Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F02695
HULL , J.Defendant was convicted by a jury of murder (Pen. Code, § 187, subd. (a)) and robbery in concert (id., §§ 211, 213, subd. (a)(1)(A)) in connection with a home invasion in which one of the occupants was killed while resisting. (Further undesignated section references are to the Penal Code.) The jury also found defendant personally discharged a firearm in connection with the offenses and caused great bodily injury (§ 12022.53, subd. (d)). Finally, the jury convicted defendant of attempted murder of his former girlfriend, who had been providing information to the police in connection with the home invasion (§ 664/187), and found defendant discharged a firearm in connection with this latter offense (§ 12022.53, subd. (c)).
Defendant was sentenced on the murder count to life without the possibility of parole plus 25 years to life for the firearm enhancement. On the robbery count, defendant received the upper terms of nine years plus a firearm enhancement of 25 years to life. However, execution of these terms was stayed pursuant to section 654. Finally, on the attempted murder count, defendant received a consecutive term of life with the possibility of parole plus 20 years for the firearm enhancement.
He appeals, contending: (1) the trial court erred in admitting incriminating statements he made to his girlfriend while incarcerated; (2) the court erroneously admitted witness intimidation evidence; (3) the court improperly restricted defense counsel’s closing argument; (4) the burden of proof instruction violated the Sixth and Fourteenth Amendments; (5) the court improperly replaced a juror after she was involved in an automobile accident on her way to court; and (6) the court erred in imposing a parole revocation fine. Defendant further requests we conduct an independent review of the affidavit used to support a search warrant issued for the residence of two other participants of the home invasion. The People do not oppose our independent review of the search warrant affidavit and concede the parole revocation fine was improper.
We reject each of defendant’s contentions. On the parole revocation fine, we conclude the trial court did not in fact impose it, but was required to do so. We therefore modify the judgment accordingly. As so modified, we affirm the judgment.
Facts and Proceedings
Shortly after 4:00 a.m. on March 10, 2004, four armed men broke into the residence of Danny Johnson, a drug dealer, for the purpose of committing a robbery. The men were later identified as Langima Faulalo, Gary Ulukivaiola, Semisi Fahiua and defendant. In order to conceal their identities, two of the men wore ski masks while the other two wore either a bandana or a head band covering most of their faces.
Upon entering the residence, the intruders yelled that they were from the Sacramento Police Department. As defendant and Ulukivaiola moved down a hallway, Johnson came out of one of the bedrooms and charged them. Defendant shot Johnson in the leg. However, Johnson kept coming, and Ulukivaiola shot him in the chest. The latter shot proved fatal.
After the shooting, the intruders bound the victim’s girlfriend, Amanda G., and the victim’s brother, Dion F., with red tape and held the others at gunpoint while they searched the home for property to steal. They eventually made off with various items, including several pounds of marijuana in a camouflage duffel bag, a safe containing thousands of dollars, a cell phone, a cable TV box, a handgun, a pair of Nike shorts, and jewelry.
Nine days after the home invasion, police officers searched Ulukivaiola’s residence pursuant to a search warrant. Both Ulukivaiola and Faulalo were living there at the time. The officers pulled up to the home, announced their presence and directed the residents to come out. However, before the residents did so, the officers saw an individual throw a bag and a handgun out of a side window and over a fence onto adjacent property. The bag contained a pound of marijuana.
Inside the residence, the officers found a roll of red tape like that used to bind the victims of the home invasion, a pistol with ammunition, ski masks, a camouflage duffel bag, a bandana, and other items related to the robbery. Gunshot residue was found on several of the items. The officers also found a cable TV box registered to the home where the invasion occurred. Inside a garbage can outside the residence, officers found receipts and credits cards in the name of Amanda G. Both Ulukivaiola and Faulalo were present at the time of the search and Ulukivaiola was wearing the Nike shorts taken in the robbery. Ulukivaiola and Faulalo were arrested.
Later that day, Fahiua arrived at Ulukivaiola’s home and was told about the arrests and that the police were asking about him. Fahiua fled to Oregon.
Prior to the home invasion, Shirley J. had been dating defendant, although she was married to another at the time. In May 2004 or earlier, Shirley informed defendant she was trying to work things out with her husband. Defendant started making threatening calls to her and said he would kill her and hurt her son. Shirley became upset and, on May 4, 2004, called the police and told them she had information about the home invasion. She later came in and gave a statement to police implicating defendant.
On May 5, Shirley J. was playing pool with her uncle when she received a call from defendant stating that he was going to do something to her parent’s home. She went home to retrieve a business card she had been given by a police detective so that she might call him and report the threat. However, as she walked up to her residence, she heard popping sounds and determined that shots were being fired at her. She was eventually able to see the shooter, who resembled defendant.
Around this same time, Fahiua returned to California and retained an attorney. The attorney contacted the police and informed them Fahiua wanted to turn himself in.
Meanwhile, Taholo fled to Utah. With Shirley J.’s help, the police were able to locate him there. He was arrested and returned to California. In a conversation between defendant and Shirley J. after his arrest, Shirley accused defendant of shooting at her on May 5, and defendant did not deny it, indicating instead that he acted out of jealousy.
