second degree robbery (Pen. Code, § 211) with firearm use (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)). The court sentenced appellant to prison for 12 years. We affirm the judgment with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on August 1, 2005, Jose Carrillo obtained money from an ATM, met a woman outside a Hollywood motel, and the two eventually agreed to have sex at the motel. Carrillo entered a motel room while the woman talked on a phone outside. She later entered the room and Carrillo tried to close its door, but the woman told him not to close it. She said she did not have a condom and a friend was going to bring one. Shortly thereafter, appellant and a second man entered and appellant robbed Carrillo at gunpoint. Appellant later said “Let’s go, ” and appellant, the woman, and the second man left. Appellant presented no defense evidence. We will discuss additional evidence where pertinent below.
Carrillo later told police, and testified at appellant’s preliminary hearing, that Carrillo had been kidnapped, then robbed. After the preliminary hearing, but prior to trial, Carrillo told Los Angeles Police Detective Gary Kukaua that Carrillo had been robbed but not kidnapped. Carrillo testified at trial that he did not tell the complete truth at the preliminary hearing because he was “afraid that my wife [would] find out what would be the reason for this problem.” Carrillo also testified at trial that he had been “granted use immunity with regards to [his] testimony at that preliminary hearing[.]”
ISSUES
Appellant claims (1) the trial court erroneously denied his motion for a new trial, (2) certain expert testimony was inadmissible, (3) Detective Kukaua violated appellant’s Miranda rights, (4) evidence of appellant’s actions invoking his Miranda rights was inadmissible, (5) the trial court erroneously restricted appellant’s cross-examination of Carrillo, (6) the trial court erred by giving CALJIC No. 2.21.2 to the jury, and (7) the abstract of judgment must be corrected.
DISCUSSION
1. The Trial Court Properly Denied Appellant’s Motion for a New Trial.
a. Pertinent Facts.
The jury in this case was sworn on December 16, 2005. On December 21, 2005, appellant absconded and the court issued a bench warrant. On December 22, 2005, the jury convicted appellant in absentia. On September 26, 2008, appellant appeared in court on the warrant. In March 2009, appellant filed a motion for a new trial and, on April 21, 2009, appellant filed a supplemental motion based on newly discovered evidence.
The supplemental motion contained an unsworn, undated statement of facts by appellant’s trial counsel which reflects as follows. Melissa Teller was the woman with Carrillo and appellant. She would not speak about the case “before now.” She was arrested and charged with the same offenses with which appellant had been charged. However, her charges were dismissed prior to her preliminary hearing and she believed they were dismissed because Carrillo failed to identify her. Teller did not testify at appellant’s trial because she would have incriminated herself by admitting her presence in the motel room, thus eliminating the identity issue as to her. She remained silent until after appellant was arrested a “few months” ago. The unsworn statement of facts reflects, “Teller states that Mr. Borges did not have a gun....”
During the May 8, 2009, sentencing hearing, appellant’s counsel represented appellant was arrested on September 23, 2008.
The supporting declaration of Teller, executed on April 21, 2009, indicates as follows. Teller performed sex acts on Carrillo for money in the motel room. Carrillo, who apparently had been drinking, subsequently wanted Teller to engage in anal sex and she refused. As a result, Carrillo began to assault Teller, she yelled for help, and appellant entered the room and “pulled Mr. Carrillo off of [Teller].” Appellant and Teller then left. Appellant did not rob Carrillo or display a gun.
At the May 8, 2009, hearing on the motion, Teller testified as follows. On August 1, 2005, appellant was in the area of the motel at Teller’s request, because she had started hearing rumors about girls being raped and killed on the street. After Carrillo attacked Teller, appellant heard her screaming and entered the room. Once appellant entered, he told Carrillo to leave. Carrillo indicated he wanted his money back, appellant told Teller to return it, but Teller refused, indicating she had provided a service. Carrillo then attempted to “go after” appellant. Appellant then said that if Carrillo did not “get off of” Teller, appellant would call the police. Carrillo backed off, and Teller and appellant left.
During cross-examination, the prosecutor asked Teller if she told police, “I want to talk to you, but I don’t know what happened[.]” Teller replied no and that she did not recall. However, after the prosecutor showed Teller a September 8, 2005, Miranda admonition form, Teller admitted she told police, “I wanted to talk to you, but I don’t know what happened.” Teller told police that appellant had a gun. Teller came to court on one day during appellant’s trial.
