Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA049564 Ronald S. Coen, Judge.
Law Offices of Chris R. Redburn and Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Adrian Salvador Mariscal, appeals from his convictions for first degree murder (Pen. Code, § 187, subd. (a)) and firearm possession by a felon (§ 12021, subd. (a)(1)) and the jurors’ findings that he personally used a firearm causing death (§§ 12022.53, subds. (b), (c), (d), (e)(1)) and the killing was committed for the benefit of a criminal street gang. (186.22, subd. (b).) Defendant argues the trial court improperly: excluded evidence; admitted autopsy photographs; and denied his dismissal motion. The Attorney General argues an additional court security fee should have been imposed. We affirm as modified.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
Defendant and Fernando Mercado were members of the local gang. On September 5, 2004, Mr. Mercado and a fellow gang member, Josue Hernandez, were in a black, four-door Tahoe truck. The truck belonged to Mr. Hernandez’s mother. Mr. Hernandez drove to Rayen Street where another gang member, Juan Castaneda, lived. As they drove by Mr. Castaneda’s apartment, they saw defendant, Emmanuel Orendain, and another individual identified only as “Gumby.” Mr. Mercado and Mr. Hernandez stopped to speak with these individuals. They discussed the fact that opposing gang members had been “shooting up” the neighborhood. Thereafter, defendant and Mr. Orendain got into the backseat of the Tahoe truck. Mr. Hernandez was driving and Mr. Mercado was in the front passenger seat. Mr. Hernandez drove into the rival gang territory. They saw a man, later identified as Eric Arenas, near a brick wall. Mr. Arenas “threw up” the rival gang sign. Mr. Hernandez circled the area to look for police presence. Mr. Mercado testified that they intended to kill the man to gain respect. Defendant said: “‘Fuck this fool. Let’s go get him.’” Mr. Mercado understood that to mean that they would kill the man.
They returned to Mr. Casteneda’s apartment building where defendant procured two guns. Defendant had a black .32 caliber automatic handgun. Mr. Orendain had a .357 caliber chrome revolver. Mr. Hernandez then drove back to where they had seen Mr. Arenas. Mr. Hernandez parked down the street from where Mr. Arenas had been standing. Defendant wore a sweater with a hood and a black hat that covered his head. Mr. Orendain covered his face with a bandana. Defendant and Mr. Orendain walked toward Mr. Arenas. They shot at Mr. Arenas as they approached him. Defendant and Mr. Orendain ran back to the Tahoe truck. Mr. Hernandez pulled along side them and they got into the Tahoe truck, which then drove away. Before he was shot, Mr. Arenas was asked where he was from. Mr. Arenas responded that he was from the rival gang. Defendant and Mr. Orendain said they emptied their guns into Mr. Arenas.
Mr. Arenas died of 10 gunshot wounds to his head, shoulder, chest, abdomen, right arm, hip, left forearm, and right foot. Photos taken at the scene of the shooting depicted the wrought iron fence next to where Mr. Arenas’s body was found. The fence had letters identifying the rival gang written on it. Mr. Arenas had letters representing the rival gang tattooed on the back of his head. Also the name of the rival gang was tattooed on Mr. Arena’s arms.
A mother and a daughter lived in an apartment on Columbus Street on September 5, 2004. The mother heard a noise that caused her to look outside. The mother saw Mr. Arenas hitting the window of a parked car. Later, the mother saw Mr. Arenas throw a bottle at a passing green van. At approximately 3:15 a.m., the mother saw a black truck, which resembled a Chevrolet Suburban or Tahoe, stop. Two young men got out of the truck. One was thin, wore gray pants, and appeared to be 17 to 19 years old. This man took off his sweater and tied it so that it covered his face. The second man was also about 17 to 19 years old, weighed 130 or 140 pounds and wore black. He also covered his face. Both men held guns. One man had a gun with a brown handle and gray barrel. The two men approached Mr. Arenas and fired multiple shots at him. Both men then ran back and got into the black truck, which drove away toward Nordhoff Street. Both the mother and the daughter later identified the black truck from a photograph.
