Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-493925
Sepulveda, J.
Defendant was convicted by jury trial of one felony count of attempting to commit a lewd and lascivious act on a child under 14 following an Internet sting operation. (Pen. Code, §§ 664, 288, subd. (a).) We reject his arguments on appeal that (1) he received ineffective assistance of counsel when his trial attorney failed to object to inadmissible testimony and (2) the trial court committed reversible error by failing to give two jury instructions. We agree, however, that the probation/conditional sentence order contains an erroneous reference to a booking fee, and we order that reference to the booking fee be stricken. We otherwise affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
I.
Factual and Procedural
Background
In late July 2006, Santa Rosa Police Detective Bradley Conners set up a sting operation in an effort to fight the exploitation of children and child prostitution. Posing as a 13-year-old girl named Summer Roberts, he posted an advertisement in the “erotic services” section of the “Craig’s List” Web site (Craigslist) on July 31. The ad stated: “hey this is summer. i talked 2 sum of u last week but I wuznt able 2 meet w/ some of u. i made some $$ last week and it wuznt so bad, so im tryin to make a little more, can u help me out? [¶] i dont have pics, but im yung, cute, and blond[.] [¶] bjs 100.” Conners testified that “bjs” is a reference to “blow jobs, which would be slang for oral sex performed on a man.”
Conners used shorthand and misspellings in the e-mail because that type of slang “is common both in the prostitution area of Craig’s List and with younger users of the internet.”
Within a half hour, defendant, a welfare investigator for the Department of Social Services for Mendocino County who lived in Ukiah, responded to the ad using an e-mail address with the user name “hardbody_hercules.” He wrote, “I must have missed your ad last week, sounds pretty interesting. I’d love to know what’s up. Want to fill me in on the details. I’m off work all day and need to get into something special, might that be you. Hit me up. Thanks for reading.” Conners, posing as Summer Roberts, responded that Summer was 13 and offering blow jobs for $100. Defendant replied that he was interested, but that the girl should not tell people that she was only 13 because “[t]he man could get into some serious trouble.” Defendant later testified that he was concerned about getting caught having a sexual relationship with a 13-year-old girl.
Defendant and Conners proceeded to exchange several e-mails in which defendant and “Summer Roberts” made arrangements to meet in Santa Rosa. Conners wrote that defendant would have to bring condoms. He first proposed that they meet later that same day (July 31) at a theater, and he also asked for a photograph of defendant. Defendant responded that he would bring condoms, but that he did not want to share much information before he and “Summer” met because there were “internet stings going on” and he could “get in big time trouble.” After their correspondence was interrupted on July 31 because Conners’s surveillance team left to arrest a suspect in another case, they later agreed to meet on August 1. When defendant wrote on August 1 to finalize arrangements, he said he did not want to meet at the theater because “the po po station” (slang for police station) was across the street. He later suggested meeting at a bank’s ATM, and he was “ ‘just wondering a possibility of more.’ ” Conners testified that based on his training and experience, asking for a “ ‘possibility of more’ ” meant he was interested in “greater sex acts besides the previously described blow job.”
At Conners’s suggestion, defendant and “Summer Roberts” agreed to meet in a shopping center on the top floor of a department store’s parking garage, in the corner of the lot closest to the freeway and the store’s automotive shop. Conners testified that in general, he chooses locations for sting operations where “there’s no question as to the offender’s intent [because it] is a location where you would have to specifically travel to, you wouldn’t be just passing by casually.” When Conners (posing as “Summer Roberts”) again asked for a picture of defendant to make sure that he was “not scary or n e thing,” defendant responded, “I’m a perfect gentleman . . . not a thug . . . I work for a living . . . seriously, I’ll be really good with you . . . I’m not too keen on putting my pic out there on the www. I’m sure there won’t be too many walking up in the parking lot . . . you’ll recognize me . . . If that’s not good . . . I guess we can just forget about it.” “Summer Roberts” said they could still “hook up” and asked how old defendant was. Defendant responded, “I’m 40 . . . I’m starting to get nervous . . . I can’t afford to fuck up if you know what I mean . . . it takes me an hour to get there . . . let’s just do this . . . .” (Defendant was in fact 45 at the time he corresponded with Detective Conners.) “Summer Roberts” asked if they could meet at 2:30 p.m., and defendant wrote at 2:11 p.m. that he would be there at 3 p.m.
