Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. TA099247 Eleanor J. Hunter, Judge. Affirmed in part as modified; reversed in part.
Joanna McKim, 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, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Steven Courtney Moore appeals from a judgment of conviction entered after a jury found him guilty of second degree murder (Pen. Code, § 187, subd. (a)), kidnapping (id., § 207, subd. (a)) and false imprisonment by violence or menace (id., § 236). The trial court found true the allegations defendant suffered a prior serious felony conviction within the meaning of the “Three Strikes” law (id., §§ 667, subds. (a)(1), (b)-(i), 1170.12) and served a prior state prison term (id., § 667.5, subd. (b)). For the murder, the trial court sentenced defendant to 30 years to life, plus an additional six years for the prior conviction and prison term. The court stayed sentence on the false imprisonment by violence conviction under Penal Code section 654. It sentenced defendant to the upper term of eight years for kidnapping, doubled as a second strike, plus six years for the prior conviction and prison term, for a total determinate term of 22 years in state prison.
Defendant was acquitted of four counts of forcible oral copulation (Pen. Code, § 288, subd. (c)(2)) and two counts of sexual penetration by a foreign object (id., § 289, subd. (a)(1)).
The court’s minute order and abstract of judgment reflect a sentence of 15 years to life. It is the court’s oral pronouncement of judgment, however, which controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The abstract of judgment must be corrected to reflect the actual sentence imposed. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.)
On appeal, defendant raises a number of claims of error as to his convictions and sentence. We agree that his conviction of false imprisonment by violence or menace must be reversed. We also correct the sentencing errors.
FACTS
A. Prosecution
1. Current Offenses
Defendant met Desiree A. in June 2008. Defendant had recently been released from prison on parole. Desiree also was on parole. She moved into defendant’s house shortly after she met him because she had nowhere else to live.
Defendant’s house was located on 103rd Place near Central Avenue in Watts. Desiree shared defendant’s bedroom with him, and they had consensual sexual intercourse a couple of times, although Desiree did not consider herself to be defendant’s girlfriend. Defendant had a housemate, John Steen (Steen), who had been in prison with defendant. Steen had shared his room with Dashay Gathrite (Gathrite), who was Desiree’s best friend. Gathrite later entered a rehabilitation facility in Long Beach.
On August 18, 2008, Desiree called defendant to pick her up at her drug and alcohol rehabilitation program. Defendant was mad, because he had learned she had missed her class, but he agreed to pick her up. When he arrived, about 12:30 p.m., she was at a liquor store with her friend Alex. She got into defendant’s car. He drove around the block and parked. He got out of the car, pulled Desiree out, and hit her on her face and body. He accused her of having sex with Alex and called her a whore.
Defendant then drove Desiree back to his house. There, he demanded to know whether Desiree was having sex with Steen. Whenever she said that she was not, he hit her in the face. He then made her shower because he believed she had been with Alex. After the shower, Desiree, wrapped in a towel, went to the porch. She wanted to leave, but defendant said the only way she could leave was without her clothes or the towel. Defendant continued to question her about Steen, hitting her when she denied having sex with Steen. Eventually, Desiree lied and said she had had sex with Steen. Defendant called her a whore and began pointing out all the places in the house where he believed she had sex with Steen.
They went into the living room, where defendant ordered Desiree to orally copulate him, as she had done to Steen. When she refused, he hit her with his fists and with the television remote control, causing her head to bleed. He made her shower again, to wash off the blood. When she got out of the shower, he had her sit naked on the living room sofa. He again ordered her to orally copulate him, and he hit her with a baseball bat to force her compliance.
Steen came home about 3:00 p.m. He had a friend with him, Billy Bridges (Bridges). Defendant told Bridges to stay outside; defendant had to talk to Steen. Desiree tried to cover herself, and defendant asked why she was doing so, since Steen had seen her naked. Steen looked away and told defendant he had never seen her naked. Defendant told Desiree to repeat what she had told him, and she said that she and Steen had been together. Steen got angry and asked Desiree why she was saying that. He told defendant he had not been with Desiree, and defendant responded that if Desiree was lying, Steen should hit her. Steen told defendant to look at Desiree’s face; it was swollen because defendant had been beating her, and she would say whatever defendant told her to because she was scared. Desiree tried to speak, but defendant hit her in the face and told her not to talk unless he told her to. At that point, Steen left the house and drove to Bridges’ apartment.
Defendant forced Desiree to go into different rooms in the house where he believed she had had sex with Steen. He hit Desiree in the head with a bat. He got mad because he believed she had orally copulated Steen but not him, and he forced her to orally copulate him. He said that if she was going to be a whore, he would put her on the streets. He made several telephone calls, saying he wanted people to come beat Desiree.
Defendant then drove to a liquor store, taking Desiree with him. She wanted to leave, but defendant said she could only leave naked. He left her in the car while he went inside. She asked a woman nearby to call the police and send them to defendant’s house. Defendant returned to the car with some beer. He drove around for about 20 minutes, drinking beer. He then drove to Gathrite’s rehabilitation facility. Gathrite was standing outside. Defendant got out of the car to speak to Gathrite but would not let Gathrite talk to Desiree. Gathrite saw Desiree in the car, shirtless, with a beaten and swollen face. Defendant told Gathrite that Desiree had had sex with Steen, but Gathrite did not believe him. Defendant then drove away. Gathrite did not call the police because she did not want to get involved.
