Opinion
D057370 Super. Ct. No. FBA800735
08-19-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY LOUSTAUNAU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, Cheryl C. Kersey, Judge. Affirmed and remanded with instructions.
A jury convicted David Anthony Loustaunau of second degree murder of Leroy Stracner. (Pen Code, § 187, subd. (a).) The jury found true an enhancement allegation that Loustaunau personally used a firearm. (§ 1203.06, subd. (a)(1); 12022.5, subd. (a).)
All statutory references are to the Penal Code unless otherwise stated.
The court sentenced Loustaunau to 17 years to life in state prison and ordered him to pay $1000 fees each for restitution (§ 1202.4, subd. (b)) and parole revocation (§ 1202.45), but the latter fine was stayed pending his successful completion of parole. The court also imposed additional fees for court security (§ 1465.8) and court facilities (Govt. Code, § 70373).
Loustaunau contends: (1) he was denied his right to confront witnesses under the Sixth Amendment of the federal Constitution and as defined by the United States Supreme Court in Crawford v Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527 (Melendez-Diaz) because a forensic pathologist other than the one who had testified at trial performed the autopsy and prepared the autopsy report; (2) the trial court failed to modify on its own motion CALCRIM No. 301 regarding accomplice testimony; (3) the court abused its discretion in denying his request for jurors' contact information to enable him to prepare a new trial motion, thus violating his due process rights under the Sixth and Fourteenth Amendments of the federal Constitution; (4) the cumulative effect of the court's errors deprived him of due process under the Fourteenth Amendment of the federal Constitution; and (5) the trial court violated his state and federal rights to be free from ex-post facto punishment by imposing fees for parole revocation (§ 1202.45), court security (§1465.8) and court facilities (Govt. Code, § 70373). We affirm the judgment and remand with instructions for the trial court to amend the abstract of judgment.
FACTUAL AND PROCEDURAL HISTORY
1988 Investigation
At approximately 3:00 a.m. on October 20, 1988, Loustaunau and his family went to the police station in Barstow, California, and reported Loustaunau was involved in a shooting at Stracner's home, saying the victim was possibly alive. They handed over the revolver Loustaunau had used in the crime. San Bernardino Deputy Sheriff Gregory Bottrell went to Stracner's residence and found him dead on the floor in a back bedroom. Loustaunau admitted killing Stracner, but he claimed the death was accidental.
On October 20, 1988, San Bernardino Deputy Sheriff Floyd Gilbreth interviewed Loustaunau, who said he had gone to visit Stracner and Tina Simmons at their house the day before, but they appeared to be arguing and Stracner asked him to leave. Loustaunau went next door to the home of his friend, Charles Otero. After Loustaunau heard a gunshot and saw Stracner leave his house, he went to Stracner's house and found Simmons crying. She told him she had to shower before Stracner returned. Stracner returned and went to the back of the house and came from a hallway with a revolver and twice told Loustaunau, "I'm going to kill you, David." Loustaunau said he feared for his life and acted in self-defense. He said that after the first shot Stracner came at him again; therefore, he fired the second shot. Loustaunau said he had put duct tape over Stracner's mouth, because Stracner was telling a story about a rape Stracner had committed when he was in the military during the Vietnam war, and Loustaunau did not want to hear the story. Loustaunau mentioned to the deputy sheriffs that he was angry at the way Stracner had treated Simmons.
On October 20, 1988, Deputy Gilbreth interviewed Otero, who said he and Loustaunau were at Otero's house the previous day. They heard a scream from Stracner's house, and shortly afterwards he saw Stracner leave the house in his van. Loustaunau went to Stracner's house. After Stracner returned home, Otero heard a gunshot and saw Simmons leave the house. Otero went to the house and saw Stracner gasping for breath, and Loustaunau putting duct tape over Stracner's nose and mouth. About three hours later, Loustaunau and Otero left Stracner's house and met Simmons and some other friends. Loustaunau told his parents about the killing, and they took him to the sheriff's office to report it approximately eight hours after it happened. The People elected not to bring charges against Loustaunau because it appeared the shooting was done in self-defense.
