Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F29
SIMS, J.A jury convicted defendant William Zeke Holmes of the first-degree murders of Christopher Martin and Hakeem Bryant (counts 1 & 2; Pen. Code, § 187, subd. (a); undesignated section references are to the Penal Code) and the second-degree robbery of Martin (count 3; § 211). As to counts 1 and 2, the jury found that defendant committed multiple murder (§ 190.2, subd. (a)(3)), murder for financial gain (§ 190.2, subd. (a)(1)), and murder during the commission of robbery (§ 190.2, subd. (a)(17)). As to all counts, the jury found that defendant intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)).
The trial court sentenced defendant to consecutive terms of life imprisonment without the possibility of parole on counts 1 and 2 and to consecutive terms of 25 years to life on the firearm enhancements; the court stayed sentence on count 3 under section 654. The court also imposed various fines and fees, including a total court security fee of $60 ($20 per count) under section 1465.8, subdivision (a)(1), and a restitution fine of $10,000 to be “suspended unless parole is revoked” under section 1202.45.
Defendant contends: (1) The trial court erred prejudicially by failing to discharge a sitting juror who expressed concern about her safety and wanted to know whether defendant was in custody, and also by failing to make a probing inquiry of her mental state. (2) The trial court erred prejudicially by instructing the jury with CALCRIM No. 376 (recent possession of stolen property) as to the murder charges. (3) The trial court erred prejudicially by instructing the jury that it did not reflect on the credibility of Jason Wallace (defendant’s coconspirator turned star witness for the prosecution) that he was in custody. (4) The trial court’s imposition of a court security fee violated ex post facto principles and section 3. (5) The security fee on count 3 must be stayed because the trial court stayed sentence on that count. (6) The restitution fine under section 1202.45 must be stricken because defendant’s sentence does not include the possibility of parole.
Agreeing only with defendant’s last contention, we shall order the judgment modified to delete the section 1202.45 fine and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Victims Martin and Bryant headed a drug-selling operation, in which defendant was an underling, that operated mainly in Fairbanks, Alaska, and Tacoma, Washington. The three set out on a car trip to Oakland, California, to obtain drugs from Martin’s connection. Acting on a preconceived plan, defendant murdered Martin and Bryant en route, then notified Wallace in Fairbanks, who murdered one of the victims’ associates and tried to murder another. Defendant’s botched attempt to dispose of evidence led to his arrest. Then, under police questioning, Wallace confessed, entered a plea, and agreed to testify against defendant.
Background
The main participants in the operation had mostly known each other since high school. Martin lived in Washington, defendant in Alaska, Bryant in both places. Martin, who had the drug connection in Oakland, headed the operation; Bryant was second in command. Corey Spears, also an Alaska resident, was just below Bryant.
Wallace, who lived in the Tacoma area, accepted Bryant’s offer to join the operation in July or August 2002. Wallace and defendant got drugs from Bryant and sold to his clientele; however, they also tried to develop their own customers.
In October 2002, at Bryant’s request, Wallace and his wife Mishone transported cocaine by air from Washington to Alaska, then broke down the drugs at Spears’s home.
Sometime in late 2002, because defendant was trying to take over Bryant’s customers, Bryant tried to cut defendant out of the operation. Defendant wanted Wallace to help him steal drugs from Bryant, but nothing came of it.
In December 2002, Wallace made another cocaine delivery to Alaska. To his surprise, he saw defendant and Bryant together.
The operation scheduled a large cocaine purchase for late December 2002. Bryant and defendant planned to drive from Fairbanks to Anchorage, fly to Tacoma, meet Martin, and drive with him to Oakland to get the cocaine.
Defendant told Wallace “it had to happen this trip.” Wallace testified, “Meaning Chris and Hakeem . . . were going to die, and then I was going to have to do my part up there in Fairbanks.” Wallace’s “part” was to kill everyone who might have linked defendant to the murders. After defendant returned, he would split the money he had stolen from the victims with Wallace.
