Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F11322
CANTIL-SAKAUYE , J.
A jury found defendant Joseph Domasio Lopez guilty of first degree murder (Pen. Code, § 187, subd. (a)) and robbery (§ 211). The jury found true the allegations defendant personally used a deadly weapon in the commission of both crimes. (§ 12022, subd. (b)(1).) The jury further found true the special circumstance that the murder was committed by defendant while defendant was engaged in the commission of the crime of robbery within the meaning of section 190.2, subdivision (a)(17). The trial court sentenced defendant to an indeterminate life term in prison without the possibility of parole, plus a consecutive one year prison term for the deadly weapon allegation on the murder conviction. The trial court sentenced defendant on his robbery conviction to the upper term of five years, plus a consecutive term of one year for the deadly weapon allegation on the robbery count, both stayed pursuant to section 654. As relevant on appeal, the trial court imposed a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b), and a separate parole revocation restitution fine of $10,000 pursuant to section 1202.45, suspended pending successful completion of parole.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant claims (1) his interview with Detective Higgins should have been excluded from evidence as he did not waive his Miranda rights, (2) the trial court prejudicially abused its discretion in admitting evidence of the victim’s particular vulnerability, (3) the absence of an appropriate limiting instruction on the evidence of the victim’s developmental disability was prejudicial error, (4) the prosecutor committed prejudicial prosecutorial misconduct in closing argument, (5) the trial court’s imposition of the upper term sentence on defendant’s robbery conviction violated defendant’s federal constitutional right to a jury trial, and (6) the parole revocation fine must be stricken as unauthorized. We shall strike the parole revocation fine and otherwise affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
FACTUAL BACKGROUND
Gregory Tolson testified he was conservator for his 40-year-old brother Michael Tolson, who had mental difficulties. Gregory provided his brother with a house on the backside of his own property, managed his brother’s finances, and checked on him pretty much every day. Michael was unable to manage his own finances, could not calculate nor understand how to make change at a store, had only a 6th or 7th grade education, and needed a written list to remind him of even routine activities necessary to get ready for the day. He did not know how to interact with people and was very timid around strangers, but his program with Alta Regional Services was working with him to get out and mingle with people in public. Michael wanted to be accepted. On weekends, Michael liked to ride light rail or a bus to go downtown or to Sunrise Mall where he could walk around or go to thrift stores to shop. Gregory first noticed Michael was not at home on December 27, 2003. Gregory called in a missing person’s report after Michael did not return home on the 28th and missed a dental appointment. Gregory testified he had left a $20 bill on the mantle for Michael on the 27th of December. He had given Michael another $20 earlier.
At about 9:00 p.m. on Sunday, December 28, 2003, the Sacramento Police Department received a report of a dead body found in an abandoned building located just north of Old Sacramento near the Sacramento River. When Detective Patrick Higgins arrived at the scene, he climbed through a hole into the building. He found the victim’s body on the lower level, lying face-up near a mattress that was on top of a cement pad. There was a large pool of blood on the ground a few feet from the body. Several large rocks, pieces of concrete and a brick, some of which were stained with blood, lay near the body. One of the blood-stained concrete pieces weighed more than 30 pounds; another weighed over 20 pounds.
The victim was identified as Michael Tolson. He had extensive fractures in his skull, including a shattered eye socket, broken cheekbones, and a hinge fracture across the skull. There were four areas of the head that had significant individual injury. A forensic pathologist testified Tolson died of the blunt force injuries to his head. There were three, likely four, and possibly more blows that happened relatively contemporaneously. All of the blows appeared to have been delivered “anti-mortem” or before death. Tolson was five foot five inches tall and weighed 125 pounds. No alcohol or drugs were in his system.
Tolson and defendant were filmed together at a mini market on the K Street Mall in downtown Sacramento at approximately 3:30 p.m. on December 28, 2003, by a video surveillance camera. At 5:30 p.m. that same day, defendant was filmed by another surveillance camera at a McDonald’s restaurant on Richards Boulevard. Defendant was in the company of two individuals, identified as Jennifer Jones and Ivan Skeens. Defendant ordered food, paid at the counter with money taken from a wallet and sat with the other two as they ate.
Defendant was arrested at about 9:00 a.m. on December 30, 2003 and brought to the police station for questioning. Inside a backpack that defendant brought with him was a wallet containing an identification card in the name of Jones. Detective Higgins interviewed defendant after advising defendant of his Miranda rights. Defendant provided various inconsistent stories of his whereabouts and activities on Sunday, December 28, 2003, the day of the murder.
Near the beginning of the interview, defendant stated he was generally homeless, but had been staying with some friends the previous couple of nights at the EconoLodge, room No. 107. Defendant told Higgins he and some of those friends, including Skeens, had been hanging around downtown Sacramento near the mall on that Sunday. At one point, defendant saw another friend, Jennifer Jones, near the K Street mini-mart talking to a man who appeared to be mentally retarded. Defendant and Skeens walked with them for a short distance, but then Jones and the man walked towards Old Sacramento while defendant and Skeens returned to the room at the EconoLodge. Jones later came back to the motel room with food from the McDonald’s restaurant by the river. She gave defendant the wallet that Higgins found in defendant’s backpack. Jones said she had killed somebody, but defendant thought she was just “tweaking” on dope. Defendant later overheard Jones call her boyfriend and blame the killing on defendant.
When Higgins mentioned there was a video camera at the McDonald’s restaurant on Richards Boulevard, defendant changed his story and admitted he went to the McDonald’s restaurant with Skeens. He said they met Jones coming from the bike trail/river walk and all went inside to get some food.