Teller also testified as follows. Teller had been afraid that if she had gotten involved, her daughter would have been taken from her. At the “beginning of” 2009, Teller told appellant’s trial counsel Teller’s version of the facts in this case. It was “a couple months ago” that she contacted appellant’s trial counsel and told him that Teller wanted to tell counsel what had happened. What changed Teller’s mind and caused her to then come forward was Teller knew the statute of limitations on her offenses had expired. The gun recovered from the apartment belonged to Teller.
The trial court ruled Teller’s testimony was not newly discovered evidence and, even if it was, she was not credible. The court denied appellant’s motion for a new trial.
b. Analysis.
Appellant claims the trial court erroneously denied his motion for a new trial. We disagree. In the present case, first, assuming arguendo Teller’s exculpating evidence was true, appellant, who was present at the time of the August 1, 2005, events at issue, presumably knew she could provide the exculpating testimony. The trial court reasonably concluded Teller’s evidence was not newly discovered.
Second, on the issue of whether the alleged newly discovered evidence was such as to render a different result probable, we note the following. The exculpating evidence had as its source Teller, and there was substantial evidence that, on August 1, 2005, she was a prostitute who was an accomplice to the robbery of Carrillo. Teller, through her declaration and her counsel’s statement of facts, presented inconsistent evidence concerning the date Teller first became available to come forward, and the dates she provided ranged from September 23, 2008, to May 8, 2009.
Teller testified at one point that Carrillo attempted to “go after” appellant, but Teller later testified appellant said that if Carrillo did not “get off of” Teller, appellant would call the police. Moreover, Teller gave conflicting testimony on whether she told police, “I wanted to talk to you, but I don’t know what happened.” The trial court reasonably could have concluded that if she told this to police, the risk of self-incrimination did not prevent her from coming forward.
The People presented evidence that appellant committed the present offense on August 1, 2005. At the trial leading to appellant’s December 22, 2005, conviction, Carrillo testified he was not kidnapped. The jury convicted appellant of second degree robbery. If Teller was concerned about being prosecuted for robbery, she failed to explain why she did not come forward immediately after August 1, 2008, since the statute of limitations for second degree robbery was three years. (Pen. Code, §§ 213, subd. (a)(2), 801.) If Teller was concerned about being prosecuted for kidnapping, she arguably should not have come forward at all, since the statute of limitations for even simple kidnapping was six years (Pen. Code, §§ 208, subd. (a), 800) and has not yet expired. If Teller was concerned about being prosecuted for prostitution, she has failed to explain why she did not come forward immediately after August 1, 2006, since the statute of limitations for prostitution is one year. (Pen. Code, §§ 647, subd. (b), 802, subd. (a).)
The supporting statement of facts indicated Teller stated appellant did not have a gun, but Teller’s declaration did not state this. Teller testified she told police that appellant had a gun. The trial court reasonably could have considered all of the above facts on the issue of Teller’s credibility and whether her evidence was such as to render a different result probable on a retrial. The trial court reasonably concluded the evidence was not.
Third, on the issue of reasonable diligence, on one occasion, Teller was present in court during appellant’s trial. Appellant did not call her as a witness and has not suggested he sought to subpoena Teller. The fact Teller might have invoked her right against self-incrimination did not make her unavailable; only if she had been called and sworn as a witness, and had invoked her right against self-incrimination, would she have been unavailable. (People v. Ford (1988) 45 Cal.3d 431, 439-442.) Moreover, much of our earlier discussion indicating the trial court reasonably concluded Teller’s evidence was not such as to render a different result probable on a retrial (including our discussion of the conflicting evidence concerning when Teller was first available to come forward) supports a conclusion appellant has failed to demonstrate he could not with reasonable diligence have discovered and produced Teller at the trial. The trial court did not err by denying appellant’s motion for a new trial. (Cf. People v. Delgado (1993) 5 Cal.4th 312, 328-329; People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7.)
2. The Trial Court Did Not Prejudicially Err by Admitting Kukaua’s Testimony That He Thought Appellant Robbed Carrillo.
During appellant’s cross-examination of Kukaua at trial, appellant effectively asked Kukaua to acknowledge that there was no evidence Carrillo had been robbed absent Carrillo’s statements that he had been robbed. Kukaua agreed. Kukaua also testified appellant adamantly denied to Kukaua that appellant had committed a robbery.