Seven detectives and an officer with the Santa Rosa Police Department set up undercover surveillance at the parking garage where defendant had agreed to meet “Summer Roberts.” Conners stationed himself on the ground floor near the parking structure; two or three other detectives stationed themselves on the top floor of the parking garage to view the designated area to meet. The detectives on the top floor posed as skateboarders so it would appear that they were loitering and that they were not, in fact, undercover police officers. The law enforcement officers could communicate with each other using cellular phones that had a walkie-talkie feature.
Defendant drove from Ukiah to Santa Rosa and parked in a parking lot that was in front of the department store that he and “Summer Roberts” had discussed. Between 3:15 and 3:30 p.m., defendant entered the department store adjoining the parking structure where he had agreed to meet (on the opposite side of the store from where he parked), and he ascended the escalator and walked toward the doors leading to the parking structure. Defendant testified that he was “kind of walking on auto pilot,” and he “was feeling anxious.” He also testified that he felt like he was being watched and was “under a magnifying glass” because he was in a public place about to get a blow job from a 13-year-old girl.
Detective Jessie Cude, who was undercover with a skateboard on the top floor of the parking garage, saw defendant walk out of the department store and across a bridge that connects the store with the parking area. Cude testified that defendant appeared to be nervous and fidgety, appeared to be looking for someone, and “[h]is head was on a swivel; he was looking around.” Cude testified that defendant walked to the end of the bridge to the parking structure, “stopped and was looking around, like he was looking for somebody,” and he then turned left and started going “[q]uickly” down a stairway. According to defendant, he did not stay long at the end of the bridge, and he did not stop there. He said he saw a ramp immediately to his left leading down, and he immediately walked down the ramp; he denied having looked in the corner where he had arranged to meet the 13-year-old girl. He testified that he knew what he was about to do was wrong, and when he saw the ramp he knew he had to leave the area.
Cude and a detective stationed with him followed defendant down the stairs. Cude lost sight of defendant but eventually saw him walking “very quickly” down the street outside the parking structure; Cude continued to follow defendant. He saw defendant looking behind him as he left the area. Cude and other detectives continued to follow defendant, who again looked behind him. When defendant started crossing a street, he began running. Conners saw defendant running “close to a sprint” toward the parking lot where his truck was parked; he saw two other detectives running about 10 yards behind him. Conners ran toward defendant yelling “police stop” several times and showing his police badge, and he heard two other detectives yelling the same thing. Defendant continued to run before Conners was able to grab him, arrest him, and take him into custody. Conners searched defendant and found a $100 bill and four flavored condoms in his pockets.
Defendant testified that he did not hear anyone saying “stop, police,” that he walked down the parking garage’s ramp and down the street outside the garage, that the only time he walked quickly was when he crossed the street to make a light, that he did not run, that he was not aware of anyone following him, and that he was “very surprised” when he was tackled as he was walking toward his vehicle.
Conners interviewed defendant after he was arrested. When asked why he started moving quickly when he left the top floor of the parking garage, defendant said he “just freaked. And I was like, uh, this is stupid, I need to get out of here.” Conners asked whether defendant had seen cops, and defendant answered, “Well, it just felt like everybody was lookin’ at me, you know. And I’m like, uh, this is stupid . . . .” He said that he changed his mind about meeting the 13-year-old girl when he was on the top of the parking structure. He said he did not see anyone when he came out the door of the department store leading to the parking area.
Defendant was charged by information with a single felony count of attempting to commit a lewd and lascivious act on a child under 14. (§§ 664, 288, subd. (a).) He was convicted of the charge by jury trial. The trial court suspended imposition of sentence and placed defendant on probation for three years. Defendant timely appealed.
