Opinion
C082236
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DEREK HILL III, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05102)
Defendant Robert Derek Hill III sexually assaulted four different women and a jury found him guilty of 16 violent felonies. The trial court sentenced him under the one strike law (Pen. Code, § 667.61) to an indeterminate term of 220 years to life plus a determinate term of 28 years. On appeal, defendant contends the trial court erred in sentencing him to a weapon use enhancement (§ 12022.3, subd. (a)) on two counts where the jury found true only an armed enhancement (§ 12022.3, subd. (b)) and requests the imposed enhancements be reduced to five years. The People properly concede error on this point. Defendant further contends: (1) it was error to fail to instruct on attempted sodomy as a lesser included offense to sodomy in count 9; (2) he suffered cumulative prejudice from comments by a prospective juror about the juror's fiancée's rape and testimony from a victim about threats to her nephew and the possible deadly result of domestic violence; (3) he is entitled to an extra day of credit; and (4) the abstract of judgment must be corrected to reflect a single restitution fine. We modify the judgment to reduce the sentence for the section 12022.3 enhancements on counts 10 and 14 and order the abstract of judgment amended accordingly and corrected to clarify the singularity of the restitution fine.
Further undesignated statutory references are to the Penal Code.
FACTS
Sonia V. (Counts 1-6)
On April 17, 2013, Sonia V. was working as a prostitute on Watt Avenue. She made contact with defendant who was sitting in his car in a parking lot. Defendant had $50 and wanted sex. She got in his car and they drove to "his spot." She asked for $200; defendant patted his pants and then grabbed Sonia by the neck and squeezed. He said he did not pay and she was going to do what he wanted.
First, he made her orally copulate him (count one). He told her to take her pants off and raped her (count two). He penetrated her with his fingers (count three). He told her to turn around and raped her from behind (count four). Sonia reached for the phone to call her friend (Stanley). Defendant took the phone and put Sonia in a choke hold. He squeezed until she passed out and took her phone. Defendant then masturbated while Sonia awoke and had a panic attack.
When Sonia calmed down, defendant again inserted his fingers in her vagina (count five) and raped her (count six). Defendant mentioned a knife, but she never saw one. Sonia got her phone but defendant took it away. He told her to call Stanley and ask for money. Sonia sent Stanley a text message and he responded that he was going to call the police. Stanley called 911. Once defendant saw the police had been called, he let Sonia go and drove off casually.
After the police arrived, Sonia was taken to the BEAR Clinic (Bridging Evidence, Assessment and Resources) for an examination. She had petechiae (bursting of small blood vessels or capillaries) on the left base on her neck. DNA was collected from her neck, breast, and a vaginal swab. A DNA profile was developed and it was consistent with defendant's profile. Sonia was later shown a photographic lineup. She could not identify defendant but picked his picture as the one "[t]hat looks the most like him."
Rose P. (Counts 15-17)
Rose P. met defendant while working at McDonald's; they began dating in February 2013. At times he forced her to have sex but she did not report it. She ended the relationship on May 28, 2013. That night he called and wanted to come over and have sex. Rose lived with her mother and told defendant her mother would not like it, but he came over anyway. He came in through the bathroom window and Rose went to her mother to get defendant to leave. Defendant left and called and texted Rose from down the street, telling her he was going to kill himself.
Defendant returned the next morning. Rose's mother had left the front door unlocked when she went to work and he came in the house. He repeatedly asked Rose why they could not be together. When Rose told him she did not want to be with him, defendant grabbed her by the neck and threw her to the floor; she hit the bed railing. Although he apologized, he became aggressive when Rose asked him to leave. He told her if he could not have her, no one could. He told her if she would not give it to him, he would take what he wanted.
Defendant pulled her clothes off. Rose was crying and told him to stop. Defendant told her not to fight it. He put his fingers in her vagina (count 15) and raped her (count 16). He put his hands to her throat but let go when she told him she could not breathe. He told her he could not lose her. He pulled her hair and tried to force her to orally copulate him. He then tried to penetrate her anally but she pushed him away. He raped her from behind (count 17).
Rose was afraid and did not call the police at once. Later that day she told a friend's parents and they convinced her to call the police. Rose had a sexual assault exam at the BEAR Clinic. She named defendant as her assailant. She had a small bruise on her upper arm and a larger bruise on her shoulder. Sperm cells were found on a vaginal swab.
