Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge, Super. Ct. No. F06902146-0
Sharon Giannetta 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, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted Todd Steven Parr of burglary (Pen. Code, § 459) and the murder of Phillip Anthony DeLaCruz (§ 187, subd. (a)) while committing the burglary. He was sentenced to a term of life without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise indicated.
He argues trial counsel was ineffective for failing to object to the prosecution’s evidence that his motive for the murder was his dire financial condition, and by failing to impeach a prosecution witness with a felony conviction. He also claims the trial court erred in (1) refusing a requested jury instruction pertaining to a witness who received payment for information about the crime, (2) imposing several enhancements, and (3) imposing a parole revocation restitution fine. We reject each of Parr’s arguments with the exception of concluding that the trial court erred in imposing a section 12022.53 enhancement on count 2, burglary, because burglary is not identified in the statute as a crime on which the enhancement may be imposed.
FACTUAL AND PROCEDURAL SUMMARY
We will not summarize all of the evidence at trial, only that evidence relevant to the issues raised on appeal.
DeLaCruz was found shot to death in his apartment. Alfredo Castellon, DeLaCruz’s friend and the person who discovered DeLaCruz, described him as a drug dealer who, up to about one month before his death, kept large amounts of marijuana and cash in his apartment. DeLaCruz generally bought and sold larger quantities of marijuana. In the past, DeLaCruz had been known to display large amounts of cash and marijuana at public places, apparently in an attempt to impress people. He stopped this behavior after he was mugged a few times. He stopped keeping marijuana in his apartment when a custody dispute arose over his child.
DeLaCruz was shot three times, one shotgun blast to the left shoulder, one gunshot to the right leg, and a second gunshot to the left foot. Death was caused by the shotgun blast that severed a major vein and artery, resulting in DeLaCruz bleeding to death. Technicians located one expended shotgun shell at the scene, as well as five casings from a .40-caliber handgun and six casings from a nine-millimeter handgun, most likely a Glock. They recovered a .40-caliber handgun locked in the open position, indicating that all rounds had been fired. They also found a quantity of marijuana and $3,600 in cash. The cash was discovered in a coat pocket.
During the investigation specimens of blood that were not from DeLaCruz were found on the inside of the door to the apartment and on the walkway leading away from the apartment. DNA testing confirmed that Parr was the donor of this blood.
James Erickson, who was incarcerated while awaiting sentencing in a federal case for distribution of methamphetamine, was called as a witness for the prosecution. In exchange for his agreement to testify truthfully in this matter, federal prosecutors agreed to seek a 30 percent reduction from the maximum term of 20 years Erickson faced. Erickson also was provided with immunity for any testimony provided at trial.
Erickson testified that he had known Parr for the last five years and considered him a friend at the time of DeLaCruz’s murder. They would see each other frequently and spoke on a daily basis about buying and selling crystal methamphetamine from each other. The two also would purchase items from one another.
On February 28, 2006, at approximately 12:50 a.m., Parr called Erickson and asked him if he had any money to buy something from him. Erickson assumed Parr was asking if he would buy some crystal methamphetamine from Parr. Erickson agreed to purchase the merchandise if it was any good. Erickson did not believe he saw Parr the night of February 27 or the early morning hours of February 28, but he was not certain. Erickson recalled seeing Parr during the day of February 27. In this meeting, Erickson did not observe any injuries to Parr’s face.
Later on the morning of the 28th, or perhaps on the following day, Erickson went to Parr’s house to visit Parr. Erickson spoke with Parr’s girlfriend, Gina Smith, who said Parr was sleeping and was not seeing anyone.
The next time Erickson saw Parr, which was three to seven days after the 28th, Erickson observed an injury to Parr’s face. Parr looked like he had been stabbed. It appeared that pus was oozing from the injury. Erickson accompanied Parr to a pharmacy to buy some bandages for the injury. Erickson’s heavy use of methamphetamine during this time affected his ability to recall certain events.
Detective Todd Fraizer interviewed Erickson on several occasions during the course of the DeLaCruz murder investigation. Erickson did not appear to be under the influence of any drug during those interviews.
