Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F09696
NICHOLSON, J.
Defendants James Frederick Salmon and Rosann Marie Leite appeal their convictions for the kidnapping, torture, and murder of Chris Rambadt with the special circumstances of kidnapping, lying in wait, and torture.
The defendants make nine assertions of error: (1) Leite’s attorney had a conflict of interest, (2) the evidence of Leite’s guilt was insufficient to sustain the convictions because the testimony of her accomplices was uncorroborated, (3) the instruction on accomplice corroboration was contrary to law, (4) reference to Leite’s nickname “Dark Angel” was prejudicial, (5) the guilty pleas of the defendants’ accomplices resulted in coerced testimony and the jury may have improperly used those guilty pleas to infer the defendants’ guilt, (6) the trial court violated Leite’s jury trial rights when it sentenced her to the upper term for kidnapping, (7) the lying-in-wait special circumstance is invalid, (8) the trial court improperly imposed a parole revocation restitution fine, and (9) the abstract of judgment must be amended to reflect that the prison terms imposed are to run concurrently and to correct the award of presentence credit.
We conclude that the trial court improperly imposed a parole revocation restitution fine as to each defendant. We also conclude that the defendants’ abstracts of judgment must be corrected. In all other respects, however, we find no prejudicial error. Therefore, we modify the judgment and affirm.
PROCEDURE
The district attorney filed an information charging defendants Salmon and Leite and four of the codefendants with murder (Pen. Code, § 187, subd. (a)), kidnapping (Pen. Code, § 207, subd. (a)) and torture (Pen. Code, § 206). (The fifth codefendant, Krista Vincent-Blanchfield, was charged only with murder and kidnapping.) The murder count included special circumstance allegations of kidnapping, lying in wait, and torture. (Pen. Code, § 190.2, subd. (a).) As to defendant Leite only, the information also alleged that she personally used a knife in the commission of the crimes. (Pen. Code, § 12022, subd. (b)(1).)
Before trial, each of the five codefendants -- David Driskill, Shannon Giancontieri, Stephanie Lindley, Patricia Thompson, and Krista Vincent-Blanchfield -- agreed to plead guilty to the kidnapping charge and accept an eight-year prison sentence in exchange for dismissal of the murder and torture counts. They also agreed to testify for the prosecution.
Defendants Salmon and Leite were tried by separate juries but in the same proceeding. Salmon’s jury found him guilty as charged, including the special circumstances. Likewise, Leite’s jury found her guilty as charged, including the special circumstances and the personal use of a knife. The trial court sentenced both Salmon and Leite to an indeterminate term of life without the possibility of parole for murder, with concurrent terms for the other crimes. The court imposed a consecutive one-year determinate term on Leite for the knife use.
FACTS
At the time relevant to this prosecution, David Driskill and Patti Thompson lived together in an upstairs apartment on 24th Street in Sacramento. Others moved into the apartment, including Shannon Giancontieri and his girlfriend, Stephanie Lindley, as well as defendants Salmon and Leite. Driskill had access to a vacant downstairs apartment and allowed the other inhabitants of his apartment to use it at times.
The inhabitants of the apartment knew Chris Rambadt. On October 27, 2004, Salmon told Patti Thompson to call Rambadt and have him come over to the apartment because Rambadt stole some money, $300. Thompson called Rambadt and told him that she was alone and wanted him to come over to have sex with her. As instructed by Salmon, Thompson took Rambadt to the downstairs apartment when he arrived. Salmon and Leite were waiting there.
Inside the downstairs apartment, Salmon punched Rambadt in the face. Giancontieri and Lindley went into the downstairs apartment and found Salmon and Rambadt fighting. Giancontieri and Lindley jumped in to assist Salmon. They subdued Rambadt, and Salmon wrapped duct tape around Rambadt’s hands and face. Giancontieri hurt his knee in the fight, so he left the apartment to go put some ice on it. When he returned to the downstairs apartment later, Leite was struggling with Rambadt in a closet. Leite sat on Rambadt and used a knife to carve into his back.
Driskill went downstairs and saw Rambadt in a closet. His hands were tied behind his back. Leite pointed out that she had carved a cross into Rambadt’s back.
Salmon went upstairs to use the telephone to get a ride to the river. Eventually, he borrowed a bicycle and left for the river. Later, Leite went upstairs and called Krista Vincent-Blanchfield to get a ride to a camp by the river to meet Salmon.
Vincent-Blanchfield arrived at the apartments, and Leite told her that several people needed a ride. Four people came out and got into Vincent-Blanchfield’s car: Leite, Rambadt, Giancontieri, and Lindley. Rambadt was covered with a blanket and his face was duct-taped. Lindley said to Leite, “Next time you decide to do something like this, you shouldn’t be so messy.”
Vincent-Blanchfield drove the group to a place along the American River, near Richards Boulevard. Everyone got out of the car, and the four passengers went through a hole in a chain link fence to the levee. Vincent-Blanchfield drove away.
The group found Salmon at the levee. Salmon and Leite took Rambadt down a trail. Rambadt’s hands and face were still taped. After about 20 minutes, Lindley went down the same trail to a restroom. When she returned to where Giancontieri was waiting, she reported that she had heard someone in the bushes. Giancontieri went to investigate and found Salmon on top of Rambadt, thrusting his right arm at Rambadt. Leite was nearby holding a flashlight. Giancontieri heard gurgling noises. He returned to where Lindley was waiting, and Salmon and Leite joined them about 15 or 20 minutes later, without Rambadt. They left the area together.
Later, Giancontieri asked Salmon what happened with Rambadt. Salmon replied that he beat up Rambadt and let him go. Driskill asked if Rambadt was still alive, and Salmon said that he was. Salmon added, “leave it alone.” Salmon obtained bleach from Driskill to clean the downstairs apartment.
Rambadt’s body was found by the American River on the afternoon of October 28, 2004. He died from stab wounds and strangulation. An autopsy revealed numerous other wounds up and down his body.
Salmon was arrested about a week after the murder. He claimed not to know Rambadt. However, in a telephone conversation with his own mother and a letter to his father, Salmon stated that he had beaten Rambadt.
Leite was also arrested about a week after the murder. She denied involvement in the beating and murder, claiming that Rambadt was like a brother to her. When confronted with statements of others, Leite changed her story, asserting that she had only helped subdue Rambadt in the downstairs apartment and had not cut him. She said that she did not go to the river; only Giancontieri and Rambadt went. While in jail, Leite told a visitor that she was involved in the crimes and that Salmon killed Rambadt.
DISCUSSION
I
Conflict of Interest
Defendant Leite asserts that we must reverse because the representation of a codefendant, Stephanie Lindley, by the law partner of her trial attorney resulted in a conflict of interest. The conflict arose, she contends, because codefendant Lindley pled guilty and turned state’s evidence. We disagree that reversal is required. Although a potential conflict of interest arose under these circumstances, it never ripened into an actual conflict of interest because codefendant Lindley did not testify at trial and there is no informed speculation that the potential conflict of interest affected the performance of defendant Lindley’s trial attorney.