Defendant was originally charged with attempted pandering (§§ 664, 266i, subd. (b)(2)), but the charge was later dismissed following a motion by the prosecutor.
II.
Discussion
A. No Ineffective Assistance of Counsel.
Defendant argues that he received ineffective assistance of counsel because his attorney failed to object to inadmissible testimony from both detectives who testified at trial. In order to show ineffective assistance of counsel, defendant must show both that counsel’s performance was deficient and that the performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687(Strickland).) “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695.) “[T]he standards for extraordinary relief based on a claim of ineffective assistance of counsel are familiar and stringent. Both incompetence and prejudice must be shown.” (People v. Scott (1994) 9 Cal.4th 331, 356, fn. 18.) With this standard in mind, we address the two alleged errors defendant raises.
1. No prejudicial error for failure to object to hearsay testimony.
Conners testified that when he received information that defendant was walking through the department store toward the parking garage where he was to meet “Summer Roberts,” he stayed off his radio as a safety precaution (presumably so that defendant would not hear radio transmissions). The prosecutor then asked Conners, “And so you stayed off the radio. What was the next thing that happened that you recall?” Conners testified, without objection: “I heard, I believe it was Detective Boettger but I’m not sure, it may have been Detective Tosti broadcast over that same telephone that they had seen the suspect come out to the parking garage and that he had glanced over toward the corner and immediately taken the stairs on foot down through the parking garage.”
Defendant argues that he received ineffective assistance of counsel because his attorney failed to object to Conners’s hearsay testimony about what another officer said he saw defendant do. The Attorney General argues that defendant has not demonstrated deficient performance, because his counsel presumably knew that jurors were going to hear from a detective who actually observed defendant, and that any inconsistency between Conners’s hearsay testimony and the percipient witness’s testimony would be to defendant’s benefit.
We agree with the Attorney General that even assuming counsel’s performance was deficient, defendant cannot demonstrate that he was prejudiced by the admission of the testimony. (Strickland, supra, 466 U.S at p. 695.) As the jury was instructed in this case, a defendant is guilty of attempt when he takes a direct but ineffective step toward committing a crime with the specific intent to commit the crime. (CALCRIM No. 460; People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) “ ‘Whenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.’ ” (Decker, at p. 8.) Defendant’s primary defense at trial was that he was not guilty of attempt because he had freely and voluntarily abandoned his plan to commit a lewd act with a minor before he took a direct step toward committing the crime. (CALCRIM No. 460; People v. Dillon (1983) 34 Cal.3d 441, 454.) However, as the prosecutor correctly argued during his closing argument to the jury (and as the jury was correctly instructed), a defendant is guilty of attempt if he intends to do an act and takes a direct step in furtherance of the crime, even if he later changes his mind and abandons further efforts. (CALCRIM No. 460; People v. Dillon, supra, 34 Cal.3d at p. 454 [subsequent events tending to show abandonment are irrelevant once requisite intent and act are proved].)
Defendant corresponded with a person he believed to be a 13-year-old girl, made arrangements to meet her in order to receive a blow job for $100, placed a $100 bill and flavored condoms in his pocket, traveled from Ukiah to Santa Rosa, parked in a parking lot in front of a department store, ascended to the top floor of the store, and walked through a door toward a parking area where he had arranged to meet “Summer Roberts.” These were more that “slight acts” in furtherance of defendant’s clear design to pay a 13-year-old girl for a blow job, and were sufficient to demonstrate defendant’s guilt of the offense of an attempted lewd and lascivious act on a child under 14. (Decker, supra, 41 Cal.4th at p. 8.) Subsequent acts tending to show voluntary abandonment “are irrelevant once the requisite intent and act are proved.” (People v. Dillon, supra, 34 Cal.3d at p. 454.) Viewed in this light, any dispute over where defendant may have looked after he walked out of the department store doors and crossed a bridge toward the parking area, and thus whether he abandoned his plan voluntarily or left the area only because he saw police or noticed that there was no 13-year-old girl waiting for him, is not nearly as significant as defendant argues on appeal.