Defendant drove to a liquor store. While he was inside getting more beer, Desiree asked a man to call the police. Defendant returned to the car before she could repeat the address for the man. Defendant began driving. He pulled out his penis and demanded that Desiree orally copulate him. When she refused, he hit her on the head with a beer bottle.
They returned to defendant’s house, and defendant locked the deadbolt on the door; it could only be opened from the inside with a key, and only defendant and Steen had keys to the lock. Defendant continued to accuse Desiree of having sex with Steen. He had Desiree sit on Steen’s bed. He put a sheet over her head, held a knife to her neck and asked if she had any last words. He then had her go into the kitchen and make him a sandwich. After he had eaten, he sent her to his room, shut the door and left. Desiree did not try to leave because the front door had been locked with the deadbolt lock and she did not know where defendant was and did not want him to catch her trying to leave.
Steen had left Bridges’ apartment about 9:30 p.m. but had left his cell phone there. About 10:20 p.m., defendant came to the apartment. He banged on the door and demanded to know where Steen was. Bridges said he did not know where Steen was and allowed defendant to look in the apartment. On his way out, defendant grabbed Steen’s cell phone.
Defendant returned home and went to bed. A short time later, Steen’s cell phone rang. Defendant answered it. Steen was on the phone and defendant told him, “It’s cool, I’m not tripping no more. You could go ahead and come home.” Steen decided to go home, against the advice of friends he was with, because he was “no punk.”
Steen arrived home about 1:30 a.m. Defendant left the bedroom and closed the door. Desiree heard what sounded like a fight. She heard Steen tell defendant to stop and defendant tell Steen that he and Desiree were “disrespecting my house.” Desiree heard Steen say he was not going to hit defendant. Shortly thereafter, there was silence.
Defendant briefly returned to the bedroom then left again, closing the door behind him. About 15 minutes later, he again entered the bedroom and ordered Desiree to help him bring Steen inside. Steen was on a chair on the porch; his eyes were closed and he was still. Desiree held the front door open while defendant brought Steen into the house. Defendant dropped him on the living room couch and covered him with a blanket. Defendant and Desiree then returned to defendant’s bedroom and went to bed. Desiree did not go to sleep for fear of being killed.
Defendant was 42 years old, six feet tall and weighed 225 pounds. Steen was 58 years old, five feet ten inches tall, and weighed 159 pounds.
When Desiree got up and went into the living room, she saw that Steen was in the same position on the couch. Defendant told Desiree that she had to leave and drove her to the Del Amo train station. He told her she “made him” do what he did and everything that happened was her fault. At the station, she got out of the car and he drove away. Desiree met a friend, who saw her condition and called the police.
Desiree met Los Angeles Police Officer Robert Martinez and other officers at a restaurant near defendant’s house at about 10:00 a.m.
They went to defendant’s house, where Desiree identified defendant when he drove up to the house. Defendant was arrested, and Desiree was taken to the hospital for treatment. Officers entered the house, where they found Steen on the couch. He was not breathing and was declared dead at 12:10 p.m.
Steen died of injuries resulting from blunt force trauma to his head. Steen had bruises and lacerations on his face and the right side of his head, hemorrhaging beneath his scalp and a subdural hematoma, which caused his death. There was cocaine in his system at the time of death.
When Desiree was examined at the hospital, she had bruises on her head and all over her body. She had lacerations on her lip and incised wounds on her hand, chest, head and legs. Her face was swollen and her eyes were red.
Steen’s blood was found on the sidewalk in front of defendant’s house. Defendant’s blood was found in the driveway, on the hood of his car and on a cleaver. Desiree’s blood was found on a seatbelt in the car, a baseball bat and the cleaver.
When defendant was arrested, his right hand was swollen, with redness on his knuckles. He had a cut finger on his left hand. He had bloodstains on his shirt.
2. Prior Offenses
In July 2008, defendant told Desiree she was being disrespectful to him and hit her in the face with a phone. Gathrite tried to intervene and protect Desiree. Defendant pushed Gathrite, who hit her head. Gathrite told him he had lost his mind. Defendant apologized but added that was what Gathrite got for trying to save a whore.
In August 2005, Eric Garbutt (Garbutt) and his three-year-old son lived in defendant’s house. When Garbutt returned home from work on August 9, defendant hit Garbutt and accused him of sleeping with defendant’s girlfriend. Defendant beat him and said that Garbutt showed a lack of respect for defendant’s house. Defendant threatened to kill Garbutt. When Garbutt tried to get defendant to calm down, defendant picked him up using a chokehold and dropped him in the backyard. Garbutt told defendant to get his son, because he was leaving. Defendant said the matter was not over and Garbutt was not leaving. Eventually, Garbutt called 911, and the police came and got Garbutt’s son from the house.
In 2003, defendant was imprisoned for domestic violence against his girlfriend, Hana Hall (Hall). Hall told defendant that she had “James” move into defendant’s house. Defendant wrote to her from prison that he and his “homies” were preparing for war with James, and the time of Hall’s death was coming.
B. Defense
Defendant met Steen in prison. After defendant was released on parole, Steen introduced him to Desiree on June 29, 2008. Desiree orally copulated defendant and spent the night with him. In July, she had sex and spent her nights with him, and she became his girlfriend. She moved in with him at the beginning of August.
On August 6, Steen told defendant that Desiree had sex with him. He asked Desiree if she had, but she denied it. Defendant believed Steen.