On September 9, 2004, four days after Mr. Arenas was shot, Los Angeles Police Officer Shawna Green saw defendant standing in front of Mr. Castaneda’s apartment building with Juan Unzueta, another local gang member. When Officer Green attempted to contact defendant, the two men ran away. Officer Green was unable to catch defendant. However, at approximately midnight that evening, Officer Green, accompanied by a partner, went with undercover officers to the same apartment building. The officers saw defendant and Mr. Unzueta. A white van pulled up. When the van drove away, the officers believed defendant and Mr. Unzueta had gotten inside. Officer Green returned to her patrol car. The white van was pursued by other officers on a high speed chase.
The van crashed as it attempted to exit a freeway. Two individuals ran from the van. Mr. Unzueta was caught by police officers. Mr. Orendain, who was still inside the van, was also arrested. Officer Green arrived at the crash site. Inside the van, officers located photographs depicting defendant with a gang tattoo on his neck. Defendant was “throwing up” a gang sign. Also in the photos were Miguel Ayala and Leonardo Rosas, known to be local gang members. Mr. Ayala and Mr. Rosas were also using their hands to demonstrate local gang signs. Another gang member, James Reyes, was also in the photo. Another photo depicted defendant with Israel Pinedo, Mr. Unzueta, Mr. Reyes, and, Mr. Mercado. All five individuals were using their hands to spell out the letters for the local gang.
On September 10, 2004, Officers Green and her partner again saw defendant. When they tried to arrest defendant, he ran. Defendant “threw” the local gang sign and looked directly at Officer Green when he did so. Defendant was later taken into custody inside an apartment, where he had fled.
Mr. Orendain’s home was searched following his arrest. Inside Mr. Orendain’s home was a three-page document that included the names of Mr. Hernandez, Mr. Orendain, and defendant along with their gang monikers. A shoe box located at Mr. Orendain’s home contained a four-page document depicting generic illustrations of a semi-automatic pistol, its components and their functions, as well as bullets. Mr. Mercado was arrested at his grandmother’s home on October 5, 2004. Mr. Mercado gave a statement to police in a recorded interview. The tape recording of that interview was played for the jurors at trial. In January 2005, while together in connection with a court appearance, Mr. Orendain threatened Mr. Mercado. Mr. Mercado described Mr. Orendain’s threat, “He said he can have me killed.” Defendant also spoke to Mr. Mercado. Mr. Mercado testified, “He said . . . my life was in his hands.” Mr. Mercado pled guilty to voluntary manslaughter in this case in exchange for his testimony.
Officer Green was assigned to gang units for six years at the time of trial. Officer Green had extensive training and experience in gang activities. Officer Green was assigned to work with the gang to which defendant belonged. In that capacity, Officer Green participated in the execution of search warrants at suspected gang members’ homes. Officer Green was familiar with “roll calls” consisting of gang member lists. Officer Green had hundreds of contacts, with victims, witness and suspects involving gang issues and the local gang specifically. Most of Officer Green’s information about a gang came from the members themselves. At the time of the shooting in this case, the local gang had approximately 200 documented gang members. Officer Green was familiar with the local gang’s symbols, graffiti, and hand signs. The local gang’s primary criminal activities involved vandalism, street narcotics sales, robberies, assaults with deadly weapons, drive-by shootings, attempted murders, and murders.
Officer Green was familiar with Daniel Esparza, Jose Ivan Hernandez, Fernando Vega, and Carlos Gonzalez, who were members of the local gang. Mr. Esparza had convictions for murder with use of a firearm (case No. PA049963) and attempted murder with use of a firearm (case No. PA041229). Mr. Hernandez was convicted of murder and attempted murder (case No. LA038882). In addition Mr. Vega and Mr. Gonzalez were convicted of voluntary manslaughter (case No. LA042513). These offenses were demonstrative of the type of activities committed for the benefit of the local gang.
Officer Green knew defendant as a member of the local gang through personal contacts dating back to 1999. Defendant admitted that he was a member of the local gang in 1999 and 2000. On November 15, 2001, Officer Green found narcotics and gang paraphernalia at defendant’s home. At that time, defendant admitted he had been a member of the local gang for four years. Officer Green served defendant with a gang injunction. On December 19, 2001, Officer Green was at defendant’s home regarding a probation violation. Defendant’s mother was served with the gang injunction. Defendant again admitted his membership in the local gang. The local and rival gangs were enemies in 2004 and remained so at the time of trial.