During redirect examination, the prosecutor asked Kukaua if all the evidence Kukaua gathered as the investigating officer corroborated Carrillo’s statement that he had been robbed. The court sustained an objection the question was argumentative and permitted the prosecutor to rephrase it. The prosecutor then asked Kukaua, “After you recovered all of the evidence as the investigating officer, what role did you think that the evidence that you recovered had in your investigation?” Appellant objected on relevance and speculation grounds. The court overruled the relevance objection and said, concerning the speculation objection, “[the prosecutor is] asking him an expert opinion as a detective in this case. I will allow it for that.” Kukaua then testified, “That Mr. Carrillo had been robbed and that Mr. Borges was the robber.”
Appellant claims the trial court erred in violation of appellant’s right to due process by admitting Kukaua’s testimony “That Mr. Carrillo had been robbed and that Mr. Borges was the robber.” Appellant argues the testimony was speculative and inadmissible opinion testimony on the issues of appellant’s subjective intent and knowledge, and on the ultimate issues of whether a robbery occurred, whether appellant was the robber, and the guilt or innocence of appellant. We conclude otherwise. To the extent appellant claims Kukaua’s testimony was inadmissible on grounds other than the speculation ground, appellant waived those issues by failing to object below on those grounds. (Cf. People v. Torres (1995) 33 Cal.App.4th 37, 44-45, 48-49; Evid. Code, § 353.)
Even if the challenged testimony, i.e., that Kukaua thought that Carrillo had been robbed and that appellant was the robber, was inadmissible, it does not follow that we must reverse the judgment. The challenged testimony did not present any evidence to the jury that they would not already have inferred from the facts Kukaua investigated the case and appellant had been charged with the crimes. There was no implication from the prosecutor’s questions or Kukaua’s answers that Kukaua’s testimony was based upon evidence that had not been presented to the jury. The jury heard Kukaua’s testimony that appellant adamantly denied committing a robbery. Appellant points to nothing in the record that would lead us to conclude the jury disregarded the instruction (CALJIC No. 1.00) given to them that they had to determine what facts had been proven from the evidence. Even if the challenged testimony was inadmissible, it was not prejudicial, or unfair in violation of appellant’s right to due process. (Cf. People v. Riggs (2008) 44 Cal.4th 248, 300-301; People v. Watson (1956) 46 Cal.2d 818, 836.)
3. No Miranda or Doyle Error Occurred.
a. Pertinent Facts.
After the jury was sworn but prior to opening statements, the court conducted an admissibility hearing regarding a statement made by appellant, and Kukaua testified as follows. About 10:55 a.m. on September 8, 2005, Kukaua spoke with appellant when he was in custody. Before speaking with appellant, Kukaua advised him of his Miranda rights by reading each right from a Miranda admonition form (form) and asking if appellant understood the right. Appellant answered yes to each question, thereby indicating he understood his rights, and Kukaua recorded appellant’s answers on the form. Kukaua testified that after appellant answered yes to the last question, “... I said, ‘You want to talk about what happened?’ And we just started talking.” Kukaua testified he started talking to appellant “about this case” and this continued for about two hours. However, appellant initially talked about his life, problems, and narcotics use, about hepatitis he had contracted from drug usage, and about Teller, his girlfriend.
Near the end of the two-hour period, appellant wrote something under the admonitions on the form. Appellant was looking at the statement and asking what was going to happen to Teller, whether she would be released, and what her status was. Kukaua replied Teller’s case was ongoing and additional information was unavailable. Kukaua suggested Teller might remain in custody and appear in court the following Monday.
The prosecutor asked what appellant did then, and Kukaua testified “Well, after he said ‘I’m not telling you any more, ’ he tore this up, and he tossed it towards the toilet.” Kukaua and appellant were in a jail cell, and the form fell short of the toilet and landed on the floor. Appellant saw that he had missed, went to get the form, but Kukaua stopped him.
During cross-examination, Kukaua testified it appeared to him that appellant was going to make it “further” impossible for Kukaua to see what was on the paper, and in order for Kukaua to see what was on the paper, he needed to prevent appellant from destroying it. Kukaua also testified he and appellant got into a tussle during which Kukaua had to subdue appellant so appellant would not prevent Kukaua from seeing what appellant had written.