On December 21, 2002, defendant, Bryant, Spears, and Michael Keys, driving from Fairbanks to Anchorage, were stopped for speeding. The officer found a gun case in the car, containing defendant’s nine-millimeter Smith & Wesson, Spears’s .45-caliber Taurus, and Keys’s .40-caliber Glock. Defendant was arrested on an outstanding warrant, but bailed himself out of jail.
On December 22, 2002, defendant and Bryant flew to the Seattle-Tacoma airport, taking the gun case with the Glock and the Smith & Wesson. Martin picked them up, then brought them back to his home in Olympia, where he lived with Kenna Bacich.
On December 23, 2002, Bacich saw two guns and $70,000 in plastic-wrapped cash on the kitchen table. On the same day, Martin’s ex-girlfriend Krista Robinson rented a 2002 Mercury Grand Marquis for the trip to California under false pretenses.
On December 24, 2002, defendant and the victims left Tacoma with Martin driving, Bryant in the front passenger seat, and defendant in the back. They took Martin’s black rolling suitcase, which contained two rings, a watch, and $3,000; Martin also wore a bracelet. He left his gun at home.
The murders of Martin and Bryant
Between 8:00 and 8:45 p.m. that evening, Martin’s body was found near the southbound Castella off-ramp of Interstate 5 in Shasta County. He had been killed by four gunshot wounds to the back of the head, fired from indeterminate range. A spent casing, most likely from a Smith & Wesson, was found near his head. There was a lot of shattered vehicle glass under and around his body, which had sustained injuries from broken glass and others probably caused by dragging. Martin, who weighed around 270 pounds, had a blood alcohol level of .29 percent and a metabolite of marijuana in his blood.
Three witnesses who lived nearby had heard gunshots between 8:00 and 9:00 p.m. At around 8:30 p.m., a family driving on Interstate 5 saw a car stopped in the middle of the Castella or Sweetbriar exit ramp. (One family member misidentified the car as a dark green Dodge Neon.) A very large dark-skinned person (apparently over six feet tall and at least 300 pounds) got out of the driver’s side, while a smaller person stood outside near the right passenger side mirror. Something was on the ground near the trunk. Defendant (who stands six feet one inch and weighs 270 pounds, according to the probation report) fit the general description of the person identified as the driver.
Soon after, Bryant’s body was found face down near the Sweetbriar exit of Interstate 5, less than a mile south of the Castella exit. He had been killed by one gunshot wound to the back of the head, fired from indeterminate range; after he was shot, he fell or was dragged. Multiple blood drops and broken vehicle glass were on the road nearby. Bryant’s blood alcohol level was .09 percent, and his blood contained a metabolite of marijuana.
Defendant’s actions following the murders
Defendant signaled Wallace with a text message using the code “187.” Defendant also sent a message saying that Martin and Bryant would not be seeing Christmas.
The next morning, defendant called Mishone Wallace to arrange a meeting at a gas station in Centralia, Washington. Before meeting her, he made a purchase at a Centralia convenience store. The store sold gasoline containers of the kind the police later found in his possession.
After seeing a picture of defendant in the local newspaper, the clerk called the police and identified him as the man who had come into the store that day.
When Mishone reached the meeting place, defendant transferred several black bags to her car. As she followed, he drove one interstate exit away to an isolated area. He directed her to turn her car around and face it back the way they had come, then backed his car into the grass. She did not see what happened next, but heard a boom. Defendant ran back to her car. On the drive back to the Wallaces’ apartment, he seemed happy.
Shortly afterward, police found the rental car on fire in the field where defendant had driven it. One window was missing. A nine-millimeter shell casing from a Smith & Wesson or a Glock was found in the car.
Defendant gave Mishone $1,000 on December 25, 2002, an amount she had previously given Bryant. The next day, they went to a mall. Defendant had so much money in his pockets that bills hung out.
On December 27, 2002, while watching television, defendant, Mishone, and her sister heard a report of Martin’s and Bryant’s deaths. The women were in shock, but defendant acted “mellow.”