Officer Green believed the “roll call” documents recovered from Mr. Orendain’s home were significant because the papers identified several active members of the local gang, including defendant. Both defendant and Mr. Orendain had tattoos representing the local gang at the time of their arrest on September 10, 2004. Mr. Mercado and Mr. Hernandez also had local gang tattoos on their bodies. Based upon her experience, Officer Green found it significant that four known local gang members went into a rival gang neighborhood and killed someone. The fact that the victim had tattoos of the rival gang on his body, coupled with the statements of a witness to the crime, suggested he was active in the gang at the time of his death.
Gang members “put in work” for their gang by committing crimes for the gang. In return, they gain the respect of their fellow gang members and the community. In Officer Green’s opinion Mr. Arenas was shot by known local gang members to benefit the local gang. The gang members benefit by killing an enemy, which makes their gang stronger and elevates the status of the gang members in the car at the time of the murder. The shooting further promotes the gang by putting fear and intimidation within the community.
III. DISCUSSION
A. Defendant’s Motion to Reopen His Case
1. Factual and procedural background
Defendant argues that the trial court improperly denied his motion to reopen his case following the closing arguments. Defendant further argues that defense counsel’s failure to present evidence by additional witnesses constituted ineffective assistance. On December 13, 2006, the prosecutor and defense counsel gave their closing arguments. Defense counsel argued that the alibi testimony given by defendant’s sister was the most believable. “The sister was probably the most believable person. . . . [¶] I’m sure she loves her brother, but I don’t think she would lie for him.” On rebuttal the prosecutor argued: “And related to that alibi witness is what’s called failure to call logical witnesses. So think about this, folks. You are on trial for murder. And you call your sister to say it can’t be me, I’m at home. . . . [¶] . . . [¶] At one point I think she said, well, I did tell some people in the church. Where are they? Wouldn’t you bring in the people to confirm that evidence, the critical alibi, which means if you believe that alibi, we’ve got the wrong guy. It’s the most central piece of evidence to show his innocence, his entire innocence theory. [¶] You don’t bring in a single other person. That’s crazy, folks. [¶] But then she said, I told the defense attorney, Linda Wieder. That’s the first defense attorney way back at the beginning. Do you remember her statements, I told Linda Wieder way at the beginning of the case. [¶] Where is Linda Wieder, the attorney who represented that man for murder on a murder case, to say, you know what, his sister did tell me at the very beginning. [¶] It’s all bull, folks. That’s why you don’t have any of those other pieces of evidence or witnesses.”
Thereafter, defense counsel moved to reopen defendant’s case, arguing: “From my understanding of the Evidence Code, I would not have been able to put on witnesses from the church as the District Attorney questioned the alibi witness, who was Ms. Mariscal - - he questioned her on his cross-examination. [¶] . . . [¶] I wouldn’t have been able to bring anyone in because there was no prior inconsistent statements.” The trial court responded: “What the District Attorney meant by where are the witnesses from the church, is to show that the sister said something to somebody for the nonhearsay purpose of making a statement early on. Not for any truth of the matter asserted.” Defense counsel repeated, “Well, under the law I wouldn’t have been able to call them.” The trial court responded, “That’s not correct.” The trial court denied defense counsel’s motion to reopen. Defendant’s attorney’s subsequent mistrial motion based upon ineffective assistance of counsel was also denied. The trial court noted: “Counsel, trying to fall on your own sword is admirable. It is not going to work. You were not ineffective in this case. You tried a diligent trial. You are a very valuable attorney. You have been in the business for 34 years. [¶] . . . [¶] [T]hose witnesses would not have added much more.”