Defendant points to his trial counsel’s closing argument, where he stated that no one saw defendant looking toward the corner of the parking area where defendant was to have met “Summer Roberts,” and that “[t]he only evidence you have in terms of—other than Mr. Harris talking to you about this is Officer Cude . . . .” Defendant argues that this was not a correct summary of the evidence, because Conners also had been permitted to testify that defendant looked toward “the corner.” But Conners did not specify to which corner defendant had looked, and his testimony was not inconsistent with Detective Cude’s testimony that when defendant walked into the parking area, “[h]is head was on a swivel; he was looking around.” The aerial satellite photograph of the area in question that was admitted at trial reveals that if defendant were looking around, he necessarily looked at one of the corners of the parking area, consistent with Conners’s hearsay testimony.
In sum, we conclude that, even absent the error of admitting Conners’s hearsay testimony, there is no reasonable probability that the jury would have a reasonable doubt respecting defendant’s guilt. (Strickland, supra, 466 U.S. at p. 695.)
2. No prejudicial error for failure to object to Cude’s testimony.
The same is true for defendant’s next ineffective assistance of counsel claim. While Detective Cude was testifying about following defendant after he left the parking garage, the prosecutor asked, “And where did Mr. Harris go next?” Cude testified without objection, “Um, at that point when he was somewhere around this bridge here [referring to a satellite photo of the area], he continued to turn around, he saw probably four people following him on cell phones.” Defendant argues that his counsel provided ineffective assistance by failing to object to this testimony based on the fact it was nonresponsive, not based on personal knowledge, and speculative, because it weakened defendant’s argument that he was not fleeing police when he left the parking garage.
We agree with the Attorney General that defendant’s counsel was not ineffective for failing to object to Cude’s testimony, because reasonable counsel would have feared that an objection may have encouraged the prosecutor to ask more questions to establish that when defendant looked around, four detectives were necessarily in defendant’s line of vision, and he could not have missed seeing them. Contrary to defendant’s argument that Cude had no knowledge of what defendant could or could not have seen, Cude testified that he was following defendant from about 100 feet away, and that one of the other detectives was in front of him, and he saw the other detective on his cell phone. (He also testified that he could not remember where the other two detectives were at this point.)
Even assuming arguendo that defendant’s counsel’s performance was deficient, defendant cannot demonstrate prejudice. (Strickland, supra, 466 U.S. at p. 687.) Cude testified that after defendant looked behind him and saw four people following him with cell phones, defendant crossed the street and began running. He continued to run south, crossed a bridge, and continued running. Conners likewise testified that he saw defendant running “close to a sprint,” and that defendant continued running even after Conners and two other detectives yelled “police stop” several times. Although defendant denied that he knew he was being followed, and there was thus conflicting testimony about whether defendant fled, we cannot say that absent Cude’s testimony that defendant saw four people following him with cell phones there is a reasonable probability that the jury would have a reasonable doubt as to defendant’s guilt. (Id. at p. 695.) This is especially true in light of the fact that, as the jury was correctly instructed, evidence that defendant fled or tried to flee cannot prove guilt by itself. (CALCRIM No. 372.) We reject defendant’s ineffective assistance of counsel claims.
We also deny by separate order defendant’s related petition for writ of habeas corpus (In re Michael Sherman Harris (Dec. 12, 2008, A122954) [nonpub.]).
B. Defendant Not Prejudiced by Failure to Give Two Jury Instructions.
Defendant next argues that the trial court erred by failing to give two jury instructions: CALCRIM Nos. 302 (“Evaluating Conflicting Evidence”) and 332 (“Expert Witness Testimony”). His counsel listed both instructions in his proposed jury instructions submitted to the trial court. Neither party mentioned the two instructions during a conference on proposed jury instructions. The trial court apparently relied on a proposed set of instructions provided by the prosecutor, which did not include CALCRIM Nos. 302 or 332. We address the two instructions separately.