On December 28, 2002, defendant and Mishone went to the airport to pick up Wallace and an acquaintance of defendant, who were supposed to arrive separately. Wallace never showed up. Mishone took defendant and his acquaintance, Amber Balcuns, to a hotel.
Testifying for the defense, Balcuns confirmed that she flew in that night at defendant’s expense. She had gotten to know defendant when she worked as a dancer at an Alaska club.
A black duffel bag which defendant left on Mishone’s living room floor held a lot of money wrapped in more than 20 individual plastic bags. She did not ask defendant about it because she did not want to know the answers.
While he stayed with Mishone, defendant often used his cell phone on the porch or in the bathroom. She once overheard him say he had to throw three cigarettes to get the fire started.
Driving away from Mishone’s apartment on December 29, 2002, in Wallace’s car, defendant was arrested and charged with arson. The police found over $30,000 (some on his person, some in a duffel bag), an empty gun case, a gasoline container, and Martin’s black suitcase, shoes, rings, bracelet, and watch. The suitcase held defendant’s shoes, a jacket, jeans, and a cap, all bloodstained; some of the stains were consistent with Martin’s blood. The car’s trunk held a cereal box like one missing from Mishone’s apartment, containing stacks of twenties, fifties, and hundreds in 14 plastic baggies.
Wallace’s actions
While staying with Mishone, defendant repeatedly called Wallace in Fairbanks. Defendant would not let him talk to Mishone, leading him to fear for her safety.
Wallace killed Teacka Bacote, Bryant’s girlfriend; later, he set her apartment building on fire. He stabbed Corey Spears as Spears slept, but Spears awoke and fought back. Pretending that he had been “trippin’” or having a nightmare, Wallace took Spears to the hospital.
Wallace was arrested at the Fairbanks airport on December 27, 2002. He initially lied to the police, but after learning that defendant was in custody and Mishone was safe, Wallace confessed and described the conspiracy in which he and defendant had engaged. According to him, he confessed out of remorse and to try to put things right.
The officer who questioned Wallace corroborated this testimony on these points.
Charged in Alaska with first-degree murder, arson, and attempted murder, Wallace pled guilty to first-degree murder, arson, and assault. He then signed an agreement with the Shasta County District Attorney’s Office to testify truthfully against defendant.
Wallace gave ambiguous or conflicting answers as to how much prison time he faced in Alaska in light of his plea and whether he had been promised any benefit for his testimony in this case.
Other evidence
Aside from Amber Balcuns, defendant’s only witnesses were a few friends who testified to his reputation for honesty and Wallace’s reputation for dishonesty.
DISCUSSION
I
Early in the trial, the trial court learned that a juror had wondered about whether defendant was in custody. After questioning her, the court denied defendant’s request to remove her from the jury. Defendant contends that this decision, made after an insufficiently probing inquiry, was prejudicial error, either per se or beyond a reasonable doubt. He also contends that if we find the issue forfeited for any reason, trial counsel rendered ineffective assistance. We reject these contentions.
Background
As the second day of jury trial was about to start, the trial court called a recess and asked a juror to remain behind. The court then said: “[Juror No. 188514] . . ., it came to my attention that on your way into the courtroom you made a remark to [the bailiff] wondering about Mr. Holmes’ custody status and expressing some concern about your personal information. Can you fill me in on that?” The following colloquy ensued:
“JUROR []: I just, uhmmm, thought it was something that we needed to know if -- because our information is out there, and I realize that the person is innocent until proven guilty, but it’s just something to ease my mind. Does that make sense?
“THE COURT: Was this something that only occurred to you after we began the trial? “JUROR []: Yes. Yes. You have to realize I’ve never been through this.
“THE COURT: I’m not criticizing. I’m just trying to establish a time line.
“JUROR []: Yeah.
“THE COURT: Because sometimes those things are important to us.
“JUROR []: Yeah.
“THE COURT: When did this thought occur to you?
“JUROR []: Just probably last night.
“THE COURT: Was there anything in particular that caused you to think about this?
“JUROR []: No. No. It’s just something that came to me.
“THE COURT: Okay.