Fahiua was given use immunity and gave a statement to police in which he described the home invasion in detail and identified the participants.
Ulukivaiola, Faulalo and defendant were tried together for robbery and murder. However, after the trial commenced, defendant’s attorney became too sick to continue and the court declared a mistrial as to defendant. The trial proceeded on the remaining defendants, who were convicted as charged.
Defendant was then tried separately. In addition to the original charges of murder and robbery, defendant was charged with attempted murder of Shirley J. He was ultimately convicted on all charges, as stated above.
Discussion
I
Admission of Defendant’s Post-Arrest
Conversation With Shirley J.
Defendant moved to exclude from evidence a recording of a conversation he had with Shirley J. at jail following his arrest. He argued his statements had been obtained in violation of his Fifth and Sixth Amendment rights, because he had earlier invoked his right to remain silent but the police used Shirley J. as their agent to obtain incriminating statements from him anyway. Defendant pointed out that the police had earlier arranged for Shirley J.’s telephone to be tapped and her conversations with defendant recorded in order to locate him, and her status as a police agent in this regard continued after his arrest.
The prosecution countered that Shirley J. was not acting as a police agent when she spoke with defendant and, in fact, had been cautioned by the police not to speak with him. They relied on the following discussion between Detective Higgins and Shirley J. before her conversation with defendant:
“[SHIRLEY J.]: But now that I know I’m going to end up being test -- I have to testify probably.
“DETECTIVE: Well, (unintelligible).
“[SHIRLEY J.]: I might as well tell him.
“DETECTIVE: -- he’s just -- you know, we’re still checking. If he says something incriminating, we might be able to find, you know, but we don’t want you -- we -- we -- prefer you don’t talk to him. I mean, he may work out a deal with his attorney anything like that. We prefer you just don’t talk to him --.
“[SHIRLEY J.]: But you know, I ain’t got -- (unintelligible).
“DETECTIVE: You’re going to go (unintelligible)
“[SHIRLEY J.]: (Unintelligible).
“DETECTIVE: Like I said, you go talk to him, it’s not at our direction.
“[SHIRLEY J.]: Yeah. I’m going to tell him straight to his face. I don’t care. They going to tell him anyways. I rather be -- ‘cause I’m a -- a -- I’m -- I’m not scared of nobody.
“DETECTIVE: Uh-huh.
“[SHIRLEY J.]: I just wanted to keep my name out of it so I don’t have to testify.
“DETECTIVE: You didn’t want to -- yeah.
“[SHIRLEY J.]: Uh-huh.
“DETECTIVE: -- (unintelligible). If you’re going to talk to him, it’s not at our direction.
“[SHIRLEY J.]: Yeah, I know.
“DETECTIVE: You know? Don’t ask him any questions in our direction.
“[SHIRLEY J.]: I won’t. (Unintelligible).
“DETECTIVE: I know. I got -- okay. That’s it.
“[SHIRLEY J.]: Okay.”
The trial court rejected defendant’s claim that Shirley J. was acting as a police agent when she spoke with him, explaining: “The defense contends that [Shirley J.] was acting as an agent of the police in violation of his Miranda rights. This is not the case. [Shirley J.] went to visit [defendant] over the express advice of the detective, that they would prefer she not go talk to him, and that if she went to go talk with him, it was not at their direction. [¶] [Shirley J.] had the right to visit [defendant] in jail if she wanted to. Whether she exercised good judgment in that regard is a whole other issue. [Defendant] had the right to accept her visit and converse with her if he wanted. Whether he exercised good judgment in that regard is, likewise, a different issue. [¶] The issue is whether [Shirley J.] was acting as an agent to [sic] the police. The Court finds that she was not.”
Defendant contends the trial court erred in its factual determination that Shirley J. was not acting as a police agent when she spoke with him. He relies primarily on the fact that, prior to the jail visit, Shirley J. had been acting as a police agent in recording her telephone calls with defendant. According to defendant, “[a]n examination of all the facts and circumstances reveals that [Shirley J.] continued to act as a police agent when she entered the jail and conversed with [defendant] on May 20, 2004.” Although the detective warned Shirley J. not to visit defendant, defendant argues the trial court “should have viewed the detective’s statements with skepticism,” because the detective knew his conversation with Shirley J. was being recorded. Defendant asserts the detective “soft-pedaled his comments when he asked [Shirley J.] not to talk to [defendant].”
Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246] (Massiah) prohibits the use in evidence of incriminating statements made by a defendant which were deliberately elicited by a government agent in the absence of counsel after criminal proceedings have been initiated against him. The agent need not be a government employee, and the agency relationship need not be explicit or formal. Rather, it “may be ‘inferred from evidence that the parties behaved as though there were an agreement between them, following a particular course of conduct’ over a period of time.” (In re Neely (1993) 6 Cal.4th 901, 915.) The critical issue for purposes of Massiah is whether there has been a “‘knowing exploitation’ of an opportunity to coax information from a formally charged suspect in the absence of his lawyer.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1240.) There is no violation of Massiah in the government’s mere acceptance of information gathered by another on his own initiative. (Ibid.)
