State v. Kozlowski

Full title: THE PEOPLE, Plaintiff and Respondent, v. MATTHEW MARK KOZLOWSKI et al.…

Court: Court of Appeal of California, First District, Division Three.

Date published: Mar 4, 2002

091586 (Cal. Ct. App. Mar. 4, 2002)

Opinion

091586 1

03-04-2002

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW MARK KOZLOWSKI et al., Defendants and Appellants. A091586 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR Filed

THE PEOPLE, Plaintiff and Respondent,
v.
MATTHEW MARK KOZLOWSKI et al., Defendants and Appellants.

A091586

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT DIVISION FOUR

Filed 3/4/02

(Alameda County Super. Ct. No. H27383)

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Leopoldo E. Dorado

Counsel for Appellant Matthew Mark Kozlowski: Joseph Shipp

Counsel for Appellant Donald Paul Gatson: Kathy M. Chavez

Counsel for Respondent: Bill Lockyer

Attorney General David P. Druliner Chief Assistant Attorney General Ronald A. Bass Senior Assistant Attorney General Catherine A. Rivlin Supervising Deputy Attorney General Michael E. Banister Deputy Attorney General

CERTIFIED FOR PARTIAL PUBLICATION(FN*)

Reardon, J.

A jury convicted appellants Matthew Mark Kozlowski and Donald Paul Gatson of two counts each of robbery, attempted murder, and kidnapping for purposes of extortion, as well as a single count of carjacking. It found various arming and great bodily injury enhancement allegations to be true and Gatson was found to have suffered two prior convictions. (See Pen. Code,(FN1) 187, 211, 215, 664, 667, subd. (a); see former 209, subd. (a), 667.5, subd. (b), 12022, subd. (b), 12022.7, subd. (a).)(FN2) Each was sentenced to four consecutive life terms-two without possibility of parole and two with possibility of parole. Restitution and parole revocation fines were also levied. (See 1202.45; see former 1202.4, subd. (b).)(FN3) On appeal, Kozlowski and Gatson(FN4) argue that (1) they were unlawfully convicted of kidnapping for extortion because a personal identification number (PIN) code is not property that may be extorted; (2) insufficient evidence supports the verdicts of kidnapping for extortion and attempted murder; (3) the kidnapping for extortion statute is unconstitutionally vague as applied; and (4) the trial court committed various instructional errors. They also challenge their sentences, raising claims of (5) disparate sentencing; (6) failure to allege a key fact in the information; and (7) illegal or excessive fines. We agree that the fines imposed must be modified, but otherwise affirm the judgments.

I. FACTS

A. The Crime

On July 4, 1999,(FN5) fifteen-year-old Lisa C. spent the day in Fremont at the home of her friend Reann V. About 11:00 p.m., another of Lisas friends-18-year-old Robyn C.-joined them. Lisa had invited Robyn to come over because she had a car and Lisa wanted to get some methamphetamine. They called Holly F., whose ex-boyfriend Anthony Kozlowski supposedly had access to drugs. Lisa, Robyn, and Reann and a fourth girl, Natasha O., drove to meet Holly and Anthony. Anthony got into the car and the four girls drove with him to a large apartment complex where Anthonys brother Matthew was thought to have some Methamphetamine.

Anthony left the four girls waiting in the car. Five minutes later, he returned with his brother, appellant Matthew Mark Kozlowski.(FN6) Apparently, Kozlowski did not have any methamphetamine because Anthony and the four girls made several other attempts to locate methamphetamine from other potential sources, all without success. The four girls left Anthony and drove back to the apartment house where Kozlowski and another man-later identified as appellant Donald Paul Gatson-stood outside. Kozlowski told the girls to come back in an hour. Lisa gave Kozlowski her pager number.