After (A) reciting the facts pertinent to the conflict of interest analysis, we determine that (B) a waiver of conflict of interest that Leite signed did not effectively waive the type of conflict she asserts on appeal. However, we conclude that (C) the law partner’s representation of codefendant Lindley does not require reversal.
The Sixth Amendment’s right to effective assistance of counsel includes the right to be represented by counsel free of conflicts. (Mickens v. Taylor (2002) 535 U.S. 162, 166, 171 [152 L.Ed.2d 291, 300, 304].) Likewise, the state Constitution provides a right to conflict-free counsel. (People v. Mroczko (1983) 35 Cal.3d 86, 105 (Mroczko).) Concurrent representation by one attorney of codefendants with adverse interests creates a conflict of interest. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146 (SpeeDee Oil).) Similarly, representation of codefendants by law partners creates a possible conflict of interest. (Burger v. Kemp (1987) 483 U.S. 776, 783 [97 L.Ed.2d 638, 650].)
A. Facts Relating to Conflict of Interest Claim
Kenneth Rosenfeld was appointed by the trial court to represent Leite. Rosenfeld’s officemate, Robert Saria, was appointed to represent codefendant Stephanie Lindley. Although Rosenfeld and Saria had not yet formalized a partnership, they apparently shared office space and staff. Codefendant Lindley signed a waiver of conflict of interest on November 30, 2004. The waiver appeared under the caption “Law Offices of Rosenfeld & Saria.” Although no similar waiver for Leite appears in the record, attorney Rosenfeld informed the court that Leite signed such a waiver and that the waiver was “substantially similar, if not exactly the same,” as codefendant Lindley’s waiver.
The text of codefendant Lindley’s waiver read:
During a hearing on a pretrial motion, on December 17, 2004, the prosecutor noted that attorney Saria was standing in for attorney Rosenfeld. The prosecutor stated that the circumstances suggested a possible conflict of interest and informed the court that waivers of the potential conflict of interest should be put on the record. The court agreed. Attorney Saria stated that they had obtained waivers from both clients, meaning Leite and codefendant Lindley, and would file those waivers at the next appearance. Codefendant Lindley’s waiver was filed on January 14, 2005, but Leite’s waiver was never filed with the court.
At a preliminary hearing held on June 27, 2005, attorneys Rosenfeld and Saria acknowledged that they had formalized a partnership and that Leite and codefendant Lindley had signed waivers of any conflict of interest. Attorneys Rosenfeld and Saria had agreed not to talk about the case but to keep their respective representations of Leite and codefendant Lindley separate. During the preliminary hearing, a police detective testified that he had taken a statement from codefendant Lindley, who implicated Leite in the charged crimes.
On February 16, 2006, with the case set for trial in just 11 days, attorney Rosenfeld filed a motion to withdraw as counsel for Leite. He had learned that the prosecution offered codefendant Lindley a plea bargain that would require her to testify in exchange for a plea that would result in an eight-year sentence. Attorney Rosenfeld felt he should be allowed to withdraw because, when Leite waived the conflict of interest, she, in attorney Rosenfeld’s words, “had no idea or could anticipate reasonably the situation and circumstances . . . .” The prosecutor argued that attorneys Rosenfeld and Saria had agreed to keep the cases separate. The trial court noted that, in a case with many defendants and based on the testimony from the preliminary hearing that codefendant Lindley had implicated defendant Leite, it was to be anticipated that some of the defendants, particularly codefendant Lindley in this case, would turn state’s evidence.
The trial court denied the motion to withdraw but agreed to hear what Leite had to say in a Marsden hearing. In the Marsden hearing, attorney Rosenfeld informed the court that, when he agreed to take the case and solicited the waiver from Leite, he was acting pursuant to information that he had received that codefendant Lindley’s defense would be the same as Leite’s -- that is, that defendant Salmon murdered Rambadt. Defendant Leite stated that she was not unhappy with attorney Rosenfeld’s representation. However, she said that she wanted a new attorney because, when she signed the waiver, she did not know that codefendant Lindley would be testifying against her. After hearing the statements from attorney Rosenfeld and Leite, the trial court denied the Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Although codefendant Lindley accepted the plea bargain and was sentenced to eight years in state prison, she was not called to testify against the defendants.
B. Waiver Analysis
A preliminary question we must address is whether Leite validly waived the conflict she now claims existed. We conclude that she did not.
Leite asserts that her waiver, if any existed, was not knowing and intelligent, and therefore cannot be the basis for rejecting her contention that we must reverse based on attorney Rosenfeld’s conflict of interest. While Leite signed a waiver of her attorney’s conflict of interest, what she signed was ineffective in waiving the type of conflict of interest of which she complains on appeal.
Although the signed waiver does not appear in the record on appeal, it is reasonable to infer from the discussions between counsel and the court and from Leite’s statement that Leite signed a waiver and, further, that the waiver that she signed was substantially the same as the waiver that codefendant Lindley signed, which is in the record on appeal. Leite stated that she signed a waiver. Attorney Rosenfeld stated that the two waivers were “substantially similar, if not exactly the same.” We presume the judgment is correct and indulge all inferences and intendments in its favor. (People v. Green (1979) 95 Cal.App.3d 991, 1001.) Since it is reasonable to infer that Leite signed a waiver substantially the same as codefendant Lindley’s and such an inference would tend to support the judgment, we must draw that inference. We therefore move on to the question of whether the signed waiver was sufficient to waive the claimed conflict of interest.
“While the right to conflict-free counsel may generally be waived [citations], waivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ [Citation.] No particular form of inquiry is required, but, at a minimum, the trial court must assure itself that (1) the defendant has discussed the potential drawbacks of joint representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of joint representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right. [Citations.] Any waiver must be unambiguous and ‘without strings.’ [Citations.] We indulge every reasonable presumption against the waiver of unimpaired assistance of counsel. [Citation.]” (Mroczko, supra, 35 Cal.3d at pp. 109-110, fn. omitted.)
Here, we find the waiver deficient because it does not pass the second prong of analysis under Mroczko -- there is no record that Leite was made aware of the dangers and possible consequences of joint representation. We therefore cannot rely on the waiver to reject Leite’s contention that her attorney’s conflict of interest requires reversal.
The waiver signed by Leite, as shown from the waiver signed by codefendant Lindley, stated: “My attorney has fully discussed with me the risks and dangers of his continued representation of both me and the other defendant(s) in my case, and I understand the risk and dangers as my attorney has explained them to me.” Beyond this statement, there is no indication of what counsel discussed with Leite concerning the risks and dangers of joint representation except for attorney Rosenfeld’s assertion that Leite did not know when she signed the waiver that codefendant Lindley would turn state’s evidence and testify. The trial court made no inquiry concerning what Leite knew.
Conclusory language in a waiver is insufficient. As the California Supreme Court noted in a similar circumstance, “[o]n its very face, it is altogether too broad and conclusory, providing the court with none of the assurances the Constitution requires it to obtain before accepting a waiver.” (People v. Bonin (1989) 47 Cal.3d 808, 841.) The waiver signed by Leite was therefore too broad and conclusory to be a valid waiver.
