Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA054170 Lance A. Ito, Judge.
John Steinberg, 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, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Shawna Lenora Robles appeals from the judgment entered after a jury trial. The jury found defendant guilty of two counts of second degree burglary (Pen. Code, § 459; counts 1 & 3), two counts of forgery (§ 470, subd. (d); counts 2 & 4), two counts of first degree murder (§ 187, subd. (a); counts 5 & 6), first degree residential robbery (§ 211; count 7), first degree residential burglary (§ 459, count 8) and unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a); count 9). The jury also found true the multiple murder special circumstance allegations in counts 5 and 6 (§ 190.2, subd. (a)(3)), as well as the allegations that during the murders charged in counts 5 and 6, defendant was engaged in the commission of a residential burglary and robbery (§ 190.2, subd. (a)(17)) and that the burglary charged in count 8 was a violent felony within the meaning of section 667.5, subdivision (c), because another person, other than an accomplice, was present in the residence during the commission of the burglary. In addition, the jury found not true the allegations in counts 6, 7 and 8 that defendant personally used a deadly weapon, specifically a knife, during the commission of the crimes (§ 12022, (b)(1)), causing the offenses to be serious felonies (§ 1192.7, subd. (c)(23)). Finally, during the penalty phase, the jury fixed the penalty for the murders in counts 5 and 6 to be life imprisonment without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise stated.
In counts 5 through 8, defendant was charged jointly with co-defendant Alfredo Montez Valenzuela. Although the two were going to be tried jointly, the co-defendant was unable to proceed to trial for medical reasons. Defendant, therefore, was tried separately.
The trial court imposed consecutive sentences of life imprisonment without the possibility of parole on counts 5 and 6. It further imposed determinate terms of imprisonment on counts 1 through 4 and 7 through 9 and ordered them stayed pending the completion of the sentences imposed on counts 5 and 6.
Defendant contends that the trial court erred prejudicially by ordering her to submit to a mental examination by a psychologist retained by the prosecution and that the admission of evidence from that compelled examination violated her federal and state constitutional right to due process, privilege against self incrimination and right to the effective assistance of counsel. Defendant also contends that felony murder special circumstance findings in counts 5 and 6 must be stricken, in that they are not supported by substantial evidence and that her sentences of life imprisonment without the possibility of parole imposed on counts 5 and 6 constitute cruel and unusual punishment under the federal and state constitutions. Finally, defendant contends that the abstract of judgment must be corrected by striking the parole revocation fine. We affirm with directions to modify the abstract of judgment.
FACTS
A. Prosecution’s Case
1. The Shaums
As of July 2003, Clark and Bernice Shaum had lived in their two-bedroom single-story home in Monrovia on West Duarte Road for at least 20 years. Mr. Shaum was 78 years old, and Mrs. Shaum was 70 years old. Together the Shaums had two adult daughters, Patricia Smith (Smith) and Susan Fisher (Fisher).
Mr. Shaum’s private space was his garage, which he kept locked at night and when not in use. In a red Craftsman toolbox, Mr. Shaum kept a number of “treasures, ” including old watches and a state quarter collection. Mr. Shaum locked the toolbox with a slide-in bar and padlock. Also in the garage was a locked wooden cabinet in which Mr. Shaum kept coins, watches, checks, statements and old paychecks. An air compressor also was kept in the garage.
Mr. Shaum often sat in or near his garage and enjoyed a beer and conversation with friends in the neighborhood, including co-defendant Alfredo Montez Valenzuela (Valenzuela) and defendant. Two weeks before the Shaums were murdered, Valenzuela and defendant visited Mr. Shaum. Valenzuela threatened to kill Mr. Shaum when he refused to lend Valenzuela money.
2. Defendant and Valenzuela
Defendant and Valenzuela lived in Monrovia on South Magnolia Avenue not too far from the Shaums. They lived with Valenzuela’s sister, Sarah Valenzuela (Sarah), and his brother, Felipe Valenzuela (Felipe).
In June and July 2003, defendant and Valenzuela were having financial problems. Neither of them was working, and defendant needed money to pay the rent for her storage unit. She was several months behind on her rent, and she was anxious and worried about losing her possessions. In the days before July 26, defendant received a number of telephone messages advising her that her possessions were about to be auctioned off. On July 25, defendant talked about going to a club and picking up an older man in an effort to get money from him.
3. Discovery of the Shaums’ Bodies on July 26, 2003
Smith arranged for satellite television to be installed at her parents’ home on July 26, between 1:00 and 4:00 p.m. Around 1:00 p.m., Smith drove by her parents’ home and noticed that the house was “closed up” and her father’s pickup truck was not there.
At about 2:00 or 2:30 p.m., the satellite television installer called Smith’s husband to say he was on his way to the Shaums’ house. When Smith’s husband arrived at the house, it appeared that no one was home even though Mr. Shaum knew the installation was to take place.
Around 3:00 p.m., Smith returned to her parents’ home. Her father’s pickup truck still was not there. Smith’s efforts to drive around and find her parents were unsuccessful. She went back to the house and knocked on the door to no avail. Smith observed a black work glove stuck in the front door, but she was unable to pull it out. She also found the back door to be locked.
Smith noted that the curtains in her mother’s bedroom were blowing, indicating that the fan was on. In addition, the window had no screen. Smith, who was “very familiar” with her parents’ habits and customs, found this to be highly unusual, in that her parents routinely turned everything off and locked up the house before going anywhere. In addition, Smith’s father would not have opened the window without a screen covering.
Smith’s husband opened the window to Mrs. Shaum’s bedroom and opened the drapes. The Smiths saw that there were no sheets on the mattress, which was “steeped” in blood. Smith saw her mother lying on the floor. Smith’s husband jumped through the window and touched his mother-in-law’s ankle. Mrs. Shaum was cold to the touch. Smith’s husband discovered his father-in-law on the hallway floor, lying in a pool of blood. Mr. Shaum, too, was cold to the touch. After the gruesome discoveries, Smith’s husband went to the kitchen and dialed 911.
Mrs. Shaum died from blunt force and sharp force injuries. She had been stabbed 40 times with a sharp instrument such as a knife or knives. Thirteen of her stab wounds were fatal. These included six stab wounds to the right side of her neck, one to the left side of her neck, one to the back of the neck (which severed her spine), five to her chest, right back area and right armpit. Mrs. Shaum also sustained 24 non-fatal, non-defensive stab wounds.
The blunt force trauma suffered by Mrs. Shaum could have been caused by fists, being pushed into a wall, or by being hit with bolt cutters. She suffered such trauma above her left eye, on her forehead, nose and cheeks, and around her mouth. Mrs. Shaum also suffered lacerations of the lip and bruising of the lip and mouth area. Defensive wounds were found on both of her hands.