When asked, defendant said he had not been in any of the abandoned buildings north of Old Sacramento by the river in three or four years. Then defendant said he might have been in one of the buildings a couple of weeks ago. But after he was informed that there is a surveillance camera under the I Street bridge near the building, defendant admitted he had been in the area on that Sunday to buy some marijuana. He said he and Skeens could have been walking with Jones and the retarded man. He claimed he and Skeens went down to the river to buy the weed and when they got back, Jones and the man were gone. Defendant said he briefly went inside the abandoned building because he heard some moaning sounds coming from inside when he walked past it. He denied going down to the lower level. He thought the noise was just a dog.
Higgins told defendant the man with Jones was missing. Defendant then stated Jones was a prostitute, the man with her had wanted sex, and she sometimes took customers into the abandoned building. After further questioning, defendant admitted he set up a mattress in the basement of the abandoned building so Jones could have sex with the retarded man, but he claimed he and Skeens then went upstairs and ignored what was happening below. Jones came back upstairs and said she had killed the man.
When asked if he touched anything besides the mattress in the basement of the abandoned building, defendant admitted he had touched a metal “thing” and had moved some rocks at Jones’s request so that the mattress could be put down on the concrete slab. When Higgins asked if blood would be found on defendant’s shoes, hat and clothes, defendant said they might have gotten bloody because Jones kicked him. He said, however, he only touched the man himself when they were originally on the K Street mall. Defendant said he shook the man’s hand and gave him a hug because he knew from his experience working with mentally disabled persons that would make the man feel comfortable.
Later in the interview, defendant said that when he went downstairs, he saw the man lying face down, his head in a pool of blood. Defendant claimed he tried to help the man, flipping him over and asking him if he was okay. He was dead. When Higgins expressed his belief defendant threw at least one rock or brick, defendant said he threw a brick at the back of the man’s head after he was dead because Jones insisted, saying he would like it and if he did not do it, she would blame him for the killing.
Higgins continued to question defendant about the details of his story and eventually defendant provided the following description of what happened.
Defendant and Skeens ran into the victim in front of the mini-mart. Skeens knew the victim. They asked him if he had any money. The victim said he had $5. Defendant asked if he would trade it for a $1 bill, but he said no. The victim agreed to go into the mini-mart to break the $5 bill. When they got inside, the victim changed his mind. He said he didn’t have any friends. Defendant and Skeens told him they would be his friends. The victim said he wanted to “fool around,” which meant have sex. By that time Jones had come up and she said she would do it for $10 or $15. The victim said he had $5, although at another point in time he had told Skeens he had $25. Defendant, Jones, and Skeens came up with a plan to rob the victim. They planned to threaten him with a pencil, making the victim think it was a gun or knife.
They led the victim to the abandoned building, letting him think he was going to have sex with Jones. Jones, defendant, and the victim went into the basement while Skeens stayed on top as a lookout. Defendant and the victim put the mattress on the ground, but Jones refused to have sex and demanded the victim’s money. Defendant told the victim to give her the money or they would beat him up. The victim kept asking for sex. Jones picked up a rock and hit the victim in the back of the head. The victim stood up and fell forward on his face. Jones asked defendant to hand her more rocks and defendant pushed them over towards her, knowing she was going to hit the victim with them. She threw several more rocks at the victim. Then she picked up a rock with both hands and dropped it on his head. At Jones’s insistence, defendant dropped a brick on the victim’s head after he was dead. Jones told defendant to go through the victim’s pockets, so defendant flipped the victim over and did so. He found $25 and some change in the victim’s pocket.
Defendant, Jones, and Skeens left and went down to a bathroom by the boat dock where defendant tried to clean his shoes, pants, and hat. Defendant flushed two cards from the victim’s wallet down the toilet. Then they went to McDonald’s to eat. When they got back to the motel, defendant found the victim’s bus pass and ID in his pocket. He put them behind the bathroom mirror in the motel room. When he could not clean his clothes, he put them in a black trash bag and threw them out in a blue garbage can in the alley by the motel. Defendant said he and Skeens were sober, but Jones was on drugs when the killing happened. On the suggestion of Higgins, defendant wrote a letter of apology to the victim’s brother.
Higgins went to room 107 at the EconoLodge and found Tolson’s ID and bus pass behind the mirror as defendant had described. A black trash bag containing the clothes defendant had described was located in a blue garbage can in the alley behind the motel. It was stipulated the clothing recovered from the garbage dumpster behind the motel was DNA-tested and found to have Tolson’s blood on them. The concrete stones found by Tolson’s body also had his blood on them. Gregory Tolson identified the wallet found in defendant’s backpack as belonging to his brother.
Defendant testified in his own defense. He said he was bipolar, but was not taking his prescribed medications in late December 2003. He was using methamphetamine, cocaine, marijuana, and alcohol. He smoked methamphetamine and drank a large quantity of alcohol the morning of December 28, 2003. He remembered going to the downtown mall, meeting Skeens, Tolson coming over, and their going into the mini-mart; then there was a blank in his memory. Defendant next remembered he went to Chavez Park, where he got into a confrontation between two men and one of defendant’s friends. Defendant and the friend ran from the police who had come up. They ended up going behind a dumpster, where they smoked marijuana and methamphetamine. Afterwards, they went their separate ways and defendant eventually walked towards the McDonald’s, where he caught up with Jones and Skeens. Defendant could not remember where they went after they ate. He woke up the next morning in the motel room. He smoke and drank and woke up the next morning in the back of a diesel trailer. He smoked more methamphetamine and drank 24 ounces of a hard liquor beer before being arrested. He remembered nothing about his interview with Higgins except having to change his clothes at the end. Defendant had no memory of going into the abandoned building and could not explain the blood on his clothes.