On August 18, defendant went to pick Desiree up near her school. He saw a man holding her hand and heard the man say, “Come on, baby just one more time.” After Desiree got into defendant’s car, he asked her what she was doing. When she did not respond, he hit her. They returned home, and defendant asked about the man who had been with her. She said nothing happened. Defendant thought she was lying and slapped her. He then attempted to have sex with her but was unable to. He slapped her again for lying to him. At that point, she told him that she and the man had had sexual intercourse. Defendant slapped her and told her to take a shower.
After Desiree got out of the shower, defendant asked her about Steen. She again denied having sex with him. Defendant told her to tell the truth. Desiree then told him she had sex with Steen five times in different places. Defendant told her to get out of his sight.
When Steen arrived home, defendant told Desiree to tell him what she had told defendant. Desiree did so. Steen got mad and hit Desiree on the head with the bat. Defendant pushed Steen, who grabbed Desiree’s hair and pulled her to the ground as he fell. Steen gave the bat to defendant and said he would leave.
Defendant went outside to work on his car. When he came inside, Desiree was cleaning the house. She asked how to clean the bathroom. Defendant hit her on the arm because it was a stupid question. Hitting Desiree made defendant’s right hand swell. He went back outside to work on his car and cut his left hand.
When defendant later went to Bridges’ apartment looking for Steen, he thought Bridges was lying about Steen not being there. Steen’s car was outside, and Steen’s cell phone was in the apartment. Defendant took the cell phone and went home. He wanted Steen to call him so they could discuss the situation.
Steen came home about 1:45 a.m. He was angry and asked defendant about his cell phone. Defendant was scared but admitted he had the phone. Defendant asked Steen if he wanted to talk about Desiree. Steen hit defendant hard on the jaw and neck. Defendant remembered how violent Steen was in prison and was scared for his life; Steen had been a “shot caller, ” someone who had a reputation for violence, who was feared, and who took care of problems. Also, at that point, the two were on the front porch, and it was a five to six foot drop to the ground. Defendant hit Steen in the face and nose in self-defense then went into the house. He did not call the police because Steen was his friend and was on parole.
At some point, defendant noticed that Steen was being attacked by two young men. Defendant went outside and told them to get off Steen, and they ran away. Steen was on his knees, and his nose was bleeding. Defendant gave him a tissue and asked if he was all right. Steen told him not to call the police. Steen then tried to get up but eventually fell on his back and began snoring. Defendant helped him up and onto a chair on the porch. He then had Desiree hold the door open so he could bring Steen into the house. While he was doing so, Steen’s foot caught on the door and Steen fell. Defendant got Steen to the couch and covered him with a blanket. At that time, Steen was breathing.
Defendant admitted injuring Desiree’s lip and causing her to bleed in his car. He also admitted slapping her in the face four times and punching her once. He denied causing her other injuries. He also denied forcing her to orally copulate him.
Defendant only hit Steen once in the face, and that was in self-defense so he would not be knocked off the porch and onto the ground below. When he left the house to take Desiree to the train station, Steen was still breathing. Defendant did not intend to kill Steen and did not believe his blow caused Steen’s death.
According to defendant, the altercation with Garbutt was a fistfight over rent money. Garbutt started the fight. Defendant did not use a chokehold on him.
Defendant denied threatening to hurt or kill Hall. In addition, because he was in prison at the time, he could not have carried out any threats. He did not see or talk to Hall after his release from prison.
DISCUSSION
A. Reference to Defendant’s Postarrest Silence
Defendant contends reversal is required, in that the prosecutor used his postarrest silence to impeach him at trial in violation of his constitutional right to due process. We disagree.
During cross-examination of defendant as to the injuries he inflicted on Steen, the prosecutor asked defendant, “Well, if those were the only things that you did, then did you tell the police everything that you told us today?” Defense counsel objected, and at the bench affirmed that defendant “[took] the Fifth.”
The jury was excused for a brief recess. The court said to the prosecutor: “It is improper to comment on the fact that the defendant invoked his Fifth Amendment right. Tell me how that is proper.” The prosecutor responded that defendant was not incriminating himself as to certain of the charges, including murder. The court stated that defendant could invoke his Fifth Amendment right not to speak to the police for any reason, and the prosecutor’s “commenting on it disturbs me greatly.” The court added that it assumed defense counsel was going to ask for a mistrial. Defense counsel of course did so.
The court took the matter under submission. It later ruled: “In this situation, there was no answer. And in fact, the Court stopped the proceeding before it went far. [¶] As such, in cases that deal with Doyle and with situations like this that come up indicates that it’s not error to let the trial proceed if the Court strikes the question and admonishes the jury and reminds them that questions are not answers and they are not to consider it in any way, shape or form.”
Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91].
Defense counsel asked “whether the Court is going to give an instruction to cure any potential inference by the jury concerning post-arrest silence by [defendant].” The court responded that it was counsel’s “tactical call, ” but the court “would suggest not, only because right now there’s nothing in the evidence at all about that.” But the court would “entertain whatever motion or instruction that [defense counsel] might want to propose to the Court.”
The jury returned and cross-examination of defendant continued, but the following day, the court told the jury: “One thing I wanted to bring to your attention, as I said in my earlier instructions to you, questions by attorneys are not evidence. Statements made by attorneys, unless they’re stipulations, they’re not evidence. It’s only what you hear from the witness stand.