Mr. Shaum bled out and died from numerous fatal stab wounds. These included stab wounds to his lungs, aorta, left carotid artery and veins in his neck. In total, Mr. Shaum was stabbed 113 times. He also sustained blunt force trauma to his head, left arm and leg and around his left eye.
4. Defendant’s and Valenzuela’s Activities on July 25 and July 26, 2003
On the afternoon of July 25, defendant, Sarah, and Sarah’s boyfriend, walked to the home of Charles Contreras (Contreras). They stayed for about 15 minutes.
Sometime between 10:00 and 11:00 p.m. on July 25, Sarah saw defendant and Valenzuela when they came home. After she went to bed, Sarah woke up and realized that defendant and Valenzuela were no longer home. Sarah called Contreras and talked to Felipe and Valenzuela. Sarah thought defendant also was at Contreras’s residence.
On July 26, Sarah woke up at 6:00 or 7:00 a.m. Defendant was in the dining room, going through a black purse with pink lining. Defendant removed a necklace, one or two rings, and a gold-colored bracelet from the purse. Sarah had never before seen these articles of jewelry. The purse and jewelry later were identified as belonging to the Shaums. Defendant gave Sarah a necklace with a heart locket. Defendant also gave Felipe a clock.
Sarah testified under a grant of immunity in light of her admission that defendant gave her property taken from the Shaum residence.
When Sarah asked defendant where she got the purse, defendant said she had snatched it from a woman who was walking down the street. Defendant stated that she was going to pawn the jewelry. Defendant also had possession of a checkbook. She was neither nervous nor anxious and, in fact, was calm.
Sarah asked defendant where Valenzuela was. Defendant said Valenzuela had been jumped in Duarte and stabbed. Defendant told Sarah that Valenzuela was at the home of Jennifer Admunson (Admunson), and they could pick Valenzuela up.
Sarah and her boyfriend, defendant and Felipe went to Admunson’s to pick up Valenzuela. Admunson lived above Contreras. Valenzuela was sleeping and appeared to be intoxicated. He had cuts on his wrist and knee. He did not have these injuries the previous day. Valenzuela was upset with defendant and did not want to be around her.
When Sarah suggested that Valenzuela go to the emergency room, he refused. Sarah took her brother home. Defendant did not accompany them but instead went to a pawn shop in Monrovia where she attempted to pawn a bracelet and a two-piece wedding set. The employee would not accept the bracelet, in that it was not real gold, and only offered defendant $15 for the wedding set.
Later that same day, defendant stated she was going to the Ranch Market to cash a check. At the market, which was about two blocks away, defendant attempted to cash two checks from an account bearing the names of Mr. Shaum and Fisher. The first check which bore the forged signature of Mr. Shaum was cashed for $25 store credit and $250 cash. The cashier wrote defendant’s name and address on the back of the check. The second check was refused, in that the first check had not yet cleared. Fisher did not give defendant a check from that account or permission to cash a check.
When defendant returned home, she had groceries. She advised Sarah that she could help with the rent and pay her storage fees. Defendant also told Sarah that she could help get Sarah’s second car, which had been repossessed, out of the impound lot. Defendant then left home and went to a check cashing establishment where she sent a moneygram to pay for her storage unit.
Sarah went bowling with friends around 7:00 p.m. She returned at midnight, after which they went out to the patio.
5. Police Investigation Leads to Defendant and Valenzuela
Los Angeles Sheriff’s Detectives David Carver and Gene Okada arrived at the Shaum residence on the evening of the murders. After the crime scene was processed, Detective Carver went to Mr. Shaum’s pickup truck, which was parked near the Ranch Market. Dog scent evidence led the detectives from the truck to the side gate of the home where defendant and Valenzuela lived. When the dog stopped at the gate, it was 3:20 a.m. Sarah and others were in the backyard. In response to Detective Carver’s inquiry as to whether Valenzuela was home, Sarah said he was asleep inside the house. Sarah asked the detective if he wanted to come inside. He declined but asked Sarah to ask Valenzuela to come outside. When Sarah entered her house, Detective Carver was able to see three individuals in the living room who later were identified as defendant, Valenzuela and Felipe.
As Valenzuela approached, Detective Carver observed cuts on his hands, as well as a cut on his right knee that was bandaged but still oozing blood. In the detective’s experience, a person who kills by inflicting multiple stab wounds frequently would suffer injuries to their own hands or body due to missing the victim, the arcing stabbing motion or slipping of the knife. The wounds Valenzuela had sustained were “stab wounds or slicing type wounds” consistent with those commonly sustained by a person who has stabbed another person numerous times. His wounds did not appear to be defensive wounds.
As Valenzuela approached Detective Carver, the detective asked him if he had any weapons. Valenzuela said, “I only have this, ” reached into his pocket and removed an ATM card bearing Mr. Shaum’s name. Felipe was in possession of a pocket watch that was of interest. Valenzuela was arrested. Defendant and Sarah were driven to the police station. En route, the police drove Sarah behind the Ranch Market, where she identified Mr. Shaum’s pickup truck. Defendant and Sarah later were released.
6. Sunday, July 27, 2003
On July 27, at 8 a.m., Detective Carver and other police officers executed a search warrant at the house in which defendant, Valenzuela, Sarah and Felipe resided. In the living room, Detective Carver found Valenzuela’s wallet in a wicker basket. The wallet contained Valenzuela’s identification and pictures of defendant. Also inside the wicker basket was property belonging to the Shaums, namely, the keys to Mr. Shaum’s 1974 Chevrolet truck, a lanyard Mr. Shaum’s grandson had made for Mr. Shaum, a bunch of keys, military patches that Mr. Shaum collected and a refrigerator magnet.
In the attic of the residence, officers discovered a bag containing more items belonging to the Shaums, including financial documents with names and account numbers. Many of these documents had been taken from the Shaums’ “hope chest.” Also inside the bag were a man’s wallet, pictures, identifications cards, seven photographs of defendant, 34 keys on various key rings, lanyards, a San Dimas High School ring, and two keys that fit Mr. Shaum’s truck.
7. Monday, July 28, 2003
On July 28, defendant decided to go to Hesperia to stay with her mother and began gathering her belongings. That morning, defendant told Sarah that she and Valenzuela went to rob the Shaums’ garage but could not gain access to it with their bolt cutters. Defendant and Valenzuela intended to steal whatever was in the garage, including the contents of the safe that defendant had seen in the garage during her visits with the Shaums. Defendant always carried a butterfly knife. It was small enough to hide in her bra.
