Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F6885
RAYE , J.After a jury convicted recidivist defendant Bouakhanah Bo Phetchamphone of cohabitant abuse (Pen. Code, § 273.5, subd. (a)) and damaging a telephone (Pen. Code, § 591), the trial court sentenced him to the upper term of four years and an additional consecutive term of eight months in state prison. We find no instructional or prejudicial sentencing error and affirm the judgment.
FACTS
On July 12, 2007, defendant struck his girlfriend in the face with the back of his hand several times, causing blood vessels in her eye to rupture. They were living together at the time. When she tried to call her mother, defendant grabbed the telephone and threw it against the wall, breaking it in half.
Two days later the victim’s manager at work called the police and, at their request, drove her home. The police arrested defendant, placed him in the back seat of a patrol car, and got ready to transport him to the county jail. As the manager drove by the patrol car, defendant spoke of him to the police officer in profane terms.
After a Miranda advisement at the county jail, defendant eventually admitted that he beat his girlfriend because he “had to keep his woman in line,” and that he threw her cell phone against the wall. He also admitted to hitting her in the past, and his girlfriend testified he had grabbed her and pushed her into a wall about two months earlier.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
DISCUSSION
I. INSTRUCTIONAL ERROR
There is no question that the presumption of innocence is at the heart of our criminal justice system and that a jury must be properly instructed on the prosecution’s burden of proof beyond a reasonable doubt to insure the integrity of a criminal conviction. (Estelle v. Williams (1976) 425 U.S. 501, 503 [48 L.Ed.2d 126].) Clearly it is error to fail to instruct or to give an inadequate instruction on the reasonable doubt burden of proof and the presumption of innocence. (Sullivan v. Louisiana (1993) 508 U.S. 275, 276-282; People v. Crawford (1997) 58 Cal.App.4th 815, 824-826 (Crawford).)
In this case, the trial court instructed the jury in the language of Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 103 as follows: “Now I’m going to explain the presumption of innocence and the People’s burden of proof. The defendant has pled not guilty to the charges. The fact that a criminal charge has been filed against defendant is not evidence that the charge is true. You must not be bias[ed] against defendant just because he has been arrested, charged with a crime or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you impartially must compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Although CALCRIM No. 103 is a proper instruction on the burden of proof and the presumption of innocence (People v. Stone (2008) 160 Cal.App.4th 323, 330), defendant argues it did not count because it was delivered to the jury before the evidence was taken rather than after. Thus, the question is not, as it was in People v. Vann (1974) 12 Cal.3d 220 (Vann), whether the jury was properly advised on reasonable doubt and the presumption of innocence, but whether the timing of the instruction renders it constitutionally deficient.
Defendant insists that a series of cases, featuring Vann most prominently, requires reversal. Not so. In none of these cases was the jury instructed on the prosecution’s burden of proof beyond a reasonable doubt and the presumption of innocence to be accorded the defendant after the jury was sworn. (Vann, supra, 12 Cal.3d at pp. 225-227; People v. Flores (2007) 147 Cal.App.4th 199, 212; People v. Phillips (1997) 59 Cal.App.4th 952, 953-956; Crawford, supra, 58 Cal.App.4th at pp. 819-820.) Potential jurors were acquainted with segments of these principles before or during voir dire, but they were not given, as here, a full and complete explanation in time tested, standardized instructions once they had been seated in the jury box and taken their oaths. Thus defendant’s authority is inapposite.
It is true that given the prominence of the reasonable doubt instruction, it is generally included in the packet of instructions delivered to the jury immediately preceding their deliberations as a reminder, if nothing more, of the heavy burden of proof borne by the prosecution. Here, although CALCRIM No. 103 was not reread to the jury in the postpresentation of evidence iteration set forth in CALCRIM No. 220, the body of the instruction was provided to the jury in written form for their use during deliberations, together with many other instructions that instructed the jury to find various elements beyond a reasonable doubt. Defendant never objected to the instructions, nor did he request the court to repeat the substance of CALCRIM No. 103 orally to the jury before deliberations began.