Since Leite did not validly waive her right to conflict-free counsel, we move on to the question of whether a conflict of interest or potential conflict of interest requires reversal.
C. Conflict of Interest Analysis
The standard for reviewing a conflict of interest claim under the federal Constitution differs significantly from the standard for reviewing a conflict of interest claim under the state Constitution. (People v. Rundle (2008) 43 Cal.4th 76, 168-176.) We begin with an analysis of the claim under the federal Constitution.
1. Federal Constitutional Analysis
The federal constitutional analysis of conflict of interest involves two prongs. First, we determine whether there was an actual conflict of interest. If such a conflict of interest existed, then we decide whether the conflict was prejudicial. (Mickens v. Taylor, supra, 535 U.S. 162, at pp. 166-174; see also People v. Rundle, supra, 43 Cal.4th at p. 169.) Here, there was no actual conflict of interest. We therefore need not address the question of prejudice under the federal standard.
An actual conflict of interest is “a conflict that affected counsel’s performance -- as opposed to a mere theoretical division of loyalties.” (Mickens v. Taylor, supra, 535 U.S. at p. 171, italics omitted.) In People v. Rundle, the California Supreme Court found this type of conflict. Defense counsel in a criminal prosecution heard from his wife, an employee of a newspaper, that a journalist had, during trial, overheard a juror say that finding in favor of the defendant, based on the defendant’s theory, would be a violation of the Hippocratic Oath he had taken as a medical doctor. Apprised of the possible juror misconduct, the trial court decided to delay investigation of the possible misconduct until after the jury began deliberations. Defense counsel agreed. Defense counsel told the court that revealing his source (who, as it turned out, was his wife) might jeopardize her employment and defense counsel’s marriage. When the court finally took up the matter, the journalist and the juror in question were called to testify concerning possible juror misconduct. (People v. Rundle, supra, 43 Cal.4th at pp. 164-168.)
Applying the federal standard for determining whether there was an actual conflict of interest, the Supreme Court found that, during the proceedings concerning possible juror misconduct, defense counsel had failed to cross-examine the witnesses -- had pulled his punches -- because of the conflict. “[D]efense counsel’s questioning of [the journalist] was inadequate compared to what reasonable and unconflicted counsel would have done . . . and could not have been based upon a strategic choice regarding how best to protect defendant’s rights. Defendant therefore has demonstrated that an actual conflict of interest affected counsel’s performance.” (People v. Rundle, supra, 43 Cal.4th at p. 171.) Having found an actual conflict of interest, however, the court found that it did not prejudice the defendant. (Id. at p. 174.)
Here, it can certainly be said that there was a potential for divided loyalties as defense counsel for Leite formed a partnership with defense counsel for codefendant Lindley. But there is no indication on this record that the potential blossomed into an actual conflict of interest, one in which defense counsel pulls his punches and does not provide unrestrained representation. Unlike a situation in which the same attorney represents conflicting interests, counsel for Leite did not directly represent Lindley. Although two partners provided this representation, it was under circumstances that did not create an actual conflict of interest. The practices of these two attorneys had been separate, and they had agreed that they would not share information on this case. In the end, Lindley did not testify and was not otherwise involved in the trial of Leite, leaving attorney Rosenfeld free to represent Leite without possibility of affecting Lindley adversely as a result of his advocacy on Leite’s behalf.
When a trial court overrules counsel’s timely objection to representing conflicting interests at trial, the federal rule is automatic reversal. (Holloway v. Arkansas (1978) 435 U.S. 475, 489-490 [55 L.Ed.2d 426, 437-438] (Holloway); Glasser v. United States (1942) 315 U.S. 60 [86 L.Ed. 680] (Glasser).) In both Holloway and Glasser, trial counsel was forced, over objection, to represent multiple defendants in a prosecution. This required reversal under the federal rule. (Holloway, supra, at pp. 479-480; Glasser, supra, at p. 71.) Leite asserts that, under this rule, we must reverse because she and her counsel made a timely objection. The Attorney General agrees that the objection was timely, but argues that no reversal is required because it did not result in representation of adverse interests at trial. We agree with the Attorney General. There was no conflict of interest after the overruling of the objection and, therefore, the rule of automatic reversal does not apply.
Leite contends that, even if she must show an adverse effect on counsel’s representation, this record establishes an adverse effect. She claims that, as a result of the representation of codefendant Lindley by her attorney’s partner, her attorney (1) could not seek a favorable deal with the prosecutor because he would have to argue that Lindley was more culpable than Leite, (2) felt restrained from aggressively cross-examining the prosecution’s witnesses because it would show that Lindley was a major actor in the crimes, (3) could not call Lindley as a witness to impeach the prosecution’s evidence, and (4) could not object to the plea agreements made with the codefendants, including Lindley, as coercive.
In part V of the discussion, we reject the defendants’ contention that counsel was prejudicially ineffective for failing to object to the testimony of the former codefendants based on the purported coercive nature of their pleas.
None of these purported deficiencies in counsel’s performance is supported by the record. First, neither logic nor the record supports the argument that Leite could negotiate a favorable plea agreement only if Lindley was found to be more culpable. Second, there was no reason for counsel to pull his punches in cross-examination of the former codefendants for fear of incriminating Lindley. She had already pled guilty and was awaiting sentencing. Third, the record reveals no reason for counsel to call Lindley as a defense witness. It is mere speculation that Lindley might have given testimony favorable to Leite. And fourth, the plea bargains entered into by the codefendants were not coercive -- that is, they did not improperly force them to testify in a given way, other than truthfully.
Because there was no actual conflict of interest, defendant Leite’s contention that reversal is required under the federal standard is without merit.
2. State Constitutional Analysis
The analysis of a conflict of interest claim under the state Constitution is a “somewhat more rigorous standard of review” than the analysis under the federal Constitution. (Mroczko, supra, 35 Cal.3d at p. 104.) We must reverse a conviction based on a potential conflict of interest if the record supports an informed speculation that the defendant’s right to effective representation was prejudicially compromised by the conflict. (People v. Clark (1993) 5 Cal.4th 950, 994-995.)
“Although the federal Constitution -- regardless of whether a presumption of prejudice applies -- requires proof of an actual conflict of interest, that is, proof that counsel’s conflict adversely affected his or her performance during the proceedings [citation], under the state Constitution [the Supreme Court has] required only that the record support an ‘informed speculation’ that a ‘potential conflict of interest’ impaired the defendant's right to effective assistance of counsel. [Citations.] Because a conflict of interest may retard counsel’s development of evidence or arguments in support of the defense -- and possibly even evidence of the conflict itself -- [the Supreme Court has] retained this stricter standard in order to ‘closely guard’ the fundamental right to the assistance of counsel. ‘The very failure to produce or emphasize such information . . . produces a void and results in a record which shields the fact of any possible conflict and makes it difficult to demonstrate on appeal that a conflict did in fact exist. [Citation.] Accordingly, a [defendant] . . . need not establish that there was an actual conflict of interest, but rather it is sufficient if the record provides an adequate basis for an “informed speculation” that there was a potential conflict of interest which prejudicially affected the defendant's right to effective counsel. [Citations.] [¶] Permissible speculation giving rise to a conflict of interest may be deemed an informed speculation but only when such is grounded on a factual basis which can be found in the record.’ [Citation.]” (People v. Rundle, supra, 43 Cal.4th at pp. 174-175, fn. omitted.)