Defendant told Sarah that Valenzuela had entered the Shaums’ residence through a window and then opened the door for defendant. Mr. Shaum, who was wearing boxers, attacked defendant in the hallway. Defendant responded by hitting Mr. Shaum in the head with bolt cutters and stabbing him in the back. Defendant also stated that she stabbed Mr. Shaum in the face and back, after which she cleaned up everything with “409.” Defendant and Valenzuela then found the keys to the Shaums’ truck and were able to gain access to the garage. Once inside the garage, they took various items, including $80 in quarters. These coins were taken from a wooden box. Defendant and Valenzuela then left in the Shaums’ truck. Defendant drove the truck to Admunson’s apartment, where she dropped off Valenzuela. She then drove to the Ranch Market and left the truck behind the market.
Shortly after 10:00 a.m., Monrovia Police Detectives Carlos Calderon and Jim Larsh went to the Valenzuela house to conduct an investigation about a potentially stolen check that had been cashed at the Ranch Market. Sarah told Detective Calderon to ask defendant about a VCR and jewelry that had come into the house on Saturday. Defendant produced a black purse with pink lining. The purse contained a gold-colored bracelet, a wedding set soldered together, a Wells Fargo checkbook, a First Interstate check register with nine canceled checks in the name of Mr. Shaum and Fisher, and a Virginia Slim vinyl cigarette case. All of these items were later identified as belonging to the Shaums.
After Detective Calderon received these items, Sarah brought him a VCR, which later was identified as belonging to the Shaums, a red Bristol Farms Box, three religious pendants, a heart pendant, and a chain. Sarah said that defendant had given these items to her on Saturday. Sarah explained to the detective that the VCR had not been there previously and did not belong to her family and that defendant said the VCR was from the Shaums’ garage.
Sarah also informed Detective Calderon about statements defendant made to her. Defendant told Sarah that she (defendant) went to the Ranch Market with $80 and came back with $275 and some food. Defendant also told Sarah she was not seen during the robbery because she “was wearing a shirt and the M hat with [her] sweats” and she had covered her face with her shirt. Defendant further related to Sarah that Valenzuela told her that Mr. Shaum had a safe and that when Valenzuela opened the front door to the Shaums’ home for defendant, defendant asked him if he had killed Mr. Shaum. Defendant said that Valenzuela said he did not know where Mr. Shaum was. Defendant also told Sarah that she found $80 in quarters in a wooden box.
Detective Calderon asked defendant what she wore the night she was out with Valenzuela. Defendant said she was wearing a blue sweatshirt, black sweatpants, and black shoes. When the detective inquired about the shoes Valenzuela had worn on the night in question, defendant appeared uneasy. She agreed to tell the officers where his shoes were if they took her away from the house.
The detective collected the blue sweatshirt, black sweatpants, and black Fila shoes defendant wore the night of the murders. Defendant told Detective Calderon that the Fila shoes were Valenzuela’s.
The officers took all of defendant’s property and put it in a patrol car. Some of defendant’s belongings were in a pillowcase that defendant identified as coming from the Shaums’ home. Sarah gave Detective Marsh an envelope containing a knife belonging to defendant.
Detective Marsh escorted defendant to Admunson’s apartment where defendant pointed to a dumpster in the alley. Defendant directed the detective to look for a suitcase and a green garbage bag in the dumpster. Defendant stated that she and Valenzuela had taken those items from the Shaums’ residence and placed them in the dumpster after the crime. An officer retrieved the items from the dumpster.
Inside the garbage bag were a pillowcase, containing socks, a hand towel, a baseball cap with an “M” on it and what appeared to be a bloodstain, two fixed-blade knives (one serrated fork-end black-handled kitchen knife with an eight and one-quarter inch blade and one blue and white handled kitchen knife with a seven and three-quarter inch blade), which later were identified as belonging to the Shaums, three plastic coin holders belonging to Mr. Shaum, a left-handed Stanley work glove and a butterfly knife.
When shown the serrated knife, Smith said it appeared to come from her parents’ kitchen. Sarah did not recognize the knife and had never seen it before.
At 8:50 p.m., Detective Carver interviewed defendant at the Monrovia police station. The interview was videotaped. The tape was played for the jurors, who also were provided with a transcript of the interview. According to defendant, she “stated that she waited in a planter outside the Shaum residence while Valenzuela removed a window screen and entered, armed with a butterfly knife [she] had given to him. When Valenzuela opened the front door, he was covered with blood, and both Bernice and Clark Shaum were dead. At Valenzuela’s direction, [she] took a pillowslip, which Valenzuela loaded with property from the residence. They left in the Shaum’s pickup truck. [Defendant] cashed a stolen check, attempted to pawn jewelry, and disposed of bloody clothing and stolen items.”
8. Thursday, July 31, 2003
On July 31, Detective Manuel went to a laundry shed located on the property where Contreras and Admunson lived. Inside the shed was an air compressor, which belonged to Mr. Shaum. A battery charger and other items belonging to Mr. Shaum were found inside a barbeque also located inside the shed. The battery charger had just been given to Mr. Shaum on Father’s Day.
9. Blood and DNA Evidence
Blood was found throughout the Shaum home and in the garage. Blood on one of the gloves found in the Shaum residence matched Valenzuela’s DNA profile. Blood on the other glove matched Mr. Shaum’s DNA profile. Blood found inside the Shaum residence and on Mr. Shaum’s clothing matched Valenzuela’s DNA profile. Blood on defendant’s clothing and shoes matched Mr. Shaum’s DNA profile.
B. Defense
1. Valenzuela’s Statements
While in county jail, Valenzuela yelled out on one occasion that he killed two people and that no one helped him. At the time, Valenzuela was in a module that included gang members. It was not uncommon for inmates in such a module to seek protection by acting out and pretending to be mentally unstable in an attempt to be removed. Valenzuela also yelled out that he wanted to be crucified on a cross like Jesus Christ, cut his pants into shorts and his shirt into strips that he made into sandals, threw the contents of his cell onto the walkway, and appeared to be under the influence of jail-made alcohol.
Days after being mentally evaluated, Valenzuela said he did not mean what he had said. In letters, he claimed to have been in fear for his life, in that he owed gang members on his cell block money.
On July 27, 2003, Detective Carver interviewed Valenzuela. On this occasion, Valenzuela stated that he stabbed Mrs. Shaum because she woke up, and he did not want to be identified and sent back to prison. Valenzuela further stated that he hit Mr. Shaum, who then fell down. Valenzuela also stabbed Mr. Shaum numerous times, but he would not die. Valenzuela got a knife from the kitchen. He further stated that he pulled Mrs. Shaum off the bed because he lost his knife and was looking for it.
Valenzuela further stated that after he killed Mrs. Shaum, he opened the front door to let defendant inside the house. When defendant entered, Mr. Shaum woke up.