The girls went to a birthday party at a hotel in the early morning hours on July 5. At the hotel, Lisa was paged. She received a message from Kozlowski asking only two of the girls to meet him at the apartment. Lisa and Robyn dropped off Reann and Natasha, then drove back to the apartment where Kozlowski waited. He got into Robyns car and they picked up Gatson. Judging by the way he was acting, Lisa thought Kozlowski might have been under the influence of something, but she was not certain. The two men sat in the backseat, Gatson behind Lisa and Kozlowski behind Robyn, who was driving. One of the men directed Robyn to drive to a nearby school where they were to meet someone with methamphetamine. After waiting about 10 minutes without meeting anyone, they all returned to the apartment complex.

When Lisa got out of the car, Gatson put a gun to her head and told her to get in the backseat. She did as she was told. Kozlowski placed a knife against Robyns back and told her to get back into the car, too. She followed Lisa into the backseat. Kozlowski tried to start the car, but was not able to get it in gear. After a few minutes, he let Robyn drive. Kozlowski got into the backseat beside Lisa. Gatson put his arm around Robyn and told her "Youre a very beautiful girl. Youre going to be my girlfriend for the night." Kozlowski said, "No, were not like that." Gatson was angry when he heard Kozlowski say that. Gatson told Robyn," You cant run from a bullet. You know that, right?"

Gatson told Robyn to drive toward a 7-Eleven store. In the backseat, Kozlowski began looking through Lisas purse. He took some change and an ATM(FN7) card. Kozlowski asked for Lisas PIN code. She did not want to reveal this but she was in a dangerous position, so she did. During the drive, Gatson handed Kozlowski a roll of tape and instructed him to tie Lisas hands. Kozlowski did so. Then, he asked Lisa if she had anything on her. When she replied that she had $20 in her shirt pocket, he took the money and a pocket knife that she also had.

At the 7-Eleven store, Kozlowski got out of the car. Gatson remained, pointing his gun at Robyn. Robyn began crying and pleaded with Gatson to let them go. He said for them not to worry. "[W]ere not going to do anything to you guys. Well probably just take you up a road and slit your tires so you . . . cant go to the cops right away."

Kozlowski came back to the car with cigarettes and a six-pack of Coke. He got into the backseat behind Robyn again. He indicated that he had tried to use Lisas ATM card but that there was no money in it. Gatson told Robyn to keep driving. Kozlowski found Robyns purse and produced her ATM card. When asked for her PIN, she revealed it because one man held a gun and the other had a knife. On command, Robyn drove to another 7-Eleven store, where Kozlowski again left the other three in the car. Robyn was in tears, begging Gatson to let them go. Gatson was angry with her for crying, telling her "Stop crying, you fucking bitch." Lisa later recalled that Gatson said, "If a cop comes to the window, lean back so that I can have a good shot at him."

Kozlowski returned, indicating that he had obtained $200. He said that it was too bad that they had not picked up Lisa and Robyn before midnight, because they could have gotten $200 before midnight and another $200 after. Lisa complained that the tape was cutting off the circulation in her hands. Gatson instructed Kozlowski to loosen Lisas hands. Kozlowski pulled out a folding knife that had a blade from four to six inches long, cut the tape off and told Lisa to remove the old tape so he could retape her hands. He taped them looser this time.

Robyn was instructed to drive to Palomares Road. She did as she was told. During the drive, she asked Gatson to let them go. He said that the "last girl that said that to me was sitting up on the stand pointing her finger at me." That comment scared Lisa. Twice, Gatson instructed Robyn to pull over and let cars pass her.

About 2:30 or 3:00 a.m., Gatson instructed Robyn to turn around and stop the car next to a ditch. Kozlowski told Robyn to get out of the car. As she stood next to her car, Kozlowski got out and stabbed Robyn in the chest near her heart. Then, he stabbed Robyns arm. Lisa saw that it was slit open; there was blood all over. Kozlowski pushed Robyn back into the backseat of her car. He yelled that she was bleeding all over the car; Gatson said, "Shut the fuck up, bitch." Gatson tried to stab her legs, but she blocked him with her foot.