Elizabeth L. (Counts 7-9)
On January 25, 2014, Elizabeth L. was driving around with her friend Kelsey Scott. At one point, Scott offered Elizabeth $100 to drive her to a date. Scott told her she had put up a fake ad on Redbook, a prostitution website. They drove to a duplex with a "for sale" sign in front and no lights on. They sat in the car and talked for about an hour. During that time Scott had several conversations with the prospective customer, telling him she was on her way. In one, Scott questioned the sign and the man said he had just moved in. Scott did not want to get out, but Elizabeth walked to the duplex to check it out. She looked inside and was about to walk away when she felt an arm behind her neck and her hair being pulled. A voice said, "I have a knife. I will stab you."
Elizabeth began crying and defendant forced her into the house. He was angry; he had watched Elizabeth and Scott in the car. Defendant forced her face down on the floor, told her to take her clothes off, and forced her legs apart. He raped her (count 7). Defendant slapped her back; he told her to be quiet or he would stab her. He put his penis in her anus (count 9). She felt pressure; it hurt "really bad" and she started screaming. Defendant then raped her roughly (count 8).
Defendant grabbed Elizabeth's phone and told her to call Scott and tell her she needed her help. Elizabeth did not. Defendant ordered her to erase his phone number but the phone died at that moment. Defendant directed Elizabeth to get up and get dressed. He told her to walk out normally and if she screamed or yelled he would stab her and Scott. Elizabeth ran crying to the car and called the police. Scott did not want to call the police so Elizabeth told her she would not involve her. Elizabeth told various stories to the police that were not true, but was truthful about the rape.
Elizabeth was truthful with the nurse during the sexual assault exam. She was in pain, and told the nurse she had been anally penetrated and had a laceration there. It was too painful for the nurse to do a rectal exam. DNA was collected from Elizabeth, including from a rectal swab. The DNA profile developed was consistent with defendant's profile.
A fingerprint was lifted off the sliding glass at the duplex where the assault on Elizabeth took place. The fingerprint was matched to defendant. Elizabeth identified defendant's picture from a photo lineup.
Ashley C. (Counts 10-11, 13-14)
At 5:00 a.m. on July 10, 2014, Ashley C. was working as a prostitute on Stockton Boulevard. Defendant approached her from behind and asked if she was working. They exchanged phone numbers. During the day they exchanged calls and text messages. Defendant wanted a blow job, offering $100, and wanted to meet at a Circle 7. He changed the meeting place to the ShopSmart and then to the Social Security office. They made contact that night behind the building. Defendant touched Ashley's vagina and bottom. He said he was "checking to see if [she] was a cop."
They moved to an alleyway and defendant choked her from behind. He pushed her to the ground and starting taking her clothes off. He put his penis in her anus; it hurt and she screamed (count 10). He told her he would hurt her if she was not quiet and removed his penis. He demanded she orally copulate him (count 14). Then he raped her (count 11). When she screamed, he cut her with a knife; he cut both her neck and her hand (count 13, assault with a deadly weapon). Defendant grabbed Ashley's phone and deleted everything on it.
Ashley received medical attention and had her hand bandaged. She also had a sexual assault exam. In addition to the bandaged hand, she had a cut on her neck and various abrasions and lacerations that were consistent with her description of the assault. DNA was collected and a criminalist developed a profile that was consistent with defendant's.
The Defense
Defendant denied he had assaulted any of the four women. He claimed he had consensual sex with Sonia, Elizabeth, and Ashley, but then refused to pay them for their services. He claimed Ashley was cut after she pulled a knife on him and they fought over it. Defendant denied he ever had forcible sex with Rose and denied he was at her house on May 29, the date she claimed he assaulted her.
DISCUSSION
I
Reduction of Sentence on Armed Enhancements
Defendant was charged with personal use of a knife (§ 12022.3, subd. (a)) in counts 10, 11, and 14, the sodomy, rape, and oral copulation of Ashley. The jury found the personal use allegation true only as to the rape (count 11). As to the sodomy and oral copulation charges (counts 10 and 14), the jury found defendant was armed, but expressly found the personal use allegation not true.