Here, even assuming there was a potential conflict of interest, there is no informed speculation to support a finding that counsel’s representation of Leite was compromised. In support of her argument for reversal based on the state constitutional standard, Leite cites the same four examples that she cited with respect to the federal standard for finding that the circumstances affected counsel’s performance of his duties. We need not restate these examples or our reasons for rejecting those examples as indicative of deficient performance. For the same reasons, we conclude that there is no informed speculation, grounded on a factual basis found in the record, for concluding that the circumstances compromised counsel’s representation of Leite. Accordingly, her contention that we must reverse because of a potential conflict of interest under the state constitutional standard is without merit.
II
Sufficiency of Evidence
Defendant Leite contends that the evidence was insufficient to support her convictions for kidnapping and murder because the testimony of accomplices was not corroborated by other evidence of her guilt. The contention is without merit. Evidence independent of the testimony of her accomplices corroborated that testimony and allowed the jury to rely on it to convict.
Leite does not challenge the sufficiency of evidence to corroborate the testimony of accomplices with respect to the torture conviction.
“The law requiring corroboration of accomplice testimony is well established. ‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . .’ ([Pen. Code,] § 1111.) ‘“The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence ‘may be slight and entitled to little consideration when standing alone. [Citations.]’”’ [Citations.] ‘“Corroborating evidence ‘must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]”’ [Citations.] In this regard, ‘the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.]’ [Citation.] ‘“Corroborating evidence is sufficient if it substantiates enough of the accomplice’s testimony to establish his credibility [citation omitted].”’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.)
During the trial, the court instructed the jurors that Driskill, Giancontieri, Thompson, and Vincent-Blanchfield were all accomplices to the charged crimes. As the court further instructed the jury, this circumstance required that, before the jury could use the testimony of the accomplices to convict Leite, it would have to find that evidence independent of the testimony of the accomplices tended to connect Leite to the crimes.
Contrary to Leite’s argument that there was no such corroborating evidence, there was evidence that the jury properly could have relied on as corroboration for the testimony of the accomplices. Leite’s connection to the kidnapping and murder is found in her own statements, both to police and to a person who visited her at the jail.
Leite gave a statement to police after she was arrested. At first, she denied involvement in the crimes, but she changed her story after a detective told her that others had implicated her. She said that she entered the downstairs apartment after the others had started beating Rambadt. The cross was already carved into his back. She said that she helped hold Rambadt down while someone tied his hands. Leite continued to deny that she went to the river when Rambadt was taken there.
While Leite was in jail, a female visitor went to see her. After the two discussed the charges (including murder, kidnapping, and torture), the visitor asked, “Who did it?” Leite replied, “Um, it was me, Trooper [Giancontieri], and Fish [Salmon].” The visitor asked, “Well, who killed him, though?” Leite said that Salmon did. Talking about a possible defense, Leite claimed that Rambadt pushed her down some stairs and, therefore, she could claim “temporary insanity” or “justifiable homicide.”
Responding to Leite’s argument that no evidence other than the testimony of the accomplices connected her to the kidnapping, the Attorney General observes that Leite admitted to helping subdue Rambadt. This circumstance, asserts the Attorney General, was sufficient to connect Leite to the kidnapping. (See People v. Williams (1997) 16 Cal.4th 635, 680 [defendant’s own statement provides corroboration for accomplice testimony].) Leite responds that this shows, at most, false imprisonment, and not kidnapping, because it does not establish asportation. We agree with the Attorney General because it is unnecessary to establish all elements of the crime through evidence independent of the testimony of the accomplices. Connection of the defendant with one element of the crime is sufficient. (People v. Rodrigues, supra, 8 Cal.4th at p. 1128.)
Penal Code section 207 defines kidnapping as follows: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” Thus, an element of kidnapping is to take or hold the person, such as was done to Rambadt in the downstairs apartment. Leite’s admitted help in subduing Rambadt accomplished this element.
As for the murder conviction, Leite’s own statement provides corroboration for the testimony of the accomplices. In addition to her general admission that she was involved in the crimes, which would include the murder, Leite told her visitor at the jail that she could claim “justifiable homicide,” thus arguably admitting that she committed a homicide. A homicide, a killing, is an element of murder. (Pen. Code, § 187, subd. (a).) Even if this statement may be viewed as entitled to little consideration standing alone, it is enough to corroborate the testimony of the accomplices concerning Leite’s involvement in the murder. (People v. Rodrigues, supra, 8 Cal.4th at p. 1128.)
Since Leite’s contention that accomplice testimony was inadmissible is without merit, we need not consider her additional argument that, without the accomplice testimony, the evidence was insufficient to sustain the convictions.
Defendant Salmon filed a joinder “in the arguments raised by [Leite].” (Cal. Rules of Court, rule 8.200(a)(5).) He did not, however, specify which arguments are relevant to his appeal. We can apply Leite’s arguments to Salmon only to the extent they are relevant to him. With respect to this contention concerning accomplice testimony, for example, Leite’s argument is not relevant to Salmon because the question of whether the statements of Leite’s accomplices are corroborated is not the same question as to Salmon’s accomplices. While their accomplices were nearly identical, the important and distinguishing difference, for the purpose of evaluating the issue, is that Leite’s own statements could corroborate the statements of her accomplices but they could not corroborate the statements of Salmon’s accomplices. Therefore, Leite’s argument concerning this issue does not apply to Salmon.
III
Instruction on Accomplice Corroboration
As we have noted, the trial court instructed the jury concerning the need for corroboration of the accomplices’ testimony. The defendants contend that the instruction, based on CALCRIM No. 335, was improper for three reasons: (A) it allowed the jury to use the accomplices’ out-of-court statements as corroboration for their in-court testimony, (B) it failed to inform the jury that corroborating evidence had to relate to an element of the crime, and (C) it allowed the jury to convict based on the accomplices’ statements or testimony if corroborating evidence connected the defendants to the overall incident rather than to the specific crimes. Each contention is without merit.
The full text of CALCRIM No. 335, as adapted by the court and given to both juries in this case, is as follows:
“If the crimes of 187(a) of the Penal Code, murder; 207(a) of the Penal Code, kidnapping; or 206 of the Penal Code, torture[,] were committed, then David Driskill, Shannon Giancontieri, Patricia Thompson, and Krista Vincent-Blanchfield were accomplices to those crimes.
“You may not convict a defendant of 187 of the Penal Code, murder; 207(a) of the Penal Code, kidnapping; or 206 of the Penal Code, torture, based on a statement or testimony of an accomplice alone.