Gatson pointed the gun at Lisa and fired, but he missed. Lisa recalled that he laughed and said, "It scared you, huh?" Robyn remembered him saying "Youre lucky, bitch. I missed you that time." He then shot Lisa in the face and the chest, screaming "Did you like that?" Robyn heard him say, "I didnt miss that time."

Gatson got out of the car. He told Lisa to get out, but her hands had been taped over her seat belt. He tried to pull her out, then tried without success to cut the seat belt with the knife Kozlowski had used earlier. He cut the tape on her hands and took the seat belt off instead, then pulled her out of the car. Lisa blanked out for a moment, falling to the ground and then regaining consciousness. As she lay on the ground, Gatson stabbed her as many as 15 times before he stopped.

Gatson pulled Robyn out of the car and threw her on the ground a few feet from Lisa. He stabbed and kicked and punched her repeatedly. She heard Kozlowski say "Make sure theyre dead." Gatson returned to Robyn and attempted to slit her throat, but cut her chin instead. She cried out to make it sound like he had slit her throat. Robyn saw Gatson approach Lisa and then heard more stabbing sounds. One of the two men-Lisa was not sure which one-stabbed her eight more times. She was certain that she was going to die. Then, the two men got into the car-Kozlowski in the drivers seat-and heard the car drive off.

Both girls were conscious. Robyn rolled over close to Lisa and called out to learn if her friend was still alive. It hurt for Lisa to speak but she let Robyn know that she was not dead. The girls were side by side in a drainage ditch, able to touch each other. Both were bleeding from their wounds. The girls spoke with each other, amazed that they were alive, shivering from the cold. When they tried to move or call for help, the effort made them feel that their wounds were bleeding even more profusely.

About 6:00 a.m., it began to get light and people begin driving by. Lisa threw sticks at the cars, hoping to attract attention. About 7:00 a.m., two bicyclists riding on Palomares Road in an unincorporated part of Alameda County heard a faint cry for help. One went off to call 911, the other stayed with the girls. He gave them water and gave Robyn his jacket. A priest from a nearby monastery came and prayed with them. A woman who lived down the street came with a blanket to keep them warm until an ambulance arrived to take Lisa and Robyn to the hospital.

In addition to suffering several gunshot wounds, Lisa had 23 stab wounds on her body-some on her torso, many on her arms and legs. She spent nearly two weeks in a hospital. She suffered a collapsed lung and a broken arm. She underwent surgery to remove blood from her lungs. She was told that she was lucky to be alive. Her body was riddled with scars-some still hurt six months later and some parts of her body were numb. Robyn suffered 15 stab wounds to her chest, abdomen and extremities. Her spleen and liver had been injured in the attack. She required surgery to save and mend these organs. Six months later, her body was still scarred.

B. Investigation

Alameda County deputy sheriffs arrived at Palomares Road about 7:00 a.m. Lisa and Robyn were bloody but somewhat conscious and coherent. One officer learned the names of the suspects and that Robyns car had been taken. After learning that the girls had been kidnapped in Fremont, officers from that jurisdiction were summoned and soon took over the investigation.

Holly, Reann and Natasha were all interviewed by police, who learned the identities of the two suspects. Anthony was also interviewed. Fremont police found Robyns car within two blocks of the Kozlowski residence. The car was searched and bloodstains were found on it. A purse, a roll of black electrical tape, some bits of electrical tape, an ATM receipt, some cans of Coke and a bag from a 7-Eleven store were also found in the car. Fremont police obtained a warrant to search Kozlowskis residence.