The trial court’s determination on a Massiah issue is essentially factual in nature and entitled to deferential review. (People v. Fairbank (1997) 16 Cal.4th 1223, 1247-1248.) In this instance, the trial court relied on the discussion between Detective Higgins and Shirley J. before she visited defendant in jail. Detective Higgins repeatedly expressed his preference that Shirley not speak with defendant and indicated that if she did so, she was acting on her own. This evidence supports a conclusion that Shirley J. was acting on her own and against police advice when she visited defendant in jail. Defendant speculates that Detective Higgins was not sincere in his statements to Shirley on the record and, perhaps, encouraged her off the record to visit defendant. However, defendant’s speculation is just that and does not neutralize the evidentiary underpinnings of the trial court’s ruling.
II
Witness Intimidation Evidence
Over defense objections, the prosecution presented evidence that, on December 24, 2005, shots were fired at the home of Fahiua’s parents, where Fahiua resided at the time. The trial court ruled this evidence is relevant to the issue of Fahiua’s credibility and its probative value is not outweighed by its prejudicial effect (Evid. Code, § 352). The court instructed the jury the evidence was admitted only on the issue of credibility.
Defendant contends the trial court abused its discretion in admitting the evidence. He argues the probative value of the evidence was not great, in light of the fact Fahiua’s trial testimony was not adversely impacted by the threat. He further argues that, because there was nothing to suggest he participated in the shooting incident, there was substantial danger that introduction of the evidence would allow the jury to find guilt by association.
Evidence Code section 352 permits the exclusion of relevant evidence where “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.)
“Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court.” (People v. Burgener (2003) 29 Cal.4th 833, 869 (Burgener).)
Defendant contends the probative value of such threat evidence turns on whether the witness is actually placed in fear by the threat, such that it affects his willingness to testify and the content of that testimony. Defendant cites as support People v. Sapp (2003) 31 Cal.4th 240 (Sapp); Burgener, supra, 29 Cal.4th 833; and People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin).
In Sapp, the defendant was prosecuted for the murder of Elizabeth Duarte and others. Evidence was presented that the defendant paid James Luddon $800 to lure Duarte to his (Luddon’s) home where the defendant could kill her. At the time, Laura Norris was living in Luddon’s home. Norris testified for the prosecution that she overheard the defendant make incriminating statements and cleaned up blood splatters the day after the assault. On cross-examination, Norris acknowledged she did not tell the police what she knew until several years after the incident. On redirect, Norris explained she had not come forward earlier because Luddon and another had told her if she went to the police she would end up like Duarte. (Sapp, supra, 31 Cal.4th at pp. 280-281.)
The California Supreme Court rejected the defendant’s argument that admission of Norris’s testimony about the threats made by Luddon and the other violated due process. The court concluded the evidence was properly admitted for the non-hearsay purpose of showing why Norris had not come forward earlier. (Sapp, supra, 31 Cal.4th at p. 281.) As for the fact the threats had come from Luddon and another rather than the defendant, the court said: “‘It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.’” (Ibid.)
Although the court in Sapp mentioned the witness’s fear, the issue of whether the witness must be placed in fear before the evidence may be admitted was not presented. Nor did the high court even state such a rule in dictum. Cases are not authority for propositions not considered therein. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
In Burgener, evidence of prior intimidation was admitted at the defendant’s penalty phase trial to explain why the witness had testified differently at the defendant’s guilt phase trial years earlier. The witness testified the threats originated with the defendant but had been communicated to her by another who had been in jail with the defendant. (Burgener, supra, 29 Cal.4th at pp. 868-869.)
The Supreme Court concluded the evidence was admissible on the issue of credibility, explaining: “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.” (Burgener, supra, 29 Cal.4th at p. 869.) The court further concluded “it is not necessary to show the witness’s fear of retaliation is ‘directly linked’ to the defendant for the threat to be admissible.” (Id. at pp. 869-870.) According to the court: “It is not necessarily the source of the threat--but its existence--that is relevant to the witness’s credibility.” (Id. at p. 870.) Again, the issue of whether the witness must actually be put in fear was not presented.
In Olguin, evidence was presented that the witness did not voluntarily provide information to the police out of fear something would happen to his house or family because of a telephone call he received a few days after the shooting telling him “they knew where he lived and he had better watch his back.” (Olguin, supra, 31 Cal.App.4th at pp. 1367-1368.) The Court of Appeal concluded the evidence was admissible on the issue of witness credibility despite the fact the threats had not come from the defendant. (Id. at p. 1368.) Again, although the witness had in fact been placed in fear and, consequently had not come forward earlier, the issue of whether this was a prerequisite to admission of the evidence was not presented.
In the foregoing cases, the fact of the threat and the resulting fear was relevant in explaining why the witness had not presented particular evidence to the authorities earlier. The fact that the witness had not come forward or had feigned loss of memory was used to attack the witness’s credibility, and the fear element was used to rehabilitate the witness. However, the existence of witness intimidation is also relevant to credibility even where the witness is not dissuaded from coming forward or testifying. A reasonable jury could conclude a witness who testifies against the defendant despite threatened adverse consequences is more believable than one who testifies without such a cloud hanging over him.