“Yesterday when we broke about 2:45 before our afternoon break [the prosecutor] had asked a question and there was an objection. We took that up. I am going to strike that question and I’m going to inform you and instruct you that you cannot consider that in any way, shape or form. That’s obviously not evidence. And you’re admonished not to—you probably don’t even remember what it was to recall it or anything of that sort. [¶] So that’s the admonishment. And to remind you again, their questions are not evidence.”
Doyle held the Due Process Clause bars the prosecution from impeaching a defendant’s exculpatory trial testimony with cross-examination about his or her postarrest silence after receiving Miranda warnings. (Doyle v. Ohio, supra, 426 U.S. at p. 619.) The court “found that because Miranda warnings contain an implicit assurance ‘that silence will carry no penalty, ’ [citation], ‘“it does not comport with due process to permit the prosecution during the trial to call attention to [the defendant’s] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony, ”’ [citations].” (Greer v. Miller (1987) 483 U.S. 756, 762-763 [107 S.Ct. 3102, 97 L.Ed.2d 618].)
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
As the United States Supreme Court has made clear, “the holding of Doyle is that the Due Process Clause bars ‘the use for impeachment purposes’ of a defendant’s postarrest silence. [Citation.]” (Greer v. Miller, supra, 483 U.S. at p. 763.) In Greer, “the trial court... did not permit the inquiry that Doyle forbids. Instead, the court explicitly sustained an objection to the only question that touched upon [the defendant’s] postarrest silence. No further questioning or argument with respect to [the defendant’s] silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained. Unlike the prosecutor in Doyle, the prosecutor in this case was not ‘allowed to undertake impeachment on, ’ or ‘permit[ted]... to call attention to, ’ [the defendant’s] silence. [Citation.] The fact of [the defendant’s] postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case.” (Id. at pp. 764-765, fns. omitted.)
Even though the Greer court found no Doyle error, it turned to the issue whether the prosecutor’s question constituted prosecutorial misconduct which “‘so infec[ted] the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.] To constitute a due process violation, the prosecutorial misconduct must be ‘“of sufficient significance to result in the denial of the defendant’s right to a fair trial.”’ [Citations.]” (Greer v. Miller, supra, 483 U.S. at p. 765.) Against this standard, the court found no due process violation: “The sequence of events in this case—a single question, an immediate objection, and two curative instructions—clearly indicates that the prosecutor’s improper question did not violate [the defendant’s] due process rights.” (Id. at p. 766, fn. omitted.)
We see no basis for distinguishing the instant case from Greer. Here, “the trial court... did not permit the inquiry that Doyle forbids. Instead, the court explicitly sustained an objection to the only question that touched upon [the defendant’s] postarrest silence. No further questioning or argument with respect to [the defendant’s] silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained. Unlike the prosecutor in Doyle, the prosecutor in this case was not ‘allowed to undertake impeachment on, ’ or ‘permit[ted]... to call attention to, ’ [the defendant’s] silence. [Citation.] The fact of [the defendant’s] postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case.” (Greer v. Miller, supra, 483 U.S. at pp. 764-765, fns. omitted.)
Additionally, to the extent the prosecutor’s question may have constituted prosecutorial misconduct, there was no violation of defendant’s due process rights. As in Greer, there was a single question, an immediate objection, and subsequent curative instructions. This sequence of events was not “‘“of sufficient significance to result in the denial of the defendant’s right to a fair trial.”’” (Greer v. Miller, supra, 483 U.S. at p. 765.) It follows that there was no violation of defendant’s due process rights.
Defendant’s reliance on People v. Evans (1994) 25 Cal.App.4th 358 is misplaced. In Evans, the defendant testified that the police officer appeared to be angry when he invoked his Miranda rights and refused to talk to her. The prosecutor attempted to question defendant as to why he invoked his Miranda rights rather than talk to the officer if he knew he had done nothing wrong. Defense counsel asked to approach the bench and was denied permission. Defense counsel then objected that the prosecutor was attempting to ask defendant why he invoked his Miranda rights. The trial court overruled the objection. (Id. at pp. 366-367.)
Here, there was no reference to defendant’s Miranda rights in the presence of the jury. While defense counsel’s objection was not specifically sustained at the time, the trial court subsequently struck the question and admonished the jury that questions by counsel were not evidence and should not be considered by them. Evans thus is distinguishable.
B. Prosecutorial Misconduct in Closing Argument
Defendant contends the prosecutor committed misconduct during closing argument by implying that defendant was lying and defense counsel helped him fabricate a defense. The challenged statements, in context, occurred as follows:
“First of all, I think it’s very interesting listening to his entire argument. Not once, not even one time, did [defense counsel] Mr. Zaragoza try to explain why you should believe the testimony of the defendant Steven Moore.
“Remember, when the defendant chose to take that stand and he chose to tell you his story, the understanding was he took that stand so he could be treated like any other witness in this case. You assess his credibility just like you would anybody else.
“And he gave you that ridiculous story that he did. And Mr. Zaragoza, he’s a smart guy. He knew not to say, well, you should believe what the defendant said because of this, this and this. Because he cannot do this with a straight face.
“He can’t tell you to go up to believe the story about, you know, well, there were two robbers that came when I left the victim out there and I saw them beating him down. [¶] I only saw [Steen] hit her once with the bat. Yet there’s five bruises on her chest. He can’t tell you to believe all that because the evidence... coming from the defendant’s mouth doesn’t explain all the injuries, doesn’t explain the cuts on Desiree’s hands, okay. It doesn’t explain a lot of what’s going on in this case. And that’s why he can’t come up here and tell you that his client is a credible witness.