Section 12022.3 provides for an enhancement for the use or possession of a deadly weapon in the commission or attempted commission of specified sex offenses, including rape, sodomy, and oral copulation. The enhancement is three, four, or 10 years if the defendant uses a deadly weapon. (§ 12022.3, subd. (a).) The enhancement is one, two, or five years if the defendant is armed with a deadly weapon. (Id., subd. (b).)
The trial court imposed a 10-year enhancement under section 12022.3 on counts 10, 11, and 14. The enhancement was stayed on count 11 because the use allegation was instead applied to sentence defendant to 25 years to life under section 667.61, subdivision (e). (§ 667.61, subd. (f).)
Defendant contends the 10-year enhancements on counts 10 and 14 must be reduced to five years to conform to the jury's verdict. The People concede the error. We agree with the parties. Any fact that increases a defendant's potential sentence beyond the statutory maximum for the offense must be found by a jury and established beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. 270, 281 [166 L.Ed.2d 856, 869]; see also § 1170.1, subd. (e).) Here, the jury clearly found only that defendant was armed, not that he used a weapon, with respect to counts 10 and 14. We modify the sentence to reduce the term of years on the section 12022.3 enhancements on counts 10 and 14 to five years each. (See § 1260.)
Although the armed enhancement was not specified in the charging document, it was included in the charged use enhancement. "Accepting the concept that weapon enhancements are not equivalent to criminal offenses for all purposes, there can be no doubt that every violation of section 12022.3, subdivision (a) or section 12022.5 involves a violation of section 12022.3, subdivision (b) or section 12022, subdivision (a). An enhancement of being armed with a firearm is necessarily included in a charging allegation of firearm use because the latter cannot be committed without committing the former." (People v. Turner (1983) 145 Cal.App.3d 658, 684, disapproved on other points by People v. Majors (1998) 18 Cal.4th 385 [no duty to instruct sua sponte on lesser enhancements] and People v. Newman (1999) 21 Cal.4th 413.)
Defendant contends the use enhancement (§ 12022.3, subd. (a)) on count 11 must be reversed because the verdict form cited only section 667.61 and not section 12022.3. This contention has no merit. "Here, as generally, the jury's function was to find whether the facts necessary for conviction had been proven, by assessment of the evidence admitted at trial in light of the court's instructions defining the types and quanta of facts necessary for conviction. The verdict, culminating this process, was the jury's statement whether it had or had not found those facts. There was no need in this fact-finding process for enumeration in the verdict of the statutes that defined the facts to be found or prescribed their legal effects." (People v. Cory (1984) 157 Cal.App.3d 1094, 1102 [upholding enhancement under section 12022.5 where verdict form referred only to section 1203.06].)
II
Failure to Instruct on Attempted Sodomy on Count 9
Defendant contends the trial court erred in failing to instruct on attempted sodomy as a lesser included offense to count 9. Count 9 alleged that "defendant did unlawfully participate in an act of sodomy with ELIZABETH L., and did accomplish said act against said victim's will by force, violence, duress, menace and fear of immediate and unlawful bodily injury to said victim." He contends that attempted sodomy is a lesser included offense of sodomy and that there was sufficient evidence to support the instruction. We apply "the independent or de novo standard of review" to the alleged failure by a trial court to instruct on a lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
The trial court raised the issue of instructions on lesser included offenses during trial. Defense counsel indicated he would probably not request any. After the prosecution's case-in-chief, defense counsel stated that unless an instruction on a lesser included offense was required to be given sua sponte, he was not requesting any such instructions. He had made a tactical decision to go for "all-or-nothing." After the defense rested, the trial court determined there was sufficient evidence to instruct on attempted sodomy as a lesser offense to count 10, sodomy of Ashley. The trial court declared it had a duty to so instruct, sua sponte. The court instructed on attempted sodomy as a lesser included offense only as to count 10. The court and parties did not discuss count 9, pertaining to Elizabeth. The jury found defendant guilty of sodomy in count 10.
"A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present." (People v. Huggins (2006) 38 Cal.4th 175, 215.)
"To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the 'elements' test and the 'accusatory pleading' test) must be met. The elements test is satisfied when ' "all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.]' [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.]' [Citations.]" (People v. Lopez (1998) 19 Cal.4th 282, 288-289.)
