Opinion
B197177
7-16-2008
THE PEOPLE, Plaintiff and Respondent, v. WILLIE CHARLES RICHARDSON III, Defendant and Appellant.
Tara K. Allen, 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, Assistant Attorney General, Margaret E. Maxwell and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Willie Charles Richardson III (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of four counts of robbery with jury findings that a principal was armed and defendant personally used a firearm. (Pen. Code, §§ 211, 12022, subd. (a)(1), 12022.53, subd. (b).) The trial court sentenced defendant to an aggregate term of 26 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) the trial court had a sua sponte duty to exclude evidence of an unduly suggestive identification procedure, and (2) the prosecutor committed misconduct during final argument as he vouched for the credibility of a prosecution witness.
The People contend that the judgment must be modified to impose section 1465.8 court security fees in the amount of $80.
Defendants contentions lack merit, but the Peoples contention is well-taken. We will order the judgment modified to impose $80 in court security fees and affirm the judgment, as modified.
FACTS
In 2004, the Casa Tequila on Roscoe Boulevard in Los Angeles County had a six-man band playing on the weekend during the evening hours. Juan Andalon (Andalon), Eduardo Gonzalez (Eduardo), Maurilio Gonzalez (Maurilio) and Juan Rangel (Rangel) were four of the members of that band. On February 21, 2004, at about 1:45 a.m., the band had finished playing for the night. The above four band members were in the alley adjacent to the night clubs parking lot loading their equipment into a pickup truck. Andalon had just walked out of the restaurant with the $1,500 fee the band had earned for the weekend.
Two men approached the band members, an African-American youth who pulled out a nine-millimeter semiautomatic handgun and a Caucasian youth. The gunman pointed his pistol at the band members. Andalon started to run, but the gunman shouted that if Andalon did so, the gunman would kill him. The assailants robbed Andalon and the other three band members. During the robbery, the gunman repeatedly directed Andalon not to look at the assailants and said something like, "Give me your money." The assailants took the band members money and jewelry, including the $1,500 Andalon had just been paid by the nightclub. Andalon had a number of opportunities to look at the gunman during the robbery, but the gunman kept directing Andalon to look down. Andalon got a better look at the Caucasian youth. Andalon said that during the robbery, it was raining, but the robbery occurred directly under a light.
After the robbery, the band members immediately telephoned the police. Each victim gave a description of the robbers to the responding police officers.
Andalon told the police that the gunman was about 30 years old and weighed 200 pounds. At trial, Andalon testified that the gunman was 20 or 22 years old, weighed about 175 pounds, and was about six feet tall. Andalon said that the gunman had a handkerchief or something on his head and possibly had no facial hair or tattoos. After the robbery, Rangel did not recall that the gunman had facial hair. Eduardo described the gunman as being 5 feet 8 inches tall and weighing 210 pounds. Eduardo told the officers that the gunman was wearing a hat, and Eduardo did not remember seeing any facial hair or tattoos on the gunman.
After the robbery, on March 3, 2004, Andalon, Maurilio, and Rangel went to the police station. Separately, the band members were shown two photographic displays. In exhibit 1, Andalon identified the person in the No. 2 position, Shawn Cooper (Cooper), as the Caucasian assailant. Also at the station, Andalon was shown another six-pack photographic display, exhibit 4a, which depicted a suspect, Kenneth Pogues (Pogues), who was in the No. 5 position. In exhibit 4a, Andalon identified that the person in the No. 3 position and said that that person "look[ed] the closest to the person [who] threatened me with the gun." However, he also mentioned that the person in the No. 2 position had a hat and that person also "could be" the gunman.
Later, on March 28, 2004, late at night, police officers went to the Casa Tequila and showed Andalon and the other band members another six-pack photographic display. After looking at that display, Andalon said that the person depicted in the No. 3 position in that display, defendant, "looked like the person." Andalon testified that when he saw defendant in person during the April 2004 preliminary hearing, he identified him as the robber with the gun, and he was a "hundred percent" sure that defendant was the gunman. Andalon also testified that at a prior trial in June 2006 he had identified defendant as the gunman. During the current trial, Andalon testified that he was sure that defendant was the gunman.