Detective Carver interviewed Valenzuela again on July 31, 2003. During this conversation, which took place at county jail, Valenzuela told Detective Carver that he opened the front door of the Shaums’ residence to let defendant inside after he stabbed Mrs. Shaum. Valenzuela further stated that defendant hit Mr. Shaum in the head or upper torso with bolt cutters they had brought with them. Mr. Shaum was knocked to the floor, after which Valenzuela stabbed Mr. Shaum 10 to 15 times in the upper torso and back. Although Valenzuela took credit for “most of the work, ” he acknowledged that defendant did “some damage.”
During trial, a portion of Detective Carver’s July 27, 2003 interview with Valenzuela was played to the jury. During this portion, Valenzuela admitted to stabbing Mr. Shaum several times. He explained that while he struggled with Mr. Shaum, defendant “help[ed] a bit.” Specifically, defendant “had a little knife and she stuck him a couple of times.”
2. Evidence of Defendant’s Mental State
Defendant’s defense was that she did not form the intent to commit burglary until after Valenzuela killed both Shaums and that her participation resulted from an acute episode of post-traumatic stress disorder triggered when Valenzuela opened the door to the Shaum residence covered in blood and holding a knife. Defendant’s position was that she was not guilty of felony murder because she did not form the intent to commit burglary until after the Shaums were dead.
Dr. Michael Perrotti, a forensic psychologist and neuropsychologist and a licensed marriage and family child counselor, was appointed in this matter at the defense request to perform a mental health evaluation on defendant. Dr. Perrotti opined that defendant suffered from post-traumatic stress syndrome, which was precipitated by childhood abuse, an alleged gang rape in 1989, and domestic violence with her first husband. Seeing Valenzuela covered in blood and holding a bloody knife after the killings triggered an acute episode of post-traumatic stress.
Dr. Perrotti acknowledged, however, that he never treated defendant. He only evaluated her in the context of this criminal case, a circumstance in which individuals have a motive to fabricate. Dr. Perrotti also noted that the medical records from defendant’s alleged rape in 1989 did not contain any medical findings substantiating force or physical trauma. In addition, there was not a single police report indicating defendant was the victim of child abuse. Defendant was not “100 percent accurate with information.” Her account of the details of her 1989 rape varied widely. Police reports memorializing incidents of domestic violence contained only information regarding verbal altercations.
C. Rebuttal
Dr. Harry Goldberg is a clinical psychologist specializing in forensic psychology. The People retained him to conduct a mental evaluation of defendant.
Dr. Goldberg reviewed numerous documents, interviewed defendant twice and administered a variety of psychological tests. He concluded that defendant did “not have any gross signs of a neurological dysfunction” and that her memory “seemed adequate.” Dr. Goldberg further “found insufficient evidence to conclude that she does suffer from PTSD.” He concluded that nothing in defendant’s July 26, 2003 videotaped interview suggested that she was experiencing PTSD symptoms. Dr. Goldberg thought defendant “came across very well, ” “had excellent recall, ” and “handled herself very well during that interview.” Since that time, Dr. Goldberg had not received any information suggesting defendant suffered from PTSD. He explained that someone with PTSD in a jail setting “would have severe symptoms.” The only symptoms defendant reported were “nightmares about the actual event, the arrest and some sleep disturbance.” A person with PTSD would be on medication. That defendant was not on any medication “means she doesn’t have any severe symptoms of anxiety or depression.” Her behavior during both interviews was “fine.”
If Dr. Goldberg had not known that defendant had a history of psychological problems, he would not have detected any psychiatric disorder whatsoever, in that she came across very well. Moreover, a person suffering from PTSD would not be expected to engage in planning and goal-oriented activities while having PTSD episodes. When reviewing the videotape, Dr. Goldberg viewed defendant’s statements as “very goal-directed.” Defendant also had “an excellent memory for what happened” and she thought ahead. Dr. Goldberg did not “get any sense of a fugue state of any sort.” The way defendant handled herself a couple days after the offenses were committed was the same way defendant handled herself with Dr. Goldberg, who could not detect any “gross abnormalities.” He diagnosed defendant as having an “antisocial personality disorder” characterized by “criminal behaviors and personality traits” and methamphetamine and alcohol abuse.
One of the tests administered by Dr. Goldberg was the Hare PCLR or Psychopathy Checklist Revised, which tests for personality traits and criminal behaviors. Defendant scored in the 88th percentile on the personality traits portion of the test and in the 82nd percentile on the portion of the test pertaining to socially deviant behaviors. Her overall score was in “the high range, ” placing her in the 83rd percentile of female inmates who have taken this test. As a result of defendant’s scores, Dr. Goldberg concluded that defendant had a number of antisocial personality traits. This bolstered his opinion that defendant suffered from an antisocial personality disorder.
Dr. Goldberg had diagnosed patients with having PTSD 50 to 100 times. A person with PTSD would be expected to be detached, have difficulty remembering things and appear dissociated. Defendant “was not detached at all, ” “her memory was excellent, ” “she handled herself very well, ” and she did not exhibit “extreme distress.” That defendant wrote a check to herself drawn on Mr. Shaum’s checking account shortly after the killings demonstrates callousness on her part. It also is “an example of somebody who has an antisocial personality disorder to be able to write a check of somebody who she knows was just murdered.”
DISCUSSION
A. Mental Health Examination by Prosecution
Defendant contends that the trial court erred prejudicially by ordering her to submit to a mental examination by a psychologist retained by the prosecution and that the admission of evidence from that compelled examination violated her federal and state constitutional right to due process, privilege against self incrimination and right to the effective assistance of counsel.
After the jury was sworn, the prosecutor asked the trial court for an order compelling defendant to be examined by a psychologist or a psychiatrist. The prosecutor explained that, based upon discovery she had received, defendant intended to present a psychiatric defense and place her mental state in issue. As such, the prosecutor maintained, the People were entitled to have defendant independently examined by a professional of their choosing.
Defense counsel represented that he intended to focus on post-traumatic stress disorder and complex post-traumatic stress disorder and their impact on defendant’s ability to form specific intent, rather than other diagnoses. Defense counsel objected to the People’s request, arguing that it violated California’s statutory discovery procedures and pointing out that the issue was then pending before the California Supreme Court in Verdin v. Superior Court (2006) 137 Cal.App.4th 1159, review granted June 14, 2006, S143040. Defense counsel asked that if an examination was ordered “that there be conditions placed upon it.”
The trial court granted the People’s request to conduct a mental examination of defendant subject to approval of the terms and conditions of the examination. Dr. Goldberg conducted the ordered evaluation and, at trial, testified in rebuttal, contrary to the opinion of defendant’s expert, Dr. Perrotti, that defendant did not suffer from post traumatic stress disorder.