“You may use the statement or testimony of an accomplice to convict the defendant only if, number one, the accomplice’s statement or testimony is supported by other evidence that you believe; number two, that the supporting evidence is independent of the accomplice’s statement or testimony; and, number three, that that supporting evidence tends to connect the defendant to the commission of the crimes.
“Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes, and it does not need to support every fact about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
“The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.
“Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence.”
A. Accomplices’ Out-of-court Statements
The defendants’ first contention, that the instruction allowed the jury to use an accomplice’s out-of-court statement to corroborate the in-court testimony, is without merit because the jury would not have understood the instruction the way the defendants would have us interpret it.
An accomplice cannot provide his own corroboration for the purpose of the jury’s determination of whether the accomplice’s statement can be used. (People v. Andrews (1989) 49 Cal.3d 200, 214 (Andrews).) Under the defendants’ interpretation of the instruction, however, the jury was allowed to use the out-of-court statement of an accomplice to corroborate that same accomplice’s in-court testimony. This interpretation arises from the court’s use of the conjunction “or” instead of “and” when describing the limitation on use of accomplice statements and testimony.
The defendants argue: “Literally, CALCRIM No. 335 told the jury that it might not convict a defendant ‘based on the statement or testimony of an accomplice alone.’ The language strongly implies that the statement and testimony of an accomplice together are sufficient to convict the defendant. Nothing in the instruction dispelled this inference. The instruction stated that the jury may ‘use the statement or testimony of an accomplice’ only if the ‘statement or testimony’ is supported by other evidence that the jury believes and that the supporting evidence must be ‘independent of the accomplice’s statement or testimony.’ The instruction’s repeated use of the conjunction ‘or’ in ‘statement or testimony’ was erroneous. Nowhere does the instruction state or imply that the corroboration of an accomplice’s testimony must be independent of the accomplice’s statements.” (Italics added by defendant.)
The defendants also note that the trial court instructed the jury, using CALCRIM No. 318, that prior inconsistent statements of a witness could be used to evaluate that witness’s credibility and for the truth of the matter asserted in the prior statement. While they do not claim that this statement of the law was incorrect, they assert that the two instructions based on CALCRIM Nos. 318 and 335 misled the jury.
The defendants’ argument that the jury was misled is unconvincing. That an instruction can be interpreted in a certain way, grammatically, does not necessarily mean that the jury so interpreted the instruction or that we must accept such an interpretation in determining whether the trial court erred. The proper test for determining whether a trial court erred in the language used to instruct the jury is whether a reasonable jury would have interpreted the instruction in the way that violated the defendant’s rights. (People v. Anderson (2007) 152 Cal.App.4th 919, 938.)
Here, viewing the instructions as a whole, the jurors were not misled. CALCRIM No. 335 made it clear that accomplices could not corroborate each other, whether with statements or testimony. The court also informed the jury that the statements and testimony of accomplices are suspect, urging the jury to view such evidence with caution. It would make no sense, therefore, for the jury to interpret the instruction as allowing the jury to use an accomplice’s own out-of-court statement to corroborate the in-court testimony. In other words, a reasonable jury would not have interpreted the instruction in the way the defendants claim it might have.
The California Supreme Court dealt with a similar issue in Andrews. In that case, the trial court instructed the jury using CALJIC instructions that limited use of an accomplice’s testimony but did not mention out-of-court statements. Although the Andrews court concluded that the limitation found in Penal Code section 1111 applies to statements as well as testimony, it concluded that the trial court did not err. (Andrews, supra, 49 Cal.3d at pp. 213-215.) The Andrews court stated: “We disagree with the defendant that the trial court had a duty to modify, on its own motion, the instructions on accomplice corroboration to provide that they applied to [the accomplice’s] out-of-court as well as his in-court statements. The gist of those instructions was that accomplices were to be distrusted, and that their testimony could not furnish the sole basis for a conviction.” (Id. at p. 214.)
The same is true here. The gist of CALCRIM No. 335 is that accomplice statements and testimony are to be distrusted. While grammatically possible, the interpretation of the instruction urged by the defendants is not an interpretation a reasonable jury would have adopted. Accordingly, the contention that the instructions were misleading is without merit.
B. Corroboration Relating to Element of Crime
The defendants’ second contention, that the instruction was improper because it did not inform the jury that the corroborating evidence must relate to an element of the crime, is also without merit. The instruction properly informed the jury of the requirement that the corroborating evidence connect the defendant to the commission of the crime.
Penal Code section 1111 does not explicitly contain the requirement that corroboration relate to an element of the crime. Instead, it states only that the corroborating evidence must “tend to connect the defendant with the commission of the offense . . . .” (Pen. Code, § 1111.) In discussing this provision, however, the California Supreme Court has stated that the corroborating evidence must relate to an element of the crime. (People v. Williams, supra, 16 Cal.4th at pp. 680-681.) Although the trial court instructed the jury generally in the language of the statute, that the corroborating evidence must tend to connect the defendant to the commission of the crime, the court did not further instruct the jury that the corroborating evidence must relate to an element of the crime. It is the absence of this additional information in the instruction that the defendants assert constituted error.
Generally, an instruction given using the wording of the statute to which it relates is proper. (People v. Roldan (2005) 35 Cal.4th 646, 740.) Here, there was no need to amplify CALCRIM No. 335. It was proper and adequate as given. (See People v. Jenkins (1973) 34 Cal.App.3d 893, 899 (Jenkins).) In Jenkins, the trial court instructed the jury using CALJIC No. 3.12, which similarly uses the wording of the statute and does not amplify the corroboration requirement by stating that the corroborating evidence must relate to an element of the crime. The trial court refused to add to the instruction the following sentence requested by the defendant: “‘Such corroborative evidence must relate to some act or fact which is an element of the offense charged.’” (Jenkins, supra, at p. 899.) Reviewing the defendant’s contention that the trial court erred by not instructing the jury that the evidence must relate to an element of the crime, as requested by the defendant, the Court of Appeal noted that the instruction, as given, was a full and fair instruction on the need for corroboration of accomplice testimony and the trial court did not err by rejecting the defendant’s request to amplify the instruction. (Ibid.)
Neither of the defendants tried to distinguish, or even cited, Jenkins, even in their reply briefs after the case was cited by the Attorney General. It is, nonetheless, authority rejecting their contention.
We agree with the Jenkins court. CALCRIM No. 335, which generally uses the language of Penal Code section 1111, sufficiently apprises the jury of the requirement.
Since we conclude the instruction was proper and sufficient, as given, we need not consider (1) the Attorney General’s additional contention that the defendants forfeited the argument that they make on appeal because they did not seek an amplification of the instruction in the trial court and (2) the defendants’ corresponding argument that, if the contention was forfeited, trial counsel was prejudicially ineffective.
C. Connection to Overall Incident
The defendants’ third contention, that the instruction allowed the jury to convict based on the accomplices’ statements or testimony if corroborating evidence connected the defendants to the overall incident, rather than to the specific crimes, is without merit. Read as a whole, the instruction required the jury to find evidence corroborating the defendants’ connection to each crime, not just the overall incident.