Dr. Gregory Sokolov, a psychiatrist, testified as an expert witness for the defense on the effects of alcohol on the brain, the possible memory problems, states of consciousness, and the ability to form various mental states.
DISCUSSION
I.
Defendant Impliedly Waived His Miranda Rights
A. Background
Defendant was 19 years old when he was arrested on December 30, 2003. He had been arrested before and was on probation at that time. After he was settled in the police interview room, Higgins came in and introduced himself. When Higgins said he would be talking to defendant in a few minutes, defendant said: “No problem.” Defendant declined the offer of soda, a candy bar or anything like that. After defendant’s handcuffs were taken off, defendant asked what was going on. Higgins said he would explain soon, but first had to “get some stuff sorted out.” Higgins left defendant alone for about 10 minutes, during which time defendant first cursed the police, then said he was tired, said he did not feel good, said he wanted a cigarette, and finally laid his head down on the table.
When Higgins returned to the interview room, defendant lifted his head and apologized for falling asleep. Defendant again asked what was happening. Higgins said they would talk “about what’s going on” after he got defendant’s name and information. After defendant gave his name, address and phone number, Higgins told defendant he needed to read defendant his rights. Defendant interrupted with a number of questions, which Higgins put off in order to give defendant his Miranda rights. Higgins advised defendant of his right to remain silent, that anything he said could be used against him in court, that he had a right to have an attorney present before and during any questioning, and that if defendant could not afford to hire an attorney, an attorney would be appointed for him free of charge before any questioning. When asked after each advisement if he understood, defendant said yes.
Higgins did not ask defendant whether he waived these rights, but said, “Okay. Let’s just start out with a little background stuff.” Defendant said, “Oh my god.” Higgins continued, “Then we’ll go --.” Defendant responded, “Yeah.” Higgins began asking defendant questions and the interview proceeded as we have already described.
Prior to trial, the prosecution filed a motion seeking permission to introduce the video recording of defendant’s interview into evidence at trial. The prosecution asserted the recording should be admitted because defendant was properly advised of and impliedly waived his Miranda rights. Defendant challenged the foundation for the admissibility of the interview.
In considering the motion, the trial court reviewed the unedited DVD recording and transcript of defendant’s interview. The parties agreed that, if called as a witness for purposes of the hearing on the prosecution’s motion, Higgins would testify it was his opinion defendant was sober during the interview. The defense then called defendant’s father to testify for purposes of the motion. Defendant’s father had reviewed the tape of defendant’s interview and thought defendant’s characteristics, way of talking and movements were unusual. It looked to him like defendant was under the influence of methamphetamine and alcohol. He agreed, however, that defendant appeared to understand the questions and to be answering them.
The trial court ruled, based on its review of the DVD, transcript, and submitted testimony, that “defendant understood his constitutional rights as set forth or read to him by Detective Higgins, and based on the response to those questions as well as the defendant’s voluntariness to respond to questions regarding this offense, and frankly, almost every question that was asked of him by the officer that the defendant has, in fact, impliedly waived his right under Miranda.”
B. Issue
Defendant claims on appeal that the prosecution did not meet its burden to show he impliedly waived his Miranda rights in the interview. He asserts both federal and California law requires conduct and statements from defendant establishing not only an understanding of the rights to counsel and silence, but also immediate statements about the charged offense that are not elicited by any coercion. Defendant claims his statements were not voluntary because Higgins intimated the interview would not end until defendant confessed.
C. Standard of Review
“‘In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained (ibid.), we “‘give great weight to the considered conclusions’ of a lower court that has previously reviewed the same evidence.” [Citations.] Because the crimes in this case occurred after the addition of section 28, subdivision (d) to article I of the California Constitution, the voluntariness of defendant’s waiver and confession must be established by a preponderance of the evidence. [Citations.]’” (People v. Whitson (1998) 17 Cal.4th 229, 248 (Whitson), quoting People v. Wash (1993) 6 Cal.4th 215, 235-236.)
D. Analysis
A statement made by a criminal suspect during police interrogation is admissible at trial only if the suspect is first advised of and waives his right to counsel and his right to remain silent. (Miranda, supra, 384 U.S. at pp. 478-479 [16 L.Ed.2d at p. 726].) While a waiver of Miranda rights must be both intelligent and voluntary, it need not be explicit. (North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292]; Whitson, supra, 17 Cal.4th at p. 250 [“an express waiver is not required where a defendant’s actions make clear that a waiver is intended”]; see People v. Medina (1995) 11 Cal.4th 694, 752 [same]; People v. Davis (1981) 29 Cal.3d 814, 824 [“absence of an express waiver does not in itself establish that the right [to remain silent] has been invoked”]; People v. Cortes (1999) 71 Cal.App.4th 62, 69 [waiver “may be inferred where ‘the actions and words of the person interrogated’ clearly imply it”].) Indeed, when a defendant is informed of his rights and states he understands them, “it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them.” (People v. Johnson (1969) 70 Cal.2d 541, 558, disapproved on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 899, fn. 8.)
In deciding whether statements made during custodial interrogation are admissible, a court must consider “‘the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. . . .’” (Whitson, supra, 17 Cal.4th at p. 247, quoting Fare v. Michael C. (1979) 442 U.S. 707, 725 [61 L.Ed.2d 197, 212]; People v. Bradford (1997) 14 Cal.4th 1005, 1036.) Under both federal and state law, there are two components to be considered. “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citation.]” (Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421]; accord, Whitson, supra, 17 Cal.4th at p. 247.)