After defendant was convicted but prior to sentencing, the California Supreme Court issued its opinion in Verdin v. Superior Court (2008) 43 Cal.4th 1096 (Verdin). Verdin, who was charged with attempted premeditated murder and other crimes, announced his intention to assert a diminished actuality defense at trial. He intended to argue that his voluntary intoxication prevented him from forming the mental state required to establish the charged offenses. To establish this defense, Verdin intended to rely upon the report and testimony of Dr. Francisco Gomez, a psychiatrist who examined him and rendered opinions regarding his mental state at the time of the crimes. (Id. at pp. 1100, 1101.)
The People, in turn, asked the trial court for Dr. Gomez’s written materials (a request Verdin did not oppose) and for an order directing defendant Verdin to submit to a mental examination by an expert retained by the prosecution. (Verdin, supra, 43 Cal.4th at pp. 1100, 1101.) The trial court so ordered the mental examination, after which the defendant sought writ relief. Following the appellate court’s denial of the writ, the California Supreme Court granted review. (Id. at pp. 1101-1102.)
Defendant Verdin made two main arguments. First, he contended that the trial court’s order that he submit to a mental examination performed by an expert retained by the People was not authorized by state law. Second, he contended that if state law did authorize such an examination, it violated his state and federal constitutional rights. (Verdin, supra, 43 Cal.4th at p. 1102.)
The Verdin court held that a mandatory psychiatric examination constituted discovery within the meaning of the criminal discovery statutes (§ 1054 et seq.) and that those statutes do not authorize the trial court to order defendant to submit to a psychiatric examination by an expert retained by the People. (Verdin, supra, 43 Cal.4th at pp. 1103-1109.) The court concluded that cases such as People v. Carpenter (1997) 15 Cal.4th 312, People v. McPeters (1992) 2 Cal.4th 1148 and People v. Danis (1973) 31 Cal.App.3d 782, which the People cited to support their argument that the trial court was authorized to order the prosecution to be granted access to the defendant for a mental examination by a prosecution-retained expert because the defendant placed his mental state in issue, did not survive the passage of Proposition 115. (Verdin, supra, at pp. 1106-1107.)
On June 5, 1990, the electorate of this state approved Proposition 115, the Crime Victims Justice Reform Act. “‘Proposition 115 added both constitutional and statutory language authorizing reciprocal discovery in criminal cases.’ The new constitutional provision, article I, section 30, subdivision (c) of the California Constitution, declares that ‘[i]n order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the People through the initiative process.’” (Verdin, supra, 43 Cal.4th at p. 1102.)
Relying on the preamble to Proposition 115, the People argued that the express purpose of Proposition 115 would be thwarted by abrogation of the rule that a defendant who places his or her mental state in issue must submit to a mental examination by a prosecution expert. (Verdin, supra, 43 Cal.4th at p. 1107.) The Verdin court rejected the People’s argument, explaining: “In order to effectuate the goals set forth in the preamble to Proposition 115, ... the framers of that initiative did not authorize the judiciary generally to create appropriate rules governing discovery in criminal cases. Although we must interpret the statutes governing discovery in criminal cases, we are not at liberty to create new rules, untethered to any statute or constitutional mandate. Instead, the framers of Proposition 115, by including the exclusivity provision of section 1054, subdivision (e), authorized the Legislature to create the applicable rules in the first instance. Only when interpreting a statute or where a rule of discovery is ‘mandated by the Constitution of the United States’ (§ 1054, subd. (e)) does this court have a role.... We thus conclude that nothing in the preamble to Proposition 115 authorizes or justifies the judicial creation of a rule that a criminal defendant who places his mental state in issue may be ordered by the court to grant the prosecution access for purposes of a mental examination by a prosecution expert.” (Verdin, supra, at pp. 1107-1108.)
The preamble to Proposition 115 provides in part: “‘[W]e the people further find that it is necessary to reform the law as developed in numerous California Supreme Court decisions as set forth in the statutes of this state. These decisions and statutes have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth.’ [Citations.]” (Verdin, supra, 43 Cal.4th at p. 1107.)
The Verdin court then summarized “that (1) any rule that existed before 1990 suggesting or holding a criminal defendant who places his or her mental state in issue may thereby be required to grant the prosecution access for purposes of a mental examination by a prosecution expert was superseded by the enactment of the criminal discovery statutes in 1990, and (2) nothing in the criminal discovery statutes (§ 1054 et seq.) authorizes a trial court to issue an order granting such access.” (Verdin, supra, 43 Cal.4th at p. 1109.)
The court in Verdin further concluded that no other express statutory provision authorized a mental examination by a prosecution expert (Verdin, supra, 43 Cal.4th at pp. 1109-1114) and that “nothing in the United States Constitution mandates the trial court’s order that the People be granted access to [defendant] for purposes of a mental examination by a prosecution expert on the ground that he intends to raise a mental defense.” (Id. at p. 1115.) The court observed that “[w]hile it is probable the People could more effectively challenge [defendant’s] anticipated mental defense if a prosecution expert were granted access to him for purposes of a mental examination, that probability does not establish that denial of such access violates article I, section 29 of the California Constitution. Should [defendant] present a mental defense at trial, the People’s strong interest in prosecuting criminals can often be vindicated by challenging that defense in other ways.” (Verdin, supra, at pp. 1115-1116.) In light of its conclusion, it was unnecessary for the Verdin court to determine whether the trial court’s order violated defendant Verdin’s constitutional rights. (Id. at p. 1116.)
In this case, defendant moved for a new trial in reliance on Verdin. At the hearing on the motion, defense counsel argued that “given the reliance of the prosecution on the interview of Dr. Goldberg, we believe that that played a substantial part in the jury’s verdict, and we would ask the court to grant a new trial based on that.” The trial court denied defendant’s motion for a new trial, concluding that error, if any, was harmless beyond a reasonable doubt.
The postural procedure of this case is different from that in Verdin. Verdin was a pretrial writ proceeding. As such, the defendant never submitted to a mental examination by the People’s expert. In this case, however, the trial court’s pretrial order directing defendant to submit to a mental evaluation by a prosecution expert was not challenged by way of writ. Thus, defendant submitted to a mandatory mental examination and the results of that examination were introduced in rebuttal at trial.
Application of Verdin to the facts of this case unquestionably compels the conclusion that the trial court violated the criminal discovery statutes by ordering defendant to submit to a mental examination by a prosecution expert. This violation of the discovery statute is subject to the harmless error standard elucidated in People v. Watson (1956) 46 Cal.2d 818, 836 (People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), and we conclude the error indeed was harmless.
