Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA271795, Anne H. Egerton, Judge.
Marcia C. Levine, 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, Victoria B. Wilson and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Sergio Moran appeals from the judgment entered following his conviction by jury of first degree murder with the finding that the murder was intentional and involved the infliction of torture. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(18).) He was sentenced to life in prison without the possibility of parole. At trial, the prosecution presented evidence of prior acts of violence committed by defendant against the victim, Fariba Vassei. He contends the admission of her statements to the police regarding those incidents violated his right to confrontation and requires reversal of his conviction. He also urges that he is entitled to credit for presentence custody time and the abstract of judgment incorrectly reflects the imposition of a parole revocation fine. We agree he should be awarded custody credits and the parole revocation fine must be stricken. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to jury selection, the trial court conducted a hearing to determine whether the prosecution would be allowed to present evidence of defendant’s prior acts of violence against Vassei. The prosecution sought to introduce tapes of 911 calls, eyewitness accounts, and police officer testimony detailing Vassei’s statements.
The court determined that the evidence was admissible pursuant to Evidence Code sections 1101, subdivision (b) and 1109. It limited the evidence to three specific incidents, which we will discuss in detail below, finding that testimony concerning another alleged act was cumulative and unduly time consuming. Relying on People v. Giles (2007) 40 Cal.4th 833 (Giles I), the court held that although Vassei’s statements to the police were testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), their admission would not violate defendant’s right to confrontation.
While this appeal was pending, the United States Supreme Court vacated the Giles I decision, as discussed at page 11, post. (Giles v. California (2008) ___ U.S. ___ [128 S.Ct. 2678, 171 L.Ed.2d 488] (Giles II).)
I. The Prosecution’s Case
Parissa Sirani, the victim’s sister, testified that defendant and Vassei began a romantic relationship in the mid-1990’s, lived together for a time, and had a son, M. At the time of her death, Vassei and defendant were separated. Although they had been close, the sisters’ relationship became more distant after Vassei began seeing defendant. Sirani believed defendant was physically abusing her sister. On several occasions, Sirani saw bruises on Vassei’s face. Sirani told her that no one had the right to abuse another in a relationship, and advised her to stop seeing defendant. Vassei did not want to hear her sister’s advice, so they drifted apart.
Agustin Moran, defendant’s father, said that on September 22, 2004, Vassei came to his house. While there, she and defendant had an argument. At approximately 8:00 p.m., Vassei, defendant, and M. left together in Vassei’s car.
At about 10:15 p.m., defendant called his father and asked him to pick him up at Vassei’s apartment. When the elder Moran arrived, he called Vassei’s apartment and told defendant to come down. Defendant said he needed him to come upstairs to retrieve a computer. Moran went upstairs, knocked on the front door, but did not go inside the apartment. Defendant opened the door and gave him a computer. Moran did not see either Vassei or M. He returned to his car. About five or six minutes later, defendant came downstairs carrying M., who was asleep. The three went to Moran’s home.
The next morning, September 23, Moran and defendant drove M. to school. Defendant then asked Moran to take him to Vassei’s apartment. When they got to the location, defendant said he wanted to get his printer, so he went upstairs to the apartment while Moran waited in the car. Defendant returned with the printer and went back to the apartment to retrieve some clothes. Moran said defendant returned “like in a hurry, nervous” and asked to use Moran’s cell phone so that he could call 911. When asked to explain what he meant by nervous, Moran said defendant seemed like he was in a panic. Moran claimed he could not hear what defendant was saying on the phone. After making the call, defendant asked Moran to take him to the Montebello Police Department. Defendant did not say why he wanted to go there, and Moran did not ask. Before arriving at the police station, defendant asked to be let out of the car. Moran stopped, defendant got out, and Moran drove away.
Iris Alvarez is a police dispatcher for the City of Montebello. On September 23, 2004, at 8:39 a.m., she received a 911 call from a cell phone. The caller, defendant, identified himself by first and last name and said he was at 2507 1/2 Madison. He was crying hysterically, saying he had found his wife dead on the floor of her apartment. He terminated the call. Alvarez called defendant back, received no answer, and left a message asking that he return her call. He did not respond.