Furthermore, defendant assumes that, because Fahiua was willing to come forward and testify, he was not placed in fear by the shooting incident at his home. However, this assumption is unwarranted. The mere fact that Fahiua did not testify about the impact of the shooting incident does not mean he was not placed in fear for his safety. Logic suggests otherwise.
As for defendant’s assertion of undue prejudice, this turns on the potential for misuse of the evidence. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.)
The use of evidence of threats made to a witness on the issue of credibility of the witness is not a misuse of that evidence. In order to be admissible on the issue of credibility, it is not necessary that the particular threat originated with the defendant. “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat.” (Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.)
Under the circumstances presented, we find no abuse of discretion under Evidence Code section 352 in admitting evidence of the shooting incident on the limited issue of Fahiua’s credibility.
III
Limitations on Closing Argument
On the offense of attempted murder, the parties agreed the trial court would not instruct the jury on the lesser related offense of assault with a firearm. Nevertheless, defense counsel sought permission to present to the jury the elements of assault with a deadly weapon and to argue that, if defendant committed any offense in connection with the shooting at Shirley J.’s home, it was assault with a deadly weapon. The court rejected the request, stating: “I am going to exclude that argument. Because it’s misleading to argue another crime which is not before them which they need not decide. You can argue if you want to generically there is some other crime assault with a deadly weapon in the very passing way, but beyond that it is inappropriate.”
Defendant contends this was error. He argues the trial court would have been required to give a pinpoint instruction on assault with a deadly weapon if requested by defense counsel. Therefore, he argues, it was error to restrict argument on this offense and such restriction was tantamount to the denial of a defense. Defendant further argues the court’s actions amounted to a denial of the right to counsel under the Sixth and Fourteenth Amendments.
“A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. [Citations.] This right is not unbounded, however; the trial court retains discretion to impose reasonable time limits and to ensure that argument does not stray unduly from the mark.” (People v. Marshall (1996) 13 Cal.4th 799, 854-855.) It is, in fact, the duty of the trial judge to limit the arguments of counsel to “relevant and material matters.” (§ 1044.)
In Conde v. Henry (9th Cir. 1999) 198 F.3d 734, the defendant was prosecuted for kidnapping to commit robbery based on his kidnapping of a restaurant employee and forcing her to give him the restaurant’s alarm code and safe combination. The defendant blindfolded the employee and drove her around for a while, stopping twice, once for 45 minutes and a second time for 20-25 minutes. He eventually let her go. Approximately $12,000 was stolen from the restaurant’s safe. (Id. at pp. 736-737.)
The defendant was charged with robbery and kidnapping for purposes of robbery, among other things. At trial, the defendant advanced two theories: (1) he was not the perpetrator; and (2) there was no kidnapping for robbery, because there was no evidence he intended to rob the restaurant employee, as opposed to the restaurant itself. At the conclusion of the prosecution’s case, the trial court granted the defendant’s motion for acquittal on the robbery charge. (Conde v. Henry, supra, 198 F.3d at p. 737.) Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear”. (§ 211.) The trial court concluded there was no evidence the defendant intended to take anything from the restaurant employee herself or from her immediate presence. (Conde v. Henry, at p. 737.)
The trial proceeded on the kidnapping for purposes of robbery charge. However, the trial court refused to instruct the jury on the lesser included offense of simple kidnapping. (Conde v. Henry, supra, 198 F.3d at pp. 737-738.) The court also refused to allow defense counsel to argue there had been no robbery where nothing was taken from the person or from under the control of the restaurant employee. (Id. at p. 738.) The defendant was thereafter convicted of kidnapping for purposes of robbery. (Ibid.)
On the defendant’s petition for writ of habeas corpus, the federal district court denied relief. However, the Circuit Court of Appeals reversed, concluding the trial court had violated the defendant’s right to counsel and right to present a defense by precluding counsel from arguing the defendant’s theory of the case, namely that there was no evidence of an intent to rob the restaurant employee. (Conde v. Henry, supra, 198 F.3d at p. 739.)
Defendant contends the trial court here likewise violated his right to counsel and right to present a defense by denying him an opportunity to present his theory of defense, namely, that there was no attempted murder because there was no intent to kill.
We disagree. Unlike the situation in Conde v. Henry, where the court expressly precluded defense counsel from arguing there was no robbery because there was no taking of property from the person or control of the kidnapping victim, defendant here was not precluded from arguing there was no attempted murder because there was no intent to kill. In further clarification of its ruling on this issue, the trial court stated: “I had a brief discussion off the record with regard to closing argument. [¶] The Court had ruled that the defense could not prepare and present a slide identifying the elements of assault with deadly weapon/firearm as a related offense and present that to the jury. [¶] They could generically refer to that as a related crime, but I just don’t want the elements to go to the jury in an argument about whether or not those elements are met. And they are revising their slide show for the closing argument to reflect that. [¶] Obviously there is no problem with arguing and including a slide to the effect that the District Attorney has charging authority and they are limited therefore to attempted manslaughter, or attempted murder and cannot consider, for example, assault, battery, assault with a deadly weapon and the myriad of other related crimes that one could identify in this fact pattern.”