During one of the interviews, Erickson said that on the night of February 27 Parr came to his house. Parr asked Erickson whether he had some money to buy some “stuff” if Parr could obtain it. Erickson said he was interested. Parr replied that he would be in touch if he obtained the “stuff.” Erickson assumed Parr was referring to some sort of property or drugs. Parr did not have a visible injury to his face at that time.
The next day Erickson went to see Parr, but Parr’s girlfriend, Smith, would not allow Erickson to see him. Erickson then spoke with Parr on the phone. Parr refused to allow Erickson into the residence. Parr said he was really “messed up.” Four or five days later, Parr went to Erickson’s residence. Parr asked Erickson to buy his vehicle. Erickson gave Parr $150.
Courtney Stinnett met Parr in December 2005. In the first week of March 2006 Parr visited Stinnett at her apartment. Parr stated that he had been in a motorcycle accident and had injured his face. Stinnett noticed a large injury to the right side of Parr’s face. Stinnett told Parr he needed to go to the hospital for treatment, but Parr said he could not because the police were looking for him. Parr asked Stinnett to repay some money she owed him for drugs, but Stinnett did not have it.
Stinnett walked Parr to the vehicle he was driving after Stinnett placed a bandage on his wound. Parr said the vehicle belonged to his ex-girlfriend. Stinnett observed Parr remove a handgun from underneath the front seat. When Stinnett started to leave the vehicle, Parr asked her if she knew anyone who could give him a ride to the mountains within the next hour because the police were looking for him and his girlfriend after the motorcycle accident. Parr also asked Stinnett if she knew anyone who would have sex with him because he would not be having any for a while. Parr also said that all his stuff was at his house, but he could not go back there.
Stinnett received a phone call from Parr about 45 minutes later. Parr asked her if she had found him a ride, and Stinnett told him she had not. Parr then told Stinnett how he had injured his face. Parr said he had gone to a Mexican drug connection’s house to buy some drugs. After he left, Parr discovered the drugs were bad. Parr returned to the drug connection’s house and returned the drugs. The drug connection gave Parr some new drugs. After he left for a second time, Parr discovered the new drugs also were bad. Parr returned to the drug connection’s house and a fight ensued. The drug connection pulled a knife on Parr. Parr yelled for his girlfriend, Smith, to come into the house. Smith entered and first accidentally shot Parr in the face and then shot the drug connection. Stinnett initially could not recall Parr telling her where the drug connection lived but, after refreshing her memory, Stinnett recalled hearing that the incident occurred at an apartment near Herndon and Maple, but she was not sure who told her that information.
Stinnett first told the police about these events in October 2006. During the seven months between the murder and her contacting the police about the murder, Stinnett had been paid to provide information to the police on several occasions. Parr also had been Stinnett’s drug connection.
Jason Nelson lived with Parr for about a year until Nelson moved out in October or November 2005. In October 2005, Parr was working at odd jobs, but he got laid off and there was no work to be found. In December 2005, Parr began selling methamphetamine to make money. Parr told Nelson that he lost an ounce of methamphetamine on the freeway and that was causing a financial problem for him. Parr was selling some of his construction tools to raise money. Parr also owed money for back rent.
Prior to DeLaCruz’s murder, Nelson would see Parr maybe once or twice a week. After the shooting, Nelson had difficulty contacting Parr because Parr would not answer his phone. Parr’s girlfriend eventually answered the phone and told Nelson that Parr was sick. Within a week of the murder, Nelson finally spoke with Parr and arranged to meet him. Parr had a bandage on his face. Parr told Nelson he had been in a shootout at DeLaCruz’s house and that he needed some money. Parr said that during the shootout, his girlfriend shot him in the face. Parr admitted that he shot at DeLaCruz. Parr stated the incident “all went wrong.” Parr also stated that he needed to leave town because the police were after him.
Jeremy Steinwand has a long history of criminal conduct, spending much of his life in prison or jails. In December 2005 he moved to Fresno and eventually obtained a job as a truck driver. He was suspended on or about January 31, 2006, for failing to disclose on his application a failed drug test. Steinwand obtained treatment for three weeks and then was reinstated at his job. Steinwand continued using heroin and methamphetamine while he was suspended.