Andalon further explained that on March 28, 2004, at the Casa Tequila, the four band members were shown the photographic display separately. Afterwards, they talked about what they had seen and attempted to discover whether they had selected the same person. They decided that they had.
At trial, Maurilio testified, corroborating Andalons testimony about the events of the robbery. Maurilio said that he gave defendant, the gunman, his wallet, which contained $300 and credit cards. Maurilio identified the photograph of the person in the No. 2 position in exhibit 1, Cooper, as the gunmans Caucasian companion. He could not identify anyone in the second photographic display, exhibit 4a. (He identified no one, including Pogues.) During the March 28, 2004, photographic display at the Casa Tequila, he identified defendant, the No. 3 photograph in exhibit 7a, as the gunman. He testified that he was a "hundred percent" sure of his identification. During his examination, he said that a week after the first identification procedure, he and the other victims discussed the identification. However, after the procedure at the Casa Tequila, they discussed their identifications only weeks later. At the preliminary hearing and at another court proceeding, he had identified defendant as the gunman, and he was sure of his identification.
Maurilio was impeached with his testimony at the preliminary hearing that he had believed on March 28, 2004, he was shown the same photographic display of African-American persons (i.e., exhibits 4a and 7a) that he had seen on March 3, 2004. During subsequent cross-examination and redirect testimony, Maurilio made conflicting statements about whether he believed that he had seen the same photographic display on March 3, 2004, and March 28, 2004. Then, he said that he did not remember. He acknowledged that when he made his initial courtroom identification, defendant was the only African-American in the courtroom.
Rangel testified to the events of the robbery, again corroborating Andalons claims. He said that during the robbery, the robbers took the chain he was wearing and cash from his wallet. At trial, he identified defendant as the gunman. Rangel had positively identified the person depicted in the No. 2 position in exhibit 1, Cooper, as the Caucasian assailant. When he was shown exhibit 4a, he said the person depicted in the No. 3 position "could be another of the robbers." (He did not identify Pogues.)
Later, on March 28, 2004, at the Casa Tequila, Rangel identified the person in the No. 3 position in exhibit 10a, defendant, as the gunman. He was a "hundred percent" certain of this latter identification. Rangel said that during the latter identification procedure, he had believed that he was merely "confirm[ing]" the person who had robbed him. He believed the officers had twice shown him the same display. He explained that he had only tentatively identified the robber in the No. 3 position in exhibit 4a. However, he was certain of his identification in exhibit 10a because he had the robbers "face in . . . [his] mind," and he had identified the man by using his independent memory of the robbery.
During two later court proceedings, Rangel again identified defendant as the gunman. He was sure of his identifications. He acknowledged that when he testified at the preliminary hearing, defendant was the only African-American sitting at the counsel table. During cross-examination, trial counsel elicited that Rangel had identified defendant at the preliminary hearing without even looking at him. At trial, Rangel admitted that when he had entered the courtroom, he had known where the defendant would be sitting.
Eduardo testified corroborating Andalons version of the robbery. Eduardo said that during the robbery, defendant took under $100 from him, identification, and maybe a credit card. During the robbery, Eduardo got a good look at the robbers faces. The area was well lit, and he was paying attention mostly to the gunman. During the robbery, after he was told to face a wall, he had turned and done so, and he did not look at the robbers again.
In court, Eduardo identified defendant as the gunman. He had participated only in the March 28, 2004, identification procedure at the Casa Tequila. He identified the person in the No. 3 position in exhibit 11a, defendant, as the man "who robbed us." Eduardo was "90" to "[a] hundred percent" sure of his identification. All he was told by the other band members about the prior display procedures was that "they had recognized him. That was it." None of the other victims told him which photograph he had selected.