“Well if he can’t do that, then what choice does he have? What option does he have? Well, he smears the SART nurse Toyetta Buekes [who examined Desiree and testified regarding her injuries], the nurse that’s done 3, 000 examinations. He says, well, she’s not a good nurse.
“... He smears Dashay Gathrite. He smears Desiree.... Because that’s the only thing he can do. [¶] If you cannot believe his client and he knows you can’t believe his client, so his tactic is now smear everybody else.”
At that point, Mr. Zaragoza objected “about going to his credibility.” The trial court overruled the objection.
The People claim defendant forfeited his contention on appeal by failing both to object and to request an admonition. While generally both are required (People v. Riggs (2008) 44 Cal.4th 248, 298), here, the trial court overruled defendant’s objection. A request for an admonition at that point would have been a futile gesture. We therefore see no reason to deem defendant’s contention forfeited due to his failure to request an admonition. (Ibid.)
Prosecutorial misconduct “involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.” (People v. Panah (2005) 35 Cal.4th 395, 462.) There may be prosecutorial misconduct even in the absence of intentionality or bad faith. (People v. Bradford (1997) 15 Cal.4th 1229, 1333.) Reversal for prosecutorial misconduct is required only if defendant has been prejudiced thereby (People v. Fierro (1991) 1 Cal.4th 173, 208-209), i.e. if it is reasonably probable defendant would have obtained a more favorable result absent the misconduct (Cal. Const., art. VI, § 13; People v. Hill (1998) 17 Cal.4th 800, 844; People v. Watson (1956) 46 Cal.2d 818, 836).
It is prosecutorial misconduct “‘to imply that defense counsel has fabricated evidence or otherwise to portray defense counsel as the villain in the case.... Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.’” (People v. Sandoval (1992) 4 Cal.4th 155, 183-184, affd. sub. nomVictor v. Nebraska (1994) 511 U.S. 1 [114 S.Ct. 1239, 127 L.Ed.2d 583]; People v. Bain (1971) 5 Cal.3d 839, 847.) However, “[w]hen supported by the evidence and inferences drawn therefrom, argument that testimony or a defense is ‘fabricated’ may not, without more, be properly characterized as an attempt to impugn the honesty and integrity of defense counsel.” (People v. Cummings (1993) 4 Cal.4th 1233, 1303, fn. 49; People v. Adcox (1988) 47 Cal.3d 207, 237.) Further, it is not misconduct to refer to testimony as “lies” so long as the reference is based on inferences drawn from the evidence, not personal belief. (Sandoval, supra, at p. 180; People v. Edelbacher (1989) 47 Cal.3d 983, 1030.)
In context, it is clear that the prosecutor was not attempting to imply that defense counsel fabricated evidence or to impugn defense counsel’s integrity but rather was characterizing defendant’s testimony as lies because unsupported by the evidence in the case. The references to “smearing” other witnesses could only be understood as urging the jury not to be misled by defense counsel’s argument but to rely on evidence presented by the prosecution, which was more credible than defendant’s testimony. Thus, it was not misconduct. (People v. Cummings, supra, 4 Cal.4th at p. 1302; People v. Breaux (1991) 1 Cal.4th 281, 306.)
Defendant also contends there was misconduct because it is “improper for the prosecutor to argue to the jury that defense counsel does not believe in his client’s defense, ” relying on People v. Thompson (1988) 45 Cal.3d 86, 112. As in Thompson, “[t]he prosecutor argued that defense counsel would not spend a lot of time asking the jury to believe defendant’s version of events, because defendant’s version [was contradicted by the physical evidence]. The prosecutor’s focus was thus on the evidence and his contention that the defense case was simply unbelievable.... This did not, when read in context, depart from comment on the state of the evidence or legitimate argument on how the case should be viewed.” (Id. at p. 113, fn. omitted.)
C. Admission of Defendant’s Letters to Hall
During a break in defendant’s testimony, defense counsel asked if the court was ready to address the admissibility of defendant’s letters to Hall. He claimed the letters were not admissible under Evidence Code section 1103, subdivision (b), “in response to the character evidence we will provide as to the victim in this case and I think that’s foundationally... not a prior act consistent with that evidence code section.” The prosecutor responded that he was going to seek to introduce the letters under that code section. The trial court indicated that it would read the code section and take up the matter later.
Evidence Code section 1103, subdivision (b), provides: “In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant....”
When the court took the matter up again, the prosecutor told the court he would not be trying to admit the letters but only refer to them. He explained that the letters came from the file of a prior case in which defendant pled guilty to making criminal threats. Defense counsel objected based on lack of foundation. He also objected that the letters were not admissible under Evidence Code section 1103, subdivision (b), in that they did not contain reputation or personal opinion evidence. Additionally, he asked the court “not to allow all the letters unless the People could identify some specific acts of violence in conformity with [section] 1103 (b). Because that’s the code limited to those kind of evidence....”
The trial court found there was a foundation for the letters. “And I think that it does show certain character violence based on the tone of the notes, based on what is said in the notes. [¶] And I think it particularly relevant to this case. And also under [Evidence Code section] 352, I don’t find it unduly prejudicial in light of all the other evidence that has been presented so far.” The trial court therefore overruled defense counsel’s objections.