During his suspension Steinwand lived with Parr, a friend. Steinwand moved out when he returned to work. Steinwand was to pay half of the February rent when he moved in because Parr was behind on the rent. Steinwand never paid the rent. Parr was selling drugs during that time.
Shortly after Steinwand moved in, Parr stated that he knew someone that was selling marijuana and suggested he and Steinwand burglarize the residence. Parr believed they could steal about a pound of marijuana and $2,000 to $4,000. The two drove to an apartment complex near Maple and Herndon. Parr identified a vehicle in the parking lot, something similar to a Blazer or Bronco SUV, with a lift kit, stating that it belonged to the intended victim. Steinwand identified DeLaCruz’s vehicle as similar to the one Parr pointed out. Because the vehicle was at the apartment, the two did not attempt to enter the apartment.
Within the next few days, Steinwand and Parr discussed going to the apartment with guns and forcing their way in. Within a couple of days, the two returned to the apartment. Steinwand had a .12-gauge sawed-off shotgun and Parr had a nine-millimeter handgun. Parr provided the guns. The handgun was the same one Parr carried most of the time. The SUV was at the apartment again, but Parr stated the victim had another vehicle, either a Mercedes or a Volvo. The plan was to kick in the front door and enter the apartment. Steinwand told Parr that there were too many lights on in the complex, indicating other people were awake who could be witnesses, so he returned to their vehicle. The two then left the complex.
Other witnesses testified that DeLaCruz owned both an SUV and a Mercedes Benz.
Over the next few days Steinwand and Parr developed a new plan. They decided to break into the apartment and bind the occupant with duct tape. Parr wanted to be the person who entered the room containing the safe. When Steinwand told Parr that he wanted to be there when the safe was opened, Parr disagreed. This led Steinwand to believe that Parr was not being entirely forthcoming. Steinwand began having reservations about the plan and eventually backed out. Parr’s girlfriend, Smith, was present during the discussions about the robbery. Parr became upset and indicated he needed money for rent. Steinwand said that was not his problem. His relationship with Parr deteriorated after that. Steinwand later learned that a homicide had occurred at the apartment complex where he and Parr had gone. Employment records established that Steinwand was working in Washington at the time of the murder.
Parr spoke with Fraizer while he (Parr) was being detained to obtain a DNA sample. Parr denied ever being at DeLaCruz’s apartment, or that his DNA would be found at the scene.
Parr testified in his defense. He denied ever possessing a shotgun before the shooting and denied casing out the apartment with Steinwand.
Parr admitted he was shot in the jaw by Smith, his girlfriend at the time. The shooting occurred in the doorway of DeLaCruz’s apartment when he and Smith went to the apartment to sell methamphetamine to DeLaCruz. When the two arrived at the apartment, they observed the front door had been kicked in. Parr stepped inside and called for DeLaCruz. Parr was then shot twice. Smith attempted to return the gunfire and accidentally shot Parr in the face. Parr did not know who fired the first shot. Parr ran away, but heard more gunfire while he was leaving.
Parr denied being desperate for money in early 2006 because he was generating income selling drugs. He denied ever talking with either Stinnett or Nelson about DeLaCruz’s murder. He also denied talking with Steinwand about DeLaCruz. He recalled speaking with Fraizer, but he could not recall what was said.
The prosecution charged Parr with first degree murder and burglary. (§§ 187, subd. (a), 459.) The information also alleged (1) the murder occurred during a burglary (§ 190.2, subd. (a)(17)); (2) Parr was armed with a firearm (§ 12022, subd. (a)(1)); and (3) Parr intentionally discharged a firearm, causing DeLaCruz’s death (§ 12022.53, subd. (d)). Finally, the information alleged that Parr had suffered two convictions within the meaning of section 667.5, subdivision (b).
After 14 days of testimony, the jury deliberated for less than one day before finding Parr guilty as charged and finding all enhancements true. Parr was sentenced to a term of life without the possibility of parole for the murder, plus an additional term of 25 years to life for the firearm enhancement.