We have reviewed the video recording of defendant’s interview in this case, its accompanying transcript, offer of proof, and the testimony of defendant’s father. In the video, defendant appears nervous in the custodial interrogation setting. He appears to become increasingly stressed and emotional as evidence contradicting his story and potentially linking him to the killing of Tolson is revealed. However, it does not appear defendant was unable to understand what was happening, the rights of which he was advised, or the questions posed by Higgins. To the contrary, defendant responded promptly and appropriately to the questioning by Higgins, carefully altering the account of his actions and the events of December 28, 2003, to match what defendant perceived the evidence held by the police would show. Even defendant’s father agreed defendant appeared to understand and appropriately answer the questions posed. Higgins never bullied, tricked or cajoled defendant with offers of leniency and never stated or implied he would keep questioning defendant until defendant gave him the answers he wanted. Rather, Higgins put off answering defendant’s initial questioning until he could advise defendant of his Miranda rights and then proceeded to explore defendant’s shifting description of the events of that day with appropriate follow-up questions and gradual disclosures of contradictory and incriminatory evidence. Mere exhortation by the police to tell the truth unaccompanied by either a threat or a promise of leniency is not impermissible coercion. (People v. Holloway (2004) 33 Cal.4th 96, 115.) We find nothing wrong with Higgins’s interrogation of defendant. The evidence clearly supports the conclusion defendant freely and deliberately chose to answer Higgins’s questions.
The evidence also clearly supports the conclusion defendant had a full awareness of his rights to counsel and silence. Defendant had been previously arrested and was then on probation. Therefore, he was clearly not unfamiliar with law enforcement procedures. He affirmatively, and without hesitation, responded that he understood each of his rights under Miranda as Higgins gave them. Defendant displayed no reluctance to talk to Higgins and never asked for the interview to be stopped. If anything, defendant appeared anxious to deny and then eventually explain away any involvement in the killing.
Our conclusion is not altered by the fact defendant initially answered a number of general background questions before Higgins began to probe the details of the robbery and killing. We have reviewed each of the federal and California cases cited by defendant and conclude neither federal nor state law requires defendant make immediate statements about the charged offense(s) in order for the defendant’s voluntary answers to police questioning to be considered an implied waiver of the Miranda rights. None of the cited cases focused or relied on the immediacy of the defendant’s admissions or confession as a prerequisite to their finding of waiver. Such a prerequisite would, in fact, be inconsistent with the requirement of consideration of the “totality of the circumstances” in each case. Under the totality of the circumstances, we conclude the trial court correctly concluded defendant had impliedly waived his Miranda rights when he proceeded to answer Higgins’s questions.
II.
The Trial Court Did Not Err In Admitting Victim Vulnerability Evidence
Defendant objected to the admission of any reference to Tolson as being developmentally challenged or having a mental disability as irrelevant evidence. Defendant particularly focused on the prosecution’s offer of proof regarding the testimony of Gregory Tolson, the victim’s brother. Defendant argued the prejudicial effect would be “astronomical” compared to “zero” probative value. The trial court overruled defendant’s objection, finding evidence regarding Tolson’s mental capacity would be relevant admissible evidence. In light of such ruling, Gregory Tolson was allowed to testify at trial to some of the mental challenges and limitations of his brother. Defendant’s references to Tolson as the mentally retarded man, or similar descriptions, were not redacted from defendant’s statements in his interview with Higgins.
On appeal, defendant contends the evidence of Tolson’s limited mental capacity was irrelevant and unduly prejudicial under Evidence Code section 352 (section 352). Defendant disputes the evidence was admissible to explain why Tolson accompanied defendant, Jones, and Skeens from the K Street mall area to the abandoned building, as suggested by the prosecution and trial court. Defendant argues Tolson’s motivation or intent as the victim was irrelevant, that the evidence admitted did not end up showing Tolson was likely to accompany strangers to an isolated spot, and that the only real purpose of the evidence was to generate sympathy for the decedent and to sully defendant’s character. Defendant claims the admission of the evidence violated his right to due process. We disagree with defendant’s claims.
“Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion, whether defendant’s objection was based on relevancy or Evidence Code section 352. (People v. Alvarez (1996) 14 Cal.4th 155, 214-215; People v. Minifie (1996) 13 Cal.4th 1055, 1070.) The trial court’s exercise of discretion “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)
The trial court found the evidence regarding Tolson’s mental capacity to be relevant as the evidence explained “why the victim engaged in the conduct” and “corroborate[d] the statement provided by the defendant.” Although we agree with defendant that Tolson’s intent and motivation in going along to the abandoned building was not relevant in this case, the evidence of Tolson’s mental disability was nevertheless relevant evidence. Not only did it corroborate the statement provided by defendant, as stated by the trial court, it was relevant to the issue of defendant’s intent and motivation.
We are not limited to the reasoning of the trial court in considering the relevance of the evidence. “‘“[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 976.)