Montebello Police Officer Sergio Andrade and his partner responded to 2507 1/2 Madison Avenue. Andrade had been advised that a male caller told a police dispatcher he had found his wife dead on the floor at that location. After receiving no response from anyone at that address or at any of the adjoining apartments, the officers decided to force entry. Once inside, Andrade and his partner made their way to a back bedroom where they saw a female (later identified as Fariba Vassei) lying on the floor. The officers backed out of the apartment and contacted paramedics.
Desiree Armstrong testified that she lived downstairs from Vassei and her son. She recalled that she spoke to police on September 23, concerning what she had heard or seen during the late evening hours of the 22nd and the early morning hours of the 23rd. She stated that she was awakened by the sound of a bed rubbing on the floor. It seemed like the sound was coming from the bedroom directly above hers. At the time of trial, she could not recall the time this occurred. She said she usually heard Vassei taking a shower between 7:00 and 7:30 in the morning and saw her taking her son to school between 7:30 and 8:00. However, she neither heard the shower nor saw Vassei on the morning of September 23. She could not remember any other details she gave the police.
Montebello Police Officer Boris Zeissig interviewed Armstrong on September 23. He testified Armstrong told him that she was awakened at approximately 11:00 p.m. on the night of September 22 by a noise that sounded like someone was dragging a bed in the room above her. The noise lasted between 10 to 15 minutes.
Los Angeles County Sheriff’s Detective Richard Ramirez was one of the investigating officers in the case. On September 23, he went inside Vassei’s apartment after the scene had been secured by the Montebello Police Department. The apartment consisted of two bedrooms, a living room, a kitchen, a dining area, and a bathroom. With the exception of the bedroom where Vassei’s body was found, the remainder of the apartment was relatively neat and tidy. Ramirez noticed that a door in the kitchen which led outside the apartment had not been tampered with. It was locked and the chain was in place. The other exterior door had been locked prior to the officers’ forced entry, the windows were intact, there was no evidence that any property had been taken, and no portion of the apartment appeared to have been ransacked.
Later that day, Ramirez contacted defendant, who was in custody at the East Los Angeles Sheriff’s Station. Ramirez took a DNA sample from defendant and photographed several bruises he had on his right bicep.
Ramirez testified that he was present on September 30, 2004, when Doctor Tom Lyon interviewed six-year-old M. During the interview, Ramirez, defendant’s then attorney, and the prosecuting deputy district attorney watched from the other side of a two-way mirror. The interview was recorded.
M., Vassei’s and defendant’s son, testified. He was eight years old at the time of trial. He recalled that he had spoken to Doctor Lyon after his mother died. He remembered that Doctor Lyon was the “guy that I talked to last time — well, when I went for questioning.”
When the prosecutor asked M. about the interview, he asserted he did not remember anything that he had said to the doctor. Then he claimed he spoke to Doctor Lyon, but did not tell him the truth. M. said he merely told the doctor “things [he] was just dreaming about.” M. acknowledged that he wanted to live with his father and did not want to get him in trouble.
After a recess, M. admitted that he made certain statements to Doctor Lyon, but reiterated he did not relate anything that he actually remembered. He said he told Doctor Lyon that his mother and father were fighting in the bathroom, he heard banging coming from that room, and he later saw his mother on the floor. While she was on the floor, M. noticed that her eyes were red, and he heard her telling his father to stop hurting her.
M. denied telling a detective that the last time he saw his mother, she and his father had gotten into a fight in the bathroom of the apartment. He did not remember saying that he heard yelling and banging or that he saw his father hit his mother, which caused M. to cry. M. denied those events had taken place. M. claimed he never saw his parents fight or argue.
A videotape of Doctor Lyon’s interview with M. was played for the jury. At that time, M. said his father and mother had a fight the day she died and his father hit her. M. heard banging in his mother’s bedroom. When his father opened the bedroom door, he saw his mother lying on the floor “[w]ith [a] red face and red eyes.” He heard his father say to his mother that if she did not tell the truth, she was going to get hurt. M. remembered crying and thinking his mother was dead. He heard her yelling “a-h-h-h, a-h-h-h” while his father was “[h]urting her or something.” At one point, he saw his father pick up his mother and “plop” her down like she was a “dummy.” Then he started punching her. He heard his mother asking his father not to hurt her anymore. M. eventually fell asleep. His father carried him outside and when M. woke up, he was at his grandfather’s house.