We conclude the trial court did not abuse its discretion in admitting evidence of the letters but correctly found their probative value outweighed their potential for prejudice. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Evidence Code section 352 gives the trial court the discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice, confusing the issues or misleading the jury. (People v. DeSantis, supra, 2 Cal.4th at p. 1226.) In the context of Evidence Code section 352, prejudicial evidence is that “‘which uniquely tends to evoke an emotional bias against [the] defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Bolin (1998) 18 Cal.4th 297, 320; People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
By abandoning his claim that the evidence was inadmissible under Evidence Code section 1103, subdivision (b), defendant appears to be conceding relevance. Indeed, his briefs focus on the question of prejudice. The case on which he relies to support his contention that evidence of the letters was unduly prejudicial is clearly distinguishable.
In People v. Harris (1998) 60 Cal.App.4th 727, the defendant was charged with sexual attacks against two mentally ill patients at a treatment center where he worked as a mental health nurse. (Id. at pp. 731-732.) Evidence was admitted that in an earlier incident, he used a key he obtained as manager of his apartment complex to enter the apartment of the victim and commit a violent sexual assault on her. (Id. at pp. 733-734.) The court found the evidence minimally relevant due to the lack of similarity between the incidents. (Id. at pp. 740-741.) The court further found that remoteness and inflammatory nature of the prior attack made the evidence prejudicial. (Id. at p. 741.)
Harris did not involve Evidence Code section 1103, subdivision (b), and therefore is distinguishable as to its analysis of relevance. As to its analysis of prejudice, it also is distinguishable.
The evidence of the letters containing threats to Hall was far less inflammatory than the evidence of the instant crimes themselves, which involved a prolonged physical and sexual assault on Desiree and a violent and unprovoked physical assault on Steen. The threatening letters were far less likely “‘to evoke an emotional bias against [the] defendant as an individual’” than the actual violence he used against his victims. (People v. Bolin, supra, 18 Cal.4th at p. 320.) Consequently, they were not unduly prejudicial within the meaning of Evidence Code section 352. The trial court therefore did not abuse its discretion in admitting evidence of the letters. (Ibid.)
D. Evidence of Defendant’s Prior Altercation with Garbutt
The People sought to introduce evidence of defendant’s altercation with Garbutt under Evidence Code section 1101, subdivision (b). Defendant opposed the admission of the evidence on the ground it would be unduly prejudicial.
Evidence Code section 1101, subdivision (a), prohibits, with specified exceptions, admission of “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct)... when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of section 1101 provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.”
The trial court observed that where, as here, intent is at issue, a lesser degree of similarity is required in determining whether evidence of the prior act may be admitted. “In this case there are substantial things in similarity with regard to how the defendant conducted himself in the prior event concerning an individual who he suspected was having some sort of relationship with a girlfriend or ex-girlfriend, how he physically attacked the victim prior and the circumstances under which it transpired.... [¶] All of those things, I think, lay the basis of similarity when motive or intent are at issue. [¶] And as such, I will allow the People to submit testimony.”
The court further stated that it “has to do a balancing act [under Evidence Code section 352] with regard to is it unduly prejudicial, is it undue consumption of time, is it too remote. And I do not find that any of those are true in this case. [¶] It’s a relatively recent occurrence. It is not unduly inflammatory. In that case, obviously, the alleged victim survived. Also, it’s not going to be an undue consumption of time.... So as such, I’ll allow the testimony pursuant to [Evidence Code section 1101, subdivision (b)], and at that time I’ll give a limiting instruction to the jury as to how they are instructed to look at that evidence.”
Defendant contends the trial court abused its discretion in admitting evidence of the prior altercations with Garbutt, in that the evidence lacked probative value and was unduly prejudicial. He also claims admission of the evidence violated his due process right to a fair trial.
Under Evidence Code section 1101, subdivision (b), evidence of a prior crime may be admitted to prove a fact such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident other than the defendant’s disposition to commit such an act. The admissibility of evidence of a prior crime or wrong in order to prove a fact such as motive or intent depends on three factors: “(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315.) Admission of evidence pursuant to Evidence Code section 1101, subdivision (b), is confided to the sound discretion of the trial court. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609.) We will not disturb its decision to admit such evidence absent an abuse of discretion. (Id. at p. 1610.)
As defendant analyzes the matter, “[t]he prosecution argued the case was about jealousy, that this motivated [defendant’s] actions, causing him to go into a rage and kill Steen and commit the alleged offenses against [Desiree].” The defense’s position, however, was that “a murder did not occur; a fight or fall is what happened. [Defendant] did not cause Steen’s fatal injuries; but if he did, it was in self-defense. Also, [Desiree] lied about the kidnapping, false imprisonment and sex crimes.” Therefore, defendant asserts, “the central issues for the jury to determine were whether [defendant] kidnapped and forcibly imprisoned [Desiree], committed the sex crimes against her and intentionally killed Steen out of rage and jealousy. Evidence [defendant] fought Garbutt several years before the incident added nothing to the issues because the circumstances were different enough that inferences as to [defendant’s] intent or motive in this incident were not supported.”
We disagree with defendant’s analysis. It was defendant’s defense that he took Steen’s cell phone so that Steen would call him so they could discuss the situation with Desiree. When Steen came home and defendant tried to talk to him, Steen attacked defendant. Defendant was afraid and hit Steen in self-defense and then went into the house. The prosecution’s position was that defendant took the cell phone so he could get Steen to come home, accuse Steen of having sex with Desiree and then attack Steen out of jealous anger.