The prosecution charged defendant with both robbery and first degree murder. As to the first degree murder charge, the prosecution argued both a felony/murder theory and premeditated first degree murder. Defendant’s intent to rob and intent to kill were important, in fact the most important, disputed elements of these charges under these theories. The evidence that Tolson was developmentally disabled and that defendant knew Tolson was “mentally retarded” made it more likely defendant understood Tolson was an easy victim and formed the specific intents necessary to the charged offenses. It explained defendant’s choice of victim. Defendant knew Tolson, being developmentally delayed, would not as readily appreciate the risk or danger in accompanying defendant to an isolated location on the river. Defendant may have depended on Tolson’s reduced ability to perceive defendant’s criminal intent in taking him there. Indeed, defendant’s understanding of Tolson’s mental capacity made it more likely defendant took Tolson to the abandoned building with the intent all along to rob and kill him. The evidence also provided support to the prosecution’s theory of premeditated and deliberate murder as it made it more likely defendant contemplated and decided to kill the relatively defenseless Tolson and was not, in throwing the brick and/or blocks of concrete and rock on Tolson, simply unthinkingly reacting to a capable person’s defense of themselves. The evidence from Tolson’s brother regarding the money he provided Tolson, Tolson’s ability to handle money, understand the concept of change, shyness around strangers, desire to be accepted, and habit of going downtown on the weekends, all corroborated defendant’s interview statements regarding his interactions with Tolson that Sunday. The proposed evidence was relevant.
As an aside, we note the evidence showed Tolson and Skeens knew each other and that defendant was aware of this. Thus, Tolson was not going against his nature and accompanying strangers. Rather, it appears defendant was taking advantage of Tolson’s trust in Skeens.
It is clear from defendant’s argument regarding probative value and prejudicial effect that defendant also raised an objection to the evidence, even if relevant, under section 352. “When a defendant objects to evidence pursuant to Evidence Code section 352, the record must demonstrate affirmatively that the trial court did in fact weigh prejudice against probative value. [Citations.] Nonetheless, ‘“the trial judge need not expressly weigh prejudice against probative value--or even expressly state that he has done so.”’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 135.) “All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213; see People v. Lucas (1995) 12 Cal.4th 415, 448-449.) Viewing the trial court’s ruling in light of defendant’s argument, it is clear here the trial court was aware of its responsibilities and conducted the proper weighing process.
We conclude the trial court did not abuse its discretion in ruling the evidence was admissible after such weighing process. The evidence had significant probative value on what turned out to be the critical disputed element of the crimes - defendant’s intent. The evidence was also materially corroborative of defendant’s statements in his interview. The tendency of the evidence to invoke sympathy for Tolson and possible bias and prejudice against defendant was lessened by the express instruction of the jury to not let bias, sympathy, or prejudice influence its decision. (CALCRIM No. 2.00.)
Given our conclusion the evidence was properly admitted, we necessarily reject defendant’s contention that the admission of the evidence resulted in a violation of his due process rights.
III.
Defense Counsel Was Not Ineffective In Failing To Request A Limiting Instruction Regarding The Evidence Of Tolson’s Mental Capacity
Defendant claims the jury should have been instructed by the trial court regarding the limited purpose for which the evidence of Tolson’s mental capacity was admitted. Acknowledging defense counsel did not request such a limiting instruction, defendant asks us to nevertheless review the issue in our discretion or alternatively, as a matter of ineffective assistance of counsel.
Absent a request by a party, a trial court has no duty to give an instruction limiting the purpose for which evidence may be considered. (Evid. Code, § 355; People v. Macias (1997) 16 Cal.4th 739, 746; People v. Nudd (1974) 12 Cal.3d 204, 209, overruled on another point in People v. Disbrow (1976) 16 Cal.3d 101, 113.) Defendant’s failure to request a limiting instruction below, therefore, forfeits his claim on appeal that such instruction should have been given. Given the overwhelming evidence of guilt in this case, we will not exercise any discretion we might possess to review the issue (see § 1259) except as presented by defendant’s alternate argument of ineffective assistance of counsel.
To prevail on an ineffective assistance of counsel claim on appeal, a defendant must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability, but for counsel’s unprofessional errors, that a determination more favorable to defendant would have resulted. (Strickland v. Washington (1984) 466 U.S. 668, 688-692 [80 L.Ed.2d 674]; People v. Rodrigues, supra, 8 Cal.4th 1060, 1126.)
“‘“The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.” [Citation.]’ [Citation.] There is a presumption the challenged action ‘“might be considered sound trial strategy”’ under the circumstances. [Citations.] On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [48 Cal.Rptr.2d 525, 907 P.2d 373] [‘Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions.’]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [5 Cal.Rptr.2d 230, 824 P.2d 1277] [‘“If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention [that counsel provided ineffective assistance] must be rejected”’].)” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.)
We are not persuaded that counsel’s performance was deficient. The danger in admission of this relevant evidence was the chance it would engender sympathy for Tolson and prejudice against defendant, but the jury was already going to be instructed that it must not let any bias, sympathy, or prejudice influence its decision. (CALCRIM No. 200.) There was no reason for defense counsel to request, and no reason to think the judge was likely to give, a duplicate instruction to that effect. To the extent a special limiting instruction focusing on this particular evidence could have been properly devised, defense counsel may have decided the benefit to defendant in emphasizing to the jury how the evidence could not be used was outweighed by having the jury instructed on how the evidence could be properly used.
Moreover, even assuming for argument’s sake that a competent attorney would have requested a limiting instruction, it is not reasonably probable that defendant would have obtained a more favorable outcome. (See People v. Mesa, supra, 144 Cal.App.4th at p. 1008; People v. Williams (1988) 44 Cal.3d 883, 937.) The evidence in this case, including as it did defendant’s confession to robbery and his admissions regarding the killing, plus all the physical evidence linking defendant to the crime and calling into question the credibility of his denial of the actual killing and of his intent to kill, amounted to overwhelming evidence of defendant’s guilt. A limiting instruction on the use of the evidence regarding Tolson’s mental disability would not have changed the outcome in this case.