In June 2006, just prior to another trial proceeding, Eduardo was shown exhibit 1. He selected the person in the No. 2 position, Cooper, as one of the robbers. He was 80 to 90 percent certain of that identification. At the preliminary hearing, he identified defendant as the gunman. He said that at the preliminary hearing he was 90 to a 100 percent certain of his identification. Eduardo said that currently, he was a 100 percent of his identification, and every time he looked at defendant, he became more certain that defendant was the gunman.
The officers testified that on March 28, 2004, during the photographic identification procedures, they had Officer Scott Nunez show the band members the photographic displays. Nunez was chosen for this task as he spoke Spanish. Officer Nunez testified that he displayed the photographs to each band member separately, and prior to the procedures, he had admonished each man with the attached standardized identification admonition. The officers with Nunez kept the four victims segregated until Officer Nunez had displayed the photographic display to each of the band members.
On June 21, 2004, Cooper was arrested. At trial, he testified under a leniency agreement with the prosecutors office. Cooper said that on the night of the robbery, he and defendant had drunk alcoholic beverages at a girls house. Then, they went to Kenneth "Shoo" Poguess house and got into Poguess car. The three of them drove to a check cashing location to "case" it. They intended to break into that location later that night and steal the safe. Once they had arrived at the check cashing location, defendant entered the alley alone. Soon thereafter, Cooper turned the corner into the alley. He saw defendant robbing four Hispanic men at gunpoint. Cooper assisted in the robbery. During the robbery, defendant used a black Glock 19, nine-millimeter semiautomatic handgun.
After Cooper and appellant secured the band members valuables, they ran from the scene, and Pogues drove them back to the girls residence.
About 3:30 a.m., they returned to the location to commit the burglary at the check cashing location. Cooper explained that the $2,000 they had obtained from the band members was not enough. They used a crowbar to enter the location. An alarm went off. Cooper stayed behind when defendant and Pogues ran outside. The police arrived as Cooper ran out the door. Cooper and defendant hopped over a fence, escaped from the police, and a friend came to pick them up. Pogues weighed too much to jump the wall, and Pogues was arrested. Cooper was later arrested after being out-of-state for a while. Pogues assisted the police in identifying Cooper.
Cooper acknowledged that defendant might have been wearing a beanie-type hat during the robbery.
Los Angeles Police Detective Jamie McBride testified that he had arrested Pogues. After the arrest, Pogues showed them a purple metallic-colored car. The officers spoke to the registered owner of that car, a woman, who identified her boyfriend as Cooper. When they arrested Cooper, Cooper had a .22 or .25-caliber pistol. The detective showed the pistol to the robbery victims, and they indicated that firearm was not the robbery weapon.
Defendant was arrested on March 28, 2004. He was six feet or six feet, one-inch tall. He had an average build and was about 19 years old. Detective McBride testified that appellant looked older than he was. At that time, the booking officer put down on defendants arrest report that defendant weighed 158 pounds. Defendant had a tattoo on each side of his neck and one tattoo on his arm.
I. The Defense
Defendant did not testify on his own behalf. During final argument, his trial counsel argued misidentification and alibi.
Defendants mother, girlfriend, and aunt testified to an alibi. His mother claimed that on the night of the robbery, defendant was at a party she gave for her niece. The party had lasted until 3:00 or 4:00 a.m. the following morning. She claimed that defendant had left the party about 1:00 a.m. and went over to Lisa Gomezs residence, which was nearby. He was gone for no more than 20 to 25 minutes. Defendants mother left the party shortly before 2:00 a.m. to purchase liquor.
Susan De Cruz (De Cruz), defendants live-in girlfriend, testified that on the night of the robbery, she and defendant had attended a party upstairs at his relatives apartment. They had a fight at about 2:00 a.m. and went home together. When she fell asleep in the living room, defendant was in the bedroom with their children.
De Cruz testified that for as long as she had known defendant, he had worn a beard and a moustache.
Defendants aunt testified that defendant and De Cruz had a fight and left the party together at about 11:30 p.m. Defendant was gone for about 30 to 45 minutes and then returned. He remained at the party and helped clean up afterwards. After the party was over, he sat there drinking with her until 4:00 or 5:00 a.m.
