Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF120929 J. Thompson Hanks, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)), during which he discharged a firearm proximately causing death (§ 12022.53, subd. (d)). The jury further found that the special circumstance that defendant murdered the victim for financial gain (§ 190.2, subd. (a)(1)). Defendant was sentenced to prison for life without the possibility of parole and 25 years to life. He appeals, claiming the prosecutor made an improper argument to the jury concerning reasonable doubt, there was insufficient evidence to support the murder for financial gain special circumstance and the sentencing court erred in imposing a parole revocation fine under section 1202.45. We reject defendant’s first two contentions and agree with the third. Therefore, we direct the trial court to strike the parole revocation fine, omit references to it from the abstract of judgment and minutes of the sentencing hearing, and, otherwise, affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts concerning this crime will be stated in conjunction with our discussion of the sufficiency of the evidence to support the murder for financial gain special circumstance finding.
Issues and Discussion
1. The Prosecutor’s Argument Concerning Reasonable Doubt
The jury was informed, as part of the instruction on reasonable doubt, that it was “that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
During his opening argument to the jury, the prosecutor said, as part of his assertion that he had the burden of proof beyond a reasonable doubt and had met it, “What is beyond a reasonable doubt? After considering all the evidence, you have an abiding conviction of the truth of the charge involved here. And what is an abiding conviction? [¶] An abiding conviction is that there’s only one reasonable interpretation of the evidence. And like I said before, based on the evidence that we have, . . . there is no other reasonable interpretation as to what happened. [¶] . . . [¶] [W]hen you take all the evidence in this case, when you realize what happened and why, you will come only to one conclusion, one reasonable conclusion about the defendant’s guilt.” Defendant did not object to these remarks below.
During her argument to the jury, defense counsel said, “. . . [T]he district attorney in his . . . argument talked about the jury instruction on reasonable doubt, and he read you the term[,] ‘abiding conviction.’ And I believe what he defined abiding conviction to be [that there] is only one reasonable interpretation. [¶] . . . [T]hat is not what an abiding conviction means, not that there’s one reasonable interpretation. You have to have an abiding conviction of the truth of the charge, and what that means is a long-lasting belief in the decision that you make in court in this case . . . [W]hat that means is after you have gone back and you’ve deliberated and you’ve made a decision in this case, you’re going to go home. A week from now, two weeks from now, a month from now, years from now, you still feel confident. You still have an abiding conviction in the choice and decision you made when you reached a verdict . . . in this case. That’s what that means, not one reasonable interpretation of the evidence.”
In response, the prosecutor said during closing argument, “The fact that an abiding conviction is a long-lasting belief--that is . . . the only reasonable interpretation. Because once you come to a reasonable interpretation, how is that not [a] long-lasting belief? How is that . . . reasonable conclusion . . . not a long lasting belief? [¶] If it’s reasonable, if it is what makes sense, if it is what the evidence tells you, how is it anything other than long-lasting?” Again, trial counsel for defendant did not object.
Defendant here contends that the prosecutor confused the idea of the only reasonable interpretation of the evidence and abiding conviction and in so doing diluted the requirement of the latter. We disagree. The term, abiding conviction, has a clear meaning to the average person. Otherwise, it would have to be defined for jurors. Jurors know what an abiding conviction is and it is precisely what defense counsel said it was. The prosecutor was merely arguing that when there is only one reasonable interpretation of the evidence and the jury has reached the only reasonable conclusion it could about defendant’s guilt, that interpretation/conclusion is an abiding conviction. He did not dilute the requirement of an abiding conviction –– he agreed with defense counsel’s definition of it, agreed that it was necessary, and simply asserted that when one has reached the only reasonable conclusion one can, that conclusion is an abiding one.
To whatever extent any juror felt that it did confuse him or her or dilute the requirement of an abiding conviction, that juror was bound by CALJIC No. 1.00, which provides, “If anything concerning the law said by the attorneys in their arguments . . . conflicts with [the] instructions on the law, you must follow [the] instructions.”
Having concluded that the prosecutor’s remarks did not confuse or mislead the jury or dilute the requirement of an abiding conviction, we also conclude that defense counsel at trial was not incompetent for failing to object to those remarks.