In People v. Mendoza (2015) 240 Cal.App.4th 72, at pages 82-83, Division 7 of the Second Appellate District held attempted sodomy was not a lesser included offense of sodomy. In concluding the elements test was not satisfied, the court relied on People v. Bailey (2012) 54 Cal.4th 740 (Bailey). In Bailey, the issue was whether attempted escape was a lesser included offense of escape. Our Supreme Court began its analysis by noting that escape was a general intent crime, while attempted escape required a specific intent to escape. (Id. at p. 749.) "Under the elements test, attempt to escape is not a lesser included offense of escape since it requires additional proof that the prisoner actually intended to escape." (Ibid.)
The Bailey court acknowledged prior case law that indicated an attempt was always a lesser included offense of any completed crime, but cautioned, " '[t]he law of "attempt" is complex and fraught with intricacies and doctrinal divergences' " and " '[w]e must not generalize in the law of attempt.' " (Bailey, supra, 54 Cal.4th at p. 753.) The court concluded the general rule that an attempt is a lesser included offense of the completed crime is not applicable "where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense." (Ibid.)
The Mendoza court reasoned that because sodomy, like escape, was a general intent crime, the specific intent crime of attempted sodomy was not a lesser included offense under the elements test. (People v. Mendoza, supra, 240 Cal.App.4th at p. 83.) And because, as here, the accusatory pleading did not charge that defendant had a specific intent to commit the crime, attempted sodomy was not a lesser included offense of sodomy under the accusatory pleading test. (Ibid.)
Defendant contends Mendoza was wrongly decided because it misinterpreted Bailey. He argues that attempted escape adds an element not present in the offense of escape beyond the specific intent to commit escape, characterized as "an intent to avoid further confinement" by the concurring opinion in Bailey. (Bailey, supra, 54 Cal.4th at p. 757 (conc. opn. of Werdegar, J.).) We disagree with defendant's reading of Bailey. The majority opinion clearly identifies the intent element of attempted escape, not required to prove an escape itself, as the "specific intent to escape." (Id. at p. 751.) The concurrence did not address whether attempted escape was a lesser included offense of escape. Rather, it discussed perceived problems in the standard instruction on escape, specifically whether breaching an internal barrier is sufficient for a completed escape. (Id. at pp. 756-757 (conc. opn. of Werdegar, J.).)
We find no relevant distinction between escape and sodomy as to the general and specific intent requirements of the completed crime and the attempted crime. Accordingly, we agree with Mendoza that under Bailey attempted sodomy is not a lesser included offense of sodomy. Nothing in the pre-Bailey cases cited by defendant convinces us that "the analytical framework set out in Bailey is not controlling." (People v. Braslaw (2015) 233 Cal.App.4th 1239, 1252 [attempted rape of an intoxicated person is not a lesser included offense of rape of an intoxicated person].)
As a trial court has no duty to instruct sua sponte on lesser related offenses (People v. Foster (2010) 50 Cal.4th 1301, 1343), the trial court did not err in failing to instruct on attempted sodomy on count 9.
III
Cumulative Error
Defendant contends he was unduly prejudiced by the cumulative effect of three instances of inflammatory comments made in front of the jury. The first occurred during voir dire and the two others came during Rose's testimony.
Background
Instance 1
The juror questionnaire asked whether a close friend or relative had been the victim of a crime. Prospective juror G.V. responded "violent assault and a witness to a rape." The court ascertained that the response concerned only one incident and asked him about it. G.V. replied: "September 29th of 1987 my fiancée at the time, who later became my wife, we had a break in, was assaulted by gun, handcuffed, put over the -- bent over the tub in the bathroom, told, 'Don't move or I will shoot you,' and then proceeded to rape my fiancée." He explained this crime occurred in the Bahamas and law enforcement did "[a]bsolutely nothing." The woman was now his former wife, but they had been married for 23 years. He further stated that knowing "the lifelong results of daily life for my former wife," he would probably "vomit" listening to the testimony. He was excused as a juror.