DISCUSSION
I. Admission of Evidence of Parr’s Need for Money
The prosecution theorized that Parr’s motive for the crime was money; DeLaCruz had money, and Parr needed it. Several witness testified that DeLaCruz wore expensive jewelry and liked to show off the jewelry and the money. Other witnesses testified that Parr was having financial difficulties at the end of 2005 and the beginning of 2006. Parr argues that it is improper to discuss a defendant’s financial condition, and the error requires reversal of the judgment.
The law in this area is well settled. “[A] defendant’s poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice. [Citation.] In some circumstances, however, evidence of a defendant’s poverty is admissible for the limited purpose of refuting a claim that he did not commit the offense because he did not need the money, or to eliminate other possible explanations for sudden wealth after the occurrence of a theft offense. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1076.) Evidence of a defendant’s poverty also is admissible if the defendant testifies that he did not commit the robbery because he did not need the money. (People v. Wilson (1992) 3 Cal.4th 926, 939.)
We begin by noting that the issue is forfeited because Parr failed to object to the testimony at trial. (People v. Cornwell (2005) 37 Cal.4th 50, 96, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To overcome this deficiency, Parr argues his counsel was ineffective for failing to object. A claim of ineffective assistance of counsel requires the defendant to establish (1) that trial counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that the defendant would have obtained a better outcome had counsel performed effectively. (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Parr cannot establish either prong of this claim.
When assessing counsel’s performance, we first look to determine whether counsel explained his reasoning in failing to object to the proffered evidence. If counsel explained his failure to object, we examine that reasoning to determine whether he or she was acting as a reasonable, diligent advocate. (People v. Cudjo (1993) 6 Cal.4th 585, 623.) If the record does not contain an explanation for the complained of behavior, we will reject the claim unless there could not be a rational explanation. (Ibid.)
Evidence of Parr’s financial difficulties was introduced by the prosecution to establish a motive for the crime. This purpose is prohibited, and the evidence, upon a proper objection, should have been excluded. Trial counsel did not object, and there is no explanation in the record for this failure to object. We reject the claim of ineffective assistance of counsel, however, because there is a logical and rational explanation for permitting the prosecution to introduce the evidence.
Two of the most damaging witnesses against Parr were Nelson and Steinwand. Success at trial was predicated upon establishing that these two witnesses were not credible. Both witnesses testified that Parr was having financial difficulties in the time period in question, primarily because he was not able to pay the rent on the house he occupied. Parr, however, was able to establish through his landlord that in early February, just weeks before the murder, he was able to make a $2,500 rent payment. Trial counsel may have decided that it would benefit Parr by allowing Nelson and Steinwand to testify that he was having financial difficulties and then impeach them with the landlord’s testimony, thus suggesting that their entire testimony should not be believed. That this approach was unsuccessful does not mean that Parr’s counsel was ineffective.
Which brings us to the second prong of the claim -- a timely objection would not have resulted in a reasonable probability of a better outcome. The evidence against Parr was overwhelming. Parr admitted being at the scene, which the DNA evidence confirmed. Parr’s explanation of the events at the apartment was unbelievable because it failed to account for the blood found on the inside of the front door, which Parr denied touching. Also, his claim that he was shot as he entered the apartment would require the jury to believe that when Parr arrived, the perpetrator still was in the apartment. DeLaCruz could not have shot at Parr in the entry to the apartment because he had emptied his handgun while sitting in the bed. Moreover, the ballistic evidence did not support Parr’s testimony that his girlfriend shot into the apartment from the area of the front door.
Finally, the evidence was not damaging to Parr because he was able to prove through an independent witness, his landlord, that he had made a significant rent payment only weeks before the murder, thus suggesting he did not commit the murder because he was having financial difficulties. Since it is not reasonably probable that a better outcome would have been obtained had trial counsel objected to the financial testimony, we reject the claim of ineffective assistance of counsel.
II. Failure to Impeach Witness Ronald Purcell
Parr also contends that trial counsel was ineffective because he failed to elicit testimony that Ronald Purcell had suffered a prior drug conviction. We did not mention Purcell in our summary of the facts because we do not think his testimony was significant.