Thus, we conclude the jury was properly instructed on the essential principles embodied in the prosecution’s burden to prove defendant’s guilt of the charged offenses beyond a reasonable doubt and to presume that unless the prosecution sustains that burden, defendant is innocent. We point out that the court read CALCRIM No. 103 to the jury after it was sworn one day, evidence was taken, and the deliberations began the following day. Because there is nothing in the record to suggest the jurors were confused, the court was not constitutionally compelled to reiterate the burden of proof instruction in the absence of a request by defendant to do so.
II. SENTENCING ERROR
Defendant’s three claims of sentencing error, although well briefed, have no merit. On appeal, he cannot demonstrate prejudice or overcome the law and his own failure to raise the error in the trial court.
First, he claims the court failed to state adequate reasons to justify imposition of the upper term. On this point, he is correct on the law. The court’s mere incorporation of the probation report violates the spirit of the sentencing laws and fails to properly explain the basis for the court’s sentencing choice. (People v. Fernandez (1990) 226 Cal.App.3d 669, 678-679; People v. Pierce (1995) 40 Cal.App.4th 1317, 1319-1320.) But in Pierce, an unrepentant recidivist judge simply would not follow the appellate court’s admonition to follow proper sentencing procedures, and in Fernandez the court completely failed to understand the gravity and complexity of sentencing in a case involving 156 offenses. Thus, under those egregious circumstances, the sentencing errors were prejudicial to the respective defendants.
Here, by contrast, “it would be idle to remand to the trial court for a new statement of reasons, as it is not reasonably probable that a result more favorable to [defendant] would occur.” (People v. Porter (1987) 194 Cal.App.3d 34, 39; see People v. Green (1988) 200 Cal.App.3d 538, 543.) Defendant suffered five prior felony convictions. Thus, his prior convictions alone justify imposition of the upper term even if we ignore the litany of aggravating factors, including: the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; defendant took advantage of a position of trust or confidence to commit the offense; and his prior performance on probation or parole was unsatisfactory.
Defendant insists that his renal failure, age, and distress over money render him a likely candidate for a lighter sentence. We think not. He was 33 years old at the time he struck his girlfriend -- far beyond an age of youthful indiscretion. Moreover, he had established a solid felony record beginning in 1994 and extending through 2002, at which time he was sent to state prison for five years. On these facts, we are satisfied that even under the heightened standard of prejudice required for violation of due process, the sentencing error was harmless beyond a reasonable doubt.
Second, in order to preserve his right to federal review, defendant contends the court’s imposition of the upper term violated his constitutional right to a jury trial because it was based on factors that were not found true by a jury beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856].) Defendant acknowledges that our Supreme Court foreclosed this argument in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. As defendant recognizes, we are bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Finally, defendant objects to an $80 administrative fee imposed in addition to his restitution fee. He objects for the first time on appeal, relying on the terms of Penal Code section 1202.4, subdivision (l), whereas the Attorney General maintains the additional 10 percent fee was imposed pursuant to Penal Code section 2085.5. We need not resolve which statute applies because defendant’s objection comes too late. “[A] defendant who fails to object to an erroneous fine, or the amount of a fine, is held to have waived any error.” (People v. Menius (1994) 25 Cal.App.4th 1290, 1298; see People v. Riccio (1996) 42 Cal.App.4th 995, 1003.)
Our review has disclosed a minor error on the amended abstract of judgment filed by the trial court on March 4, 2008. The court sentenced defendant to the upper term of four years for violating Penal Code section 273.5, subdivision (a). Item 1 of the abstract identifies this as the midterm sentence and must be corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect imposition of the upper term for violation of Penal Code section 273.5, subdivision (a) and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , Acting P.J., CANTIL-SAKAUYE , J.