Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF093784A.
HULL, J.
Defendant Quincy Renard Green attacked three members of his family with a hammer, inflicting multiple blows to the victims’ heads. He killed his father and stepbrother, and severely injured his stepmother.
A jury convicted defendant of two counts of first degree murder (Pen. Code, § 187; unspecified section references that follow are to the Penal Code) and one count of attempted willful, deliberate, and premeditated murder (§§ 664/187), and found that defendant inflicted great bodily injury on his stepmother (§ 12022.7). The jury also found true a charged special circumstance alleging the commission of multiple murders (§ 190.2, subd. (a)(3)), and found a charged prior conviction to be true.
Sentenced to an aggregate term of 17 years to life plus two life sentences without possibility of parole, defendant appeals, contending: (1) the court erred in admitting graphic photographs of the murder victims, (2) his attorney’s failure to object to statements of the prosecutor constituted ineffective assistance of counsel, (3) the court erred in instructing the jury, (4) a parole revocation fine should not have been imposed, and (5) the probation report requires correction. We strike the fine but otherwise affirm the judgment.
FACTS AND PROCEDURE
Defendant lived with his father (Willie) and stepmother (Mary) in a small one-bedroom apartment. At times, his stepbrother (Nicholas) would stay there as well. Willie, Mary and Nicholas used a variety of drugs, including heroin, methamphetamines, and crack cocaine and they often brought drug-using friends to the apartment. Defendant tried to forbid friends and other family members from coming over because “they didn’t mean us no good.” Rent money was spent on drugs and, by the time of these events, eviction proceedings had been instituted.
Defendant worked briefly but lost his job because of the stresses of living in the apartment. Eventually, according to defendant, the pressures became too much and he began using crack cocaine.
The relationship between defendant and Nicholas became particularly strained, and at one point, defendant reported Nicholas to the police for stealing clothing and jewelry from him.
Late on a Saturday night, a neighbor was awakened by a pounding noise coming from defendant’s apartment. She heard people arguing and a woman’s screams, and then heard a woman yell, “God help me, he’s gonna kill me.” She heard a loud crash and then nothing.
On Sunday morning, defendant appeared at a friend’s door and said, “You won’t believe what I did.” He told her that he had killed his father, stepbrother, and stepmother with a hammer. The friend to whom he spoke did not contact authorities.
Defendant then went to the bus station and asked where he could go for $60 or $70. Defendant took a bus to Portland, Oregon.
On Wednesday morning, a relative opened his door to find Mary standing on the doorstep. Mary appeared to have been badly beaten. She had black eyes, cuts, and gashes on her head. She was disoriented and did not remember what had happened. She said that Willie and Nicholas were asleep and she could not wake them.
The relatives took Mary back to her apartment. As they approached the house, they could smell decay. They found blood in the hallway and kitchen, and then discovered Willie and Nicholas’s bodies on the floor of the bedroom, with pools of blood by their heads. Blood was spattered on the floor, walls, and ceiling, and there was brain tissue on the television. They called the police.
Nicholas had been hit three times in the head with a hammer. He had no defensive wounds, and a criminalist testified that he had been hit while he was sleeping on the bedroom floor.
Willie had been attacked in the kitchen. He was hit 15 times in the head with a hammer and his body was then dragged into the bedroom. Willie had no defensive wounds.
Mary had multiple lacerations on her head and a fracture that severed her skull. It was the largest skull fracture that her treating doctor had ever seen. She had no defensive wounds.
Investigators found bottles of cleanser in the hallway and a bottle of bleach in the bathroom. Someone had tried to clean blood off the walls and floors of the apartment, and bloodstains were found in the bathtub and sink.
The officers found a hammer on the floor of the kitchen. It was covered in blood and hair.
One month after the murders, defendant was arrested on unrelated charges in Vancouver, Washington. Local authorities learned of the outstanding warrant for defendant’s arrest and contacted the Stockton Police Department. Detectives went to Vancouver to interview defendant.