“JUROR []: Because, you know, we give where we work and all that.
“THE COURT: Are you in some way connecting someone’s custody status with their guilt?
“JUROR []: My concern is because we told where we work, not because someone is innocent, guilty, whatever. It’s just a question I have.
“THE COURT: Okay. Let me just give you a couple of thoughts to consider and then I want to see what your feelings are. Whether someone is in custody or not before trial doesn’t have anything to do with whether or not they’ve actually committed the crime.
“JUROR []: (Juror . . . nods head up and down.)
“THE COURT: All it means is that, having been charged
“JUROR []: Uh-huh.
“THE COURT: -- and having had bail set, they can’t make the bail. If they’re in custody, that’s the result.
“JUROR []: Okay.
“THE COURT: Okay?
“JUROR []: Okay.
“THE COURT: But the two -- you perceive -- I don’t mean ‘you’ in the personal sense but I mean someone who thinks about these things, proceeds from a false premise if they believe that custody status has any relevance to guilt or
“JUROR []: (Juror . . . shakes head back and forth.)
“THE COURT: -- or nonguilt, innocence.
“JUROR []: No.
“THE COURT: They’re not connected.
“JUROR []: It was just a question that I had.
“THE COURT: Okay.
“JUROR []: Because I don’t know if -- if they are one way or the other.
“THE COURT: You’re -- well
“JUROR []: If they’re in or out of custody.
“THE COURT: Right. And you’re not going to know. People here in trial
“JUROR []: I didn’t know if that’s something that we’re allowed to know.
“THE COURT: No. You know, you may not have been here because we had two different groups [during jury voir dire] and I can’t remember who was a part of which group, but there was a comment made earlier about that sort of thing and I made it clear
“JUROR []: No, it wasn’t me.
“THE COURT: Probably to the different group.
“JUROR []: Uh-huh.
“THE COURT: The one of which you were not a member.
“JUROR []: Correct.
“THE COURT: -- that jurors don’t know during trials whether someone is in custody or not.
“JUROR []: Okay.
“THE COURT: Because of this fact, that custody before trial doesn’t have any connection to guilt.
“JUROR []: Right.
“THE COURT: It only means they couldn’t pay the bail.
“JUROR []: Correct, correct.
“THE COURT: So we don’t tell anybody.
“JUROR []: I didn’t know if that was our right to know that.
“THE COURT: No, that is not your right to know. All you’re entitled to know is what the facts are in the case.
“JUROR []: And that’s not part of it.
“THE COURT: And that’s not part of it because, again, that’s only a figure that is established for certain offenses and we have it for all offenses basically.
“JUROR []: Okay.
“THE COURT: It just means that whoever may be charged with that kind of a crime couldn’t pay the bail if they’re in custody.
“JUROR []: Okay.
“THE COURT: It’s not a matter about guilt.
“JUROR []: Well, yeah, right, right.
“THE COURT: Okay?
“JUROR []: Right.
“THE COURT: So we don’t tell jurors whether or not someone is in custody because it is not a fact relevant to the question of guilt or innocence.
“JUROR []: Uh-huh.
“THE COURT: Logically it isn’t.
“JUROR []: Uh-huh.
“THE COURT: And for the other reason that it tends to undermine the juror’s acknowledgment, understanding of the presumption of innocence.
“JUROR []: Okay.
“THE COURT: Because if you begin to think so much about a person being in custody, you tend to make that faulty leap from innocence to guilt based solely on the fact that they couldn’t pay the bail.
“JUROR []: I could see someone doing that.
“THE COURT: You see?
“JUROR []: But no, I just -- I just thought it was our right to know.
“THE COURT: No, it’s not
“JUROR []: Okay.
“THE COURT: -- your right. I don’t mean to sound disrespectful about that.
“JUROR []: Right.
“THE COURT: That’s just about the way it is.
“JUROR []: Uh-huh.
“THE COURT: We do that in every trial. There is rarely an occasion when any of that sort of stuff is known because it doesn’t have anything to do with the case.
“JUROR []: Okay. Never having gone through this, I didn’t know that.