2. The trial court could reasonably deny the motion to reopen
We review a trial court’s ruling on a motion to reopen a criminal case to permit the introduction of additional evidence for an abuse of discretion. (§ 1094; People v. Marshall (1996) 13 Cal.4th 799, 836; People v. Rodriguez (1984) 152 Cal.App.3d 289, 294-295.) The California Supreme Court held: “Although a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor, this does not mean the court must allow an unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy. [Citations.]” (People v. Marshall, supra, 13 Cal.4th at p. 836; People v. Jennings (1991) 53 Cal.3d 334, 372; People v. Babbitt (1988) 45 Cal.3d 660, 684.) In People v. Funes (1994) 23 Cal.App.4th 1506, 1520, our colleagues in the Court of Appeal for the First Appellate District held: “In determining whether a trial court has abused its discretion by refusing a defense request to reopen, we consider the following factors: (1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. [Citations.]” (See also People v. Goss (1992) 7 Cal.App.4th 702, 706; People v. Rodriguez, supra, 152 Cal.App.3d at pp. 294-295; People v. Newton (1970) 8 Cal.App.3d 359, 383.) A trial court could reasonably deny a motion to reopen where it comes too late and fails to propose to offer new, particularly significant evidence. (People v. Earley (2004) 122 Cal.App.4th 542, 546; cf. People v. Jones (2003) 30 Cal.4th 1084, 1110.)
In this case, the presentation of testimony had concluded and closing arguments had been made. Although that did not preclude the grant to reopen the defense case, it involved the testimony of witnesses that were known to defendant and his sister. Further, the evidence was known to defendant’s former attorney before a substitution of counsel occurred. Moreover, no estimate was given regarding the amount of time involved in the identification, location, and availability of these witnesses. Significant delay may have resulted. Without abusing its discretion, the trial court could find this delay would unreasonably cause inconvenience to it, counsel, and jurors.
Furthermore, the testimony of these witnesses would not have made a significant difference in the outcome of the trial. Defense counsel argued: “The offer of proof is that the two witnesses [church members] would come in and say what [Ms. Mariscal] told them, when she told them, exactly. It’s only fair that the jury hear this after this charge of fabrication.” This offer of proof was inadequate to support defendant’s alibi and the trial court could reasonably conclude the proffered testimony was irrelevant. Melissa Mariscal testified during trial that defendant was innocent because he “probably” came to her home by midnight on the day before the shooting. Ms. Mariscal further testified that she saw defendant the following morning. Ms. Mariscal believed that she would have had to let him into her home because he did not have a key. As a result, Ms. Mariscal surmised that he could not have been involved in the 3 a.m. shooting. The prosecutor inquired of Ms. Mariscal, “Did you ever tell anyone in the church or any other trusted friend that we got the wrong guy?” Ms. Mariscal answered, “I have said he is innocent, people from church.” The trial court could reasonably deny the motion to reopen defendant’s case. There was no constitutional error or abuse of discretion.
In addition, any error in denying the motion to reopen was harmless. (People v. Jones, supra, 30 Cal.4th at p. 1117; People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Brown (1988) 46 Cal.3d 432, 446-447; People v. Watson (1956) 46 Cal.2d 818, 836.) Significant evidence supported defendant’s convictions. Mr. Mercado’s statement to police and testimony at trial consistently identified defendant and Mr. Orendain as the individuals who got out of the black Tahoe truck and shot Mr. Arenas several times at close range in retaliation for rival gang activities. Defendant matched the description of one of the assailants given by two eyewitnesses. Defendant was heavily involved in the local gang and ran from police on three occasions following the murder. There is no reasonable probability that if the witnesses testified Ms. Mariscal told them defendant was innocent, the trier of fact would have reached a different result.
A final note is in order concerning the order denying the motion to reopen. Insofar as defendant argues that the order led to the exclusion of evidence, we agree with the Attorney General that no proper offer of proof was made. (Evid. Code § 354; People v. Honig (1996) 48 Cal.App.4th 289, 345.) Thus, we agree with the Attorney General that defendant’s arguments, insofar as they suggest pertinent evidence was excluded when the motion to reopen was denied, have been forfeited because no proper offer of proof was made.