As permitted under Washington law, defendant refused to allow the detectives to take notes or videotape the interview. He told the officers that he wanted to “touch on a few things.” He told them that on the night of the attack he had been trying to sleep but heard an argument in the kitchen. He got up and found Mary, Willie and Nicholas there with two other people. He left the kitchen and tried to calm down, but instead became more upset. He took his hammer from the bedroom, went into the kitchen, turned off the lights to confuse people, and then started to swing. He said that the entire attack occurred in the kitchen, and he denied using the hammer on Nicholas in the bedroom.
At one point, defendant said that Willie had threatened him with a knife in the kitchen. He said he had not been stabbed, but later said he had healed scars from the knife. He refused to show officers these scars.
Defendant described the living situation in the apartment to the officers and said he was under tremendous pressure and felt like a “caged animal.” He felt he had to take care of the others. He was depressed about the drug use, and he was embarrassed by the apartment. He thought he was being “backed into a corner.” He said he had a feeling that Willie, Mary and Nicholas were plotting against him, but said they had not made any specific threats.
Defendant said that he tried to clean up the apartment, not to cover his tracks but because he did not want anyone to see the blood. When he left the apartment, Mary was sitting on the bed in a daze, and he thought Willie and Nicholas were asleep on the floor.
He left the house because he thought the police would be looking for him. He said he told his friend that he had used the hammer to protect himself against Willie, Mary and Nicholas, and told her that he did not think his relatives were dead.
At trial, defendant admitted killing Willie and Nicholas and injuring Mary, but denied any premeditation or deliberation. He raised a claim of imperfect self-defense, asserting that Willie had drawn a knife on him and that he thought the victims were plotting against him. He suggested that drug use made him paranoid, and he claimed that he acted impulsively in one violent and uncontrolled outburst.
Defendant testified at trial, and said he had “been up on drugs for like about a week or two” before the killings, and had had little sleep during this period. He explained that the high lasts only a minute, and the drugs made him paranoid. He had smoked crack cocaine on Friday night with his girlfriend, Theresa, and smoked crack cocaine again on Saturday morning with Theresa, Mary and Willie.
Defendant and Theresa then had an argument. Theresa left the house, and Willie went with her. Defendant was angry at Willie for spending the day with Theresa.
A trial, defendant for the first time offered a description of the two men he said he had seen arguing with Willie and Mary in the kitchen on Saturday night. He said that he went into the kitchen with a hammer because the men were threatening Willie and Mary. Willie grabbed defendant and, as Willie pulled him to the floor, defendant knocked against the light switch, turning the lights off. Willie had a knife in his hand and it cut defendant in the chest. Defendant then starting swinging the hammer at Willie. He was afraid of being stabbed again and was also feeling frustrated.
He testified that he then went into the bedroom because he was afraid Nicholas would be coming after him. He found Nicholas listening to Mary describe what was going on, and saw Nicholas starting to get up. Defendant hit him with the hammer and Nicholas fell. He hit him twice more. Mary began to yell, and defendant struck her as well.
Defendant left the apartment for a while and then returned. He assumed Willie was dead and covered him with a sheet. He tried to clean up the blood in order to “undo it,” but became frustrated and figured he was “just stuck with this problem.” He changed his clothes, went to a market to buy a beer, and returned to the house to drink it.
In the morning, he went to his friend’s house and told her he had killed his father, stepmother, and stepbrother.
The prosecutor argued that defendant acted with premeditation and deliberation. She noted that defendant’s many blows landed only on the victim’s heads, and argued that this precision demonstrated that defendant was in control and knew what he was doing. She emphasized that defendant had told the interviewing detective that he had turned the lights out in the kitchen in order to confuse people. She questioned defendant’s claim of imperfect self-defense, emphasizing that defendant hit his father 15 times in the head and killed his stepbrother as he slept.
She noted that the exact order of the killings could never have been known, and she offered an alternate theory, namely, that Nicholas may have been killed first. She pointed out that the forensic evidence demonstrated that Nicholas was asleep when he was killed. Had defendant first killed Willie in the kitchen, the prosecutor suggested, Nicholas would certainly have been awakened by the noise.