“THE COURT: And . . . let me reassure you, I am not at all being critical of what you brought to my attention. This is what we want you to do.
“JUROR []: Okay.
“THE COURT: We want you to bring these thing[s] to our attention because this is the way in which we ensure anyone accused of a crime receives a fair trial.
“JUROR []: Correct.
“THE COURT: That’s what this is all about.
“JUROR []: Correct.
“THE COURT: Now, let me ask you a couple more questions about your own personal feelings at this point. Having raised this issue, are you still as committed to the presumption of innocence as you were when we picked you for this jury?
“JUROR []: Yes, yeah.
“THE COURT: Is a concern about whether or not Mr. Holmes is or is not in custody going to be any part of your deliberations in the case?
“JUROR []: No, because I don’t know, no, no.
“THE COURT: Okay. Is not knowing whether he is in custody or not going to cause you to speculate or draw assumptions that are not based on the trial?
“JUROR []: No.
“THE COURT: So do we have your unequivocal and complete commitment that you are going to be the same fair, impartial juror we selected?
“JUROR []: Yes.
“THE COURT: As the one who has now had it kind of occur to her that, gee, I wonder if he’s in custody or out of custody.
“JUROR []: Yeah.
“THE COURT: We have that unequivocal
“JUROR []: Yes.
“THE COURT: -- unhesitating commitment?
“JUROR []: Uh-huh. (Juror . . . nods head up and down.)”
After excusing the juror from the courtroom, the trial court invited counsel to propose questions, but said: “[S]o far, I am tending to think we still have a keeper in Juror No. 188514.”
Defense counsel requested the juror’s removal for bias because she saw defendant as a threat if not in custody and thought custody status amounted to guilt. Counsel added: “When the Court asked the question about whether custody status equals guilt, that question, there was a pause.”
The court said it had not noticed that, and “if it wasn’t long enough for me to take note of it, I couldn’t attach a great deal of weight to it.” The court then said: “And I think just to satisfy myself, because this is not an unimportant matter, there’s no doubt about it, let me give myself just a few seconds to think of exactly how I want to approach these other questions about safety. And I don’t know, Mr. Maxion [defense counsel], whether you want me to or not. . . . [L]et me back up for just a moment and tell you where I am right now. [¶] Overall, taken in totality, my feeling is that the idle wondering about Mr. Holmes’ custody status, having had that whole area explored and explained to her, taken in their entirety, this comment that she made, this concern she expressed would not prevent or even substantially impair her ability to follow the Court’s instructions and to live up to her oath as a juror. . . . [¶] I’m pretty much persuaded right now, but out of respect for you, I’m willing to go back and ask her more questions about . . . whether there is any fear issue that’s going to intrude on her deliberations, and I predict for you that she will say no.” The court also observed that in voir dire she had indicated that she did not want to be on the jury, yet had now passed up a clear chance to get off the jury.
Defense counsel said he would like the court to question the juror further as to safety concerns. The court then brought her back in and did so:
“THE COURT: I want to compliment you on the idea that you’ve shared with us this concern you have because it is exactly this kind of thing that can take us off the rails if
we’re not careful. You have given me the strong impression that, having had this explained to you now, you’re still committed to the presumption of innocence. Is that right?
“JUROR []: Yes.
“THE COURT: And that whether or not you know the custody status of Mr. Holmes is not going to interfere with your verdict, one way or another?
“JUROR []: No, no.
“THE COURT: You had made a comment about it being a safety issue for you. Is that going to be weighing on your mind?
“JUROR []: I don’t remember saying a safety -- it was just something
“THE COURT: A safety concern.
“JUROR []: It was just something that I wanted to know.
“THE COURT: Yeah.
“JUROR []: I mean, just out of, I don’t know, curiosity or whatever. I just thought it was something that we were entitled to know.
“THE COURT: Okay. But wrapped up in all your other statements about being committed to the fair trial, being committed to the presumption of innocence and not allowing that whole issue to interfere with your deliberations, you still think you can reconcile whatever it may have been about your personal security, personal safety without involving this whole [‘]is he or isn’t he in custody[’]?