Defense counsel thereafter argued to the jury: “The District Attorney has the job of charging. In the process of charging, he makes elections about what charges are brought before you and what issues will be tried. [¶] By charging an attempted murder, he limits your options to just these three. Attempted murder. Attempted manslaughter and not guilty. [¶] If indeed there are other crimes that might have been occurred [sic] that would encompass that same conduct by the way they charge, by the way he has chosen to charge. Those options are foreclosed to you.” Counsel continued: “This is a picture of the area where Shirley ran into. Remember in her testimony, she said that she ran in toward her apartment and, I guess, a dead-end or something up there. She couldn’t go anywhere. [¶] Why is this important? She was trapped and all an individual would have to do is walk-up there and shoot her, that didn’t happen. [¶] If there had been a true intent to kill as opposed to frighten or intimidate or whatever, the individual who had that intent did not carry it out.”
The trial court precluded defense counsel from enumerating for the jury the elements of the uncharged offense assault with a deadly weapon. However, the court did not preclude defense counsel from arguing there is some crime defendant may have committed other than attempted murder or attempted manslaughter. More importantly, the court did not preclude counsel from arguing defendant’s theory of the case, i.e., that there was no intent to kill Shirley J. at the time the shots were fired. Therefore, defendant was not denied the right to counsel or the right to present a defense.
IV
Burden of Proof Instruction
The trial court instructed the jury on the presumption of innocence and the burden of proof pursuant to CALCRIM No. 220 as follows:
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Defendant contends this instruction was erroneous, because the injunction to “impartially compare and consider all the evidence” implies a weighing of opposing evidence, whereas a criminal defendant is not required to present any evidence. According to defendant, “[i]f the prosecutor’s evidence lacks substance it would remain incapable of proving the charge beyond a reasonable doubt even if it outweighed any defense evidence.”
Defendant further contends the instruction’s description of proof beyond a reasonable doubt in terms of an “abiding conviction” conveys the idea of a conviction that will last, but fails to convey the idea of a conviction that is based on “weighty evidence.” In other words, defendant argues, the phrase “abiding conviction” improperly suggests a temporal standard rather than one based on the strength of the juror’s belief.
The trial court must provide the jury in a criminal case with an explanation of the concept of reasonable doubt. Section 1096 defines reasonable doubt as follows: “‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’” Section 1096a in turn states: “In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.”
In People v. Hernandez Rios (2007) 151 Cal.App.4th 1154 (Hernandez Rios), the Court of Appeal compared the language of CALCRIM No. 220 with its predecessor, CALJIC No. 2.90. The latter used language identical to that in section 1096:
“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt.
“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (CALJIC No. 2.90, italics added.)
The Hernandez Rios court noted the foregoing instruction had been approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 583] (Victor), where the court said the italicized language “explicitly told the jurors that their conclusion had to be based on the evidence in the case.” (Id. at p. 16 [127 L.Ed.2d at p. 597].) It does not suggest an obligation on the part of the defendant to produce evidence. Rather, it requires the jury to compare and consider all of the evidence that has been presented, whether by the prosecution or the defense.
The language in CALCRIM No. 220 to which defendant objects merely replaces the nouns comparison and consideration of CALJIC No. 2.90 with the verbs compare and consider. As in Victor v. Nebraska, this language properly instructs the jury to base its conclusion on the evidence presented. It does not shift the burden to the defendant to present some evidence away from the prosecution to prove the absence of a reasonable doubt. (Hernandez Rios, supra, 151 Cal.App.4th at p. 1157.)
As for defendant’s challenge to the phrase “abiding conviction,” this is more problematic. As Justice Mosk suggested in his concurring opinion in People v. Brigham (1979) 25 Cal.3d 283 (Brigham), the definition of reasonable doubt in terms of an abiding conviction “is more complicated than the phrase itself and results in confusing rather than enlightening the jury.” (Id. at p. 308 (conc. opn. of Mosk, J.).)
Nevertheless, in Victor, supra, 511 U.S. 1, the United States Supreme Court concluded “[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.” (Id. at pp. 14-15 [127 L.Ed.2d at p. 596].) The high court in Victor in turn relied on Hopt v. People of Utah (1887) 120 U.S. 430 [30 L.Ed. 708] (Hopt).
In Hopt, the court considered a reasonable doubt instruction that read, in part: “‘The court further charges you that a reasonable doubt is a doubt based on reason, and which is reasonable in view of all the evidence. And if, after an impartial comparison and consideration of all the evidence, you can candidly say that you are not satisfied of the defendant’s guilt, you have a reasonable doubt; but if, after such impartial comparison and consideration of all the evidence, you can truthfully say that you have an abiding conviction of the defendant’s guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt.’” (Hopt, supra, 120 U.S. at p. 439 [30 L.Ed. at p. 711].) Noting that the concept of reasonable doubt “may be and often is rendered obscure by attempts at definition, which serve to create doubts instead of removing them” (id. at pp. 440-441 [30 L.Ed. at p. 712]), the court observed in passing that the word “‘abiding’” in the instruction had “the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence.” (Id. at p. 439 [30 L.Ed. at p. 711].)