The jury convicted defendant of first degree murder in the killings of Willie and Nicholas, and convicted defendant of the attempted premeditated and deliberate murder of Mary. The jury also found that defendant inflicted great bodily injury on Mary, and found true a charged prior conviction.
The trial court sentenced defendant to two life terms without the possibility of parole plus an additional 17 years to life for the attack on Mary. This appeal followed.
DISCUSSION
I
Admissibility of Photographs
Defendant raises two claims relating to exhibits 60 and 62, photographs of the bodies of defendant’s father and stepbrother as they were found in the house.
First, defendant briefly asserts that the admission of these photographs violated his constitutional rights to a fair trial and impartial jurors. As the People point out, no such claim was raised in the trial level, and defendant is therefore precluded from raising this issue on appeal. (See People v. Carpenter (1997) 15 Cal.4th 312, 385.) In his reply brief, defendant attempts to overcome this hurdle by offering a two-sentence argument claiming counsel’s failure to assert this point constituted ineffective assistance of counsel. Defendant’s belated attempt to raise this claim, with virtually no argument or authority, is improper, and we do not consider it further. (People v. Bonilla (2007) 41 Cal.4th 313, 349-350; People v. Robinson (2002) 104 Cal.App.4th 902, 905.)
We therefore turn to the second issue, defendant’s primary challenge to the admissibility of the photographs. Defendant contends that these photographs were unduly graphic and cumulative, and therefore should have been excluded under Evidence Code section 352. We disagree.
“We review a trial court’s ruling under [Evidence Code] section 352 for abuse of discretion. [Citation.] On appeal, a trial court’s exercise of discretion to admit evidence under that evidentiary statute is reversed only if the ‘the probative value of the photographs clearly is outweighed by their prejudicial effect.’ [Citations.] Prejudicial in this context is ‘evidence that uniquely tends to evoke an emotional bias against a party as an individual’ and has only slight probative value. [Citation.]” (People v. Carey (2007) 41 Cal.4th 109, 128.)
Defendant filed a motion in limine asserting that “[p]hotographs of the autopsy of any alleged victim, or any photo of a decedent which is prejudicially graphic, should be excluded.” However, in discussion with the court, defense counsel limited his objections to the autopsy photographs, specifically stating that he had no objection to photographs depicting “the way the room looked and the position of the bodies in the room.” The court agreed with defendant’s assessment, and excluded the autopsy photographs under Evidence Code section 352. The court distinguished these pictures from those taken at the scene, finding the latter to be “in an entirely different category. They are pretty bad. They are pretty gruesome and inflammatory. But the probative value--photographs at the scene and the conditions of the bodies when they were first found, is so high compared to the prejudicial effect that those photographs . . . whatever photographs you want to put in as to those, I think, are admissible.”
Later in the trial, defendant had a change of heart and objected to exhibits 60 and 62, the two photographs showing the dead bodies as they were found in the house. Defendant asserted these photographs were “particularly gruesome and more prejudicial than probative.” The court disagreed, finding the photographs were necessary for the criminalist to “illustrate and explain his opinions, because they do relate to how the victims were situated at the time that the blood stains were created, so even though they were certainly very gruesome photographs, under Evidence Code section 352, the Court is exercising its discretion on the grounds that it feels the probative value of those photographs outweighs the prejudicial value thereof.”
The court’s ruling was well within its discretion. The photographs show the murdered victims as they were found in the bedroom. In describing the wounds inflicted on each victim and the position of the bodies, the criminalist used these photographs to illustrate his testimony and explain how he thought the murders were committed.
“‘In a prosecution for murder, photographs of the murder victim and crime scene are always relevant to prove how the charged crime occurred, and the prosecution is ‘not obligated to prove these details solely from the testimony of live witnesses.’” (People v. Pollock (2004) 32 Cal.4th 1153, 1170.) “[T]he jury was entitled to see how the physical details of the scene and bod[ies] supported the prosecution theory . . . .” (People v. Turner (1990) 50 Cal.3d 668, 706; accord, People v. Pride (1992) 3 Cal.4th 195, 243.)