3. The mistrial motion
Defendant argues that the trial court improperly denied the mistrial motion based upon counsel’s ineffectiveness. We find the trial court did not abuse its discretion in denying the mistrial motion. We review the trial court’s denial of defendant’s mistrial motion for abuse of discretion. (People v. Ayala (2000) 24 Cal.4th 243, 283-284; People v. Lucero (2000) 23 Cal.4th 692, 713-714;People v. Williams (1997) 16 Cal.4th 153, 251; People v. Marshall, supra, 13 Cal.4th at p. 839.) The Supreme Court has held: “‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’” (People v. Hines (1997) 15 Cal.4th 997, 1038, quoting People v. Haskett (1982) 30 Cal.3d 841, 854; see also People v. Stansbury (1993) 4 Cal.4th 1017, 1060; People v. Cooper (1991) 53 Cal.3d 771, 838-839.) In this case, the trial court found no apparent prejudice. Defendant has not demonstrated any irreparable damage, or any at all, resulted from defense counsel’s failure to call the witnesses that Ms. Mariscal spoke to at church. Indeed, even if the failure was to be considered prejudicial, the evidence of defendant’s guilt renders such remarks harmless under any standard of prejudice based view. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
Before ineffective assistance of counsel may be found, there must be proof not only that the attorney’s performance was deficient but also that defendant suffered prejudice as a consequence. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Williams (2006) 40 Cal.4th 287, 304; People v. Horton (1995) 11 Cal.4th 1068, 1122; In re Fields (1990) 51 Cal.3d 1063, 1068-1069.) Furthermore, we engage in a presumption, which is defendant’s burden to overcome, that trial counsel’s performance comes within the wide range of reasonable professional assistance and that his or her actions were a matter of sound trial strategy. (Strickland v. Washington, supra, 466 U.S. at pp. 689-690; People v. Prieto (2003) 30 Cal.4th 226, 261-262; People v. Lewis (1990) 50 Cal.3d 262, 288.) We have determined that no prejudice resulted from the failure to call the witnesses at trial. As a result, any deficiency in counsel’s representation was of no consequence.
B. Autopsy Photographs
1. Background
Defendant argues that the trial court improperly admitted 24 autopsy photographs into evidence. More specifically, on appeal, defendant argues that the photographs were cumulative of other evidence on the issue of Mr. Arena’s wounds, irrelevant to the proof of any disputed fact, and more prejudicial than probative pursuant to Evidence Code section 352. Prior to trial, the prosecutor indicated he intended to introduce the autopsy photos arguing: “This victim, your honor, was shot 10 different times with two separate guns, which is critical to explain and bolster the credibility of the witness who was very specific that two different guns were used. And he describes those guns. And lo and behold, the ballistics confirms that, in fact, a .357 or .38, and a .32 semiauto were also used. [¶] This is, again, to show malice, premeditation and deliberation and specific intent to kill. It will also show, via coroner’s testimony, the trajectory of those bullets which will explain two different guns, and in all likelihood two different people using those guns based on the trajectory.” Defense counsel offered to stipulate that two different guns were used. When the prosecutor declined to accept that stipulation, defense counsel objected to the introduction of any autopsy photographs on the grounds that they were cumulative: “The evidence of two different guns is coming in from the coroner and ballistics. The pictures are not relevant for that reason.” In denying the motion, the trial court noted: “In People versus Samuels - - before I look at the photos - - in People versus Samuels, at 36 Cal.4th 96, it was in accord with a long line of cases that photos are not cumulative because testimony regarding the contents has also been introduced. [¶] I have looked at every one of these photographs. They do not appear to be cumulative. They do not appear to be repetitious. They show different wounds and they appear in large part to be more clinical than gruesome. And I will allow these photographs to be admitted.”
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
2. Waiver
The sole ground of defendant’s objection in the trial court to the photographs was they were cumulative. No prejudice based Evidence Code section 352 objection was introduced. The California Supreme Court has held: “Evidence Code section 352 gives trial courts discretion to exclude evidence the probative value of which is ‘substantially outweighed’ by the probability that admitting it will unduly prolong the proceeding, prejudice the opposing party, confuse the issues, or mislead the jury. To preserve a claim that a trial court abused its discretion in not excluding evidence under this section, a party must make a timely and specific objection when the evidence is offered.” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015 [issue not preserved for review where defendant failed to make a specific objection on the grounds set forth in Evidence Code section 352]; People v. Hardy (1992) 2 Cal.4th 86, 148; People v. Fierro (1991) 1 Cal.4th 173, 215.) Here, defendant’s objection to the autopsy photographs was not premised on Evidence Code section 352 prejudice based grounds as raised on appeal. Rather, defense counsel merely objected to the cumulative nature of the photographs. Thus, defendant’s undue prejudice contention has been forfeited.