We note that in 2009, the Legislature amended section 1054.3 in response to the Verdin decision. (Stats. 2009, ch. 297, § 1.) The amendment which took effect on January 1, 2010, provides as follows:
Defendant admitted to Sarah that she and Valenzuela went to steal from the Shaums’ garage but could not gain access into the garage from the outside with their bolt cutters. Defendant also told Sarah that Valenzuela thereafter entered the Shaums’ house through a window and then opened the door to let her in, after which Mr. Shaum approached. Defendant said she hit Mr. Shaum in the head with bolt cutters and that she stabbed him in the face and back. After finding some keys, defendant and Valenzuela were able to enter the Shaums’ garage and steal numerous items. They thereafter left in the Shaums’ truck. Defendant dropped Valenzuela off at Admunson’s apartment and then drove to the Ranch Market.
Defendant also told Sarah that she was not seen during the robbery because she was wearing a hat and covered her face with her shirt. Defendant further related to Sarah that when Valenzuela opened the door to the Shaums’ house, defendant asked Valenzuela if he had killed Mr. Shaum. Defendant told Sarah that Valenzuela did not know where Mr. Shaum was at that point.
These highly incriminating statements that defendant made to Sarah, unquestionably demonstrate that defendant at all times knew what she was doing, that she and Valenzuela went to the Shaums’ house for the express purpose of burglarizing their garage and stealing its contents. Unable to gain entry into the garage from the outside, they elected to gain access to the garage through the house. After Valenzuela crawled through a bedroom window and opened the door for defendant, defendant asked Valenzuela if he had killed Mr. Shaum.
Given these damaging admissions, it is not reasonably probable that a result more favorable to defendant would have occurred if the trial court had not violated the criminal discovery statutes by ordering defendant to submit to a mental examination and allowing Dr. Goldberg to testify at trial. Stated otherwise, it is not reasonably probable that the jury would have concluded defendant suffered from post traumatic stress disorder and acquitted her of any crimes on this basis. (People v. Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)
With regard to defendant’s assertion that the order compelling her mental examination by a prosecution expert also violated her state or federal constitutional rights, we observe that defendant only objected to the People’s request for a court ordered mental evaluation on the ground that such a request contravened the state’s criminal discovery statute. Defendant therefore failed to preserve her constitutional challenges for appellate review.
B. Sufficiency of the Evidence Supporting the Felony Murder Special Circumstance Findings
Defendant does not challenge the sufficiency of the evidence supporting her convictions for robbing the Shaums (count 7) and burglarizing their home (count 8). She also does not challenge the sufficiency of the evidence supporting her convictions for the first degree murders of Mrs. Shaum (count 5) and Mr. Shaum (count 6). Defendant challenges only the sufficiency of the evidence supporting the jury’s felony murder special circumstance findings in counts 5 and 6 pursuant to which she was sentenced to imprisonment for life without the possibility of parole.
Subdivision (a) of section 190.2 provides that “[t]he penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [¶]... [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: [¶] (A) Robbery in violation of Section 211 or 212.5. [¶]... [¶] (G) Burglary in the first or second degree in violation of Section 460.”
When the sufficiency of the evidence is challenged, we review the entire record in the light most favorable to the judgment to determine if it contains substantial evidence—i.e., evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Solomon (2010) 49 Cal.4th 792, 811.) This standard of review is applied when determining the sufficiency of the evidence to support a conviction or a special circumstance. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Mayfield (1997) 14 Cal.4th 668, 790-791.) It is also applied regardless of whether the People rely primarily on direct or circumstantial evidence. (Solomon, supra, at p. 811.) We presume in support of the judgment the existence of any fact the jury reasonable could have deduced from the evidence. (Maury, supra, at p. 396.) Thus, we must accept logical inferences that the jury could have drawn even if we would have reached a contrary conclusion. (Solomon, supra, at pp. 811-812.)
Defendant contends the felony murder special circumstance findings in counts 5 and 6 must be stricken, in that insufficient evidence was presented that she was an actual killer or that she aided and abetted Valenzuela in the murders with reckless indifference to human life. We agree with defendant that, with regard to the murder of Mrs. Shaum, the evidence establishes that Valenzuela stabbed Mrs. Shaum before letting defendant into the house. Defendant, therefore, was not Mrs. Shaum’s actual killer. We further agree with defendant that the jury’s determination that defendant did not personally use a knife during the commission of the murder of Mr. Shaum, during the robbery of the Shaums or the burglary of their residence, constituted a rejection of the evidence that defendant stabbed Mr. Shaum. In defendant’s view, this equates with a finding that she was not Mr. Shaum’s actual killer either. Since Mr. Shaum died from stab wounds, we must agree and will proceed on the basis that defendant was not an actual killer of either Mrs. or Mr. Shaum.
Section 190.2, subdivision (c), provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.”
Section 190.2, subdivision (d), states: “Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.”
Thus, in the absence of a showing of intent to kill, a person who is not the actual killer can be sentenced to death or life in prison without the possibility of parole only where he or she is found to have acted with “‘reckless indifference to human life and as a major participant’ in the commission of the underlying felony.” (People v Estrada (1995) 11 Cal.4th 568, 575.)
The phrase “reckless indifference to human life” means that the defendant was subjectively aware that his or her participation in the underlying felonies involved a grave risk of death. (People v. Estrada, supra, 11 Cal.4th at p. 577.) A “major participant” in a crime is one who plays a notable or conspicuous part or is one of the more important members of the group committing the crime. (People v. Proby (1998) 60 Cal.App.4th 922, 930-931.)
The “reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” (Tison v. Arizona (1987) 481 U.S. 137, 157-158 [107 S.Ct. 1676, 95 L.Ed.2d 127].) Referring to and relying on Tison, the California Supreme Court defined the phrase “reckless indifference to human life” in section 190.2, subdivision (d), as a “subjective appreciation or knowledge by the defendant” “of the grave risk to human life created by his or her participation in the underlying felony.” (People v. Estrada, supra, 11 Cal.4th at p. 578.)
Starting first with Mr. Shaum, the jury reasonably could have found that defendant aided and abetted in his death with the intent to kill, and substantial evidence supports this finding. During an interview with police, Valenzuela told Detective Carver that after Valenzuela let defendant inside the Shaums’ residence, Mr. Shaum confronted them. Valenzuela stabbed Mr. Shaum; defendant hit him in the head or upper torso with bolt cutters they had brought with them. Defendant further admitted to Sarah she hit Mr. Shaum in the head with bolt cutters. In hitting Mr. Shaum in the head with bolt cutters while Valenzuela stabbed him, defendant unquestionably engaged in conduct from which the jury reasonably could have inferred that she aided Valenzuela with the intent to kill. That Mr. Shaum did not die from blunt force trauma is inconsequential. By her conduct, defendant encouraged and helped Valenzuela, who already had fatally stabbed Mrs. Shaum, in his efforts to eliminate eyewitnesses to their intended crimes.