Tina Simmons's 2008 Interview and Trial Testimony
In 2008, the San Bernardino Sheriff's Department cold case investigating unit reopened its investigation of Stracner's death. Tina Simmons recounted to sheriffs in a 2008 interview that on October 19, 1988, she was pregnant with Stracner's child and living with him in Barstow, California. For a long time that afternoon, they argued inside their bedroom about Stracner's drug use, his frequent absences, and his doubts that Simmons was pregnant with his child. He threatened to kill her if she left him, and pointed his revolver at her and touched her with it, making her hysterical at the thought she was going to die. He scared her by firing a gunshot into a book. In the early evening, Stracner left to get food, telling her that on his return he was taking her to live in Apple Valley, a nearby town.
Loustaunau came to the house shortly afterwards and was upset and concerned for Simmons. She told him Stracner had fired a revolver and was planning to take her to Apple Valley. She broke down and told Loustaunau that although Stracner had not shot her earlier that day, she was afraid he was going to do so at some future point. She asked Loustaunau to leave because Stracner was upset and would soon return. Loustaunau told her, "I'm not leaving and he's not taking you anywhere" and, "I'm gonna kill that motherfucker." Loustaunau immediately grabbed the revolver from the bed. She went into the bathroom and showered. Stracner returned, spoke to Simmons briefly in the bathroom, and left the bathroom. Shortly afterwards, while she was in the shower, she heard someone yelling "no," a body hitting the wall, and two gunshots. Loustaunau said Stracner was dead. Simmons saw Stracner on the floor, and she ran to her sister-in-law's house.
Before they reported the incident to police, Loustaunau told Simmons, "[D]on't tell them I had the gun[,] Tina[,] because they're not gonna believe that it was an accident." She complied because she was scared and she cared about Loustaunau. She never told police she saw Loustaunau with the revolver in his hand because she did not want Loustaunau to go to prison for the rest of his life, and she believed his account that the killing was an accident and he had tried to protect her.
Simmons told the deputy sheriffs she had known Loustaunau from 1980, and had had sex with him a month or two before this incident. Simmons had previously confided in Loustaunau that Stracner used to hit her. Once, when Stracner had given her a black eye, Loustaunau was upset with Stracner and told her, "I oughta kill that mother fucker." Approximately a month or two after Simmons gave birth to Stracner's child, she started living with Loustaunau's family. Months later she and Loustaunau started living together and they raised a family for approximately five years.
Simmons's trial testimony was generally consistent with her interview statements, except at trial she denied seeing Loustaunau with the revolver or him saying of Stracner, "I oughta kill the motherfucker." Rather, she testified, "The gun is the big confusion in my mind, but to sit here under oath, I know the only time I clearly see the gun in [Loustaunau's] hand is after the shooting when the bathroom door was open."
Otero's Testimony
Otero testified that approximately two weeks before the killing, Simmons had recounted to him that Stracner had recently taken her to the desert and fired shots at her. That news upset Loustaunau, who wished he could do something for Simmons.
Otero lived next door to Stracner and on the day of the killing he heard a gunshot. Approximately 15 minutes later, Loustaunau was outside Stracner's house and called Otero, saying he had accidentally shot Stracner in a fight. Loustaunau did not mention he acted in self-defense. Otero went over and saw Stracner, who was face up on the living room floor with a blood stain on his chest. Stracner's body was twitching; he was gasping for air and making "gurgling noises." Otero and Loustaunau tried closing Stracner's eyes because they did not feel comfortable with him looking at them.
Otero helped Loustaunau move Stracner's body from the living room to a bedroom, but Otero, who was barefooted, stepped in blood and was bothered by that. Loustaunau put duct tape over Stracner's mouth and dragged his body into the bedroom. Loustaunau asked Otero to stay in the bedroom with Stracner because he did not think Stracner was dead. Otero returned to his house for soap and water to clean the blood on the floor. Loustaunau tried cleaning the floor using towels and rags. Loustaunau suggested they dump Stracner's body in the desert, and Otero moved Stracner's van to the back of the house for that purpose. But Loustaunau abandoned that plan. After approximately three hours they left the house and, on the way to a friend's house, they threw away the bullets from the revolver that Loustaunau had used. Neither Loustaunau nor Otero thought of calling 911.