In the trial court’s instruction concerning accomplice testimony, the trial court stated that the corroborating evidence had to “connect the defendant to the commission of the crimes.” The defendants contend that this use of the plural, “crimes,” allowed the jury to use accomplice testimony as evidence of each crime, even if the jury found only that the corroborating evidence related to the overall incident and not to one or more of the individual crimes. This interpretation of the instruction is unreasonable when the instruction is read as a whole.
We do not view instructions or portions of instructions in isolation when considering contentions of error. The instructions are erroneous only if, reading them as a whole, a reasonable jury would have misunderstood and misapplied them. (People v. Rundle, supra, 43 Cal.4th at p. 149.)
Even though the trial court used the plural “crimes” when describing the requirement that the corroborating evidence connect the defendant to the crime, the rest of the instruction made it clear that this requirement applied to each crime. The instruction additionally stated: “The supporting evidence must tend to connect the defendant to the commission of the crime.” The use of the plural “crimes” was ambiguous as to the requirement, but the later use of the singular “crime” cleared up the ambiguity. Accordingly, a reasonable jury would not have misunderstood or misapplied the requirement.
IV
Reference to Defendant’s Nickname
Defendant Leite’s nickname is Dark Angel. Several references were made to this nickname during the trial, including by witnesses and by the prosecutor. Leite contends that her trial counsel was prejudicially ineffective for failing to obtain rulings preventing reference to her nickname. We conclude that reference to the nickname was not prejudicial to her.
Before trial, defense counsel moved to exclude any reference to Leite’s nickname. He asserted that there is a “nefarious overtone to it.” He proposed that the witnesses refer to her simply as “Angel.” The prosecutor objected to that proposal, claiming that the witnesses knew Leite as “Dark Angel.” The trial court denied defense counsel’s motion, stating: “I don’t know that there would be any negative connotation to Dark Angel. I would assume that you can draw a negative connotation from it. But if it is in fact what she’s known as, what we call a street moniker, then -- and if some of the witnesses refer to her in that way, I think we’re going to have a hard time instructing each and every witness to say Angel rather than Dark Angel or so forth. So if that’s the truth or the fact that that’s the street moniker, then I believe that can also be used in court.”
In their statements to police and during trial, witnesses stated that they knew Leite as “Angel,” or “Dark Angel,” or both. In closing argument, the prosecutor used the nickname “Dark Angel” prominently and disparagingly, several times both in the initial argument and in reply. At the end of his argument to Leite’s jury, the prosecutor said: “She’s a liar and a killer. That’s why they call her Dark Angel.”
On appeal, Leite asserts that her trial counsel was deficient in two ways: First, counsel allowed the trial court to rule on the motion to exclude evidence of her nickname based on faulty background evidence. The trial court was led to believe, in error, that Leite was known only as “Dark Angel.” Had counsel been prepared by familiarizing himself with the witness statements, he would have known that witnesses knew Leite, also, by the nickname “Angel” and by her real name and would have been able to have the evidence excluded pursuant to Evidence Code section 352. And second, counsel did not object to the prosecutor’s repeated and disparaging use of the nickname during closing argument, arguing in essence that the nickname was evidence of Leite’s character. Had counsel objected, the court could have sustained the objection and admonished the jury or, failing action by the trial court, she could argue prosecutorial misconduct on appeal.
“To succeed in a claim of ineffective assistance of counsel, defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and that, but for counsel’s error, the outcome of the proceeding, to a reasonable probability, would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218].) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)” (People v. Lawley (2002) 27 Cal.4th 102, 133, fn. 9.) “If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. (Strickland, supra, 466 U.S. at p. 697 [80 L.Ed.2d at pp. 699-700].)” (People v. Sanchez (1995) 12 Cal.4th 1, 41.)
Assuming, without deciding, that trial counsel’s performance was deficient as to evidence of and prosecutorial argument concerning Leite’s nickname, we conclude that Leite’s right to counsel was not violated because it is not reasonably probable that the outcome of the proceeding would have been different without the deficiency. Leite argues: “The combination of admission of the evidence of the nickname, with its improper use in closing argument, bolstered a very weak case against [Leite], given the insufficient evidence to corroborate the accomplice testimony and police statements.” To the contrary, the accomplice testimony and police statements were not inadmissible, as discussed above. Because there were several accomplices who implicated Leite in the crimes and there was sufficient corroborating evidence, the case against Leite was not weak. Even had there been no references to her nickname, it is not reasonably probable that she would have obtained a better result.
V
Evidence Concerning Codefendants’ Pleas
Codefendants David Driskill, Shannon Giancontieri, Patricia Thompson, and Krista Vincent-Blanchfield testified at trial as they agreed to do in connection with their guilty pleas. They each pled guilty to kidnapping with an eight-year state prison sentence in exchange for the dismissal of the murder and torture charges. They also agreed to testify against Salmon and Leite. Each codefendant was questioned at trial concerning the terms of the plea agreements, including that they pled guilty to kidnapping and agreed to testify truthfully.
On appeal, the defendants make two contentions of violations of their due process rights with respect to the use of the codefendants’ testimony: (A) the testimony was coerced because of the guilty pleas and (B) the jury was not instructed that it could not use the guilty pleas as substantive evidence on the kidnapping count. Neither contention has merit.
A. Coerced Testimony
The plea agreement signed by each codefendant required the codefendant to cooperate in this case and testify truthfully. It also stated, in part: “This agreement is based upon the premise that Defendant has given truthful, complete and accurate information in a prior statement or statements to law enforcement personnel. If Defendant has not given truthful, complete and accurate information to law enforcement personnel, this agreement becomes void at the discretion of the District Attorney.”
The defendants contend that this plea agreement improperly coerced the codefendants to give testimony consistent with their prior statements. Therefore, the testimony was unreliable and should have been excluded. We disagree.
In addition to their due process argument, the defendants argue that trial counsel for each of them was prejudicially ineffective for failing to object to the testimony of the codefendants on this ground. We need not consider this assertion separately because the codefendants’ testimony was not coerced and, therefore, an objection to the admission of the testimony would have been futile.
An immunity agreement or, as here, a plea agreement that requires a witness to testify truthfully, is not coercive even if it reflects the agreement of the witness and the prosecutor concerning the truthfulness of the witness’s prior statements. (People v. Boyer (2006) 38 Cal.4th 412, 457 (Boyer); see also People v. Garrison (1989) 47 Cal.3d 746, 768.) In Boyer, the Supreme Court stated: “[The witness’s] grant of immunity . . . specified that the immunity did not extend to false testimony, which could make the witness subject to prosecution for perjury. The immunity agreement also stated that ‘the witness represented that the testimony of the witness will be truthful and in substance as follows: consistent with the statements and information given to the Fullerton Police Department Investigation Officers in the attached reports. . . .’ (Italicized words added by handwritten interlineation.) At the suppression hearing on retrial, [the witness] indicated she understood that if she testified falsely, she could be prosecuted for perjury, and she insisted that she had testified truthfully, pursuant to this agreement, at the prior trial. [¶] Thus, [the witness’s] grant of immunity . . . simply reflected the parties’ mutual understanding that the information the witness had previously supplied to the police was truthful, not that the witness had to iterate her prior statements, regardless of their truth.” (Boyer, supra, at p. 457.)