A taxi picked up two passengers in Newark on July 6 in the early morning hours. The taxi driver noticed that a police officer parked near an intersection flashed a searchlight through the cab during the drive. The police car drove rapidly in pursuit of the cab. When the driver came to a stop, one of the two men got out of the cab and ran away. The other man stayed in the cab. The remaining passenger identified himself to police as "Joe." The officer noticed that his hands were scarred; he recalled hearing at a briefing that Kozlowskis hands were scarred. The officer asked the young man his name again and this time, the man identified himself as Matthew Kozlowski. He was handcuffed by police.

Gatson appeared at the home of his aunt on July 6. She spent part of the day with him until she left him at the Union City BART station at his request. He was very quiet all day. The following day, he was arrested on July 7 at United Nations Plaza in San Francisco. When asked if he knew why law enforcement officers were contacting him, Gatson replied, "Yeah. That Fremont thing." A San Francisco police officer heard Gatson say: "I screwed up. I just lost control." Among Gatsons personal effects were keys to Robyns car and her residence. He had tattoos on his hands.

Police showed Lisa and Robyn photographic lineups, but the girls were unable to identify their attackers. However, when Lisa saw Gatson on television during her hospital stay, she recognized him.

C. Pretrial Matters

In September, Kozlowski and Gatson were charged by information with two counts of kidnapping for extortion, two counts of robbery, two counts of premeditated attempted murder and a single count of carjacking. Each count also included allegations of use of a deadly weapon and infliction of great bodily injury. (See 187, 211, 215, 664; see former 209, subd. (a), 12022, subd. (b), 12022.7, subd. (a).) The information also alleged that Gatson had suffered two prior convictions. (See 667, subds. (a), (e)(1), 1170.12, subd. (c)(1); see also former 667.5, subd. (b).(FN8) In October, Kozlowski and Gatson each moved to set aside the two kidnapping for extortion counts and the premeditated allegation of the two attempted murder charges in the information. (See 995.) Both motions were denied. Kozlowski and Gatson each moved to sever his trial from that of the other. Alternatively, Gatson argued that statements Kozlowski made should be suppressed. These motions were also denied. (See 1098.)

In December, the People moved to admit Gatsons prior convictions for impeachment purposes if he chose to testify. The trial court granted this motion. On Gatsons motion, trial of the current charges was bifurcated from trial on the allegations of his prior convictions. His motion to prohibit mention of gang activity was granted in part and denied in part.

The prosecution gave Kozlowski and Gatson notice of its intent to call jailhouse informant Anthony Jacobs as a witness at trial. Gatson moved to suppress a statement allegedly made by him to Jacobs. The trial court denied the motion. Gatson moved in limine to preclude the prosecutor from referring during opening statement to a statement attributed to him-that the last time he let a girl go, she identified him in court. That motion was denied, but his motion to preclude mention of a statement about being released from San Quentin State Prison was granted.

D. Trial

At trial, both Lisa and Robyn testified about the events of the night of July 4-5. Lisa was positive that Gatson was the man who had shot and stabbed her. She was also positive that Kozlowski was the man who had been with Gatson that night. Robyn also identified Kozlowski and Gatson in court and noted the tattoos on Gatsons hands.

Reann and Natasha testified about their activities that night, verifying some details of the testimony Lisa and Robyn gave about the events leading up to the kidnappings and assaults. They told the jury that they became concerned when Lisa and Robyn left with Kozlowski and did not return. With Hollys help, they contacted Anthony, who helped them look for Lisa and Robyn in places where he thought his brother might be staying, but they did not find Lisa, Robyn or Kozlowski.

Eventually, Reann and Natasha learned that Lisa and Robyn were in a hospital and that the police were looking for them to aid in an investigation. They told police everything they knew, including names and descriptions. Two weeks later, Reann and Natasha each identified Kozlowski and Gatson in separate photographic lineups. Reann, Natasha and Holly each identified Kozlowski and Gatson in court at trial.

Anthony also testified. He recalled that on July 4, Gatson had a gun in his waistband. The next day, he received a telephone call from his brother.(FN9) Anthony explained that friends had been looking for Lisa and Robyn, who had been found without their car. He told the jury that Kozlowski asked "What happened? Did they die?" He believed that both his brother and Gatson had been using methamphetamine at that time, as he himself had.