IV.
Reversal Is Not Required For Prosecutorial Misconduct
Defendant claims the prosecutor engaged in several instances of misconduct during cross-examination and closing argument.
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The prosecutor’s good or bad faith is not at issue because the standard by which his or her conduct is evaluated is objective. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Alvarez, supra, 14 Cal.4th 155, 213.)
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’” (People v. Prieto (2003) 30 Cal.4th 226, 259, quoting People v. Samayoa, supra, 15 Cal.4th at p. 841 .) “[O]therwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 447.) And “[f]ailure to object rarely constitutes constitutionally ineffective legal representation . . . .” (People v. Boyette (2002) 29 Cal.4th 381, 424.) “If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
A. Encouragement of Jury To Use Evidence Beyond Limited Purpose
Defendant first complains the prosecutor questioned him several times on cross-examination regarding his knowledge of Tolson’s mental disability. As we have explained, defendant’s knowledge of Tolson’s mental capacity was relevant to the issue of defendant’s formation of the specific intent to rob and to kill. As the prosecutor’s question was designed to elicit such admissible evidence from defendant, it was not misconduct.
Defendant complains the prosecutor asked (1) “You knew, didn’t you, that he was a man suffering from a mental disability; isn’t that right?” (2) “Well, when you met him there at the K mini-mart and you saw him talking to Ivan [Skeens], you knew something was wrong with the man, isn’t that something --.” (3) “Mr. Tolson was an easy mark for you, wasn’t he?” (4) “You knew it [sic] was something wrong with him mentally; isn’t that true?” To the first two questions, defendant answered, “I don’t recall.” To the third question, defendant answered, “I don’t know” and to the fourth question, defendant responded, “I guess.”
Defendant also complains the prosecutor in closing argument urged the jurors to be swayed by their sympathy for Tolson and to use the evidence of Tolson’s mental disability to find defendant was a person of bad character. We conclude much of the prosecutor’s argument directed the jury’s attention to defendant’s likely motivation and intent as evidenced by his choice of victim, a matter as to which the mental capacity evidence was relevant. This did not constitute prosecutorial misconduct.
Defendant complains of the following argument: “But before we get to the law, I want to just spend a few minutes talking about what the defendant did in this case because this is, is an, an unbelievable, outrageous crime on a victim who, uhm, as you know, was mentally disabled. And that tells you something right there about that man sitting there at the table in the blue shirt. What he did in this case tells you something about Mr. Lopez, Joseph Lopez, and what he’s about, what his morals are, and what he cares about. And you can tell what he’s about by how this unfolds. Here is Michael Tolson, a 40-year-old mentally handicapped man. Who, according to his brother, had to be given lists of what to do: Get up in the morning, brush your teeth, comb your hair, make your bed. He had trouble doing simple math calculations. His brother was a conservator for him. He was able to function on a teenage 12 or 13 year old age level. He could do some things well. He could function on his own. As you heard his brother Greg describe to you, he could go around the community, he knew how to ride light rail. But what he didn’t know how to do was judge people, be alert for dangers. And that’s where the defendant steps in because that’s what this man right here picked up on when he ran into him on the K Street Mall. Even his own words to Detective Higgins said I knew that man was mentally retarded. I used to work with people. I know those people said Mr. Lopez in his statement to Detective Higgins. So this isn’t like a man who didn’t know about what was wrong with the victim in this case. It was as, I tried to get him to admit but he wouldn’t, you know, might [sic] was an easy mark. Even in his statement to Detective Higgins, what does he say? Well I wanted to make him feel comfortable because I know how those people -- it’s a quote right out of his statement -- are. He was afraid. So what does Mr. Lopez do? Gives him a hug, a handshake makes him feel comfortable. Do you think Mr. Lopez really wanted to be a friend of Michael Tolson? Do you think that was his motivation? Do you think so? [¶] . . . [¶] I think the defendant in his statement even used the word hustle at one point. So that’s what happened. This man here in the courtroom saw an easy pr[e]y. A man who really couldn’t fend for himself in this community, whose brother tried to look out over him, but Greg Tolson cannot be there 24 hours a day watching is [sic] brother unfortunately. And this is what happens. This your worst nightmare if you are someone like Greg Tolson and you have [a] brother like Michael that he will run into someone by the name of Joseph Lopez.” Defendant also complains of the prosecutor’s later argument that: Jennifer Jones baits Michael down in there with the talk of sex. And they steer this man down the stairs. A normal person wouldn’t do something like that. “Can you imagine being taken by the likes of Mr. Lopez and Jennifer Jones to an abandoned building, and asked: Okay, just go through this hole. It’s okay. Go down this flight of stairs into this dark hole. [¶] You and I would never do that. [¶] But, again, he is -- it’s an instance of the vulnerability of Michael Tolson; and, really, the lack of any hint of morality in this defendant about doing it.” Finally, defendant complains that in rebuttal argument the prosecutor stated, “We know he’s with the victim mentally handicapped man on the afternoon of that December day.”
To the extent, the argument also included some comments improperly urging the jury to decide defendant’s guilt based on sympathy for Tolson or prejudice against defendant, defendant’s claim of prosecutorial misconduct on appeal is doomed by his failure to object at the time. Contrary to the claim of defendant, there is nothing in the record to suggest a contemporaneous objection and an appropriate admonition from the trial court would not have cured the harm from any misconduct. (See People v. Hill, supra, 17 Cal.4th 800, 820.)