Here, as in Boyer, the plea agreements were not coercive. They required the codefendants to testify truthfully. The fact that the plea agreements also stated that they were conditioned on the truthfulness of the prior statements did not change the requirement to testify truthfully and did not result in coerced testimony.
B. Pleas as Substantive Evidence
The trial court did not instruct the jury that it could not use the codefendants’ guilty pleas to the kidnapping charge as substantive evidence of the defendants’ guilt on that charge. The defendants contend on appeal that the kidnapping count and the kidnapping special circumstance finding must be reversed because the jury may have relied on the codefendants’ guilty pleas to find the defendants’ guilty. They claim that the trial court had a duty to instruct the jury on this issue, sua sponte. The contention is without merit because, even assuming that the failure to give an instruction was error, any error was harmless.
The guilty plea of a codefendant cannot be used as substantive evidence to prove the guilt of a defendant. (Hudson v. North Carolina (1960) 363 U.S. 697, 702-703 [4 L.Ed.2d 1500, 1504].) While the defendants, here, concede that the guilty pleas were admissible to aid the jury in assessing the codefendants’ credibility, they claim that prejudice arose from the failure to instruct the jury on the proper use of that evidence. In support of this proposition, they cite only a decision of the Ninth Circuit of the United States Court of Appeals, United States v. Halbert (9th Cir. 1981) 640 F.2d 1000 (Halbert), which held that the failure of the court to instruct the jury that the guilty pleas of codefendants could not be considered as evidence of a defendant’s guilt was reversible error. (Id. at pp. 1006-1007.) While we are not bound by decisions of the Ninth Circuit (People v. Williams (1997) 16 Cal.4th 153, 190), we need not determine whether Halbert was properly decided because, even if it was properly decided and an instruction should have been given here, any error was harmless.
We review error in failing to give a limiting instruction under the standard discussed in People v. Watson (1956) 46 Cal.2d 818, at page 836. (People v. Beagle (1972) 6 Cal.3d 441, 455.) “The omission . . . does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (Ibid.) The defendants, however, assert that we must apply the more stringent standard discussed in Chapman v. California (1967) 386 U.S. 18, at page 24 [17 L.Ed.2d 705, 710-711], requiring reversal unless the error was harmless beyond a reasonable doubt, because the failure to give the instruction violated their federal due process rights. Under either standard, there was no prejudice.
This is not a case in which the codefendants’ guilty pleas were admitted into evidence in a vacuum. Each codefendant was questioned concerning the guilty plea and its conditions. The codefendants were questioned concerning the events, their participation in the events, and the defendants’ participation in the events. It would be unreasonable to conclude that the jury relied on the guilty pleas rather than the testimony to determine the facts upon which it found the defendants guilty of kidnapping, as well as murder and torture.
The prosecutor did not argue that the codefendants’ guilty pleas were evidence of the defendants’ guilt. And defense counsel for both of the defendants argued that the guilty pleas supported a finding that the codefendants, not the defendants, were responsible for the crimes. The codefendants had a motive to plead guilty to kidnapping and implicate Salmon and Leite in the other crimes in order to minimize their own involvement in those crimes.
It is so unlikely that the jury relied, to any extent, on the fact that the codefendants pled guilty to kidnapping in finding that the defendants committed a kidnapping, that any error in failing to give a limiting instruction to the jury was harmless beyond a reasonable doubt.
The defendants also argue that trial counsel was prejudicially ineffective for failing to request an instruction concerning the permissible use of the codefendants’ guilty pleas as substantive evidence of the defendants’ guilt. This argument is also without merit because, even assuming counsel should have requested the instruction, there was no prejudice. (See People v. Sanchez, supra, 12 Cal.4th at p. 41 [unnecessary to determine whether counsel deficient when no prejudice resulted].)
VI
Upper Term Sentencing
Defendant Leite contends that the imposition of the upper term of eight years in state prison for the kidnapping conviction based on the aggravating factor of engaging in violent conduct indicating a serious danger to society violated her right to a jury trial with a beyond-a-reasonable-doubt standard of proof. (See Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).) The Attorney General concedes that imposing the upper term based on violent conduct was improper under Cunningham, but argues that the error was harmless beyond a reasonable doubt. We agree that the imposition of the upper term, though error, was harmless beyond a reasonable doubt.
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent that the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) Applying Cunningham, the California Supreme Court has held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816.)
Here, the trial court did not state on the record what aggravating factors it was relying on in imposing the upper term for kidnapping. Instead, the trial court merely stated that it was following the recommendation of the probation department. Concerning upper term sentencing for the kidnapping count, the probation report stated: “The upper term is recommended as the defendant engaged in violent conduct which indicates a serious danger to society.” The report cited California Rules of Court, rule 4.421(b)(1) for this recommendation.
Although the recommendation cited only the violent conduct aggravating factor, the probation report also listed other aggravating factors: (1) Leite used a weapon (although the trial court could not use this aggravating factor because it imposed a one-year term for a weapon enhancement), (2) she induced others to participate and occupied a leadership position, and (3) the victim was tied, bound, or confined during the crime. By statute, the last aggravating factor mentioned (tied, bound, or confined victim) must be considered. Penal Code section 1170.84 states that upon conviction for kidnapping, among other crimes, “it shall be considered a circumstance in aggravation of the crime . . . if, during the course of the [kidnapping], the person engaged in the tying, binding, or confining of any victim.”
Because none of the aggravating factors were based on recidivism, it was a violation of Leite’s jury trial rights for the trial court to rely on one or all of them. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) However, we cannot reverse if this error was harmless beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 838.)
The evidence supporting the kidnapping conviction showed that Leite participated in the tying, binding, and confining of Rambadt. Even in her own statement to police, she admitted that she helped hold Rambadt down. Given the jury’s determinations that she committed each of the crimes and used a knife in doing so, it is clear to us that, if the jury had been given the opportunity of finding, beyond a reasonable doubt, that Leite tied, bound, or confined Rambadt during the kidnapping, it would have so found. And if the jury had so found, the trial court would have been required to consider it as an aggravating factor. Accordingly, the trial court’s error in sentencing Leite to the upper term for kidnapping without submitting the aggravating factors to the jury is harmless beyond a reasonable doubt.
Having found the error harmless, we need not consider Leite’s contention that remand for resentencing under the recently-amended determinate sentencing law, as required by People v. Sandoval, supra, 41 Cal.4th at page 846, would be unconstitutional.
VII
Lying in Wait Special Circumstance
The defendants assert that the application of the lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)) violates their constitutional due process rights in two ways: (A) it fails to articulate a uniform and consistent standard for determining guilt, and (B) it is vague and overbroad. We reject both assertions because they are contrary to applicable California Supreme Court precedent.