A friend of Kozlowskis testified that when he went to bed on the night of July 4-5, neither Kozlowski nor Gatson was there. About 5:30 a.m., he woke, saw that both men were in his apartment, and heard Kozlowski on the telephone. When the friend asked Kozlowski why he was only wearing his boxer shorts, Kozlowski said that he sold his clothes.(FN10) Kozlowski and Gatson left his apartment about 8:00 a.m., Kozlowski wearing clothes borrowed from his friend.

Debris from a fire was found at a school near the apartment where Kozlowski and Gatson had slept. A belt buckle, an empty Coke can and what appeared to be a lipstick container was found in the debris. Robyns cell phone and ATM card were also found near the school.

A nurse at the hospital gave a deputy sheriff a piece of electrical tape that paramedics had removed from around Lisas wrists. A doctor opined that Robyns stab wounds and the surgical incision would result in life-long scarring. He told the jury that if Robyns injuries had been left unattended for much longer, she would probably have bled to death. He suggested that some of the wounds both girls suffered could have been inflicted with a short-bladed knife, but that Robyns abdominal wounds were inflicted by a longer knife.

A fingerprint expert testified that he was certain that prints found on Robyns car matched Gatsons fingerprints. He was unable to match any of the latent prints he lifted to Kozlowskis fingerprints. The jury saw surveillance videotapes from the two 7-Eleven stores. Still photographs from one of the videotapes showing Kozlowski were also admitted into evidence. The jury viewed the sites of the two 7-Eleven stores and the scene of the stabbings at Palomares Road.

After a witness mentioned seeing a parole officer escorting Gatson after his arrest, Gatson moved for a mistrial. The motion was denied but the trial court offered to give a curative jury instruction if Gatson chose to offer one. Neither Kozlowski nor Gatson offered any defense. Kozlowski and Gatson both moved for an acquittal of the kidnapping charges, without success. (See 1118.1.)

The jury found Kozlowski and Gatson guilty of all charges and found all enhancement allegations to be true. In a court trial, Gatson admitted two prior conviction allegations were true.(FN11) The trial court accepted these admissions.

Kozlowskis motion for new trial was denied. He was sentenced to two indeterminate sentences of life imprisonment without possibility of parole for the kidnapping for extortion convictions and two terms of life imprisonment with possibility of parole for the attempted murder convictions. The life terms were ordered to run consecutively. Additional terms of four months on each deadly weapon use enhancement and one year for each great bodily injury enhancement were imposed but stayed on multiple punishment grounds. (See 654.) No sentence was imposed on the remaining charges in order to avoid violating the ban on multiple punishment. (See ibid.) Kozlowski was ordered to pay a $50,000 restitution fine and a $50,000 parole revocation fine. (See 1202.45; former 1202.4, subd. (b).) Gatsons sentence was identical, but for the addition of two more consecutive terms-of five years and one year-for his prior convictions.

II. KIDNAPPING FOR EXTORTION

A. Extortion Of Property

First, Kozlowski and Gatson contend that they cannot lawfully be convicted of kidnapping for extortion because the PIN codes that they obtained from Lisa and Robyn do not constitute property that may be extorted under California law. At trial, they stood accused of kidnapping Lisa and Robyn "to commit extortion and to exact from another money and other things of value." The trial court instructed the jury that one who obtained a PIN code from another with her consent when that consent was induced by a wrongful use of force or fear committed extortion for purposes of kidnapping for extortion. The court also referred to a PIN code when it gave other instructions on consent and causation relating to the crime of kidnapping for extortion.