With regard to Mrs. Shaum, who died from sharp force and blunt force trauma, the record discloses that Valenzuela alone encountered Mrs. Shaum after entering the residence through the window. By the time he opened the front door to let defendant inside, Mrs. Shaum was either dying or dead. In the absence of evidence that defendant inflicted any of the injuries that caused Mrs. Shaum’s death or aided and abetted her death with intent to kill, the jury had to have found that defendant acted with reckless indifference to human life and as a major participant in the commission of the underlying burglary and robbery in order to return a true finding on the felony-murder special circumstance allegations. (People v. Estrada, supra, 11 Cal.4th at p. 575.)
There is no question that defendant initially was a major participant in the underlying burglary. She and Valenzuela went to the Shaums’ home for the purpose of breaking into their garage and stealing from them. When they arrived, they were unable to access the garage from the outside and decided to break into the Shaums’ home. In order to do so, defendant gave Valenzuela a knife that he used to cut open a window screen so that he could crawl through a partially opened window. Once Valenzuela was inside, he let defendant into the house.
A burglar’s entry into an inhabited dwelling unquestionably demonstrates reckless indifference to human life. It is foreseeable that the occupants of the residence could be home and meet the burglars with resistance and violence. Once this happens, the burglary has the potential of escalating into a robbery, in that the use of force will be necessary to steal from the occupants. This is precisely what happened in this case. Valenzuela encountered Mrs. Shaum in her bedroom and killed her. Because defendant was a major participant and acted in reckless indifference to human life in entering the Shaums’ home, we find no basis for setting aside the jury’s true finding of the felony-murder special circumstance allegation in count 5, charging her with the murder of Mrs. Shaum.
C. Cruel and Unusual Punishment
The statutory penalty for murder with special circumstances is death or life imprisonment without the possibility of parole. (§ 190.2, subd. (a).) The trial court has no discretion to strike a special circumstance finding in order impose a lesser penalty. (People v. Mora (1995) 39 Cal.App.4th 607, 614.) It does have the authority to prevent imposition of a punishment that it believes is cruel or unusual, however. (Id. at p. 615.)
The jury having convicted defendant of first degree murder on counts 5 and 6, and having found true the felony murder special circumstance allegations (§ 190.2, subd. (a)(17)(A) & (G)), as well as a multiple murder special circumstance allegation (id., subd. (a)(3)), the jury was required to determine whether defendant’s penalty on those counts should be “death or imprisonment in the state prison for life without the possibility of parole” (§ 190.2, subd. (a)). Following the penalty phase, the jury selected the latter punishment, and the trial court sentenced defendant to life in prison without the possibility of parole on counts 5 and 6. Defendant contends these sentences are cruel or unusual under the federal and state constitutions (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17).
The People claim that defendant has forfeited her constitutional challenge to her sentence on counts 5 and 6 because she failed to interpose a constitutional objection below. We agree. A claim of cruel and unusual punishment must be preserved for appellate review by objecting on that ground in the trial court. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8; compare People v. Demirdjian (2006) 144 Cal.App.4th 10, 13-14.)
In any event, if the constitutional challenge had been preserved for appellate review, we would reject it. The Eighth Amendment proscription against cruel and unusual punishment prohibits punishment inflicted by a cruel or unusual method, as well as punishment that is grossly disproportionate to the offense for which it is imposed. (Enmund v. Florida (1982) 458 U.S. 782, 788 [102 S.Ct. 3368, 73 L.Ed.2d 1140].) This proportionality rule applies to capital, as well as noncapital cases. (Rummel v. Estelle (1980) 445 U.S. 263, 272-275 [100 S.Ct. 1133, 63 L.Ed.2d 382].)
The state constitution contains a similar prohibition (Cal. Const., art. I, § 17), which has been interpreted to prohibit punishment when it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) When reviewing the constitutional proportionality of a sentence under the state constitution, the court must examine the nature of the offense and the offender, compare the challenged penalty with those imposed in the same jurisdiction for more serious crimes, and compare the penalty with those imposed for the same offense in other jurisdictions. (Id. at pp. 425-427.) The reviewing court must not only examine the nature of the offense in the abstract but must examine the particular facts of the crime in question. (People v. Dillon (1983) 34 Cal.3d 441, 479.) The court must also consider the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant’s involvement, and the consequences of his acts. The court must then turn to an examination of whether “the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Id. at p. 479.)
Defendant does not engage in a comparison of her challenged penalty with those imposed in the same jurisdiction for more serious crimes, or compare the penalty with those imposed for the same offense in other jurisdictions.
Defendant maintains that the jury’s felony murder special circumstance and multiple murder special circumstance findings were predicated simply upon her act of aiding and abetting the underlying burglary, which led to the deaths of the Shaums. Defendant claims her role was “de minimus” in that “she did not... enter until after the death of the first victim, and there was no evidence that she actively participated in the death of the second victim.” She argues that application of the felony murder rule resulted in grossly disproportionate liability and that the special circumstance findings must be stricken and her murder convictions reduced from first degree to second degree murder.
The factual predicate for defendant’s argument is faulty, however. While the jury did reject the People’s theory that defendant actually killed the Shaums, it did not find, as defendant claims, that she did not personally use any deadly weapon. It found only that defendant did not personally use “a knife.” Since the Shaums both died from stab wounds, the jury’s finding equates only with a finding that defendant did not personally inflict any of the fatal stab wounds and thus did not actually kill the Shaums.
Defendant relies on Enmund v. Florida, supra, 458 U.S. 782 and People v. Dillon, supra, 34 Cal.3d 441 to support her challenge. Neither of these cases is of aid to defendant.
In Enmund v. Florida, supra, 458 U.S. 782, two defendants robbed and fatally shot an elderly couple. Enmund was not the actual killer and was not present during the killings. Rather, he waited in a nearby get-away car 200 yards away from the home in which the murders took place. He was convicted of aiding and abetting a robbery and felony murder and was sentenced to death. The nation’s high court held Enmund’s punishment was unconstitutionally disproportionate to his role in the offenses and that the Eighth Amendment prohibited imposition of the death penalty on an aider and abettor for whom there was no evidence he killed, attempted to kill, intended to kill or contemplated that someone would be killed. (Id. at p. 788.) In so concluding, the Enmund court observed: “The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund’s own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence, ’ [citation]... which means that we must focus on the ‘relevant facets of the character and record of the individual offender.’ [Citation.] Enmund himself did not kill or... intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed.... This was impermissible under the Eighth Amendment.” (Id. at p. 798.)