3. The trial court could reasonably find the photographs were not cumulative
The California Supreme Court has repeatedly rejected the defense contention that photographs of the murder victim must be excluded as cumulative simply because testimony has also been introduced to prove facts the pictures are intended to establish. (People v. Samuels (2005) 36 Cal.4th 96, 123-124 [autopsy photos relevant to illustrate and corroborate the testimony of the medical examiner regarding the autopsy and manner of death]; People v. Samayoa (1997) 15 Cal.4th 795, 834 [photographs of the crime scene and autopsies of the victims were probative of the circumstances of the murders and the defendant’s intent to kill]; People v. Jackson (1996) 13 Cal.4th 1164, 1216 [autopsy photographs relevant to refute defendant’s statement the victim had been lying down at the time she was shot]; People v. Lucas (1995) 12 Cal.4th 415, 449-450 [photographs of victims’ bodies taken at the scene of the crime and morgue were “relevant to corroborate and illustrate the testimony” of the coroner concerning the number and nature of the wounds and location and placement of the bodies]; People v. Cain (1995) 10 Cal.4th 1, 29 [photographs of the victims at the crime scene and autopsy photographs relevant to prosecution contentions that defendant was the actual killer, intended to kill his victims, and did so during the commission of robbery and rape].)
The photographs in question were introduced during the testimony of Los Angeles County Deputy Medical Examiner Jeffrey Gutstadt, who performed the autopsy on Mr. Arenas. Dr. Gutstadt designated the victim’s gunshot wounds as Nos. 1 through 10. The numbers corresponded with the wounds starting from the top of Mr. Arenas’s body and working downwards. Dr. Gutstadt utilized the autopsy photographs while testifying to demonstrate: the trajectory of the bullets as they entered Mr. Arenas’s body; the approximate position of Mr. Arenas’s body as each wound occurred; and bullets and bullet fragments recovered from Mr. Arenas’s body. The photographs were relevant to demonstrate why Mr. Arenas’s died as well as the manner in which he was killed. (See People v. Samuels, supra, 36 Cal.4th at pp. 123-124; People v. Crittenden (1994) 9 Cal.4th 83, 132.)
4. Prejudice versus probative value
Even if we and the trial court were to construe defendant’s Evidence Code section 352 cumulative objection to be one premised on the undue prejudice resulting from consideration of the autopsy photographs, no abuse of discretion occurred. The trial court has broad discretion in weighing the probative value of photographs of a murder victim with their potential prejudicial effect. (People v. Samuels, supra, 36 Cal.4th at p. 123; People v. Medina (1995) 11 Cal.4th 694, 754-755 [trial court properly admitted an autopsy photograph showing the top of the victim’s head with most of the skin, skull, and brain removed to demonstrate the trajectory of a bullet]; People v. Crittenden, supra, 9 Cal.4th at pp. 132-133; People v. Wilson (1992) 3 Cal.4th 926, 938; People v. Price (1991) 1 Cal.4th 324, 441.) We have independently reviewed the photographs. Although they are graphic, they are not unduly shocking or inflammatory. The trial court could reasonably find that the photographs did not substantially outweigh the probative value. (See People v. Anderson (2001) 25 Cal.4th 543, 592 [admitted photographs of victims’ bodies were not offensive beyond the events and conditions they portray]; People v. Hart (1999) 20 Cal.4th 546, 644-648.)
C. Dismissal Motion
1. Background
Defendant argues the information should have been dismissed because his telephone conversations were illegally wiretapped. On September 20, 2005, the prosecution sought and received a court order to record defendant’s conversations from the county jail. Judge Larry P. Fidler signed the order. Also, Judge Fidler sealed the application for the electronic recording, declaration, and the order itself. Thereafter, pursuant to Judge Fidler’s order, the Los Angeles County Sheriff’s Department recorded 67 telephone calls made by defendant from the jail between September 21 to October 17, 2005. The telephone system warns all inmates making calls from that facility through an automated system in the phone receiver, “‘This call is from a correctional institution and is subject to monitoring and recording.’” On February 10, 2006, the prosecutor mailed a copy of a computer disk containing defendant’s calls to defendant’s first lawyer, Linda Wieder. Thereafter, Ms. Wieder notified the prosecutor that one of the recorded calls involved a voice message defendant left for her.