Autopsy
At trial, Dr. Frank Sheridan, San Bernardino County's Chief Medical Examiner, testified that Dr. Irving Root, who was deceased, had performed the autopsy on Stracner. Dr. Sheridan testified he had reviewed the autopsy protocol, which included the autopsy report, a toxicology report and the deputy coroner's investigative report. Dr. Sheridan identified Stracner's wounds in photographs taken during the autopsy, and agreed with Dr. Root's conclusion the first gunshot was probably the one to Stracner's chest, based on the relative amounts of bleeding; the second gunshot was probably that to Stracner's head. Dr. Sheridan testified the cause of death listed on Stracner's death certificate was multiple gunshot wounds received minutes apart. Dr. Sheridan concluded based on the absence of gunpowder residue that the gunshots were not fired from a close or intermediate range.
Deputy Gilbreth was present when the autopsy was conducted. He testified he observed Stracner had two gunshot wounds with their respective exit wounds. One wound was in the area of the right collar bone with an exit in the right back shoulder, and another wound was above the right eye with an exit on the left side of the skull.
Defense Case
Loustaunau testified he was 19 years old on the date of the incident. That evening, he went to Simmons's residence and she told him she and Stracner had been arguing and it probably was not a good idea for him to be there because Stracner was upset. She went to shower because she and Stracner were going out. Stracner returned home and told Loustaunau, "What the fuck are you doing here?" Stracner went to the back of the house, returned minutes later and told Loustaunau, "I'm going to kill you mother fucker." Loustaunau saw a gun in Stracner's hand, reached up and grabbed it and, in backing away, stumbled, and the gun went off.
Loustaunau did not think about calling 911. He moved Stracner's body to a back room to avoid Stracner's friends seeing him if they came to look for Stracner. Loustaunau heard gurgling sounds and covered Stracner's mouth with duct tape. After he and Otero left the house, he hid the revolver, but recovered it and eventually took it to police. He denied being in love with Simmons at the time of the killing, but admitted that they began to live as a couple approximately six months after Stracner's death.
DISCUSSION
I.
Loustaunau contends the trial court admitted into evidence Dr. Sheridan's testimony and the autopsy report in violation of Loustaunau's right to confrontation as defined by the United States Supreme Court in Crawford, supra, 541 U.S. 36 and Melendez-Diaz, supra, 129 S Ct. 2527. He points out the original jury specifically requested to consult the "autopsy including forensics report," and claims the case was close. Loustaunau concedes that at trial he did not object to Dr. Sheridan's testimony. We conclude any error was harmless.
Applicable Law
"The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, [citation], provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' " (Melendez-Diaz, supra, 129 S.Ct. at p. 2531.) In Crawford, the United States Supreme Court held that the Confrontation Clause guarantees a defendant's right to confront those who bear witness against him. (Melendez-Diaz, at p. 2531.) "A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." (Ibid.)
Recently, the United States Supreme Court decided Bullcoming v. New Mexico (Jun. 23, 2011, No. 09-10876) _ U.S. _ , holding that admission of a forensic laboratory report, which certified that the defendant's blood-alcohol level exceeded the threshold for a charge of driving while intoxicated, violated his right of confrontation because a substitute analyst rather than the analyst who prepared and certified the report testified regarding the report's validity. In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court determined that scientific evidence such as DNA expert testimony and laboratory reports are admissible despite the limitations the Confrontation Cause places on conventional evidence. (Id. at pp. 596-607.) Whether Geier survives the Bullcoming v. New Mexico decision remains to be determined.
Currently pending before the California Supreme Court are at least six petitions of review to address the following issue: How does the decision of the United States Supreme Court in Melendez-Diaz, supra, 129 S Ct. 2527 affect this court's decision in Geier, supra, 41 Cal.4th 555? (People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620; People v. Benitez (2010) 182 Cal.App.4th 194, review granted May 12, 2010, S181137; People v. Bowman (2010) 182 Cal.App.4th 1616, 1618, review granted June 9, 2010, S182172.)
Analysis
We need not weigh in on the legal issue of whether admission of the autopsy report or Dr. Sheridan's testimony explaining the report violated Loustaunau's Sixth Amendment rights because even assuming without deciding that there was error, we conclude any error in admitting the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Accordingly, Bullcoming v. New Mexico does not impact our conclusion.