The California Supreme Court addressed instructions on reasonable doubt in Brigham. There, the trial court instructed the jury using former CALJIC No. 22 (rev.) which read: “The law does not require demonstration or that degree of proof which, excluding all possibility of error, produces absolute certainty, for such degree of proof is rarely possible. Moral certainty only is required, which is that degree of proof which produces conviction.” The court also instructed with CALJIC 2.90, which read, in pertinent part: “Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” (See Bringham, supra, at pp. 289-290.)
Our high court held that former CALJIC 22 (rev.) should no longer be used by the trial courts, explaining: “Former CALJIC No. 22 (rev.) has some serious flaws. It defines ‘moral certainty’ as ‘that degree of proof which produces conviction in an unprejudiced mind.’ The phrase which is suspect is ‘that degree of proof which produces conviction. CALJIC No. 2.90 speaks of an ‘abiding conviction’; former CALJIC No. 22 (rev.) speaks only of ‘conviction.’ The lasting, permanent nature of the conviction connoted by ‘abiding’ is missing and the juror is not informed as to how strongly and how deeply his conviction must be held.” (Bringham, supra, at pp. 290-291, italics added.)
In People v. Castro (1945) 68 Cal.App.2d 491, the Court of Appeal considered a variation of the definition of reasonable doubt found in section 1096 that required “an abiding conviction” of the truth of the charge. (Id. at p. 500.) In finding the jury had not been misled by the instruction, the court found that an “‘[a]biding conviction’ is the equivalent of ‘settled conviction.’ (State v. Silverio, 79 N.J.L. 482 [76 A. 1069].) It is used in the sense of ‘convince.’ (State v. Leo, 80 N.J.L. 21 [77 A. 523]; 36 Words and Phrases (Perm. Ed.), p. 298.)” (Castro, at p. 500.)
Most recently, this court, in People v. Zepeda (2008) 167 Cal.App.4th 25 (Zepeda), petition for review pending, petition filed October 28, 2008, explained that the phrase “abiding conviction” “adequately conveys the subjective state of certitude required by the standard of proof. The modifier ‘abiding’ informs the juror his conviction of guilt must be more than a strong and convincing belief. Use of the term ‘abiding’ tells the juror his conviction must be of a ‘lasting, permanent nature[,]’ and it informs him ‘as to how strongly and how deeply his conviction must be held.” (Id. at pp. 30-31.)
Defendant contends the phrase “abiding conviction” conveys the idea of a conviction that will last, rather than one that is strongly held. Consistent with the foregoing authorities, we believe it means both. The concept of an abiding conviction speaks to the strength, depth and certainty of that conviction as well as to its duration. Obviously, the stronger the conviction, the longer it is expected to be held. However, duration of the conviction must be understood in the context that a juror may learn something related to the case after the conclusion of the trial that changes his or her mind. This would not detract from the abiding nature of the conviction at the time of trial. A reasonable juror may conclude that he or she has an abiding conviction of the truth of the charge when, after fully considering the evidence presented during the course of the trial, the arguments of the attorneys, the instructions on the law, and the points of view presented by fellow jurors during the course of deliberations, he or she is convinced beyond a reasonable doubt that the defendant is guilty of the charge and that this conviction will last, or “abide,” notwithstanding the fact the conviction may last only so long as that juror‘s knowledge of the case remains the same as it was at the time of trial.
In light of the above, we cannot agree that in this matter the jurors were given an inaccurate definition of proof beyond a reasonable doubt. Thus, there was no error.
V
Discharge of a Juror
By January 3, 2007, all evidence was in and the parties were in the midst of closing arguments. At 8:45 that morning, the trial court received a telephone call from juror 7 explaining that she had been in an automobile accident and did not know when she would arrive at court. She was crying, emotional, and difficult to understand. The parties agreed to wait until 9:20 a.m. to check on the juror’s status and decide what to do.
At 9:20 a.m., the juror sounded more coherent, but was still at the accident scene waiting for a tow truck. She indicated she thought she could be at the courthouse by 11:00 a.m.
At this point, the People requested that the juror be excused. Defendant objected.
The court found good cause to excuse the juror, explaining: “There is cause here to excuse her. I am going to excuse her. And the question in my mind, or one of the important questions here is the additional burden and inconvenience to this jury that has worked for several weeks now. [¶] We are literally at the point where we should be able to get this to them for deliberations this morning. There is a reasonable possibility that she [juror 7] would be here at 1:30, but there is also risk that [juror 7] would not be here at 1:30, and there is further risk that physically, emotionally it would be difficult for her to continue and at this point I think it makes sense to excuse her. [¶] She was an attentive juror. We have an attentive jury as a whole. We also have attentive alternates. We’ll select an alternate and move forward. That is the Court’s rulings [sic].”