2. Sufficiency of the Evidence of Murder for Financial Gain
Defendant was a drug dealer. A day or two before the murder, defendant contacted a regular customer of his and asked the customer if he could get a pound and a half of marijuana for a friend of his. The customer contacted the victim, who said he would be able to obtain the contraband for defendant. The victim was to be the seller, the customer was to be the middleman, and would get a portion of the $5,400 sale proceeds for his involvement, and defendant was to be the buyer. Defendant agreed to this price. Defendant wanted the middleman to come to his home alone to deliver the marijuana, but the victim objected, insisting that he accompany the middleman. The morning of the “deal,” defendant asked his housemate to vacate the premises, telling him that he planned to entertain his girlfriend there and wanted to be alone with her. The middleman and the victim arrived and defendant escorted them into a soundproofed bedroom. The defendant left the room, saying he was going to get the money for the marijuana. As he came around the corner to re-enter the room, he held a pillow in front of the gun he was holding and fatally shot the victim in the chest. Before forcing the middleman to go into his bedroom next door, defendant took the victim’s wallet and removed $8 from it. Defendant told the middleman the latter had to help him “get out of this” and he threatened to send someone to hurt or kill him if “anything happens.” Defendant explained to the middleman that he did what he did because “he had some weed and some money in a storage unit and somebody stole . . . those two things out of that unit, and he had nothing to his name. [¶] . . . [H]e had to do this to get the weed[.]” Defendant left his house with the keys to the victim’s truck, the marijuana which the victim had brought to the house and the middleman, who accompanied defendant at the latter’s command. Defendant had changed his clothes to ones identical to those the victim was wearing when he arrived at defendant’s house and he drove the victim’s truck. Defendant drove to the apartment of a friend in Ontario, gave the friend some of the marijuana, for which the friend paid defendant $100-$200, and eventually drove the truck and the rest of the marijuana to another friend’s house in Big Bear. He gave his Big Bear friend some of the marijuana as payment for past debts.
The housemate considered the request unusual as each man had his own bedroom and each had entertained lady friends at the house with the other being present before.
Defendant was a guitar player who practiced in this bedroom.
The middleman testified that when he purchased marijuana from defendant in the past, he usually did so in the living room.
Defendant contends that there is insufficient evidence to support the jury’s finding that he killed the victim for financial gain. We disagree.
Defendant asserts that case law draws a distinction between killing to obtain a monetary gain and killing to obtain property directly from the robbery victim. He maintains that the latter is insufficient to support a special circumstance finding of murder for financial gain. He cites a number of cases, two of which directly contradict his premise.
The first is People v. Padilla (1995) 11 Cal.4th 891, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, footnote 1. Therein, the California Supreme Court responded to the defendant’s claim that his special circumstance finding was not supported by sufficient evidence because the killer received drugs, rather than money, in exchange for killing the victim, thusly, “Almost from its inception as part of the 1978 Briggs Initiative, we have construed the financial gain special circumstance to be at least as broad as, if not broader than, the predecessor 1977 provision. . . . ‘[T]he phrase [financial gain] is not a technical one . . . [T]he statutory language . . . indicates that it was intended to cover a broad range of situations.’ [Citation.] [¶] Given our conclusion that the current version was not intended by the voters to reduce the scope of the preceding ‘valuable consideration’ version of the financial gain special circumstance provision, defendant’s argument collapses. . . . [A]s a matter of both penal policy and practical concern, it makes little difference whether the coin of the bargain is money or something else of value: the vice of the agreement [to kill] is the same, the calculated hiring of another to commit premeditated murder.” (Id. at p. 934.)
Thus, eight years later, in People v. Crew (2003) 31 Cal.4th 822, which defendant also cites, the California Supreme Court rejected the defendant’s contention that the evidence was insufficient to support the financial gain special circumstance finding, saying, “Just before she left California for South Carolina with defendant, [the] murder victim . . . closed out her bank accounts, obtaining $10,500 in cash and $2,500 in the form of a money order. Within a day or two of her disappearance, defendant arranged for [his girlfriend] . . . to convert $5,000 into a cashier’s check payable to his stepfather. Defendant then opened a bank account in South Carolina and there deposited [the victim’s] $2,500 money order. He thereafter sold [her] clothing, personal possessions, horse, horse trailer, truck and [car]. From this evidence, a reasonable jury could find beyond a reasonable doubt that defendant killed [the victim] with an expectation of financial gain.” (Id. at p. 851, italics added.)