Purcell was called as a witness by the prosecution after an Evidence Code section 402 hearing was held. Before Purcell testified, the trial court ruled he could be impeached with a prior conviction for sale of an illegal substance.
At trial, Purcell admitted he knew Parr and thought he recalled seeing Parr with a wound on his face. Purcell could not recall (1) where the wound was on Parr’s face, (2) when he saw Parr, (3) telling Fraizer that he had seen Parr at Danny Campbell’s residence, (4) seeing Parr at Campbell’s house, and (5) seeing Parr with a gun. Purcell admitted he was involved heavily in drugs at the time and, as a result, his memory was very poor. Purcell recalled speaking with Fraizer at a detoxification center and recalled Fraizer talking a lot about guns and trying to put that information “in [his] head.” When Purcell was high on dope, he easily was manipulated. He was high when he spoke with Fraizer. Purcell did not recall whether Parr had a gun when Purcell saw him with a wound on his face. Purcell claimed that half of the information he provided to Fraizer was drug induced, and he did not want to testify. Purcell admitted on cross-examination that when he spoke with Fraizer he was just beginning his recovery from a $200 a day methamphetamine addiction.
We discussed in the preceding section the two prongs that Parr must prove before we will find that trial counsel was ineffective. As in the preceding section, he cannot meet either prong.
Purcell’s testimony essentially was useless as he could not recall anything because his drug habit severely interfered with his memory. He admitted to having an extensive drug habit and to speaking with Fraizer just when he entered a rehabilitation program. Trial counsel logically could have concluded that impeaching Purcell with his prior drug conviction, which would not have surprised anyone in the courtroom, would not have accomplished anything.
Moreover, had trial counsel solicited the information, it is not reasonably likely Parr would have received a better result. The information sought from Purcell, that he saw Parr with a handgun sometime after the murder, was not that significant to the prosecution’s case, and Purcell’s credibility already was severely damaged by his own admissions. The jury undoubtedly did not base its decision on Purcell’s testimony, especially with the reliable evidence outlined in the preceding section. Accordingly, we reject this argument.
III. Jury Instruction About Informants
Parr requested, and the trial court rejected, a special instruction based on section 1127a, which instructs the jury to consider any benefit an in-custody informant receives as a result of testifying at trial. Parr modified the instruction to refer to any informant and argued the instruction applied to Stinnett’s testimony, since she was paid for providing information to the police about various drug transactions. Section 1127a was inapplicable because Stinnett did not meet the section’s definition of an “‘in-custody informant.’” (Id., subd. (a).) Parr argued the principles of the statute equally were applicable to an out-of-custody police informant. He has not cited any case that supports his position, instead relying on the general rule that a trial court is required to instruct the jury on pertinent points of law. (§ 1093, subd. (f); People v. Wright (1988) 45 Cal.3d 1126, 1137 (Wright).)
Section 1127a states: “(a) As used in this section, an ‘in-custody informant’ means a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.
Parr requested the jury be instructed as follows: “The testimony of any informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness, such as Courtney Stinnett. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.”
The trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 226, which, among other items, informed the jury that it should consider various factors in judging the believability of a witness, including whether (1) the witness’s testimony was influenced by a factor, such as bias or a personal interest in how the case was decided, (2) the witness engaged in other conduct that reflected on his or her believability, and (3) the witness was promised immunity or leniency in exchange for his or her testimony. While these topics do not state expressly that the jury should consider whether a witness was compensated for providing information to the police, the jury was instructed that the list was not exclusive. The jury rationally could infer from this instruction that it should consider whether Stinnett was compensated for her testimony. This instruction adequately informed the jury on how to judge the credibility of the witnesses and, when combined with trial counsel’s closing argument, ensured that the jury considered all relevant factors in determining the credibility of Stinnett. (People v. Garceau (1993) 6 Cal.4th 140, 190-191, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; People v. Payton (1992) 3 Cal.4th 1050, 1059.) Even if we thought the trial court erred in rejecting the proposed instruction, we would conclude the error was harmless. An error in refusing a requested instruction “requires reversal only if ‘the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.’ [Citation.]” (Wright, supra, 45 Cal.3d at p. 1144.) As explained above, the evidence of Parr’s guilt was overwhelming, and the jury was instructed on evaluating a witness’s credibility. In addition, trial counsel placed the issue directly before the jury when he referred to Stinnett as “a paid professional informant[,] snitch and liar. She does what she wants to do, she says what she wants to say, as long as it is to her benefit.” Instructing the jury that it could consider that she was paid for information would not have resulted in a more favorable result for Parr.