Defendants mother and aunt were impeached with prior felony convictions.
Edward Geiselman (Geiselman), a clinical psychologist, who had expertise with eyewitness identifications, testified that a little bit of stress improves perception and recollection, but too much stress interferes with these abilities. Thus, the presence of a gun during a crime may hinder the ability of the victims to accurately identify their assailants. The studies show that where there is a gun, there is "weapon focus," and witnesses look at the gun, not at the perpetrator. Cross-racial identifications also make an eyewitness identification more difficult. He explained that implied or self-implied suggestion, such as the location of a suspect in the courtroom during an identification, can affect the reliability of an eyewitness identification. He told the jury that there is only a weak relationship between the certainty of the person making the identification and accuracy. Also, there may be eyewitness bias in that a crime victim tends to make identifications when asked to participate in an identification procedure.
Geiselman said that where the perpetrator is not depicted in a display, the most likely "pick" is the photograph that differs from the others in some way. He pointed out that in one of the displays in this case, one photograph had a different background. Also, as time passes, memories fade. The only exception may be where someone is beaten during the crime. Sometimes, in such a case, the victims memory improves over time. He commented that the studies show that one cannot assume that where the eyewitnesses have accurately selected one perpetrator, that his or her identification of another perpetrator is similarly accurate. He said that "cross-talk" between witnesses after an identification procedure may lead to an inaccurate identification because the witnesses "cross-pollinate their memories." If one witness has merely heard that an identification had taken place, that may have influenced that witness to make an identification he otherwise would not have made.
During cross-examination, Geiselman acknowledged that the ability to get a good look at the perpetrator—i.e., good lighting, nearness to the item to be identified, level of attention—all increase the reliability of an identification. Also, a lapse of five weeks is a reasonable period of time in which to recall a perpetrators appearance. Use of a good photograph in making an identification is just as reliable as seeing someone in person, unless there is a peculiarity the person displays, which will render the in-person identification more reliable. An inaccurate report of the perpetrators description to the police bears no relationship to the ability to identify a perpetrator in person. Only rarely do people have photographic memories.
II. The Rebuttal Testimony
Officer Richard Acosta testified and impeached the testimony of defendants mother and De Cruz with respect to their claims that they had never previously seen defendant with a gun. The officer testified that at 10:45 p.m. on March 21, 2004, he responded to a domestic violence call at defendants apartment. De Cruz and defendants mother complained that De Cruz and defendant had had an argument. During the argument, defendant had removed an unknown-type handgun from a location in the bedroom, and put it into his backpack.
DISCUSSION
I. The Claim of an Unduly Suggestive Identification Procedure
Defendant contends that the eyewitness identification procedures were unduly suggestive and unreliable and that the trial court sua sponte should have excluded the eyewitness identifications.
The issue is not cognizable on appeal.
A. The Relevant Legal Principles
Defendant bears the burden of "showing an unreliable identification procedure." (People v. Ochoa (1998) 19 Cal.4th 353, 412.) "Whether an extrajudicial identification admitted at trial is so unreliable as to violate a criminal defendants right to due process of law under the Fourteenth Amendment is governed by principles stated in Manson v. Brathwaite (1977) 432 U.S. 98. Those principles—although variously phrased in various state and federal decisions—establish the following structure of analysis. [¶] The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.]" (People v. Gordon (1990) 50 Cal.3d 1223, 1242, overruled on other grounds in People v. Edwards (1991) 54 Cal.3d 787, 835; accord People v. Carpenter (1997) 15 Cal.4th 312, 366-367; People v. Wash (1993) 6 Cal.4th 215, 244.)
"The question is whether anything caused defendant to `stand out from the others in a way that would suggest the witness should select him." (People v. Carpenter, supra, 15 Cal.4th at p. 367.) "A due process violation occurs only if the identification procedure is `so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384.)" (People v. Cook (2007) 40 Cal.4th 1334, 1355.)
It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. (People v. Johnson (1992) 3 Cal.4th 1183, 1216.)