“JUROR []: Right.
“THE COURT: Not going to influence you at all?
“JUROR []: (Juror . . . shakes head back and forth.) No.
“THE COURT: All right.
“JUROR []: I think maybe more out of curiosity, I don’t know.
“THE COURT: [Y]ou have no apologies to make. Like I said, you did absolutely the right thing.”
After encouraging the juror to “continue on with that same attitude,” the trial court brought the jury back in and resumed the trial.
Analysis
The trial court may order a juror discharged if at any time the juror “is found to be unable to perform his or her duty.” (§ 1089.) The court has the duty to inquire into whether a juror should be discharged whenever the court is put on notice that good cause to do so may exist. (People v. Farnam (2002) 28 Cal.4th 107, 141.)
“‘Before an appellate court will find error in failing to excuse a seated juror, the juror’s inability to perform a juror’s functions must be shown by the record to be a “demonstrable reality.” The court will not presume bias, and will uphold the trial court’s exercise of discretion . . . under section 1089 if supported by substantial evidence.’ [Citations.]” (People v. Jablonski (2006) 37 Cal.4th 774, 807.) Except where the record clearly shows juror bias, we must defer to the trial court’s assessment of the juror’s state of mind after the court has performed its duty of inquiry. (People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
So far as defendant contends that the trial court’s inquiry was inadequate, the issue is forfeited because he did not complain below about the manner or scope of the court’s inquiry. (People v. Roldan (2005) 35 Cal.4th 646, 694-695; People v. Holloway (2004) 33 Cal.4th 96, 126-127; People v. Sanchez (1995) 12 Cal.4th 1, 61-62.) Contrary to his appellate claim, trial counsel’s failure to complain was not ineffective assistance. Any complaint would have been groundless because the court thoroughly questioned the juror on all issues of concern to the court and counsel.
So far as defendant contends the trial court misread the juror’s state of mind and failed to detect bias, we must defer to the court’s evaluation because the record does not clearly show bias. On the contrary, the juror’s answers to the court’s questions rebutted any presumption of bias. Thus, the juror’s colloquy with the court is substantial evidence to support the court’s exercise of discretion to leave her on the jury. (People v. Jablonski, supra, 37 Cal.4th at p. 807; People v. McPeters, supra, 2 Cal.4th at p. 1175.)
Defendant has not shown grounds for reversal on this issue.
II
Defendant contends the trial court erred prejudicially when it instructed the jury pursuant to CALCRIM No. 376 that the possession of recently stolen property was relevant not only to robbery but also to murder. We agree that the court erred, but find the error harmless.
The form CALCRIM No. 376 instruction states as relevant: “If you conclude that the defendant knew (he/she) possessed property and you conclude that the property had in fact been recently (stolen/extorted), you may not convict the defendant of ______ based on those facts alone. However, if you also find that supporting evidence tends to prove (his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) committed _____ . [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove (his/her) guilt of ______ .” (CALCRIM 2007-2008, p. 164.)
Use of CALCRIM No. 376 should be limited to theft and theft-related crimes. (See People v. Prieto (2003) 30 Cal.4th 226, 248 [cognate CALJIC instruction]; People v. Barker (2001) 91 Cal.App.4th 1166, 1176 [same].)
Here, the trial court filled in the “insert crime” blanks in the instruction (both in oral and written form) with “murder and/or robbery.” This was error. (People v. Prieto, supra, 30 Cal.4th at p. 249; People v. Barker, supra, 91 Cal.App.4th at p. 1176.) However, it was not prejudicial because there was no reasonable likelihood that the jury would have reached a different result absent the error. (People v. Prieto, supra, 30 Cal.4th at p. 249 [applying harmless-error standard of People v. Watson (1956) 46 Cal.2d 818, 836] (Watson).)
The evidence of defendant’s guilt in both murders was overwhelming. Furthermore, the jury was properly instructed on the elements of murder on all theories charged, the prosecution’s burden of proving guilt beyond a reasonable doubt, and the need to consider all the instructions together. Accordingly, the court’s instructional error was harmless.