Defendant contends there was no good cause to discharge juror 7. He argues the court made its decision based on “speculation and conjecture that the juror might not get to court by 1:30 p.m. that day, and that the juror might not be able to continue her service for physical or psychological reasons.” Defendant further argues the court should have delayed the proceedings instead of discharging the juror, because the evidentiary portion of the trial was complete, so no witnesses would have been inconvenienced, and the court would have lost at most two and a half hours of time.
This case presents two overlapping aspects of trial court authority: (1) the authority under Penal Code section 1089 to discharge a juror upon a finding of good cause; and (2) the inherent power under Code of Civil Procedure sections 128 and 187 to control court proceedings in furtherance of justice.
Section 1089 reads in relevant part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate . . . .” In order to justify replacement, the juror’s inability to perform must appear in the record as a demonstrable reality. (People v. Marshall, supra, 13 Cal.4th at p. 843.) We review a decision to replace a juror for abuse of discretion. (People v. Williams (2001) 25 Cal.4th 441, 448.) “If there is any substantial evidence supporting the trial court’s ruling, we will uphold it.” (Marshall, at p. 843.)
Code of Civil Procedure section 128 reads in relevant part: “(a) Every court shall have the power to do all of the following: [¶] . . . [¶] (3) To provide for the orderly conduct of proceedings before it, or its officers.” Code of Civil Procedure section 187 reads: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given . . . .” These procedural rules apply in both civil and criminal cases. (See People v. Miller (1960) 185 Cal.App.2d 59, 77.) “[W]e defer to the trial court’s decisions to control the proceedings over which it presides absent clear evidence of bias or other misconduct.” (People v. Fudge (1994) 7 Cal.4th 1075, 1108.)
In the present matter, the trial court inquired into the juror’s ability to continue serving. Because the juror was not at the courthouse, a more complete inquiry was not possible at the time. Based on the information available, the court concluded it was not likely the juror would arrive at court by 1:30 p.m. and it was not likely she would be able to concentrate fully on the case once she did arrive.
Defendant argues the court should have waited until the juror arrived at court to make a further inquiry. However, “[w]e will not second-guess the trial court’s discretionary decisions. We review only for an abuse of discretion. ‘The exercise of that discretion is not rendered abusive merely because other alternative courses of action may have been available to the trial judge.’” (People v. Bell (1998) 61 Cal.App.4th 282, 288-289.)
At the time of the court’s ruling, there were four alternate jurors available. To wait for the juror to arrive at court in order to make a further inquiry into her condition would have necessitated keeping the other jurors and the parties waiting many hours. This was a critical stage of the proceedings, where counsel had already presented opening arguments and the individual jurors were ready to start forming their opinions about the case. Thus, even though juror 7’s time of arrival and ability to concentrate on the case once she arrived was uncertain, the delay necessary to make a further inquiry about her condition was not. Under these circumstances, we cannot say the court abused its inherent powers to control the proceedings by replacing the juror in an effort to keep the proceedings moving.
VI
Search Warrant Affidavit
On March 19, 2004, nine days after the home invasion, the police conducted a search of Ulukivaiola’s residence pursuant to a search warrant and found various items related to the offenses. The warrant was issued in part based on information obtained from a confidential reliable informant (CRI). All three defendants moved to quash and traverse the search warrant and to suppress the evidence obtained in the search.
Defendant requests we take judicial notice of the documents relevant to the motion to traverse and quash in our file on the related appeals of Faulalo and Ulukivaiola (People v. Faulalo (Nov. 17, 2008, C055080) [nonpub. opn.]). We grant that request.
The trial court conducted an in camera review of the affidavit and examined the officer who provided it. Thereafter, the court ruled there were sufficient grounds to maintain the confidentiality of the informant, disclosure of the sealed portion of the affidavit would reveal the identity of the informant, and there were no material misrepresentations in the affidavit. The court denied the motion.
Defendant requests that we independently review the sealed portion of the affidavit and the transcript of the in camera proceeding on the motion to traverse the search warrant in order to determine if the trial court complied with the requirements of People v. Hobbs (1994) 7 Cal.4th 948, 975-977 (Hobbs). The People do not oppose defendant’s request.
Defendant does not have standing to challenge the warrant supporting the search of Ulukivaiola’s residence. (People v. Clark (1992) 3 Cal.4th 41, 141.) “Fourth Amendment rights are personal and may not be vicariously asserted. [Citation.] The question of whether a defendant has standing to challenge a search is a question of ‘whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it.’ [Citation.] In other words, in order to challenge a search or seizure, the defendant must first establish the search or seizure ‘infringed an interest of the defendant which the Fourth Amendment was designed to protect.’ [Citation.] This is established when a defendant meets his or her burden of establishing a legitimate expectation of privacy in the area searched.” (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1131.) Defendant had no legitimate expectation of privacy in the residence of codefendant Ulukivaiola.
At any rate, defendant’s challenge to the search warrant affidavit is without merit. Under Hobbs, “[i]t must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant’s identity.” (Hobbs, 7 Cal.4th at p. 972.) “If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant’s general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing.” (Id. at p. 974.) “Similarly, if the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (Pen. Code, § 1538.5), the court should proceed to determine whether, under the ‘totality of the circumstances’ presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was ‘a fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant.” (Hobbs, supra, 7 Cal.4th at p. 975.)