In the prior incident with Garbutt, the prosecution sought to show that defendant, similarly motivated by jealousy, accused Garbutt of sleeping with defendant’s girlfriend. Defendant beat and threatened to kill Garbutt. Thus, the evidence of the prior incident was probative of defendant’s motive or intent in his confrontation with Steen over Desiree.
That defendant testified his confrontation with Garbutt was over payment of the rent does not make the evidence any less probative. The question of credibility was one for the jury. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Other differences between the two incidents that defendant points to are not significant; that in the instant case defendant had extracted an admission of infidelity while in the prior incident he had not does not preclude a finding that in both cases he believed there had been infidelity and he sought to attack the roommate who he believed was guilty.
Even if evidence is admissible pursuant to Evidence Code section 1101, subdivision (b), it should be excluded if its effect is more prejudicial than probative. (Evid. Code, § 352; People v. Balcom (1994) 7 Cal.4th 414, 426-427; People v. Ewoldt (1994) 7 Cal.4th 380, 404.) As with the evidence of the threatening letters, the evidence of defendant’s altercation with Garbutt was no more inflammatory than the evidence of the instant offenses. Defendant beat Garbutt, but unlike Steen, Garbutt survived and walked away. Garbutt’s child was not injured. Accordingly, we find no abuse of discretion in the trial court’s decision to allow admission of the evidence under Evidence Code section 352. (People v. Bolin, supra, 18 Cal.4th at p. 320.)
Inasmuch as we have found no prosecutorial misconduct or evidentiary error, we reject defendant’s contention that cumulative error deprived him of his right to a fair trial. (Cf. People v. Hill, supra, 17 Cal.4th at p. 847; People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
E. Instruction on Self-Defense
The trial court gave several instructions on self-defense. It instructed the jury on lawful self-defense. (CALCRIM No. 505.) It also instructed the jury on the right to self defense where the defendant is the initial aggressor as follows:
“A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] AND [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; [¶] AND [¶] 3. He gives his opponent a chance to stop fighting.
“If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.
“If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting.” (CALCRIM No. 3471.)
“A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.)
In its oral instructions to the jury, the trial court stated, “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to use it as an excuse to use force.”
Defendant contends the trial court erred in failing to instruct the jury with a hybrid of these two instructions: “that one who initiates a quarrel to create the need of self-defense may, if the victim responds with a sudden, unanticipated and deadly counterassault, use reasonably necessary force in self-defense. There is no reason to treat one who initiates an assault different from one who contrives self-defense when both are confronted with sudden, unanticipated deadly force from the victim. Also, as jurors are unlikely to be able to distinguish one contriving the need for self-defense from one initiating the assault, they could erroneously conclude self-defense is unavailable to the initial aggressor when the victim responds in a sudden, unanticipated deadly counterassault.” (Fn. omitted.)
In support of his contention, defendant relies on People v. Hinshaw (1924) 194 Cal. 1. In Hinshaw, the court stated “There is no foundation for the assertion that by instruction the jury was practically charged that appellant ‘started this fight with the premeditation beforehand to make a felonious assault.’ The instruction is given in the abstract and correctly states the recognized principle of law ‘that self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault.’” (Id. at p. 26.)
Although Hinshaw used the term “deadly issue, ” nothing in the opinion suggests a holding that a person does have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use non-deadly force, and the victim responds with deadly force.
In addition, defendant’s attempt to find a scenario in which such an instruction would be applicable to this case is unconvincing. Defendant argues, “[a]ssuming jurors found [defendant] forced the need for self-defense by accusing and provoking Steen, jurors would accordingly conclude [defendant] would not be justified in exercising self-defense in response to Steen’s potentially deadly response of punching [defendant].”
Defendant supports his argument with reference to his testimony that Steen “punched me first with his left hand, ” hitting defendant “[i]n the jaw, neck area.” Steen’s “second punch with his right hand is against my chin and skins my chin and hits me in the neck.” Steen hit defendant “[h]ard. He was trying to knock me out or knock me down or knock me over the rail. He’s punching me hard with force. He wants to hurt me.”
Defendant cites no authority for the proposition that punching someone with a fist constitutes “deadly force” as used in CALCRIM No. 3471. Defendant himself testified that Steen was trying to “hurt” him. Defendant’s concern that Steen’s blows were a “potentially deadly response” was only that “[i]f I fall over this rail, I can break my neck or die” or be seriously injured. Indeed, defendant testified that after Steen punched him, he punched Steen “hard enough to, I guess, to back him up. It wasn’t like just a really hard punch. It was enough to punch him, I guess to stop the attack, I guess.”
Defendant has failed to convince us, either by authority or the record (People v. Cooks (1983) 141 Cal.App.3d 224, 329; People v. Dougherty (1982) 138 Cal.App.3d 278), that the trial court erred in failing to instruct the jury in the manner he now proposes. We accordingly reject his claim of error, and we need not address the question whether his claim was forfeited by his failure to request the proposed instruction below. (Pen. Code, § 1259.)
F. False Imprisonment as a Lesser Included Offense of Kidnapping
Defendant contends his conviction for false imprisonment must be reversed, because false imprisonment is a lesser necessarily included offense of kidnapping. California law “‘prohibits multiple convictions based on necessarily included offenses.’” (People v. Reed (2006) 38 Cal.4th 1224, 1227; see Pen. Code, § 954.)
In order to determine whether an offense is necessarily included within another, we look to the statutory elements of both offenses. (People v. Reed, supra, 38 Cal.4th at pp. 1227-1231.) “‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ [Citation.]” (Id. at p. 1227.)