The autopsy report's conclusion that Stracner died of multiple gunshots (and Dr. Sheridan's recitation of it) did not prejudice Loustaunau because it was supported by independent evidence. Specifically, Loustaunau testified he held the gun when it fired. Simmons and Otero testified they heard the gunshots, and shortly afterwards Loustaunau told them Stracner was killed as a result of the gunshots. Further, Deputy Gilbreth attended the autopsy and saw the gunshot wounds on Stracner's body.
Overwhelming evidence supported the jury's verdict. When Loustaunau learned Stracner had abused Simmons, Loustaunau had threatened to kill him. Loustaunau had the revolver before killing Stracner, and he told Simmons not to tell anyone. Loustaunau's conduct post-killing undermines his self-defense claim: He did not call 911, despite the fact Stracner appeared alive, gasped for air and made gurgling sounds; rather, he put duct tape over Stracner's mouth. He also moved the body to avoid detection. He sought to clean up the crime scene, and considered dumping Stracner's body. He threw away the revolver's bullets, and initially hid the murder weapon. He did not report the incident to authorities until approximately eight hours afterwards. In light of that overwhelming evidence, it is clear beyond a reasonable doubt that a rational jury would have found Loustaunau guilty absent admission of the autopsy report and Dr. Sheridan's testimony, and any error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
We note the jury could reasonably conclude Loustaunau exhibited consciousness of guilt both because he presented differing accounts of the shooting by telling Otero it was an accident and telling the authorities it was self-defense, and he threw away the bullets. The jury was instructed with CALCRIM No. 362 regarding consciousness of guilt: "If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt." The jury also was instructed with CALCRIM No. 371: "If the defendant tried to hide, or conceal or destroy evidence against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
II.
Loustaunau contends the trial court erred by failing to modify on its own motion CALCRIM No. 301 to specify that if the jury found Simmons and Otero were accomplices, their testimony required corroboration. Loustaunau adds that the trial court's error lessened the People's burden of proof, thus depriving him of his constitutional right to due process under the state and federal Constitutions. Loustaunau also contends that "between them, CALCRIM [No.] 301 and CALCRIM [No.] 334 provided contradictory and confusing instructions to the jury. And CALCRIM [No.] 200 further advised the jury that it might find '[s]ome of these instructions may not apply. . . . ' "
Here, the trial court instructed with CALCRIM No. 301: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." The court did not include the following bracketed portion of CALCRIM No. 301: "[Except for the testimony of
The People contend the issue is forfeited because Loustaunau did not request a pinpoint instruction and, in any event, there was no error because the jury was properly instructed; further, any error would have been harmless in light of Loustaunau's admission he fired the mortal shots.
Applicable Law
"[A] defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714, emphasis added.)
The California Supreme Court dismissed a similar claim in People v. Noguera (1992) 4 Cal.4th 599. The trial court had instructed the jury with CALJIC No. 2.17, which stated the "testimony of a single witness is sufficient for the proof of any fact." (Noguera, supra, at p. 630.) The Noguera court stated, "We have encountered this claim repeatedly since our initial consideration of it in People v. Chavez (1985) 39 Cal.3d 823, 829-832 [and] we concluded that 'we must look to the entire charge, rather than merely one part, to determine whether error occurred. [Citation.]" [Citation.] We have since refined the test formulated in Chavez to encompass determinations whether the jury 'is instructed on the kind of evidence necessary to constitute corroboration, on the method of determining whether the accomplice's testimony was corroborated, on viewing the accomplice's testimony with distrust, and [whether] the parties proceed[ed] on the premise that corroboration is required.' " (Noguera, at p. 630.)
Analysis
Here, the claim is forfeited on appeal because of Loustaunau's failure to request clarifying instructions. It also fails on the merits. The trial court instructed in detail regarding accomplice testimony with CALCRIM No. 334 [Accomplice Testimony Must Be Corroborated: Jurors Decide Whether Witness Is Accomplice]: "Before you may consider the statement or testimony of Charles Otero and Tina Simmons as evidence against the defendant regarding the crime charged and any lesser offenses, you must decide whether Charles Otero and Tina Simmons were accomplices to those crimes." The remainder of the court's instruction included the definition of an accomplice, the nature and sufficiency of corroborative evidence, the rule that one accomplice may not be corroborated by another, the necessity of criminal intent, and the requirement that accomplice testimony be viewed with "caution." (CALCRIM No. 334.) Therefore, the instruction qualifies for what the Noguera court called, "the full array of accomplice instructions." (Noguera, supra, 4 Cal.4th at p. 631.)