Sergeant Robert Taylor is a homicide investigator with the Los Angeles County Sheriff’s Department. On the afternoon of September 23, 2004, he interviewed Agustin Moran in the kitchen of Moran’s home. Moran told him that he and defendant went to the victim’s apartment building earlier that morning. Defendant went upstairs, and when he returned, he appeared nervous. He asked to use Moran’s cell phone. Moran heard defendant tell the 911 operator that there was a lady on the floor of an apartment. Defendant gave the operator his name and the address of the apartment and ended the call. Taylor recorded his interview with Moran, and the tape was played for the jury.
Taylor also spoke to M. that afternooN.M. said that on the previous day, his mother arrived at his grandfather’s house, and his mother and father argued. M., his mother, and his father went home, and the arguing continued there. He heard them arguing in the bathroom and the living room, causing him to become afraid. M. told Taylor that he came out of his bedroom and saw his father standing over his mother, who was on the floor. His mother’s eyes were red and there were red areas on her face. He saw his father pick his mother up. At one point, M. heard his mother crying.
Detective Judith Salcedo spoke to Agustin Moran on the afternoon of September 23. Moran told her that on the evening of September 22, defendant called and asked him to pick him up from Vassei’s apartment because they were arguing.
Deputy Kimberly Ponce and her partner transported defendant to the East Los Angeles Sheriff’s Station after his arrest for murder on September 23. En route, defendant began crying. At times, he was sobbing. He repeated throughout the trip that he was sorry. Without prompting from the deputies, defendant volunteered that after dropping off his son at school that morning, he had stopped by his wife’s apartment and found her. He said he called 911 to notify police and then went to his attorney’s office because he panicked.
Kenneth Sewell is a supervising criminalist in the Los Angeles County Sheriff’s Department crime lab. On September 23, 2004, he went to Vassei’s apartment to assist in the homicide investigation. He collected various items of evidence at the scene, including a shower curtain, two white cloth straps (one from the bed and the other from underneath Vassei’s legs), sheets, and a rope, which was found at her legs. The evidence was placed in the lab and later analyzed.
The parties stipulated to the following scientific findings: (1) eight fingernail clippings from Vassei were analyzed and found to have DNA consistent with hers and a ninth clipping included a mixture consisting of her DNA and an unknown contributor; defendant was excluded as a possible contributor; (2) six blood stains were located on the shower curtain; three matched Vassei’s DNA profile and excluded defendant as a possible contributor; two matched defendant’s DNA profile and excluded Vassei as a possible contributor; and one was a mixture of at least two individuals and both defendant and Vassei were included as possible contributors; and (3) the epithelial fraction of a vaginal sample from Vassei was consistent with a single contributor and the DNA profile was consistent with hers; and a sample which was consistent with a mixture revealed that the major contributor was Vassei and no conclusion could be made as to the source of the minor contributor.
Thomas Fedor testified that he is a forensic serologist. He received evidence from the Los Angeles County Sheriff’s Department, and attempted to determine the biological source of any fluids left on that evidence. He analyzed various swabs from a rope found at the murder scene. He determined that Vassei was the main source of the DNA recovered from the swabs. There were several mixtures of DNA, but the small quantity of DNA material made it difficult to compile a complete profile. In a minor portion of two mixtures, Fedor found that defendant could not be excluded as a possible donor. In one mixture, one in 500 individuals would not be excluded as a possible source, and in the other one in 27 would not be excluded.
He performed additional tests on the rope swabs. He extracted only male DNA in an attempt to get more definitive results. Although the DNA profiles were incomplete, neither defendant nor any of his paternal relatives (e.g., paternal grandfather, father, brother) could be excluded as a source of any of the DNA recovered from the swabs.
After conducting DNA testing on four swabs from the cloth straps, Fedor concluded that Vassei was the donor of the major portions of the mixture of DNA he located. He found that defendant could not be excluded as being a donor to the minor portion of four mixtures of DNA extracted. He gave the following statistics with regard to the number of other men who also would not be excluded as follows: (1) one man in 150; (2) one man in 3,000; (3) one man in 4,000; and (4) one man in 100,000.
Doctor Stephen Scholtz is a forensic pathologist serving as a deputy medical examiner with the Los Angeles County Department of Coroner. He performed the autopsy on Fariba Vassei. She suffered multiple blunt force injuries, which caused her death. The injuries were particularly noticeable on her head and face. She had ligature marks on her wrist and ankles, indicating that she had been bound. Vassei sustained a fractured skull, caused by a forceful blow or blows, and visible injuries to her brain. She had fractured ribs and injuries to her liver and small bowel mesentery, which caused internal bleeding. She also had pinpoint hemorrhages on her eyelid, bruising and bleeding in the area of her voice box, and a fractured bone near her larynx. Doctor Scholtz opined Vassei was manually strangled. She had a number of bruises on her hands and arms, consistent with defensive wounds. All of her injuries were inflicted prior to her death. There was evidence that the injuries to Vassei’s ribs could have been inflicted several hours before the other injuries.