Here, after excluding autopsy photographs under Evidence Code section 352, the trial court thoughtfully reviewed the crime scene photographs and determined that their probative value outweighed any prejudicial effect. The court acted well within its discretion in admitting the challenged photographs. There was no error.
II
Ineffective Assistance of Counsel
Defendant contends that the prosecutor engaged in misconduct in her arguments to the jury, and that his attorney’s failure to object to these remarks constituted ineffective assistance of counsel. We disagree.
“‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” [Citation.]’ [Citation.]
“‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’ [Citation.]
“In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
The prosecutor argued to the jury that even if defendant had voluntarily taken drugs and/or alcohol, he knew exactly what he was doing when he hit the victims’ heads with his hammer. As part of this argument, the prosecutor said, “Keep in mind one of the jury instructions, 4.21.1, no act while voluntary--an act is not made less criminal because of voluntary intoxication. However, involuntary intoxication can negate mental state.” (Italics added.)
Defendant contends that the italicized comments were incorrect statements of law, and his attorney was therefore ineffective in failing to object. Defendant’s claim is unpersuasive.
We agree that the prosecutor erred in summarizing the provisions of CALJIC No. 4.21.1. That instruction begins by stating the general rule that “no act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition,” and the court specified that this general rule applied only to the general intent crime of assault with a deadly weapon, a lesser included crime of attempted murder. The instruction went on to outline the exception to this general rule, informing the jury that where a crime required a specific intent or mental state, the jury should consider defendant’s voluntary intoxication in deciding whether defendant possessed the requisite intent or mental state.
The prosecutor erred in summarizing this instruction. However, defense counsel’s failure to object to this misstatement does not demonstrate ineffective assistance of counsel.
“[C]ompetent counsel may often choose to forgo even a valid objection. ‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1197; accord People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Here, the court informed counsel before closing arguments that it would be giving the jury written copies of all instructions. The court instructed the jury pursuant to CALJIC No. 4.21.1 that voluntary intoxication could be considered in determining whether defendant possessed the requisite specific intent. In her initial argument to the jury, the prosecutor argued that defendant remained in control throughout the assaults on the victims and knew exactly what he was doing as he precisely and repeatedly hit each victim on the head with a hammer. Defense counsel argued otherwise, and chastised the prosecutor for being overly emotional and misstating the law. In her closing argument, the prosecutor reiterated her assertion that defendant was guilty of first degree murder, and made the misstatement now at issue.
Defense counsel may well have had tactical reasons for not objecting. This case did not involve any claims relating to involuntary intoxication. Defense counsel had already pointed out perceived problems with the prosecutor’s case and may not have wanted to appear overly combative. The jury’s patience for listening to arguments may have been wearing thin. Given these possibilities and the fact that counsel knew that the court would be giving the jury written copies of the instruction, “[t]his was not a situation in which there could be no satisfactory explanation for counsel failing to object to the remarks of which defendant now complains.” (People v. Huggins (2006) 38 Cal.4th 175, 252.)
Moreover, there is no reasonable probability that the jury would have reached a different conclusion had defense counsel raised an objection. As our extensive recitation of the facts demonstrates, the evidence of premeditation and deliberation was overwhelming. Defendant offered inconsistent explanations for his acts, and the forensic evidence did not support his version of events. Under these circumstances, defendant cannot establish ineffective assistance of counsel.
III
Instructional Error
Defendant challenges several of the instructions given by the trial court. We address each claim in turn.
A. Instruction on Voluntary Intoxication
After instructing the jury pursuant to CALJIC No. 4.21.1 on the effect of voluntary intoxication on general and specific intent crimes, the trial court gave CALJIC No. 4.22, defining “voluntary intoxication” as follows: “Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect or when he willingly assumes the risk of that effect. [¶] Voluntary intoxication includes the voluntary ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other substance.”