1. Conflicting evidence.
CALCRIM No. 302 provides, “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” The instruction (or the similar CALJIC No. 2.22, which also was not given here) “must be given sua sponte in every criminal case in which conflicting testimony has been presented.” (People v. Cleveland (2004) 32 Cal.4th 704, 751, citing People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.) Defendant argues, and we agree, that the trial court was required to give this instruction because of the conflicting evidence surrounding defendant’s conduct after he walked out of the department store and across the bridge leading to the parking structure where he had planned to meet “Summer Roberts.” However, failure to give the instruction is grounds for reversal only where there is a reasonable likelihood that the failure caused juror misunderstanding. (People v. Snead (1993) 20 Cal.App.4th 1088, 1097.) To assess that possibility we may consider the entire record and the totality of the jury instructions. (Ibid.)
As in People v. Snead, supra, 20 Cal.App.4th at page 1097, we conclude that the trial court did not commit prejudicial error. The jury was instructed on witness credibility generally, and the obligation not to “automatically reject testimony just because of inconsistencies or conflicts” (CALCRIM No. 226); the sufficiency of a single witness’s testimony (CALCRIM No. 301); reasonable doubt and the duty to “impartially compare and consider all the evidence that was received throughout the entire trial” (CALCRIM No. 220); and direct and circumstantial evidence (CALCRIM Nos. 222, 223). We agree with defendant that “the existence of other instructions cannot itself demonstrate harmlessness”; however, we cannot conclude based on the entire record that prejudicial error occurred here. This is especially true in light of the fact that, as we have already noted, any conflict in the evidence related to events that transpired after defendant had committed the crime of attempt.
2. Expert witness testimony.
Conners testified that he had extensive training and experience in investigations into child victimization and child prostitution, protecting victims of child prostitution, online child exploitation, and Internet crimes against children. He also testified that, in the past, he had been qualified as an expert in the area of “online child exploitation or prosecution,” both at hearings and in jury trials. Defendant claims that Conners provided expert testimony at trial, and that the trial court therefore erred in failing to instruct the jury on the weight to give that testimony.
Specifically, he points to Conners’s testimony that (1) the “erotic services” section on Craigslist is almost always used for advertising prostitution; (2) the terms he used in the ad he posted were typical shorthand used by younger Internet users; (3) he chose the department store’s parking lot as a meeting location in part because it would require “particular effort” and “specific intent” to travel there; and (4) although he had set up a meeting place in the corner of the parking structure, law enforcement believed that defendant completed the crime of attempt when he arrived at the top floor of the parking structure. Defendant also directs us to Conners’s testimony interpreting various e-mails. He testified that, based on his training and experience, defendant’s asking about a “ ‘possibility of more’ ” meant that he desired more sex acts. Defendant also claims that Conners testified that “children are regularly being advertised as prostitutes on Craigslist.” In fact, Conners testified that he had “encountered children online on Craig’s List being advertised as prostitutes,” but he did not testify how frequently this happened.
Evidence Code section 720, subdivision (a) provides that a person may testify as an expert if he has sufficient special knowledge, skill, experience, training, or education to qualify him as an expert on the subject to which he will be testifying. An expert may testify on a “subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact,” and is based on matter that is known to the witness and is of a type that reasonably may be relied on. (Evid. Code, § 801.) Penal Code section 1127b provides: “When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefore, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given.” CALCRIM No. 332 is consistent with section 1127b.
The instruction provides, in relevant part: “(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” CALCRIM No. 332 contains additional optional language that defendant agrees does not apply here.
“The instruction called for by Penal Code section 1127b must be given sua sponte where expert testimony has been received. [Citation.] However, the erroneous failure to instruct on the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given.” (People v. Reeder (1976) 65 Cal.App.3d 235, 241 [error not to instruct on weight to be given expert polygraph examiners’ testimony where credibility of witnesses was “pivotal issue at trial”]; see also People v. Watson (1956) 46 Cal.2d 818, 836.) We note that the prosecutor never asked that Conners be qualified as an expert in this case. However, even assuming that Conners provided expert testimony and that there was instructional error here, defendant cannot show that it is reasonably probable that a result more favorable to him would have occurred had the instruction mandated by section 1127b been given.