Evidence of Prior Acts
Angela Huang testified that in February 1996, she lived with defendant, Vassei, and a fourth person. On February 10, 1996, Huang saw defendant and Vassei arguing in the kitchen, a few feet from where Huang was sitting. At first, the two were yelling at one another. Defendant then used both of his hands and pushed Vassei, who fell to the floor. Defendant started hitting Vassei in the head with his fists. Huang called the police.
Officer Rene Cota responded to Huang’s call. Cota testified that he was trying “to find out exactly what was going on,” when he spoke to Vassei. She looked as if she had been crying. She told Cota she started asking defendant about another woman she thought he might be seeing, and he threw a beer in her face. Defendant then threw her to the ground, walked toward her, and struck her in the face with his hand. Cota observed Vassei’s ear to be red and swollen. Cota stated that he asked defendant what had happened in the apartment. Defendant responded, “When you let me go, I’m going to fuck her up.”
On June 2, 1997, at about 11:30 p.m., Vassei called 911 to report that her boyfriend had “been beating” her and had “just hit me right now.” Vassei asked for help, saying “he’s gonna hurt me again.” An unknown voice said, “We’re at the location already” and the call ended. A tape of that call was played for the jury.
On that same date, Los Angeles Police Officer Kip Jackson responded to a radio call that a domestic violence incident had just occurred. When he got to the location, he spoke to Vassei. She told Jackson that she had had an argument with her boyfriend, who she identified as Sergio Moran, earlier in the evening at the mall. She had left him there, but when she returned home about an hour later, he was there. He forced her to drive him home. As she drove on the freeway, defendant hit her in the head with a closed fist approximately 15 to 20 times. Vassei drove off the freeway and when she stopped at a signal, defendant grabbed the car keys and her purse, got out of the car, threw the items in the middle of the street, and walked away. Vassei stayed at that location until the police arrived. Jackson saw an approximate one-inch laceration over Vassei’s right eye.
Agustin Moran testified that some time before Vassei’s death, he called 911 and requested that the police come to his home because she and defendant were fighting. Defendant took the phone from Moran and pulled the cord out of it. At trial, Moran denied defendant hit Vassei on that occasion. However, during the 911 call (a tape of which was played for the jury) Moran confirmed on three occasions that defendant was hitting her.
Moran did not recall when he made the 911 call, but the prosecution introduced evidence showing that the call was made on June 11, 2003.
Los Angeles County Deputy Sheriff Jose Acero testified that on June 11, 2003, he responded to Moran’s house. When he and his partner arrived, he saw defendant, who appeared very angry, standing outside. Acero saw broken furniture in the kitchen, so he went inside to determine whether a victim needed assistance. He spoke to Vassei, who appeared frightened and upset. She said she and defendant had an argument regarding their son, and defendant became enraged and broke several items in the kitchen. Defendant pushed Vassei and struck her on the right side of the face. Acero noticed redness to Vassei’s right ear. Acero also talked to Agustin Moran. Moran said he heard defendant and Vassei arguing and the sound of furniture breaking. The deputy saw a phone that had its cord ripped out.
II. The Defense Case
Adriana Flores testified that in September 2004, she shared an apartment with Desiree Armstrong, and they lived downstairs from Vassei and her son. She recalled that she spoke to a police officer regarding what she had heard on the night of September 22. Flores told the officer she heard two “big thumps” coming from the upstairs apartment.
Officer Andrade was recalled. Although he had no independent recollection of interviewing Flores, he acknowledged that a report he prepared reflected that he had. He testified that Flores told him that she heard the noise upstairs at approximately 2:00 or 3:00 a.m.