III
Defendant contends that the trial court erred prejudicially by instructing the jury pursuant to CALCRIM No. 337 that Jason Wallace’s in-custody status did not affect his credibility. We conclude that the instruction, in context, was correct. But even if it should not have been given, any error was harmless.
The court instructed: “When Jason Wallace testified, he was in custody. The fact that a witness is in custody does not . . . by itself make a witness more or less believable. [¶] Evaluate the witness’s testimony according to the instructions I have given you.”
Citing only federal authority, defendant asserts that this instruction was not only erroneous but prejudicial because it improperly minimized the significance of why Wallace was in custody and told the jury not to consider those facts as they related to his credibility. We are not persuaded. Even ignoring defendant’s failure to cite California authority in his support, his argument is far-fetched: the instruction on its face did not tell the jury to disregard the significance of what Wallace had done or how it might bear on his credibility.
Clearly, a testifying defendant who was in custody would be entitled to this instruction. We see no reason why the instruction should not apply to a witness who is in custody. Custody status, in and of itself, is often a result of a witness’s lower economic status. Custody status, in and of itself, should not affect the credibility of the witness.
But even assuming the instruction should not have been given, it was not the only instruction given relevant to Wallace’s credibility, and in plain terms it directed the jury’s attention to those other instructions.
The court instructed generally on the factors to consider in weighing any witness’s credibility, including whether he had been convicted of a felony or had committed a crime or other misconduct (CALCRIM Nos. 226, 316). The court also told the jury that if the alleged crimes were part of a conspiracy, Wallace was an accomplice, his testimony must be viewed with caution, and the jury could not convict defendant of anything based only on that testimony (CALCRIM Nos. 301, 335). Finally, the court repeated the latter points in instructing on the alleged special circumstances (CALCRIM No. 708). These instructions together gave the jury all the information it needed to assess Wallace’s credibility properly. So far as defendant asserts that the jury could not be presumed to follow them, he is mistaken. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
Finally, as already noted, the case against defendant was overwhelming: the physical evidence and the testimony of all the percipient witnesses aside from Wallace pointed to defendant and nowhere else. Thus, even assuming CALCRIM No. 337 should not have been given, the error was harmless under the Watson standard.
IV
Defendant contends that the imposition of court security fees pursuant to section 1465.8, subdivision (a)(1), violated ex post facto provisions of the United States and California Constitutions and section 3 because the statute became effective after the date of defendant’s crimes. We disagree.
As defendant notes, the ex post facto issue is pending in the California Supreme Court. (People v. Alford, review granted May 10, 2006, S142508.) However, in People v. Wallace (2004) 120 Cal.App.4th 867 (Wallace), the appellate court rejected defendant’s contention, reasoning that the statute does not violate ex post facto principles because it is not punitive. Unless and until the high court decides otherwise, we will follow Wallace.
Defendant’s section 3 argument lacks merit. Section 3 provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.” But the fee provided for by section 1465.8, subdivision (a)(1), is “imposed on every conviction for a criminal offense.” (Italics added.) Because the statute was enacted prior to defendant’s conviction, there is no retroactivity problem.
V
Defendant contends that even if court security fees may properly be imposed on him, the $20 imposed by the trial court as to count 3 must be vacated because the court stayed sentence on that count under section 654. However, in a decision filed after defendant’s opening brief was submitted, we rejected this contention. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 (Crittle).) For the reasons stated in Crittle, we do so again.
VI
Defendant contends that the “additional” restitution fine imposed and suspended by the trial court pursuant to section 1202.45, which would be effective only on revocation of parole, must be vacated because his sentence does not include the possibility of parole. The People concede the point. We accept the People’s concession. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1185.) We shall strike this fine.
DISPOSITION
The restitution fine imposed and suspended pursuant to Penal Code section 1202.45 is stricken. The trial court shall prepare a corrected abstract of judgment deleting this fine, and forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: SCOTLAND , P.J. NICHOLSON , J.