In People v. Dillon, supra, 34 Cal.3d 441, a jury found Dillon guilty of murder on a felony-murder theory, and the trial court sentenced him to the statutorily required term of life imprisonment. (Id. at p. 487.) Dillon, an unusually immature 17-year-old high school student with no prior trouble with the law, planned and executed an armed raid on a marijuana farm. During the course of the raid, Dillon shot and killed an armed guard because he mistakenly believed the man had shot his friends and was going to shoot him. While the defendant largely created the threatening situation, his immaturity prevented him from seeing the risk he created or from extricating himself from the situation without panicking. (Id. at p. 488.) In addition, his cohorts in crime, who could have been liable for the killing as aiders and abettors, received only minimal punishment; none was convicted of any form of homicide. (Ibid.) The jury also stated its severe misgivings in finding Dillon guilty of first degree felony murder. (Id. at p. 487.) For these reasons, the court held Dillon’s punishment as a first degree murderer with life imprisonment was cruel or unusual and reduced defendant’s conviction to second degree murder. (Id. at p. 489.)
The circumstances in Enmund and Dillon are starkly distinguishable from those in this case. Defendant and Valenzuela were actual perpetrators of the burglarly and robbery during which the Shaums were killed. Defendant and Valenzuela went to the Shaums’ house for the specific purpose of burglarizing their garage. Unable to access the garage directly, Valenzuela and defendant broke into the Shaums’ residence. Defendant provided Valenzuela with a knife to cut the window screen of Mrs. Shaum’s bedroom in order to gain entry to the home. Defendant then waited outside the window of Mrs. Shaum’s bedroom while Valenzuela stabbed Mrs. Shaum 40 times. Valenzuela then opened the door so defendant could come inside. Upon entering the residence, defendant discovered that Valenzuela had killed Mrs. Shaum. When Mr. Shaum then approached, defendant bludgeoned Mr. Shaum with bolt cutters and Valenzuela stabbed him more than 100 times. Since Valenzuela already had stabbed and killed Mrs. Shaum, Valenzuela’s intent to eliminate Mr. Shaum as the last impediment to their quest to steal from him and to avoid detection was readily apparent. Defendant thus was present during the killing of Mr. Shaum, aided and abetted that killing by bludgeoning Mr. Shaum. Following Mr. Shaum’s death, defendant and Valenzuela rummaged through the Shaum’s home and garage and stole many of their belongings, including Mr. Shaum’s truck. Defendant left with the loot in Mr. Shaum’s truck. She thereafter gave some of the stolen loot away, attempted to pawn some of it, forged and cashed one of Mr. Shaum’s checks and paid off her storage fees. Defendant’s involvement was in no way “de minimus” as she contends. Her involvement in the crimes greatly exceeded that of Enmund, who waited in the wings while others committed the robbery and murders, and of Dillon, whose lack of maturity and mistaken belief his life was in danger, led him to shoot the guard.
Defendant has failed to convince us that her sentences of life without the possibility of parole for the murders of the Shaums are unconstitutional under either the United States or California Constitutions. (See, e.g., Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 155 L.Ed.2d 144]; People v. Cooper (1996) 43 Cal.App.4th 815, 825-827.)
D. Parole Revocation Fine
Defendant contends the abstract of judgment improperly reflects the imposition of a $200 parole revocation fine pursuant to section 1202.45. The People agree and so do we.
“A parole revocation fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole.” (People v. Jenkins (2006) 140 Cal.App.4th 805, 819; accord, People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) This is true even if the defendant is convicted of other offenses for which parole may be granted. (Jenkins, supra, at p. 819; Oganesyian, supra, at pp. 1183-1186.)
The trial court was well aware of this limitation and expressly stated that it would not be imposing a parole revocation fine in this case. The abstract of judgment pertaining to defendant’s indeterminate sentence similarly stated that a “[p]arole restitution fine pursuant to... section 1202.45 is not imposed.”
The abstract of judgment pertaining to defendant’s determinate sentence, however, erroneously reflects the imposition of a $200 parole revocation fine. This clearly was a mistake, and the abstract of judgment of the court’s determinate sentence must be corrected to conform to the trial oral pronouncement of judgment by striking the parole revocation fine. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183-1184.)
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment striking the parole revocation fine.
We concur: PERLUSS, P. J., WOODS, J.
Proposition 115 “also added chapter 10 to part 2, title 6 of the Penal Code, commencing with section 1054[, the criminal discovery statutes], establishing the procedures for, and limitations on, discovery in criminal cases. Section 1054 sets forth the purposes of this new chapter, including that ‘no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.’ [Citation.].” (Verdin, supra, 43 Cal.4th at pp. 1102-1103.)
“(b)(1) Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action or a minor in a juvenile proceeding brought pursuant to a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Code places in issue his or her mental state at any phase of the criminal action or juvenile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant or juvenile submit to examination by a prosecution-retained mental health expert.
“(A) The prosecution shall bear the cost of any such mental health expert’s fees for examination and testimony at a criminal trial or juvenile court proceeding.
“(B) The prosecuting attorney shall submit a list of tests proposed to be administered by the prosecution expert to the defendant in a criminal action or a minor in a juvenile proceeding. At the request of the defendant in a criminal action or a minor in a juvenile proceeding, a hearing shall be held to consider any objections raised to the proposed tests before any test is administered. Before ordering that the defendant submit to the examination, the trial court must make a threshold determination that the proposed tests bear some reasonable relation to the mental state placed in issue by the defendant in a criminal action or a minor in a juvenile proceeding. For the purposes of this subdivision, the term ‘tests’ shall include any and all assessment techniques such as a clinical interview or a mental status examination.
“(2) The purpose of this subdivision is to respond to Verdin v. Superior Court 43 Cal.4th 1096, which held that only the Legislature may authorize a court to order the appointment of a prosecution mental health expert when a defendant has placed his or her mental state at issue in a criminal case or juvenile proceeding pursuant to Section 602 of the Welfare and Institutions Code. Other than authorizing the court to order testing by prosecution-retained mental health experts in response to Verdin v. Superior Court, supra, it is not the intent of the Legislature to disturb, in any way, the remaining body of case law governing the procedural or substantive law that controls the administration of these tests or the admission of the results of these tests into evidence.”
If we were to reverse this case on the ground of Verdin error, on remand, the trial court, upon a timely request by the People, could order defendant to submit anew to a mental examination conducted by an expert retained by the People if defendant again placed her mental state in issue. The 2009 amendment would apply upon remand because the reciprocal criminal discovery statutes govern the conduct of trials and thus will apply to future trials for crimes committed before the effective date of the amendment. (People v. Richardson (2008) 43 Cal.4th 959, 997-999; Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.)