The failure to object to the comments was not ineffective assistance of counsel. Defense counsel made a rational tactical choice to address any play for sympathy in the prosecution’s argument by reminding the jury in defendant’s responding closing argument that it had taken an oath to follow the law and each of the jurors had promised not to consider sympathy or passion. Defense counsel argued what happened was “a terrible thing. There’s nobody in the room that likes this. Nobody. And you have to put it aside, you said you could do it. And now you’re sitting here, you have to do it. Go ahead, feel bad about it. But that part of your brain, do not let it influence your decisions.” We cannot say defense counsel’s tactical choice was unreasonable.
B. Urging Conviction Based On Lack Of Remorse
Defendant next contends the prosecutor in his closing argument committed misconduct requiring reversal by improperly urging conviction based on a finding that defendant lacked remorse. We disagree.
Defendant complains about the following comments: (1) “Just killed a man. What are you going to do with the body? [¶] Well you walk to McDonald’s because you’re hungry. That’s about the only thing the defendant would admit on the stand. I said you were hungry, weren’t you? Oh, yeah, hadn’t eaten for a while.” (2) “Did you see -- you know, you saw that video tape of him at McDonald’s okay. Isn’t it odd to think that those people sitting there at that table, and Mr. Lopez who’s walking up to this thing, and opening the victim’s wallet, getting out the money has just done something as terrible as I’ve just described? It’s unbelievable. Really. If you think how calm they appear.” (3) “This is a small point, but I just picked it out when I saw the video: Do you know when they were done eating, do you know what they did? They bussed their tables. [¶] I don’t know why I picked up on that point. I just saw it, and I thought that’s just unbelievable that they are picking up their trays full of gar[b]age. Because they just finished three milk shakes, all the hamburgers, and they are taking them over and putting them in the bins before they walk out. And they have blood all over them because the guy’s laying down, you know, half a mile away, bottom of the building they just murdered. And somehow that fact just shows the cold bloodedness of the whole thing. Lack of any remorse. Or I can’t really describe it. Lack of any thought about what they had just done. All they care about is them.” (4) “At that point, I’m sure Mr. Lopez thought, well, they got a good meal out of it, let’s move on.” (5) “He blamed it on her [Jones] from the very minute he walked in the police station. He accepted no responsibility for himself about the killing at all.” (6) “So that is what Mr. Lopez is about. Denial, shifting the blame of responsibility.”
Defendant testified on his own behalf, claiming he did not remember large chunks of time on the day of the murder and did not remember anything of his interview with Higgins except changing clothes at the end. The defense theory was that defendant was suffering temporary black-outs on the day of the murder, as well as on the day of the interview, as a result of his mental illness and substance abuse. Therefore, he did not form the specific intents necessary to the offenses and his admissions and confession were unreliable as a product of subtle manipulation by Higgins in his interrogation. Under these circumstances, the prosecutor appropriately directed the jury’s attention to defendant’s demeanor and actions depicted on the McDonald’s surveillance tape as evidence showing defendant was acting calmly after the killing, not displaying any signs of being oblivious to his surroundings or being intoxicated. The prosecutor properly pointed out defendant’s attempts in his interview with Higgins to place blame for the crimes entirely on Jones as a matter impacting the jury’s assessment of the credibility of defendant’s testimony at trial.
However, to the extent, if any, the argument may have gone beyond the permissible to an argument asking the jury to punish defendant for his lack of immediate remorse or his failure to take immediate responsibility for the crimes, i.e., an improper appeal to the jury’s passions and prejudices, any prosecutorial misconduct was again forfeited by defendant’s failure to contemporaneously object. (People v. Prieto, supra, 30 Cal.4th at p. 259.) We do not find an objection and an appropriate admonition would not have cured the harm from any misconduct. (People v. Price, supra, 1 Cal.4th at p. 447.) We reject the claim of ineffective assistance of counsel as this is not a situation where defense counsel was asked for and failed to give an explanation for his lack of objection or where there could be no satisfactory explanation. (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.) Defense counsel’s failure to object may well have been based on a reasonable tactical choice.
C. Vouching for Detective Higgins
Defendant argues in his final claim of prosecutorial misconduct that the prosecutor improperly “vouched” for the propriety of Higgins’s interrogation of defendant when the prosecutor stated: “That’s pretty much how the interview goes with Detective Higgins asking fair questions, no trickery, confronting him with inconsistent facts, known or not known, or even the detective just kind of saying I don’t think you’re telling the truth.”
“‘A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his] office behind a witness by offering the impression that [he] has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [his] comments cannot be characterized as improper vouching. [Citations.]’” (People v. Ward (2005) 36 Cal.4th 186, 215, quoting People v. Frye (1998) 18 Cal.4th 894, 971.)
The comments here cannot be characterized as improper vouching. The prosecutor’s comments regarding Higgins’s interrogation of defendant occurred during a portion of the prosecutor’s argument summarizing the videotape of defendant’s interview. The prosecutor’s description of Higgins’s questions as “fair,” statement that there was no “trickery,” and comment that Higgins simply presented defendant with inconsistent facts and asked him to be truthful were matters argued from the “‘“record and inferences reasonably drawn therefrom[.]”’” (People v. Ward, supra, 36 Cal.4th at p. 215.) The comments do not refer to evidence outside the record or imply there were facts not before the jury that lent credence to Higgins. (Compare, People v. Turner (2004) 34 Cal.4th 406, 432-433 [attorney improperly vouched for credibility of expert witness by referring to his personal knowledge and prior use of the witness].) There was no prosecutorial misconduct in the referenced argument.