B. The Analysis
At the outset, this issue is not cognizable on appeal. It is well-settled that where a defendant fails to raise this point in the trial court, it is waived. (People v. Medina (1995) 11 Cal.4th 694, 753.) In any event, examining the trial evidence, we would not conclude that these eyewitness identifications were so unduly suggestive and unreliable that they should have been excluded. The eyewitnesses had an ample opportunity to see the robbers and to observe their faces and personal appearances. The eyewitnesses had no difficulty identifying Cooper. Two of the eyewitnesses identified persons in the second six-pack, but not Pogues. Several weeks later, the band members were admonished individually about how to go about identifying someone during a photographic identification procedure. One-by-one, in separate identification procedures, they each identified defendant in the six-pack display shown to them at the Casa Tequila. Upon their initial court appearances, when each witness saw defendant again in person for the first time since the robbery, they identified him as the gunman. They claimed to be certain of their identifications. The photographic identification procedures occurred within several weeks of the robbery, which the defense identification expert acknowledged was close enough in time to the robbery to assure the reliability of the identifications. Several of the eyewitnesses indicated that he had identified defendant from memory.
It makes no difference in this case that there were several tentative misidentifications and that two eyewitnesses assumed that they had been shown the same display on March 3, 2004, and March 28, 2004. This court is not persuaded that the display of defendants photograph to the eyewitnesses on March 28, 2004, affected the reliability of the witnesses in-court identifications. We examined the displays shown to the eyewitnesses on March 3, 2004, and March 28, 2004. Defendants photograph is not sufficiently different from the other photographs that the blue background in his photograph was unduly suggestive. Factors such as the background color of the photograph, the differing size of the persons depicted in the photographs, and the location where the officers showed the band members the photographs are not sufficient alone to demonstrate that the procedures were unduly suggestive. (See, e.g., People v. Johnson, supra, 3 Cal.4th at p. 1217 [all of the photographs were of Black males, generally of the same age, complexion, and build, and generally resembling each other; thus, defendants photograph did not stand out, and the identification procedure was sufficiently neutral].)
The accuracy and reliability of the eyewitness identifications were issues requiring a jury determination. The four identifications of defendant were corroborated by Coopers testimony. On this record, the use of the eyewitness identification evidence did not deprive defendant of due process or a fair trial.
In his reply brief, defendant raises the issue of ineffective trial counsel because trial counsel failed to object on this ground in the trial court, and consequently, the issue was forfeited on appeal. Ordinarily, a point raised for the first time in a reply brief is deemed waived and will not be considered, unless good reason is shown for failure to present it in the opening brief. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Nor is there any merit to the belatedly-raised claim of ineffective trial counsel. The record on appeal fails to affirmatively disclose that trial counsel had no rational tactical purpose for the failure. "If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.) Here, it appears that trial counsel, a well-seasoned criminal practitioner, believed that the due process point had little likelihood of success. He no doubt decided that the best course of action was to cross-examine the eyewitnesses at trial to elicit the discrepancies in their identification testimony and then to argue misidentification to the jury.
II. Prosecutorial Misconduct
Defendant contends that during final argument, the prosecutor committed misconduct by vouching for witness Cooper.
We disagree.
A. Background
During Coopers examination, the prosecutor elicited explicit testimony from Cooper that he was testifying under a leniency agreement. Cooper explained that in exchange for his truthful testimony, he had been permitted to plead guilty to the robbery and to an unrelated burglary in exchange for two concurrent three-year prison terms. Part of the agreement involved a promise by the People that Cooper would be imprisoned in a secured and protective environment in prison and thereafter be relocated. The prosecutor had the witness explain that part of the material conditions of the agreement was that Cooper had to tell the truth during his testimony. If Cooper did not do so, Cooper could be prosecuted for perjury, making false statements, or obstruction of justice.
Without an objection, the prosecutor told the jury during final argument that Cooper had testified under a leniency agreement with his office. The prosecutor explained that that "meant [that] if he didnt tell the truth, my office could prosecute him for various crimes of lying, perjury, obstruction of justice, and things of that nature."