On March 6, 2006, defendant moved to dismiss his case alleging his “federal and state Constitutional rights to due process were violated by the . . . electronic monitoring and dissemination of” telephone calls with Ms. Weider. In denying the dismissed motion, the trial court noted: “In People versus Kelley [(2002) 103 Cal.App.4th 853, 857-860], it held that under Title 18 of the United States Code, section 511, subdivision (2), subdivision (c), as long as the prisoner is given meaningful notice that telephone calls over phone lines are subject to monitoring, a prisoner’s decision to engage in conversations over these phones constitutes an implied consent to that monitoring and takes any wiretap out of federal law. [¶] I do note that there was a state order in this case signed by a superior court judge that allowed monitoring under state law. [¶] Kelley continued that under state law the prosecutor does not commit misconduct when he seeks surreptitious recording of conversations between the imprisoned defendant and the third parties. [¶] Based upon the evidence I have before me, I do find that the defendant engaged in this, whatever conversations he engaged in, knowing they may be monitored, including any conversation with counsel, that, as such, he waived the privilege. [¶] I take further note that even had he not waived any privilege, there is no prejudice to defendant in that the People, specifically Mr. Colello, did not hear any statement that defendant may have made.”
2. The trial court could properly deny the dismissal motion
As explained by Associate Justice Linda Marino Gemello of the Court of Appeal for the First Appellate District: “With certain limited exceptions, Title III prohibits of unauthorized interception of ‘any wire, oral, or electronic communication.’ (18 U.S.C. § 2511(1)(a).) Title III ‘protects an individual from all forms of wiretapping except when the statute specifically provides otherwise.’ (Abraham v. County of Greenville, S.C. (4th Cir. 2001) 237 F.3d 386, 389.) Those protections apply to prisoners and pretrial detainees. (U.S. v. Faulkner (10th Cir. 2006) 439 F.3d 1221, 1222, 1223-1224.) When information is obtained in violation of Title III, ‘no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial.’ (18 U.S.C. § 2515.) . . . [¶] . . . Every federal circuit court to address the issue has concluded that Title III is not violated when a jail or prison routinely monitors and records outgoing calls placed by inmates on the institution’s telephones and the inmates are put on notice of the recording policy. Most circuits have relied on the consent exception to Title III, which provides: ‘It shall not be unlawful . . . for a person acting under color of law to intercept a wire, oral, or electronic communication, where . . . one of the parties to the communication has given prior consent to such interception.’ (18 U.S.C. § 2511(2)(c).) Those courts have concluded that an inmate who uses jail or prison telephones with knowledge of a recording policy impliedly consents to the monitoring and recording of the calls. [Citations.]” (People v. Windham (2006) 145 Cal.App.4th 881, 886-887.)
In People v. Kelley, supra, 103 Cal.App.4th at pages 859-860, Associate Justice Gemello previously held that where prison phone systems contain a warning at the beginning of each call that all calls are subject to monitoring or recording, an inmate using the phones has meaningful notice. As a result, an inmate using the jail phone system impliedly consents to such monitoring, thereby taking any wiretap fully compliant with federal law. Moreover, the Kelley court held: “California’s wiretapping statutes, like Title III, do not apply to the monitoring and recording of conversations where one party consents. (Pen. Code, § 631, subd. (a) [prohibiting only ‘unauthorized’ wiretap]; People v. Canard (1967) 257 Cal.App.2d 444, 463-464.)” (See also People v. Loyd (2002) 27 Cal.4th 997, 1015 [an inmate is given meaningful notice of telephone monitoring by a recorded warning that is heard by the inmate through the telephone receiver].)
In this case, Judge Fidler issued an order authorizing the monitoring and recording of defendant’s telephone calls. In addition, defendant made some 67 telephone calls from the jail. The county jail system is programmed to caution those using the phone that the calls were subject to monitoring and recording. Defendant impliedly consented to those limitations. As a result, no constitutional violation occurred. The trial court could properly deny the dismissal motion. Moreover, the contents of the telephone call in question were not known to the prosecutor. The prosecutor indicated he did not plan to utilize the conversation in any manner. As a result, any error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson, supra, 46 Cal.2d at p. 836.)
D. Court Security Fee
The Attorney General argues that the trial court should have imposed a court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed one court security fee. As a result, an additional section 1465.8, subdivision (a)(1) fee shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the imposition of one additional court security fee. The judgment is affirmed in all other respects. The clerk is to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: ARMSTRONG J., KRIEGLER, J.