Defendant first contends that this instruction was irrelevant and should not have been given because it was undisputed that any drug use was voluntary. CALJIC No. 4.22 provides “the standard definition of voluntary intoxication” (People v. Cain (1995) 10 Cal.4th 1, 38-39), and there was no error in providing this definition to the jury. Moreover, the court informed the jury pursuant to CALJIC No. 17.31 that not all instructions were necessarily applicable. “‘[I]n most cases the giving of an abstract instruction is only a technical error which does not constitute ground for reversal.’” (People v. Rowland (1992) 4 Cal.4th 238, 282.) If voluntary intoxication was not at issue, CALJIC No. 4.22 would not have played a role in jury deliberations.
Defendant next suggests that CALJIC No. 4.22 is confusing. The first sentence of the instruction provides: “Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect or when he willingly assumes the risk of that effect.” (Italics added.)
Defendant contends that the jury might have interpreted the italicized phrase as suggesting that a defendant “assumes the risk” of forming the requisite mental state of premeditation and deliberation required for first degree murder, thereby precluding the jury from considering the effect of voluntary intoxication on the issue of specific intent. But the previous instruction, CALJIC No. 4.21.1, explicitly told the jury that it could consider voluntary intoxication for this exact purpose. There is no reasonable likelihood that the jury interpreted CALJIC No. 4.22 in the manner defendant suggests. (See People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
Finally, defendant contends that reversible error occurred when the court misread CALJIC No. 4.22 to the jury. As noted, this instruction provides that voluntary intoxication occurs when a defendant willingly uses alcohol or drugs “knowing that it is capable of an intoxicating effect or when he willingly assumes the risk of that effect.” (Italics added.) In reading this instruction to the jury, the court substituted the word “and” for the italicized “or.”
Defendant cannot demonstrate that this misreading was prejudicial. The unequivocal evidence established that defendant was a drug user, knew that drug use caused an intoxicating effect, and he willingly assumed the risk of that effect. Under the facts of this case, the use of a conjunctive rather than a disjunctive was immaterial.
Moreover, as defendant recognizes, if defendant was intoxicated at the time, that intoxication was voluntary. Consequently, this instruction was irrelevant to the jury’s deliberations.
Finally, as noted, the jury received written copies of the instruction, including the correct version of CALJIC No. 4.22. Given these circumstances, the error in misreading the instruction was harmless. (People v. Garceau (1993) 6 Cal.4th 140, 189-190, overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
B. Instructions on Consciousness of Guilt
The forensic evidence and defendant’s own testimony established that defendant tried to clean up the blood in the house. Defendant then went to the bus station and asked where his money could take him. He took a bus to Portland, Oregon, and then went on to Vancouver, Washington, where he was arrested one month later on unrelated charges.
The court gave two instructions relating to consciousness of guilt. CALJIC No. 2.06 provided, “If you find that a defendant attempted to suppress evidence against himself in any manner, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
Similarly, CALJIC No. 2.52 provided, “The flight or attempted flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
Defendant asserts that these instructions erroneously permitted the jury to consider defendant’s actions after the crime as evidence of guilt on the question of whether defendant premeditated and deliberated before killing and assaulting the victims. The California Supreme Court has rejected this claim.
In People v. Crandell (1988) 46 Cal.3d 833, 871, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365, the court held: “A reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’ The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instructions do not address the defendant’s mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto.” (Accord, People v. Jackson (1996) 13 Cal.4th 1164, 1224; see also People v. Perez (1992) 2 Cal.4th 1117, 1128 [conduct of defendant after stabbing relevant to disprove claims of rash, impulsive killing].) Defendant’s claim of error is unavailing. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant offers one final challenge to CALJIC No. 2.06. He asserts that this instruction should not have been given because defendant’s attempt to clean up the crime scene was so hopeless and ineffective that it cannot be considered a serious attempt to suppress evidence. But CALJIC No. 2.06 does not require likelihood of success. Rather the instruction applies if a defendant “attempted to suppress evidence against himself in any manner.” (Italics added.) The forensic evidence, testimony of crime scene investigators, and defendant’s own testimony established that defendant made such efforts, and the instruction was therefore proper.
C. Instruction on Reasonable Doubt
CALJIC No. 2.90, the instruction on reasonable doubt, provides in relevant part: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his/her guilt is satisfactorily shown, he/she is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him/her guilty beyond a reasonable doubt.” (Italics added.)