"It is axiomatic that '[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.' " (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.) Here, nothing indicates the jury was confused about accomplice testimony. In light of the court's thorough instruction on the issue, we presume the jury understood and applied the court's instructions. Loustaunau notes in his opening brief the holding in Noguera, but contends it deals with CALJIC No. 2.17, and not CALCRIM No. 301. We conclude the two instructions are substantially similar, and therefore Noguera governs this case and there was no instructional error.
In any case, based on the analysis set forth above, any instructional error was harmless beyond a reasonable doubt.
III.
Loustaunau contends the trial court erred in denying his post-conviction request for access to juror identifying information for him to prepare a new trial motion, because the jurors committed misconduct by not beginning deliberations anew, thus violating his rights to a full hearing and procedural due process under the Sixth and Fourteenth Amendments of the federal Constitution.
Applicable Law
To obtain a hearing on a petition for release of juror identifying information, the defendant must make a prima facie showing of good cause for disclosure. (Code Civ. Proc., § 237, subd. (b).) To meet this burden, the defendant must show the information is necessary for developing a motion for new trial or other lawful purpose. (Code Civ. Proc., § 206, subd. (g); People v. Santos (2007) 147 Cal.App.4th 965, 977; People v. Carrasco (2008) 163 Cal.App.4th 978, 989.) More specifically, there must be a " 'sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial.' " (People v. Carrasco, at p. 990.)
" 'Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror's right to privacy outweigh the countervailing public interest served by disclosure of the juror information.' " (People v. Carrasco, supra, 163 Cal.App.4th at p. 990.) Further, to support disclosure of juror identifying information, the alleged misconduct must be " 'of such a character as is likely to have influenced the verdict improperly.' " (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) If the record shows that investigation of alleged juror misconduct would not reveal anything prejudicial, the trial court may deny the petition for disclosure. (People v. Box (2000) 23 Cal.4th 1153, 1222-1223, disapproved on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)
We review a trial court's rulings on disclosure of juror identifying information under the deferential abuse of discretion standard. (People v. Carrasco, supra, 163 Cal.App.4th at p. 991.)
Background
The case was submitted to the jury in the last hour of proceedings on September 9, 2009. During deliberations, the jury sent the court three requests: for the autopsy report, including the forensic report; the murder weapon; and an explanation of both second degree murder and voluntary manslaughter. After deliberating another day and a half, the jury advised the court it was unable to reach a unanimous decision. That Friday, the court interviewed different jurors, who stated their third vote on the voluntary manslaughter charge revealed the following split: six voted for conviction, and three each voted for acquittal and first degree murder. After further interviewing individual jurors, and based on the parties' stipulation, the court replaced one of the jurors for not disclosing pertinent information during voir dire.
The following Monday, the court instructed the jury to begin deliberations anew.The reconstituted jury began deliberations at approximately 10:00 a.m. The jury sent notes requesting the court clarify what is depicted in a photographic exhibit, another view of the revolver, and the summaries of the detectives' 1988 interview with Simmons. That day the jury informed the court of its verdict at approximately 2:45 p.m., before the court had an opportunity to inform the jury the summaries they sought were not admitted into evidence.
After trial, and in preparation for a new trial motion on grounds of possible juror misconduct, Loustaunau's counsel moved the court to release personal juror information. A juror stated in a supporting declaration: "[D]eliberations did not begin anew as we were instructed to do. [¶] . . . less than 3 hours were spent on the case in the jury room following appointment of the new juror. [¶] It was discussed among several jurors that [the trial judge] would not accept a not guilty verdict following her meeting with jurors on Friday. [¶] . . . the lady juror in seat Number 8 or 9 was also pressured into changing her vote from not guilty to guilty."
The People opposed the motion, arguing the juror's declaration that deliberations did not begin anew was belied by the fact the reconstituted jury asked to see the murder weapon again. Further, the defense motion was based in large part on the short jury deliberations, but there is no minimum time a new jury must deliberate.