During redirect examination, the prosecutor asked Kukaua if he had “seen the writing on the paper prior to the defendant tearing it up and throwing it[.]” Kukaua responded yes, he saw the writing, he did not remember what was written at the time, “I see it now, ” and he “saw there was writing on the paper, yes.” The prosecutor later asked, “Did you read it prior to the defendant tearing it up and throwing it?” Kukaua replied yes. Kukaua testified that about 30 to 45 minutes elapsed from the time appellant wrote the statement to the time he threw it and, during that period, Kukaua and appellant “stood there, and it was just left there, and we continued to talk.”
During appellant’s recross-examination of Kukaua, Kukaua testified appellant was seated on a bench next to Kukaua. The following then occurred: “Q. And when Mr. Borges wrote this, he wrote this, ‘I, Marcus Borges, got in a fight in a hotel out’ -- when he wrote that, was that at the time that he was talking to you about ‘what’s going to happen to Melissa Teller?’ [¶] A. Yes. At some point, yes. I don’t know if it was exactly done at that specific time when he wrote that because it was a fluid conversation going on for... at least two hours.” At some point Kukaua saw that appellant was writing something, because appellant was writing it on Kukaua’s notebook, which appellant had with him.
The following occurred: “Q. But you didn’t actually see what words he was writing until after you retrieved your paper, which is why in your report you talk about the need to retrieve what he was writing? [¶] A. No. I saw the word ‘fight’ in there, and... I remember reading it at some point because we were sitting approximately, almost right next to each other. When he had written it out, I looked at it at some point. Yes, I did. [¶] Q. He didn’t offer it to you so you could read it, did he? [¶] A. No. He held the book to write on. [¶]... [¶] Q.... this note that was going to be a statement to you had not yet been handed to you; it was in his possession, and it was never offered to you by Mr. Borges at all? [¶] A. He had it with him. [¶] Q. But it wasn’t offered to you? [¶] A. I guess formally, no.” The court ruled appellant’s statement “ ‘ I, Marcus Borges, got in a fight in a hotel out’ ” was admissible. Kukaua testified at trial that appellant made that statement and Kukaua testified about appellant’s above mentioned attempt to dispose of the form. The prosecutor commented upon that attempt during jury argument.
b. Analysis.
Appellant claims Kukaua obtained appellant’s written statement that “ ‘I, Marcus Borges, got in a fight in a hotel[] out’ ” in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). We disagree. The Fifth Amendment right against self-incrimination applies during custodial interrogation. (Miranda, supra, 384 U.S. at p. 460.) The privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature....” (Schmerber v. California (1966) 384 U.S. 757, 761, 16 L.Ed.2d 908 (Schmerber), italics added.) “It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications[.]” (Id. at pp. 763-764, italics added.)
There is no dispute Kukaua properly advised appellant of his Miranda rights, appellant understood them, and, thereafter, appellant initially waived them when he started talking to Kukaua “about this case” after Kukaua asked appellant, “ ‘You want to talk about what happened?’ ” (Cf. People v. Riva (2003) 112 Cal.App.4th 981, 988-989.) Moreover, there is no dispute that, following that waiver and prior to any invocation of appellant’s Miranda rights, he wrote the challenged statement on the form.
The pivotal issues are whether that statement was a communication and, if so, when that communication occurred with respect to any invocation of appellant’s Miranda rights. There was substantial evidence as follows. Appellant wrote the challenged statement on a Miranda admonitions form supplied by Kukaua. Appellant was seated on a bench next to Kukaua in a jail cell. Kukaua saw appellant writing something on the form on Kukaua’s notebook. Kukaua saw the word “fight” and remembered reading it because appellant and Kukaua were sitting almost right next to each other.
Kukaua read the challenged statement before appellant tore it, and it appeared to pertain to the present incident. Kukaua never testified that appellant told Kukaua that appellant had not intended Kukaua to read the challenged statement. About 30 to 45 minutes elapsed from the time appellant wrote the challenged statement to the time he tore it and, during that time, appellant and Kukaua were in close proximity in a jail cell.
In sum, there was substantial evidence that, before appellant said, “ ‘I’m not telling you any more, ’ ” appellant wrote the challenged statement knowing that (1) Kukaua was reading it as appellant wrote it and/or (2) Kukaua would read it shortly after appellant wrote it (and Kukaua in fact read it). That is, there was substantial evidence that, before appellant said, “ ‘I’m not telling you any more, ’ ” the challenged statement was communicated from appellant to Kukaua, i.e., appellant wrote the statement intending Kukaua to read it, and Kukaua in fact read it. A formal physical transfer of the form from appellant to Kukaua was unnecessary.