Defendant contends that this instruction reduces the prosecutor’s burden of proof because the phrase “until the contrary is proved” suggests that defendant’s guilt will in fact be proved. He asserts that the trial court erred in refusing to substitute the word “unless” for the word “until.”
This precise contention was rejected by the California Supreme Court in People v. Lewis (2001) 25 Cal.4th 610, 651-652, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
IV
Parole Revocation Fine
Defendant’s sentence included two life sentences without the possibility of parole, but the trial court nonetheless imposed a parole revocation fine of $10,000 pursuant to section 1202.45 in addition to the restitution fine imposed under section 1202.4, subdivision (b). Citing People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181, 1186 (Oganesyan) and People v. Jenkins (2006) 140 Cal.App.4th 805, 819 (Jenkins), defendant contends that a parole revocation fine cannot be imposed when there is no parole eligibility. We agree.
Section 1202.45 provides in relevant part, “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4 assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.”
The People claim that Oganesyan and Jenkins were wrongly decided. They argue that a fine is permissible because there is a remote chance that defendant’s appeal will result in the reversal of convictions or a reduction in sentence, making parole possible.
But the issue is not whether an appeal might ultimately be successful; if it were, parole revocation fines would be mandatory in every case, not just for those defendants “whose sentence includes a period of parole,” as specified in section 1202.45. The proper focus is on the sentence actually imposed. Here, that sentence does not contemplate a period of parole. Consequently, under the terms of section 1202.45, the parole revocation fine is improper, and must be stricken.
V
Probation Report
The probation report enumerated 11 circumstances in aggravation and none in mitigation.
Defense counsel asserted that the probation office routinely refused to list any mitigating factors in murder cases, and he argued that five mitigating factors in fact existed in this case. He urged the court to add these circumstances to the report. Counsel recognized that this would have “no practical effect whatsoever” because “this is a case in which aggravation and mitigation don’t enter at all--well, actually, not all.”
The prosecutor enumerated 10 aggravating factors and acknowledged that one mitigating circumstance “partially” applied to defendant in that he admitted wrongdoing at an early stage of the criminal process: he admitted striking one of the victims when he was taken into police custody. (Cal. Rules of Court, rule 4.423(b)(3); further rule references are to the California Rules of Court.)
The court agreed with four of the five mitigating circumstances claimed by defendant, namely that the crime was committed because of an unusual circumstance that was unlikely to recur (rule 4.423(a)(3)), defendant suffered from repeated physical abuse by his father (rule 4.423(a)(9)), defendant suffered from a mental or physical condition that significantly reduced culpability for his crime (rule 4.423(b)(2)), and defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process (rule 4.423(b)(3)).
The court directed that these items were to be “deemed added to the probation report as factors in mitigation,” adding, “I don’t think there’s any practical effect of that, but I am going to order that.”
On appeal, defendant complains that the probation report remains in its original state and no interlineations were made to reflect the court’s findings of additional circumstances in mitigation. He asks that we remand to the trial court with instructions to “(1) add the four mitigating factors in question; and (2) send copies of the amended report to this Court, the Attorney General, appellate defense counsel and [defendant] himself, as well as a certified copy to [defendant’s] place of incarceration, with a directive to destroy the old probation report and send this Court a letter of compliance when its order has been followed.” (Italics omitted.) Such a remedy is neither necessary nor appropriate.
As trial counsel recognized, this case involved the imposition of life sentences, and any factors in aggravation and mitigation were irrelevant to sentencing. Consequently, defendant’s claim has no practical effect. We will not remand for the trial court to engage in idle acts.
The probation report represents the probation department’s assessment and recommendation. A defendant can challenge those conclusions, and the trial court can disagree with the report’s findings. (See § 1170, subds. (b), (c).) Both of those things happened here. There is no need to modify the report itself, as the transcript of the sentencing hearing reflects the court’s decision. Should resentencing ever occur, that record is available, and a supplemental probation report would be prepared. (Rule 4.411(c).)
DISPOSITION
The parole revocation fine imposed pursuant to section 1202.45 is stricken. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.