The trial court denied the request for juror information on grounds the juror declaration failed to state potential juror misconduct and to create a presumption of juror misconduct. The court ruled, "I want to make clear on the record that there's an allegation here that several jurors discussed me in jury deliberations and that I would, apparently, not accept a not guilty verdict following a meeting with jurors on Friday. I think that meeting was referring to a juror misconduct hearing that the court conducted . . . . The record previously made was quite clear on that decision to excuse that particular juror. And I want to make clear for the record that I never stated nor indicated during that hearing that the jurors were required to reach a verdict at any time." The court added, "So there was never an indication nor insinuation to the jurors that they were either supposed to reach a not guilty verdict or told to reach a particular guilty verdict or told that they could not hang or be in a situation in which I would not accept a hung jury." Loustaunau did not file a new trial motion.
Analysis
The court did not abuse its discretion in determining both that Loustaunau failed to meet his burden of making a prima facie showing of good cause for a hearing on his petition for release of juror identifying information, and for the disclosure of that information. The court concluded the defense did not make a prima facie claim of jury misconduct, the predicate for obtaining the jurors' names and addresses, despite the
juror's declaration they failed to deliberate anew. The court's finding is reasonable in light of the court's instruction to the jury, which the jury is presumed to have followed, to begin deliberating anew. The available evidence also shows the jury deliberated because it sought to see the revolver again, and also sent the trial court two different requests from those sought by the original jury.
Loustaunau claims per se reversal is required, but even if a lesser standard is applied, he suffered ample prejudice because the reconstituted jury deliberated for only three hours before reaching a unanimous verdict. We conclude that the time it took for the jury to deliberate is not dispositive on the issue of whether it failed to deliberate anew. We note that factors influencing the jury's speed of deliberations could have included that a weekend intervened between the deliberations of the original jury and the second jury, and it is likely the jurors had a different perspective after that time off. Further, one juror had been dismissed, and the new jury had the benefit of the court's instruction to deliberate anew.
IV.
Loustaunau contends the cumulative effect of his three claimed errors discussed above requires reversal of this case because his due process and fair trial rights under the Fourteenth Amendment of the federal Constitution were violated.
In a close case, the cumulative effect of multiple errors may be sufficient to cause the trial to have been unfair and hence cause a miscarriage of justice. (People v. Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds by People v. Morante (1999) 20 Cal.4th 403, 415.) Multiple errors may require reversal even when the errors, considered individually, would not warrant the same conclusion. (People v. Jackson ( 1991) 235 Cal.App.3d 1670, 1681.) If, in the absence of the cumulative errors, it is reasonably probable that the jury would have reached a result more favorable to a defendant, the decision must be reversed. (People v. Holt (1984) 37 Cal.3d 436, 459, superseded by statute on another ground as stated in People v Muldrow (1988) 202 Cal.App.3d 636, 645.) Having disposed of the Confrontation Clause claim on harmless error grounds and found no other error, we reject this argument.
V.
Loustaunau contends the trial court violated his state and federal rights to be free from ex-post facto punishment by imposing $1000 for parole revocation (§ 1202.45), $30 for court security (§1465.8), and $30 for court facilities (Govt. Code § 70373).
The People concede, and we agree, the $1000 parole revocation fine imposed under section 1202.45 was improper and should be stricken because the statute was implemented in 1995, after Loustaunau's offense. (People v. Flores (2009) 176 Cal.App.4th 1171, 1182; People v. Callejas (2000) 85 Cal.App.4th 667, 678.)
Loustaunau recognizes that the California Supreme Court resolved that the Legislature intended to apply the section 1465.8 fee retroactively, and it was nonpunitive, therefore there was no violation of the ex post facto clause. He concedes we are bound by that ruling. (People v. Alford (2007) 42 Cal.4th 749; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) Nonetheless, he raises the claim here to preserve it for federal review.
The court in People v. Castillo (2010) 182 Cal.App.4th 1410, 1414-1415, applied the analysis in People v. Alford, supra, 42 Cal.4th 749 to court facilities fee imposed under Government Code section 70373, and ruled the fee did not implicate ex post facto considerations. We agree with the court's reasoning in People v. Castillo, at pages 14140-1415, and conclude the trial court did not err in imposing the court facilities fee under Government Code section 70373.
DISPOSITION
The Judgment is affirmed. The trial court is directed to amend the abstract of judgment by striking the Penal Code section 1202.45 parole revocation fee and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.