No particular form of words or conduct is necessary on the part of a defendant to invoke the defendant’s right to remain silent, and a defendant may invoke that right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely. (People v. Samayoa (1997) 15 Cal.4th 795, 829.) We assume without deciding that, once appellant said “ ‘I’m not telling you any more, ’ ” appellant invoked his Miranda rights. (See People v. Jennings (1988) 46 Cal.3d 963, 977-978.) If so, Kukaua was then required to cease any interrogation. However, “interrogation” for purposes of Miranda consists of words or actions on the part of officers that they should know are reasonably likely to elicit an incriminating response. (People v. Bradford (1997) 14 Cal.4th 1005, 1034 (Bradford).)
Kukaua interrogated appellant and, in response, appellant communicated to Kukaua appellant’s challenged statement, prior to the invocation which occurred when appellant said “ ‘I’m not telling you any more.’ ” When considering an alleged Miranda violation, we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. However, we independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. (Bradford, supra, 14 Cal.4th at pp. 1032-1033.) We conclude no Miranda violation occurred, and the challenged statement was admissible.
We reject appellant’s suggestion that his attempt to dispose of the challenged statement by tearing up the form containing it and trying to throw the form into the toilet constituted an invocation of his Miranda rights. Appellant already had invoked his rights. Appellant’s attempt to dispose of the challenged statement was not conduct reasonably inconsistent with a present willingness to discuss the case, but an attempt to destroy evidence of (1) the Miranda admonitions on the form, (2) appellant’s responses thereto (which Kukaua wrote on the form), and (3) the challenged statement, which appellant communicated to Kukaua when appellant had been willing to discuss the case before appellant invoked his rights by saying “ ‘I’m not telling you any more.’ ”
Kukaua did not interrogate appellant after he invoked his rights. In particular, Kukaua’s postinvocation actions in preventing appellant from destroying the form, and Kukaua’s retrieval of the form, did not constitute interrogation. Those actions were not reasonably likely to elicit an incriminating response but were intended to prevent the destruction of evidence of, inter alia, a response (the challenged statement) which Kukaua had elicited from appellant before he invoked his rights.
Finally, appellant presents the related claim that his attempt to dispose of the challenged statement was an invocation of his Miranda rights; therefore, Kukaua’s testimony about that attempt and the prosecutor’s comment about that attempt during jury argument violated Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] and Wainwright v. Greenfield (1986) 474 U.S. 284 [88 L.Ed.2d 623]. However, since we have concluded appellant’s attempt was not an invocation of his Miranda rights, there is no need to further address appellant’s claim.
4. The Trial Court Did Not Erroneously Restrict Appellant’s Cross-examination of Carrillo.
a. Carrillo’s Preliminary Hearing Fabrication That He Was Kidnapped.
During cross-examination, appellant extensively cross-examined Carrillo concerning his fabrication that he had been kidnapped. At trial, appellant cross-examined Carrillo concerning his fabrication on the issue at the preliminary hearing, later cross-examined him concerning his fabrication on the issue to a defense investigator, and still later cross-examined him concerning his fabrication on the issue to the police.
In particular, appellant’s cross-examination of Carrillo at trial concerning his fabrication on the issue at the preliminary hearing included (1) appellant’s identification of numerous portions of the preliminary hearing transcript, line-by-line, reflecting Carrillo’s testimony relating separate events which were supposed to have occurred during the alleged kidnapping as a whole, and (2) appellant’s eliciting testimony from Carrillo that each such instance of his preliminary hearing testimony was a fabrication.
After cross-examining Carrillo concerning his fabrication on the issue to the police, appellant indicated he wanted to return to cross-examining Carrillo concerning his preliminary hearing testimony on the issue. At a subsequent sidebar, the court indicated that (1) it had given appellant ample opportunity to examine Carrillo about the fabrication, (2) it was established that Carrillo’s preliminary hearing testimony about the kidnapping was a fabrication, and (3) that was the only material issue.
Appellant argued the jury had to understand Carrillo continually fabricated and appellant argued his defense was that Carrillo was a perjurer. The court indicated the jury got the point “an hour ago” that Carrillo lied about the matter. The court also indicated it was unnecessary for appellant to conduct a line-by-line cross-examination of Carrillo’s preliminary hearing testimony since Carrillo had testified it was all a lie. The court stated it was “using its discretion under [Evidence Code section] 352 to indicate that further questioning line by line in the preliminary hearing [transcript] is unnecessary and an undue consumption of time.” Appellant argued Carrillo told “30, 000 lies” and appellant had a right to cross-examine Carrillo on each.