Later that day, the defense moved for a mistrial, contending G.V.'s story "irreparably tarnished" the jury pool. In the alternative, the defense asked the court to question the potential jurors if G.V.'s statements affected them. The People argued against a mistrial, noting G.V.'s comments were not evidence, his story in no way related to the case or defendant as it involved different circumstances, and there was no visible reaction from the other members of the jury panel. There was no gasping or head shaking. The trial court agreed with the People and denied the motion. The court had also observed the jury. It found the drama was due to G.V.'s emotion more than what he had to say. The court would instruct the jury to consider only the evidence before it.
Instance 2
During the direct examination of Rose, the prosecutor asked if defendant had ever threatened her during their relationship. She answered he had threatened to send nude pictures of her to employers, friends, and family, and to tell her family about sexual things she had done or not done. Defendant also made a comment that he would not want anything to happen to her nephew, who was three years old at the time. Rose testified, "I don't know what he meant by that."
The defense objected, pursuant to Evidence Code section 352, midway through Rose's testimony about the threat concerning the nephew. The court overruled the objection. Rose further testified she felt her nephew could have been in danger.
Outside the presence of the jury, the trial court explained it overruled the defense objection because the threats were relevant as to why Rose did not report the assault immediately.
Instance 3
On cross-examination, the defense asked Rose why she did not report the assault immediately after defendant left, but went to school instead. Rose responded she "had had enough from previous times, and everybody always said that when --" The defense interrupted with an objection based on hearsay and foundation. Rose asked to finish and the trial court allowed her to answer. Rose continued, "Everybody always says that when you are in an abusive relationship that --." The defense again objected; this time based on Evidence Code section 352 and that the answer was nonresponsive. When the court overruled the objection, the defense withdrew the question.
On redirect examination, the prosecutor returned to the withdrawn question and asked if her answer related to disclosing abuse. When Rose said yes, the prosecutor asked for her answer. Defendant objected on the basis of relevance and Evidence Code section 352, and the trial court overruled the objection. As Rose began to relate what she had "always been told," the defense objected to hearsay. The court instructed the jury the statement was not offered for the truth of what Rose heard but only why she acted as she did. Rose testified, "That when you are in an abusive relationship that each time that that person abuses you it will only get worse until some day it could end up in a death." The trial court denied the defense's final objection and request to strike the testimony.
Outside the presence of the jurors, the trial court explained it found Rose's testimony was relevant to the issue of why she did not disclose the rapes sooner and its probative value outweighed any prejudicial effect. The court stated that while the testimony was probably something the defense did not want the jury to hear, the defense "walked into that by asking your questions."
Analysis
Defendant contends the trial court erred in overruling the defense objections. He contends G.V.'s emotional and inflammatory recitation of his fiancée's rape 30 years earlier set the stage for further prejudice when Rose testified defendant threatened her young nephew and "everyone" says domestic violence escalates and can end in death. Defendant contends the combined prejudice of these improper comments rendered his trial fundamentally unfair and violated his due process rights.
We begin with G.V.'s comments during voir dire about his wife's rape.
" '[W]here a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance . . . which suggests a likelihood that one or more members of the jury were influenced by improper bias.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 192.) "Just as a finder of fact is in a better position than the reviewing court to judge the credibility of a witness, the trial judge is in a better position to gauge the level of bias and prejudice created by juror comments." (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.) The trial court's decision on the question of "group [jury] bias" therefore "is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion. [Citations.]" (Id. at pp. 1466-1467.) We apply a totality of the circumstances test in evaluating the effect of a prospective juror's statements on other prospective jurors. (Id. at p. 1467.)
Here, the trial court found G.V.'s comments created no taint, based in large part on the lack of any reaction by the other members of the jury panel, and also observed that G.V.'s comments in no way related to defendant or the facts of this case. As the prosecutor noted, other prospective jurors related their experience with sex crimes. One spoke of her seven years of sexual abuse by her stepfather when she was a child and her rape by a stranger who broke into her house. Defendant provides no persuasive reason to reject the trial court's determination that G.V.'s comments did not taint the jury.
Defendant contends this case is similar to People v. Diaz (2014) 227 Cal.App.4th 362, where the court reversed the murder conviction of a drunk driver due to error in admitting videos concerning the consequences of alcohol-related driving offenses. The videos in question were 29 and 33 minutes long, and showed multiple somber and tearful individuals discussing alcohol-related vehicle crashes in which their loved ones were killed. (Id. at pp. 370, 374, 380.) We find Diaz distinguishable. Not only was the objectionable content considerably more extensive than in this case--the videos lasted an hour and the prosecutor referred to them five times in argument (id. at p. 384)--but more importantly, the videos were introduced into evidence for the jury to consider. Here, G.V.'s comments were not part of the evidence at trial and the jury was instructed to consider only the evidence presented at trial in determining defendant's guilt. We presume that the jury followed the instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
Defendant has failed to establish prejudice from G.V.'s comments during voir dire.