Defendant argues that Conners’s “expert testimony” about the fact that children have been advertised as prostitutes on Craigslist and that he used slang used by young Internet users “raised the inference that appellant might have believed even before Conners wrote it in an e-mail that the Craigslist ad poster was a minor, and the expert testimony thereby undermined the defense that appellant never decided unambiguously whether to attempt a lewd act.” Whatever defendant’s belief before he read Conners’s ad, it was clear that he was well aware of “Summer Roberts’s” age when he wrote to her that she should not tell people that she was only 13 because “[t]he man could get into some serious trouble.” It was also clear that he was aware he was traveling to meet a 13-year-old girl for a blow job, because he testified he was nervous about it.
Defendant also exaggerates the significance of Conners’s testimony about when he believed the crime of attempted lewd and lascivious act had been committed. Conners testified on direct examination that the original plan was for one of the undercover officers to approach defendant to ask him directions in order to distract him, and then other officers would approach him from behind and arrest him. Instead, defendant left the parking area shortly after he arrived. On cross-examination, defendant’s attorney asked Conners whether officers had planned to arrest defendant in the corner of the garage where he was to have met “Summer Roberts” (represented by an “X” on an aerial satellite photograph of the area). The following exchange then took place:
Detective Cude later explained that he was waiting for another member of the surveillance team when defendant arrived at the top of the parking garage, and they were not ready to arrest defendant without that team member present.
“[Conners]: The initial plan was to locate our suspect and arrest him on the top floor of the garage.
“[Defendant’s counsel]: That entire area or where the X is marked?
“[Conners]: Upon arriving at the top. The X was the predetermined meet spot. However, in our mind the crime of attempt would have been sufficed by arriving at the top floor of the parking structure.
“[Defendant’s counsel]: I’m not asking you to explain the crime of attempt. You had said earlier with [the prosecutor] that your officers were there. You wanted to have it out of the way just so that no one else would be involved. And I believe you said that that was the operation to have it occur over here. Wasn’t that the plan?
“[Conners]: I don’t believe I testified as to the exact location where the officers were going to arrest him other than the top floor of the parking structure.”
Defendant’s counsel may very well have been trying to elicit testimony from Conners that officers had intended to wait until defendant walked to the designated meeting area to arrest him so that he (defendant’s counsel) could argue that defendant changed his mind before officers thought defendant had attempted a crime. However, the fact is that Conners was asked about where officers intended to arrest defendant; he was not asked for his expert opinion about when the crime of attempt was complete.
Defendant also points to Conners’s testimony that he selected the parking garage next to a department store because it would take specific intent to travel there. That defendant took significant effort to travel to Santa Rosa, park his car, enter a department store, and walk to a parking garage, all the while aware that he was doing so to meet a 13-year-old girl for a blow job, was hardly a controversial point at trial. The same may be said for testimony about the fact that terms such as “n e thing” and “wuznt” are used by younger users of the Internet, or that suggesting meeting at an ATM and asking for a “ ‘possibility of more’ ” meant defendant was interested in sex acts in addition to a blow job. There is no reasonable probability that jurors might have rendered a different verdict had they been instructed that they could disregard such opinion if they found it to be “unreasonable.” (§ 1127b; People v. Reeder, supra, 65 Cal.App.3d at p. 241.) We reject defendant’s claims of instructional error.
C. Booking Fee Should Be Stricken.
The trial court’s probation/conditional sentence order states that a $127 “Booking Fee” was imposed. In fact, the trial court imposed no such fee at the sentencing hearing. Defendant argues that the conditional sentence order must be corrected to delete the reference to the booking fee. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187 [appellate court may correct clerical error where it does not reflect oral judgment of sentencing court].) The Attorney General agrees that the trial court clerk should be ordered to strike the reference to the booking fee. We therefore order that the trial court strike the reference in its August 2, 2007, probation/conditional sentence order to the $127 booking fee.
III.
Disposition
The judgment is affirmed, with the modification noted in the preceding paragraph. The trial court is ordered to modify its August 2, 2007, probation/conditional sentence order to strike reference to the $127 booking fee.
We concur: Ruvolo, P. J., Rivera, J.