V.
Defendant’s Right To Jury Trial On Aggravating Factors For Upper Term
The trial court sentenced defendant on his first degree murder conviction to an indeterminate life term in prison without the possibility of parole, plus a consecutive one year prison term for the deadly weapon allegation. The trial court sentenced defendant on his robbery conviction to the upper term of five years, plus a consecutive term of one year for the deadly weapon allegation on the robbery count, both stayed pursuant to section 654. The trial court imposed the upper term sentence “in light of the defendant’s prior criminal record, and the aggravating nature of this particular homicide, and the particular vulnerability of the victim in this case.”
Defendant claims on appeal the imposition of the upper term sentence violated his federal constitutional right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) __ U.S. __ [166 L.Ed.2d 856] (Cunningham).
Although defendant asserts in a single sentence in his opening brief that he was also denied his right to a jury trial “on the facts necessary to support the imposition of consecutive sentences,” defendant does not provide any argument or authorities on that issue in the remainder of his opening brief, nor does he mention the issue in his reply brief or in his supplemental brief addressing Cunningham. All of defendant’s arguments under this heading are directed to the trial court’s imposition of the upper term sentence for defendant’s conviction of robbery. We will not address the issue further.
We reject the People’s contention that this issue has been forfeited by defendant’s failure to object at sentencing. Defendant was sentenced on May 19, 2006. Almost a year earlier, on June 20, 2005, our Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Black was controlling law at the time of defendant’s sentencing. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)
In Apprendi, the United State Supreme Court held any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In Cunningham, the United States Supreme Court held that under California’s Determinate Sentencing Law the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Cunningham, supra, ___U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black, supra, 35 Cal.4th 1238 on this point, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)
The trial court’s reliance in this case on “the aggravating nature of this particular homicide, and the particular vulnerability of the victim in this case” to impose the upper term on defendant’s robbery conviction was judicial fact-finding that violated defendant’s constitutional right to a jury trial. (Cunningham, supra, ___ U.S. at p. ___ [166 L.Ed.2d at p. 864].)
In Washington v. Recuenco (2006) __ U.S. __ [165 L.Ed.2d 466], the United States Supreme Court held Blakely error is not structural error requiring automatic reversal, but is subject to harmless error analysis. (Id. at p. __ [165 L.Ed.2d at p. 477].) In People v. Sengpadychith (2001) 26 Cal.4th 316, the California Supreme Court held Apprendi error was subject to the Chapman standard of prejudice. (Id. at p. 326.) We conclude Cunningham error may likewise be found harmless beyond a reasonable doubt and decide that is the case here.
Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
First, the rule of Apprendi, Blakely, and Cunningham does not apply where imposition of an aggravated term is based on the defendant’s prior convictions. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455]; accord, United States v. Booker (2005) 543 U.S. 220, 231 [160 L.Ed.2d 621, 641-642].) Thus, the trial court could have properly relied on defendant’s prior conviction as one aggravating factor without violating defendant’s Sixth Amendment rights.
Second, the remaining two factors - the victim’s particular vulnerability and the aggravated nature of the homicide, were overwhelmingly supported by the evidence at trial. We are convinced beyond a reasonable doubt the jury would have found, itself applying a beyond a reasonable doubt standard, that Tolson was a particularly vulnerable victim and the crime demonstrated a high degree of cruelty, viciousness, or callousness. (Cal. Rules of Court, rule 4.421(a)(1) and (3).)
Defendant argues, however, the violation of his right to jury trial cannot be found harmless beyond a reasonable doubt because even if the jury would have found the cited aggravating facts to be true, “the record in this case contains substantial evidence counterbalancing the cited aggravating facts.” Defendant goes on to describe a number of possible mitigating circumstances, taken from his probation report, and concludes “it is not a foregone conclusion that the jurors would necessarily agree with the trial court’s assessment of whether the upper term was appropriate for count 2.”
Defendant’s argument relies on the erroneous premise that Cunningham now requires the jury to determine defendant’s sentence. Not so. Under Cunningham the jury must determine any facts that are to be used to aggravate defendant’s sentence from the statutory middle term. (Cunningham, supra, __ U.S. at p. ___ [166 L.Ed.2d at p. 864].) But, the balancing of those factors against any mitigating factors for the ultimate determination of the sentence to be imposed is still a matter for the trial judge. Nothing in Apprendi, Blakely, or Cunningham changes the California Determinate Sentencing Law in the manner suggested by defendant.
Here a probation report was submitted to the trial court containing all of the mitigating evidence relied upon by defendant. The trial court, nevertheless, concluded an upper term was appropriate based on factors, which we conclude either did not require a jury finding or that the jury beyond a reasonable doubt would have found true under a beyond a reasonable doubt standard of proof. We conclude the failure to submit such factors to the jury for such findings was constitutional error, harmless beyond a reasonable doubt.
Given this conclusion, we need not address defendant’s claim that the only proper remedy for the violation of his right to jury trial is to strike the upper term and order it replaced with a statutory middle term sentence because California has no procedure for submitting aggravating facts to a jury. Nor do we need to address defendant’s double jeopardy arguments.
VI.
The Parole Revocation Fine Must Be Stricken
Defendant contends, and the People concede, the trial court erred by imposing a parole revocation fine (§ 1202.45) even though defendant was sentenced to state prison for life without possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186; accord, People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) We accept the People’s concession and shall order the section 1202.45 fine stricken.
DISPOSITION
The judgment is modified by striking the Penal Code section 1202.45 restitution fine. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P.J., RAYE , J.