Appellant claims the trial court violated his rights to due process and effective assistance of counsel by restricting appellant’s cross-examination of Carrillo concerning “the extent of Mr. Carrillo’s lies at the preliminary examination and the ease with which he had freely disregarded his oath to tell the truth.” The threshold issue is whether the trial court’s ruling under Evidence Code section 352 was error.
We have set forth the pertinent facts. We review a trial court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Watson (2008) 43 Cal.4th 652, 684.) We conclude the trial court did not abuse its discretion under that section by precluding appellant from further cross-examining Carrillo, line-by-line from the preliminary hearing transcript or otherwise, concerning Carrillo’s fabrication that he had been kidnapped. Moreover, the application of the ordinary rules of evidence, as here, did not constitute a violation of appellant’s right to due process or right to effective assistance of counsel. (Cf. People v. Cornwell (2005) 37 Cal.4th 50, 82; People v. Pollock (2004) 32 Cal.4th 1153, 1173.)
b. Carrillo’s Understanding Concerning His Immunity.
During cross-examination, appellant’s counsel asked, “Mr. Carrillo, if you did lie here in this courtroom today, nothing bad would happen to you, would it?” The prosecutor posed a speculation objection, appellant’s counsel replied “state of mind, ” and the court asked what appellant’s counsel meant by “nothing bad.” Appellant’s counsel replied, “Whatever he can imagine.... whatever it is. State of mind.” The prosecutor objected the question was improper, and the court sustained the objection. Appellant’s counsel then asked, “Mr. Carrillo, do you think there’s any negative consequence to you of any kind if you were to lie here in front of this jury?” Carrillo replied, “That’s not my decision. It’s theirs.” Appellant indicated he had no further questions.
Appellant claims the trial court violated his rights to due process and effective assistance of counsel by not allowing appellant to explore Carrillo’s understanding of the meaning and scope of his immunity. We disagree. Both the first and second questions were essentially the same. Neither expressly referred to Carrillo’s immunity, its meaning or scope, but inquired whether anything bad or negative would have resulted if Carrillo had lied to the jury. Each question reasonably could have been construed to refer to anything bad whether it was psychologically, morally, legally, or otherwise bad. The questions were irrelevant, too general, called for legal conclusions, and called for answers which were excludable under Evidence Code section 352.
Moreover, the prosecutor did not object to the second question, the trial court did not prevent Carrillo from answering it, Carrillo in fact answered it, and appellant then indicated he had no further questions. The jury heard Carrillo testify as to his understanding of his immunity (see fn. 1, ante). Appellant has not demonstrated the trial court failed to allow appellant to explore Carrillo’s understanding of the meaning and scope of his immunity. The trial court did not err.
5. The Trial Court Did Not Err by Giving CALJIC No. 2.21.2.
The trial court, using CALJIC No. 2.21.2, instructed the jury on willfully false testimony. Appellant claims the trial court, by giving the instruction, erred in violation of his federal constitutional rights to due process and a jury trial because of the instruction’s condition, i.e., “unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” Appellant argues the condition is erroneous because (1) it seems to take away the jury’s discretion to reject the whole testimony of a witness who willfully has testified falsely on a material point, and (2) the condition appears to tell the jury that if they think Carrillo was probably telling the truth and therefore it is probably true he was robbed, the jury cannot reject his testimony as a whole. Our Supreme Court previously has rejected the gravamen of appellant’s claim. (Cf. People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Hillhouse (2002) 27 Cal.4th 469, 493; People v. Riel (2000) 22 Cal.4th 1153, 1200; People v. Beardslee (1991) 53 Cal.3d 68, 94-95.) We find no error.
6. The Abstract of Judgment Must Be Corrected.
Appellant’s sentence included a 10-year Penal Code section 12022.53, subdivision (b) enhancement. However, the abstract of judgment erroneously reflects the trial court imposed said enhancement pursuant to Penal Code section 12022.5, subdivision (b). We accept respondent’s concession the abstract of judgment must be corrected accordingly. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3.)
DISPOSITION
The judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting that the trial court imposed a 10-year enhancement pursuant only to Penal Code section 12022.53, subdivision (b).
We concur: KLEIN, P. J., ALDRICH, J.