False imprisonment by violence is a lesser necessarily included offense of kidnapping. (People v. Gibbs (1970) 12 Cal.App.3d 526, 547; see also People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819-820.) Therefore, so long as both offenses relate to the same acts, only one conviction may stand. (Ratcliffe, supra, at p. 820; see Magana, supra, at pp. 1121-1124 (conc. & dis. opn. of Turner, P. J.).)
In his argument to the jury, the prosecutor argued that the kidnapping began “the time that the defendant first dragged Desiree out of the car and beat her down, remember at 12:30 in the afternoon. You remember when he forced her back into the car Desiree said I don’t want to go. [¶] That’s against her will. That’s using force or fear. And he took her back to the house. Okay, that’s a substantial distance. That right there is enough for kidnapping.
“But of course, the day doesn’t end there. Because through the night, throughout this 18-hour period, the defendant takes her to liquor stores, takes her to Dashay’s place. This is all against her will....”
As to false imprisonment, the prosecutor argued that defendant “kept [Desiree] in the house. He basically made her do what he wanted her to do, made her go where he wanted her to go....”
From the foregoing, it is clear that the prosecution made no distinction between the acts constituting kidnapping and those constituting false imprisonment. It took the position that there was a single course of conduct which included both kidnapping and false imprisonment. It follows that only defendant’s kidnapping conviction may stand. His conviction of false imprisonment must be reversed. (People v. Ratcliffe, supra, 124 Cal.App.3d at p. 820.)
The prosecutor reiterated this position in its sentencing memorandum, which stated that “[t]he kidnapping and false imprisonment began at 12:30 p.m. on August 8, 2008 and continued throughout the night.”
In light of this conclusion, we need not address defendant’s contentions that the trial court erred in failing to instruct the jury on misdemeanor false imprisonment as a lesser included offense and that the evidence is insufficient to support the conviction of false imprisonment.
G Fees Imposed
At the sentencing hearing, the trial court orally imposed fees as follows: “Court security fine for each count is $30, a DNA fine of $20, a criminal—I’m sorry, a construction fine in the amount of $30 for each count.”
The court’s minute order reflects, as to the murder and kidnapping convictions, $30 court security (Pen. Code, § 1465.8, subd. (a)(1)) and $30 criminal conviction (Gov. Code, § 70373) fees, and a $20 DNA charge (id., § 76104.7) for each conviction.
Sentence was stayed as to the false imprisonment conviction under Penal Code section 654, and no fees were imposed as to that conviction.
The abstract of judgment for the indeterminate term for murder reflects the $30 court security and criminal conviction fees and the $20 DNA charge. The abstract of judgment for the kidnapping and false imprisonment convictions reflects only the $30 court security and criminal conviction fees.
Defendant reads the trial court’s statement as imposing only court security and construction fees and no DNA charges. As we read the statement, the trial court imposed all three. The minute order therefore accurately reflects the fees imposed.
Defendant further asserts that the trial court erred in imposing a DNA charge under Government Code section 76104.7. As defendant points out, Government Code section 76104.7 authorizes imposition of a DNA penalty in addition to a similar penalty imposed under Government Code section 76104.6. (People v. Valencia (2008) 166 Cal.App.4th 1392, 1395.)
Government Code section 76104.7, subdivision (a), specifically provides that “in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty....”
A penalty under Government Code section 76104.6 is imposed on fines, penalties and forfeitures. (Id., subd. (a)(1).) It may not be imposed on a court security fee (Pen. Code, § 1465.8, subd. (b); People v. Valencia, supra, 166 Cal.App.4th at p. 1396) or a criminal conviction fee (Gov. Code, § 70373, subd. (b)). Since Government Code section 76104.6 is inapplicable here, the penalty imposed under Government Code section 76104.7 must be reversed.
It also may not be imposed on a restitution fine (Gov. Code, § 76104.6, subd. (a)(3)(A)), which includes a fine under Penal Code section 1202.4, as was imposed here.
H. Presentence Custody Credit
Defendant contends he is entitled to an additional 11 days of presentence custody credit.
At the sentencing hearing, defense counsel told the court that defendant had 420 days in custody. The prosecutor concurred, and the trial court credited defendant with the 420 days.
The record shows defendant was arrested on August 19, 2008. He was sentenced on October 23, 2009. Defendant was entitled to actual credit from the date of his arrest through the date of sentencing (People v. Browning (1991) 233 Cal.App.3d 1410, 1412; People v. Fugate (1990) 219 Cal.App.3d 1408, 1413-1414), a period of 431 days. Since a judgment which fails to award the proper custody credit is unauthorized and may be corrected at any time, we will make that correction. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
DISPOSITION
Defendant’s conviction of false imprisonment by violence or menace is reversed. The $20 DNA penalty imposed under Government Code section 76104.7 is reversed. The remainder of the judgment is modified to provide defendant with 431 days of presentence custody credit, and as so modified, the judgment is affirmed. The clerk of the court is directed to prepare a corrected abstract of judgment that (1) reflects a sentence of 30 years to life on defendant’s conviction of murder; (2) deletes the conviction of false imprisonment by violence or menace; (3) deletes the $20 DNA penalty; and (4) provides defendant with 431 days of presentence custody credit. The clerk shall forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., ZELON, J.
The People also assert that the defense’s objection “about going to his credibility” was not sufficient to support the claim of error defendant now raises on appeal. Inasmuch as we find no reversible error, we need not address this contention.