DISCUSSION
I. Introduction of Vassei’s Prior Statements
As we have noted, the trial court found that Vassei’s prior statements to the police were testimonial. However, relying on Giles I, supra, 40 Cal.4th 833, it ruled that admission of the evidence did not violate defendant’s right to confrontation. As the parties point out, the United States Supreme Court vacated the Giles I decision, finding that the theory of “forfeiture by wrongdoing” was not an exception to the Sixth Amendment’s confrontation requirement unless the defendant engaged in wrongdoing that was intended to keep the witness from testifying. (Giles II, supra, ___ U.S. ___ [128 S.Ct. 2678, 2682-2688].) No such finding was made by the trial court in our case.
As a result, defendant contends that the statements were inadmissible. He argues his conviction must be reversed, claiming the statements provided compelling evidence as to his guilt and as to whether the murder was of the first degree and involved the infliction of torture.
The Attorney General asserts that Vassei’s prior statements were admissible as spontaneous declarations pursuant to Evidence Code section 1240. This does not get the People very far. Even if the statements were admissible under state law (a finding the trial court did not make), the issue whether their admission deprives defendant of his federal right to confrontation remains. As defendant correctly states, the trial court found that Vassei’s statements were testimonial within the meaning of Crawford. Thus, given the current state of the law, the evidence was inadmissible. We agree with defendant that the Attorney General has the burden of establishing the trial court’s ruling constituted an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) He has not attempted to do so.
Under the circumstances, we conclude Vassei’s prior statements should not have been admitted. We concur with the parties that the conviction must be reversed unless we determine that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [the beneficiary of the error must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained”].)
Preliminarily, we disagree with defendant’s contention that Vassei’s “statements provided significant evidence as to all three [prior] incidents.” To the extent he is claiming that the prosecution needed her statements to establish that he committed the prior acts, his contention is without merit. In each case, her statements were merely cumulative to other admissible evidence that clearly established defendant was responsible for the violence at issue.
The prosecution was required to prove defendant’s prior misconduct by a preponderance of the evidence. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1444.)
As to the February 1996 incident, Vassei’s roommate, Angela Huang, was a witness to the attack. She testified that defendant pushed Vassei to the floor and struck her in the head with his fists. Officer Cota observed the injury to Vassei’s ear. When Cota asked defendant what had happened, he responded, “When you let me go, I’m going to fuck her up.” The only additional evidence Vassei offered was the reason for the fight. She said she asked defendant about a woman Vassei thought he was seeing, and he became angry.
Contrary to defendant’s assertion, we do not agree that Vassei’s “statement alone provided the facts of [his] conduct during the June 2, 1997 incident.” The jury heard about the June 1997 attack through a tape of Vassei’s 911 call. On the tape, she said that her boyfriend (defendant does not dispute she was referring to him) has “been beating me” and “just hit me right now.” Vassei also told the operator that “he’s gonna hurt me again.” While it is true that Vassei explained to Officer Jackson that she and defendant had an argument and he struck her about the head with his fists, Jackson testified that he observed a one-inch laceration over Vassei’s right eye. Thus, defendant’s responsibility for striking Vassei and causing an injury was proven with admissible evidence.
With regard to the June 2003 incident, the jury once again heard a recording of a 911 call. Agustin Moran called the police and asked that an officer be sent to his home. He related that defendant and Vassei were fighting. Citing Moran’s testimony that he did not see defendant strike Vassei on that occasion, defendant argues that absent Vassei’s statement to Deputy Acero, there is no evidence that he hit her. We disagree. On the tape, Moran informs the operator three times that defendant is hitting Vassei. Moran admitted to the jury that the call ended when defendant grabbed the telephone and pulled the cord out. When Deputy Acero arrived at the location, he observed defendant standing outside appearing very angry, broken furniture in the kitchen, a telephone with its cord ripped out, and redness to Vassei’s left ear. Moran told Acero that he heard the sound of furniture breaking while defendant and Vassei were arguing. The jury could easily conclude that defendant was responsible for the attack on Vassei without relying on her statement that he broke the furniture and struck her in the head with his fist.
We find that the jury properly considered the evidence relating to defendant’s prior acts of domestic violence. We now discuss whether the erroneous admission of Vassei’s statements requires reversal of the jury verdict.
Defendant begins his analysis of the prejudicial effect of Vassei’s statements by claiming the case against him was weak. Not so. Initially, defendant’s prior abuse of Vassei suggests he was her killer. Past arguments with Vassei had caused him to react violently toward her. There is no dispute defendant was with Vassei on the night she died and had been arguing with her since early that evening. These facts take on greater significance when one considers that there was evidence Vassei was killed by someone she knew. There were no signs that anyone forced entry into the apartment prior to her death. The doors were locked and the windows were intact. Theft was not the motive for the attack, as Vassei’s home was not ransacked and it did not appear that any items were taken.