In this case, defendant, a drug dealer, replaced his lost stash of drugs and money by murdering the victim and taking his drugs. Within hours of doing so, he sold some of the marijuana he took from the victim to his Ontario friend. Within a day of the murder, he gave another portion of the “spoils” of the murder to his Big Bear friend in satisfaction of a debt he owed the latter. Contrary to defendant’s assertion, no one needed “[to] testif[y] . . . that [defendant] stated he killed [the victim] in order to sell the marijuana to someone else.” His actions took the place of words, assuming any were needed.
Defendant takes a slightly different tack in his reply brief than in his opening, claiming there was no showing that defendant took the victim’s marijuana for any purpose other than personal use. This was $5,400 worth of marijuana. Defendant was a drug dealer. The first two things he did with it was to sell it to two other people. There is no evidence and no inference that can be drawn that defendant intended to keep the marijuana for his own personal use — in fact, he did not.
3. Parole Revocation Fine
The sentencing court imposed a parole revocation fine of $10,000 pursuant to section 1202.45, which it then suspended “unless parole is revoked.” Defendant here contends that because he was sentenced to prison without the possibility of parole, in addition to 25 years to life, the fine should not have been imposed at all.
Section 1202.45 states, “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall . . . assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.” In People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 [opn. of Dist. 2, Div. 5], the defendant had been sentenced both to life without the possibility of parole, as well as 15 years to life plus 4 years. The appellate court noted that defendant was “conceivably eligible for parole” as to the latter. (Id. at p. 1184.) That court ultimately rejected the People’s contention that the sentence included a period of parole, triggering the section 1202.45 fee. (Id. at p. 1184.) It held, “The chances of recoupment of costs resulting from a section 1202.45 fine would be extremely rare from a prisoner serving sentences one of which prohibits parole and another from which the defendant could ultimately be paroled [as here]. Under imaginable circumstances, a governor could extend clemency, for example, by providing for parole eligibility. [Citation.] If granted parole eligibility by reason of executive clemency, then the prisoner would have to secure a parole release date from the Board of Prison terms. [Citation.] If actually released, then a defendant would have no duty to pay the section 1202.45 fine unless there was a violation of a parole condition. If the defendant violated a parole condition and was apprehended, then, and only then, under typical circumstances would the opportunity for recoupment of restitution costs arise. Our point is this: there is no evidence the Legislature intended that its cost recoupment purposes were to apply under such an extremely limited set of circumstances. . . . The chances of actual recoupment of costs in a case such as this where there are parole and nonparole offenses are almost beyond rational belief. In the absence of evidence the Legislature intended such an unreasonable state of affairs to exist, we decline to ascribe such an intention to the Assembly members and Senators. [Fn. omitted.] . . . [¶] Second, the language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fine is to be imposed. . . . At present, defendant’s ‘sentence’ does not allow for parole. . . . [B]ecause . . . [of this] and [the fact that] there is no evidence it ever will, no additional restitution fine must be imposed.” (Id. at pp. 1184-1185; Accord, People v. Jenkins (2006) 140 Cal.App.4th 805, 819 [opn. of Dist. 2, Div. 8]; People v. Petznick (2003) 114 Cal.App.4th 663, 687 [opn. of Dist. 6]). We agree with the reasoning of Oganesyan.
Recently, in People v. Brasure (February 7, 2008, S072949)___Cal 4th___[2008 Cal. Lexis 1969] the California Supreme Court distinguished Oganesyan from the case before it, in which the defendant had been sentenced to a determinate term for other crimes, along with the death penalty for special circumstances murder. The high court noted that the determinate term had been imposed pursuant to section 1170, and section 3000, subdivision (a)(1) provides that such a term “shall include a period of parole.” The court noted that the defendant in Oganesyan had received an indeterminate life term and life without the possibility of parole, but no determinate term imposed under section 1170. Therefore, the court concluded, there was no statutory basis upon which to impose the parole revocation fine.
Disposition
The trial court is directed to strike the parole revocation fine imposed pursuant to Penal Code section 1202.45 and amend the abstract of judgment and minutes of the sentencing hearing to omit reference to it. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., GAUT, J.