The defendants state that they make these arguments to preserve them for future review.
A. Uniform and Consistent Standard
Under the heading asserting that the lying-in-wait special circumstance fails to articulate a uniform and consistent standard for determining guilt, the defendants contend: “The lying-in-wait special circumstance is unconstitutionally vague because it fails to distinguish lying-in-wait from any other intentional killing.” The Supreme Court has rejected the contention that the lying-in-wait special circumstance is indistinguishable from other intentional killings. (See People v. Stevens (2007) 41 Cal.4th 182, 203-204 and cases cited therein.) While the defendants assert that the Supreme Court precedent should be reconsidered, we, of course, are bound to follow that precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Vague and Overbroad
The defendants contend that the lying-in-wait special circumstance is vague and overbroad in violation of the Eighth Amendment. As the defendants again concede, this argument has been rejected by the Supreme Court in People v. Morales (1989) 48 Cal.3d 527, at page 557. Therefore, we likewise reject the argument.
VIII
Parole Revocation Restitution Fine
The defendants contend that the trial court erred by imposing a $10,000 parole revocation restitution fine pursuant to Penal Code section 1202.45 because the fine is inapplicable when a defendant is sentenced to life without possibility of parole. The Attorney General agrees, as do we.
“Penal Code section 1202.45 provides, in pertinent part, that ‘In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.’ [¶] 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. [Citation.]” (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.)
We therefore will order the parole revocation restitution fines stricken.
IX
Abstract of Judgment
Defendant Leite asserts that the abstract of judgment is incorrect in two ways. First, it erroneously reflects that the prison terms are to be served consecutively even though they were imposed by the trial court as concurrent terms. And second, the trial court failed to grant her 14 days of the total 639 days of presentence credit to which she was entitled. (See Pen. Code, § 2933.2, subd. (c) [limiting credit to actual time].)
A. Concurrent Terms
The trial court sentenced Leite to life without possibility of parole plus one year for the murder and use of the knife. For kidnapping and torture, the court imposed concurrent terms of eight years and life with possibility of parole, respectively, each also with an extra year for use of the knife. The abstract of judgment, however, states that the term of life without possibility of parole for murder is to run consecutively. The Attorney General concedes that the abstract of judgment is incorrect and must be corrected.
The Attorney General also observes that a similar error appears in defendant Salmon’s abstract of judgment. He was sentenced to concurrent terms for the murder, kidnapping, and torture. However, the abstract of judgment states that the term of life without possibility of parole for murder is to run consecutively. We therefore will order correction of each abstract of judgment.
B. Presentence Credit
Leite was tentatively scheduled to be sentenced on July 21, 2006. But sentencing actually occurred on August 4, 2006. The probation report, in calculating the presentence credit to which Leite was entitled, used the July 21 date, instead of the August 4 date. Relying on the probation report, the trial court gave Leite 625 days of credit, instead of the 639 days to which she was entitled. Leite contends, and the Attorney General agrees, that Leite is entitled to 639 days of credit. We therefore order amendment of the abstract of judgment to reflect the full 639 days of credit to which Leite was entitled.
In doing so, we note that Leite attempted to have the trial court correct this miscalculation before she brought it to our attention on appeal. For whatever reason, including, perhaps, the retirement of the trial judge, the correction was not made in the trial court.
The Attorney General concedes that the same error was made in calculating defendant Salmon’s presentence credit. However, the Attorney General contends that this error is not cognizable on appeal because Salmon did not move in the trial court for correction of the error in awarding credits. (Pen. Code, § 1237.1 [no appeal from error in presentence credit unless motion for correction in trial court].)
We order correction of Salmon’s abstract of judgment. In a case such as this, where this court has already conducted a complete review of the record and the Attorney General concedes error, we resolve the presentence credit issue, in the interests of judicial economy. (See People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
DISPOSITION
As to defendant Salmon, the parole revocation restitution fine, pursuant Penal Code section 1202.45, is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification to the judgment and correctly stating that (1) the terms for murder, kidnapping, and torture are to be served concurrently and (2) Salmon is credited with 639 days of presentence time. The court is further directed to send the amended abstract of judgment to the Department of Corrections and Rehabilitation.
As to defendant Leite, the parole revocation restitution fine, pursuant Penal Code section 1202.45, is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification to the judgment and correctly stating that (1) the terms for murder, kidnapping, and torture, as well as the enhancements associated with those terms, are to be served concurrently and (2) Leite is credited with 639 days of presentence time. The court is further directed to send the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J. RAYE, J.
“1. I understand that I have a right to be represented by an attorney who has no duty to represent any other defendant related in any way to my case.
“2. I understand that if I am unable to pay for a separate attorney in accordance with the current law; which, depending on my economic status, could be at no cost to me. [Sic]
“3. My attorney has fully discussed with me the risks and dangers of his continued representation of both me and the other defendant(s) in my case, and I understand the risk and dangers as my attorney has explained them to me.
“4. My attorney has also informed me of my right to obtain the opinion of another attorney, not involved with this case, about the risks and dangers of my attorney’s continued representation of both me and the other defendant(s) in my case.
“5. Having fully discussed each of the above items with my attorney, I hereby freely and voluntarily waive (give up) my right to a separate attorney in this case and agree that my attorney may continue to represent both me and the other defendant(s) in my case.”
Lindley signed the document under penalty of perjury, and her attorney, Robert Saria, signed a statement on the same form declaring that he advised his client of each of the items covered in the waiver and believed that she fully understood. He concurred in the waiver.
While defendant Leite successfully establishes error, though harmless, in the imposition of the upper term for kidnapping and defendant Salmon filed a joinder in the arguments made by Leite in her opening brief, Salmon’s joinder did not adequately raise the issue as to him.
The two defendants were sentenced separately. In addition, the factors relating to each defendant’s involvement in the crimes and other factors personal to each defendant warranted individualized consideration by the trial court. Thus, the two defendants were not similarly situated as to the issue of upper term sentencing. However, Salmon makes no effort to establish that the trial court erred as to him. Neither does Salmon attempt to show that any error as to the imposition of the upper term was prejudicial as to him.
Because joinder in Leite’s argument, regardless of the merit of Leite’s argument as to her, failed to adequately raise the issue of upper term sentencing as to Salmon, we conclude his contention of error, made solely through his joinder in Leite’s argument, is so inadequate as to be a forfeiture of the issue. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [arguments raised but not properly supported are forfeited].)
In any event, Salmon was subject to aggravating factors relating to recidivism. He had prior convictions as an adult, increasing in seriousness. He was on formal probation when he committed the crimes. And his prior performance on probation was unsatisfactory. Accordingly, even if Salmon properly raised the issue of upper term sentencing, we would conclude there was no error. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [no jury trial right on issue of recidivism]; see People v. Towne (2008) 44 Cal.4th 63, 75-76 [court may find recidivism-related aggravating circumstances without jury trial].)