There was also M.’s account of the events that led to Vassei’s death. M. told Doctor Lyon that on the night his mother died, his parents were arguing and his father was hitting his mother. M. heard defendant threaten his mother, his mother yelling while defendant was hitting her, and his mother asking defendant not to hurt her. He saw his mother on the floor with red eyes and red marks on her face and defendant pick her up and “plop” her on the floor like a “dummy.”
Finally, the DNA evidence on the rope and cloth swabs, while not compelling, did not exclude defendant as a possible perpetrator. More importantly, it did not point to any other suspect.
As to the jury finding that defendant killed Vassei, we have no difficulty determining that the admission of her statements was harmless beyond a reasonable doubt.
Defendant argues Vassei’s statements were instrumental in convincing the jury to convict him of first degree murder and to find the torture special circumstance true. We are not persuaded. We observe that defendant ignores the most compelling evidence of his intent—Vassei’s injuries.
First degree murder, as relevant here, is any “willful, deliberate, and premeditated killing.” (Pen. Code, § 189.) “The torture-murder special circumstance requires proof that a defendant intentionally performed acts that were calculated to cause extreme physical pain to the victim.” (People v. Mungia (2008) 44 Cal.4th 1101, 1136.) Defendant’s intent to torture may be shown by the nature and severity of the wounds inflicted (People v. Crittenden (1994) 9 Cal.4th 83, 141), evidence that he deliberately inflicted non-fatal wounds (People v. Whisenhunt (2008) 44 Cal.4th 174, 201), or by the fact that he bound his victim (People v. Chatman (2006) 38 Cal.4th 344, 391).
After considering the physical evidence and expert opinion presented at trial, we are convinced that Vassei’s statements provided little (if any) basis for the jury verdict. We start with Doctor Scholtz’s opinion that defendant could have fractured Vassei’s ribs several hours before he inflicted the other injuries, suggesting a prolonged beating. Vassei died from multiple blunt force injuries, many to her head and face. However, she suffered through a litany of other trauma, much of it non-fatal and all caused prior to her death. She sustained a fractured skull, which resulted in visible injuries to her brain, and endured internal bleeding due to the damage to her liver and small bowel mesentery. Vassei had bruising and bleeding in the area of her voice box, pinpoint hemorrhages on her eyelids, and a fractured bone near her larynx, indicating defendant manually strangled her. Doctor Scholtz found a number of bruises on her hands and arms that were consistent with defensive wounds. This most likely explains why defendant found it necessary to bind her wrists and ankles, which had ligature marks. A beating of this nature leads to the inescapable conclusion that defendant had ample time to reflect on his actions and intended to kill his victim and cause her extreme pain.
There is also circumstantial evidence of defendant’s intent to kill and torture Vassei. He concedes that “the evidence of prior acts of abuse was relevant to the jury’s difficult task of deciding what [his] intent was” at the time of the killing. As we have discussed, the prosecution established defendant had committed the prior acts without relying on Vassei’s statements. The prior violence provided further evidence that Vassei’s killing was the culmination of what was an ongoing abusive relationship. As early as 1996, defendant brazenly warned a police officer that he was “going to fuck her up.” A reasonable jury, without considering Vassei’s prior statements, could readily conclude that defendant acted upon his earlier threat when he subjected her to an attack that can only be described as savage.
For these reasons, we find beyond a reasonable doubt that Vassei’s statements to the police did not contribute to the jury verdict.
II. Custody Credits
The parties agree that the trial court erred by failing to give defendant credit for 1,133 days spent in custody prior to sentencing. We concur. Although Penal Code section 2933.2 bars the award of conduct credit to prisoners convicted of murder, it does not affect custody credit earned pursuant to section 2900.5, subdivision (a). (People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.)
III. Parole Revocation Fine
The abstract of judgment reflects that a parole revocation fine was imposed and stayed pursuant to Penal Code section 1202.45. The parties contend such a fine is unauthorized when a person is sentenced to life in prison without the possibility of parole. We agree. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)
DISPOSITION
The clerk is directed to amend the abstract of judgment by awarding defendant 1,133 days of custody credit and striking the parole revocation fine, and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.
We concur: WILLHITE, Acting P. J. MANELLA, J.