Here, the trial court reviewed the sealed portion of the affidavit and conducted the requisite in camera hearing. Officer Kevin Patton, the affiant, was sworn and testified concerning the CRI and the need for protecting his or her identity and the content of the affidavit. Patton next testified about prior dealings with the CRI and his or her reliability. Finally, Patton testified about the information provided by the CRI to support a search of Ulukivaiola’s residence.
Back on the record, the trial court found sufficient grounds to keep the CRI’s identity confidential and to seal the portions of the affidavit that were sealed by the magistrate. The court next found there was not sufficient evidence the warrant rested on intentionally or knowingly false statements or omissions and denied defendant’s motion to traverse the warrant. Lastly, the court found the warrant was supported by probable cause and denied defendant’s motion to quash the warrant and suppress the evidence seized.
After reviewing the transcript of the in camera hearing, and both the public and sealed portions of the search warrant affidavit, we conclude the trial court followed the procedures described in Hobbs. After questioning the affiant under oath, the court concluded good cause existed to keep the CRI’s identity confidential and that the sealed portion of the warrant should remain sealed to protect the CRI. We find no error in these conclusions. We also find no evidence of material misrepresentations or omissions in the affidavit, so the motion to traverse was properly denied. Finally, we find that, when viewed together, the public and sealed portions of the affidavit demonstrate there was probable cause for issuance of the warrant. Because the affidavit provided probable cause to search the residence, the trial court properly denied the motion to quash the search warrant and suppress the evidence seized during the search.
VII
Parole Revocation Fine
Defendant contends the trial court improperly imposed a parole revocation fine pursuant to section 1202.45. He argues that because he was sentenced to a term of life without the possibility of parole, a parole revocation fine was not authorized. The People concede error.
We reject the People’s concession. The court did not in fact impose a parole revocation fine. Although the abstract of judgment includes such a fine, this is not reflected in the reporter’s transcript of the sentencing hearing. The court imposed a restitution fine pursuant to section 1202.4 in the amount of $10,000, victim restitution in an amount to be determined later, and “the other statutory fines and fees set forth in the probation report.” The probation report does not list a parole revocation fine.
In light of the sentence imposed, the trial court was obligated to impose a parole revocation fine. Section 1202.45 reads: “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. . . .” (Italics added.) This parole revocation fine must be suspended unless and until parole is revoked. (§ 1202.45.)
In People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), the defendant was convicted of first degree murder and sentenced to life without the possibility of parole plus an enhancement of 10 years. He was also convicted of second degree murder and sentenced to an indeterminate term plus an enhancement of four years. (Id. at p. 1181.) The Court of Appeal concluded a parole revocation fine was inappropriate under these circumstances. Despite the remote possibility the defendant might be pardoned on the first degree murder charge and ultimately paroled on the second degree murder charge, the court concluded “the language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fine is to be imposed. Section 1202.45 indicates that it is applicable to a ‘person . . . whose sentence includes a period of parole.’ At present, defendant’s ‘sentence’ does not allow for parole. When we apply a commonsense interpretation to the language of section 1202.45 [citations], we conclude that because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed.” (Oganesyan, at p. 1185; see also People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687.)
However, in People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), the California Supreme Court concluded the fact a defendant is sentenced to death on one count does not preclude a parole revocation fine where the defendant is sentenced on other counts to determinate terms. (Id. at p. 1075.) The court noted section 1202.45 says a parole revocation fine is required whenever a defendant’s sentence includes a period of parole. The court then cited section 3000, subdivision (a)(1), which provides that “[a] sentence pursuant to Section 1168 or 1170 shall include a period of parole . . . .” (Italics added.) The high court distinguished Oganesyan as not involving a sentence that included a determinate term.
Section 1202.45 requires a parole revocation fine whenever a sentence includes a period of parole, and section 3000, subdivision (a)(1), requires a period of parole for any sentence imposed pursuant to section 1170, i.e., a determinate term. In making this determination, we look at each count separately to determine if the sentence on any one count qualifies. (Brasure, supra, 42 Cal.4th at p. 1075.)
Here, defendant was sentenced on the robbery count to a determinate term of nine years pursuant to section 1170. Even though this sentence was stayed, it was nevertheless imposed. A parole revocation fine pursuant to section 1202.45 was therefore mandatory.
This court may correct an unauthorized sentence whenever it comes to our attention. (People v. Crooks (1997) 55 Cal.App.4th 797, 811.) We therefore modify defendant’s sentence to include a parole revocation fine pursuant to section 1202.45 in the same amount as the restitution fine, i.e., $10,000. Because this fine is already reflected in the abstract of judgment, there is no need for that document to be amended.
VIII
Cumulative Errors
Defendant contends the cumulative impact of the trial court’s errors so infected the trial that his convictions must be reversed. However, because we find no errors, we have no occasion to consider cumulative impact.
Disposition
The judgment is modified to add a parole revocation fine pursuant to Penal Code section 1202.45 in the amount of $10,000. As so modified, the judgment is affirmed.
We concur: RAYE , Acting P. J., BUTZ , J.