During final argument, some of trial counsels comments on Coopers credibility were, as follows: "[T]he prosecutor points out, `Well, Mr. Cooper, He—you know, he got this deal, but hes still subject to perjury and things like that. Well, of course. You cant immunize somebody for future criminal conduct. There aint no such thing. Is he going to be prosecuted? Nah."
B. The Relevant Legal Principles
The court in People v. Alfaro (2007) 41 Cal.4th 1277 (Alfaro), recently reiterated the following well-established legal principles: "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such `"unfairness as to make the resulting conviction a denial of due process." (Darden v. Wainwright (1986) 477 U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Frye (1998) 18 Cal.4th 894, 969 (Frye).) In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. (People v. Earp (1999) 20 Cal.4th 826, 858.)" (Alfaro, supra, 41 Cal.4th at p. 1328.)
"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." (Frye, supra, 18 Cal.4th at p. 970.) We consider the statements in the context of the entire argument (People v. Dennis (1998) 17 Cal.4th 468, 522) and the reviewing court may not "`lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements." (Frye, supra, at p. 970.)
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witnesss truthfulness at trial. (United States v. Roberts (9th Cir. 1980) 618 F.2d 530, 536-537.) However, so long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the `facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, [the prosecutors] comments cannot be characterized as improper vouching. [Citations.]" (Frye, supra, 18 Cal.4th at p. 971.)
C. The Analysis
Applying the above legal principles to the instant facts, we conclude there was no prosecutorial misconduct. There was no misconduct in having Cooper set out the exact terms of his agreement with the prosecutor, including that Coopers failure to tell the truth would result in a breach of the agreement and Coopers prosecution. Indeed, in this respect, the prosecutor acted fully in conformity with his obligation to disclose any inducements made to the witness to testify. (People v. Bonilla (2007) 41 Cal.4th 313, 337.) Furthermore, there was nothing amiss in the prosecutor arguing to the jury that Cooper had incentives to tell the truth during the trial because if he did not, he could be prosecuted. The prosecutors comments during final argument were based on the evidence.
Moreover, such comments would not have led the jury to forego their own independent assessment of Coopers credibility and to cause it to accept the word of the prosecutor that Cooper was being truthful. In any event, trial counsel failed to object to the testimony or the final argument in the trial court, and the issue is forfeited. The record fails to support defendants claim that his failure to object constituted an exception to the general rule of waiver. The complained-of comments were not so prejudicial that an objection and request for an admonishment would have been futile in dispelling any prejudice.
The decision in People v. Lambert (1975) 52 Cal.App.3d 905, 908, no longer constitutes good authority in light of the decision in People v. Green (1980) 27 Cal.3d 1, 31-33, overruled on another point as explained in People v. Morgan (2007) 42 Cal.4th 593, 610-611. The court in Green settled that there is no exception to the general rule of waiver where there is grave doubt of guilt and the acts of misconduct contribute materially to the verdict. (See People v. Bonilla, supra, 41 Cal.4th at p. 336.) This is not a case where the failure to object may be excused on grounds of futility. There is no indication in this case that the prosecutor had been given free rein to commit misconduct without judicial restraint, and further objections by trial counsel would have been useless and counterproductive. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) Nor were the remarks so prejudicial that the bell could not be "unr[u]ng." (People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585-1586.)
III. The Imposition of Additional Court Security Fees
The People point out that at sentencing, the trial court imposed one $20 court security fee pursuant to section 1465.8. They contend that the court security fee is mandated for each conviction.
We agree.
Section 1465.8 provides that `"(a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." The statutory language unambiguously requires the imposition of a $20 court security fee for each criminal conviction. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; see also People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.)
DISPOSITION
The judgment is modified to add three additional $20 section 1465.8 court security fees in addition to the one $20 court security fee previously imposed, so that the total court security fee defendant is obligated to pay is $80. As modified, the judgment is affirmed.
The clerk of the superior court shall prepare an amended abstract of judgment reflecting the modification in the judgment and send the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur:
BOREN, P. J.
CHAVEZ, J.