In contrast to G.V.'s comments, the challenged comments made by Rose were in evidence. Rose testified about defendant's threat to her nephew as well as what she had heard about the potentially deadly result of domestic abuse; both these topics were relevant to explain why she stayed with defendant despite his use of force as well as her delayed but eventual report of the assault. The defense increased the probative value of these events by arguing that Rose's sexual conduct with defendant showed her allegations were false and questioning why she did not report the assault immediately. The threat to the nephew was different than the threat to disseminate nude photographs and thus was not cumulative. (See People v. Snyder (2016) 1 Cal.App.5th 622, 634 [100 images of children and adults were not cumulative where they showed various stages of undress and sexual activity].) Once the defense questioned Rose's failure to make an immediate report, she was permitted to explain her thought processes and any influences thereon, as long as any prejudicial effect did not substantially outweigh the probative value of the explanation.
"A trial court may exclude otherwise relevant evidence if its probative value is substantially outweighed by the probability that its admission will be unduly prejudicial. [Citation.] 'Prejudice,' as used in Evidence Code section 352, is not synonymous with damaging. [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial. [Citation.]" (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) Even prejudicial evidence is not inadmissible unless the probative value of the evidence is "substantially" outweighed by the "probability of a substantial danger" of undue prejudice. (People v. Holford (2012) 203 Cal.App.4th 155, 167.)
"Trial courts enjoy ' "broad discretion" ' in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.] A trial court's exercise of discretion 'will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" People v. Holford, supra, 203 Cal.App.4th at pp. 167-168.)
These two particular aspects of Rose's testimony were not unduly prejudicial, whether considered alone or together. The testimony was brief and not referred to in closing argument. It was certainly no more disturbing or prejudicial than the explicit testimony of four women about the violent sexual assaults by defendant. That testimony was corroborated by DNA, the victims' injuries, and in some cases surveillance videos, as well as by the similarity of defendant's actions in each assault.
IV
Credits
Defendant originally contended he was entitled to an extra day of custody credit, claiming the trial court omitted February 29, 2016, leap day, from its calculations. The People set forth the proper calculation of custody credit by month, including 29 days for February 2016. Defendant now agrees the trial court properly calculated his custody credits, and so do we.
V
Correction to Abstract of Judgment
The abstract of judgment in this case is composed of two forms; CR-292 for the indeterminate terms and CR-290 for the determinate terms. Originally, only the indeterminate form showed the $1,200 restitution fine pursuant to section 1202.4 and the identical, suspended fine pursuant to section 1202.45. Subsequently, the trial court amended the determinate form to correct the amount of the court security fee. This amended form now includes the restitution fines as well. This is the only fine showing on both forms, as opposed to showing on only one or the other.
Only a single restitution fine may be imposed in each case. (People v. McElroy (2005) 126 Cal.App.4th 874, 885.) Defendant requests that the abstract of judgment be corrected to reflect only one restitution fine, instead of a fine on both the determinate and indeterminate forms, to avoid any confusion as to the total amount of the fine. Although the People argue no error appears, we agree the duplicate reference, not repeated elsewhere, may lead to confusion. Because the abstract of judgment must be amended in any event to reflect the five-year arming enhancement under section 12022.3, subdivision (b), we will also direct its correction to delete the duplicate restitution fines, thus eliminating any possibility of confusion.
DISPOSITION
The judgment is modified to replace the two 10-year weapon use enhancements under section 12022.3, subdivision (a) to counts 10 and 14 with two 5-year armed enhancements under section 12022.3, subdivision (b) on those two counts. In all other respects, the judgment is affirmed. The trial court is ordered to amend and correct the abstract of judgment to reflect the proper enhancements and eliminate the duplicate restitution fines and to forward a copy of the amended and corrected abstract to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Murray, Acting P. J. /s/_________
Hoch, J.