Parr suggests the trial court should have added a factor to CALCRIM No. 226 to specifically pertain to whether a witness was paid for his or her testimony. There is no evidence in the record that such a request was made in the trial court, so we reject the argument. Had the request been made, the trial court could have added a properly phrased factor.
IV. Conceded Issues
Parr makes two additional contentions on which the parties agree. First, Parr argues that the trial court improperly imposed the section 12022.53 subdivision (d) enhancement on the burglary count. The People concede that since burglary is not listed in section 12022.53, subdivision (a), the enhancement cannot be imposed on a burglary conviction. Accordingly, we will strike this enhancement on count 2.
Second, the jury found true two enhancements—personal use of a firearm, causing great bodily injury pursuant to the provisions of section 12022.53, subdivision (d) and being armed with a firearm during the commission of a felony pursuant to the provisions of section 12022, subdivision (a)(1). The trial court imposed the section 12022.53 subdivision (d) enhancement and stayed the section 12022, subdivision (a)(1) enhancement. Parr argued in his opening brief that the section 12022, subdivision (a)(1) enhancement should be stricken. He concedes in his reply brief that the Supreme Court rejected this argument in People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130, which was issued after his opening brief was filed. Accordingly, we reject his argument.
V. Parole Revocation Restitution Fine
Finally, since he never will be eligible for parole, Parr contends the trial court erred in imposing a parole revocation restitution fine pursuant to section 1202.45. In People v. Brasure (2008) 42 Cal.4th 1037, the Supreme Court held that a parole revocation restitution fine should be imposed (and suspended until a period of parole begins and is revoked) where the sentence includes a determinate term, even if the sentence also includes an indeterminate term. (Id. at p. 1075.) The Supreme Court appears to approve the holding in People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1186 that a parole revocation restitution fine may not be imposed when the defendant receives only an indeterminate term of imprisonment. (Brasure, at p. 1075.)
Parr was sentenced to an indeterminate term on count 1 (life without the possibility of parole) and a determinate term on count 2 (six years). Parr, however, argues that the parole revocation restitution fine should be stricken because the sentence on count 2 was stayed pursuant to section 654. There does not appear to be any case directly on point.
We reject Parr’s contention. His sentence on the burglary count was not stricken, it was stayed. The parole revocation restitution fine, pursuant to statute, is suspended until such time as Parr begins a term of parole and the parole is revoked. (§ 1202.45.) Therefore, this fine also is stayed until Parr begins to serve a period of parole. If Parr does begin serving a term of parole, and that parole is revoked, he properly should be subject to the parole revocation restitution fine.
DISPOSITION
The section 12022.53, subdivision (d) enhancement on count 2 is stricken. The judgment is affirmed in all other respects. The matter is remanded to the superior court to prepare a new abstract of judgment and forward it to the appropriate agencies.
WE CONCUR: WISEMAN, Acting P.J., LEVY, J.
“(b) In any criminal trial or proceeding in which an in-custody informant testifies as a witness, upon the request of a party, the court shall instruct the jury as follows: [¶] ‘The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.’
“(c) When the prosecution calls an in-custody informant as a witness in any criminal trial, contemporaneous with the calling of that witness, the prosecution shall file with the court a written statement setting out any and all consideration promised to, or received by, the in-custody informant. [¶] The statement filed with the court shall not expand or limit the defendant’s right to discover information that is otherwise provided by law. The statement shall be provided to the defendant or the defendant’s attorney prior to trial and the information contained in the statement shall be subject to rules of evidence.
“(d) For the purposes of subdivision (c), ‘consideration’ means any plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, benefit, immunity, financial assistance, reward, or amelioration of current or future conditions of incarceration in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.”