In its opposition to the motions to set aside the kidnapping for extortion counts of the information, the People stated that the "valuable thing" extorted from Lisa and Robyn were their PIN codes.(FN12) During closing argument, the prosecution referred several times to extortion of the girls PIN codes. The verdict forms by which the jury recorded their findings of guilt on the kidnapping for extortion charges used the same language as the information-the extortion of "money and other things of value." Thus, it is clear that the trial court and the prosecution assumed that a PIN code was property capable of being extorted and that this was the sole theory of kidnapping for extortion that was presented to the jury.

In July 1999 when these offenses were committed, section 209 made it a felony for one to kidnap someone in order to commit extortion. (See former 209, subd. (a).) Our Penal Code defines extortion as "the obtaining of property from another, with his [or her] consent, . . . induced by a wrongful use of force or fear . . . ." ( 518, italics added; see 7 [masculine gender includes feminine].) Kozlowski and Gatson argue that, as a matter of law, a PIN code is not property that may be extorted, but is merely an intellectual construct that cannot be exclusively possessed. Thus, they contend that their convictions for kidnapping for extortion violate their federal and state constitutional rights to due process and must be reversed. (See U.S. Const., 14th Amend.; Cal. Const., art. I, 15.) They also reason that as these convictions were unsupported by substantial evidence, the constitutional ban on double jeopardy bars any retrial on these counts-a result that would void the terms of life imprisonment without possibility of parole imposed for these offenses. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 15.)

The issue of whether a PIN code constitutes property for purposes of extortion appears to be one of first impression in this state.(FN13) In order to determine this issue, we must construe the relevant statutes. This is so because no act is criminal or punishable except as prescribed by the Penal Code of the State of California. The power to define crimes and fix penalties is vested in the Legislature. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; see 4, 6.) Courts may not create a criminal offense by enlarging a statute or giving its terms false or unusual meanings. Penal statutes may not be made to reach beyond their plain intent, covering only crimes coming clearly within the statutory language. These laws must be construed according to the fair import of its terms. (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632; see 4.)

The term "property" as used in the Penal Code includes personal property such as money, goods, chattels, things in action and evidences of debt. ( 7, subds. 10, 12; see People v. Baker (1978) 88 Cal.App.3d 115, 119.) By its terms, subdivision 12 of section 7 does not create an exclusive list of personal property limited to those specifically named. (See People v. Leyvas (1946) 73 Cal.App.2d 863, 865.) Thus, the fact that a PIN code is not specifically enumerated as property in section 7 does not compel a finding that it is not property capable of being extorted.(FN14)

Kozlowski and Gatson assume that the definition of property for purposes of extortion is narrow. Witkin advises us that the contrary is true-that the term "property" as used in the Californias extortion statute should be broadly interpreted. (See 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, 104, p. 137; see generally Annotation, What Constitutes "Property" Obtained Within Extortion Statute (1975) 67 A.L.R.3d 1021.) Another commentator has also rejected a narrow interpretation of the term "property" for purposes of extortion, suggesting that the nature of the crime of extortion-one in which the property is obtained by consent-requires that the term be used "in an unrestricted sense." (See Note, 22 Cal.L.Rev. 225, 226 (1934).) "[T]here is not the same need in extortion for a narrow definition of property as in robbery, as the acts sought to be punished by the crime of extortion often result in the obtaining of things of value which would not be subject to robbery from the person." (Id. at p. 227, fn. omitted.) We conclude on the basis of these authorities that a broad interpretation is appropriate when construing the term "property" for purposes of extortion.

Of course, all terms set out in our Penal Code must be construed in context. ( 7, subd. 16.) When construing the statutory definition of property for purposes of extortion, we may consider robbery cases and cases involving other larceny offenses as well as those specifically related to the crime of extortion. We find this to be appropriate because the crime of extortion is related to the offense of robbery; indeed, courts have sometimes found it difficult to distinguish these two offenses. (People v. Torres (1995) 33 Cal.App.4th 37, 50; People v. Hesslink (1985) 167 Cal.App.3d 781, 790.) The statutory definitions of robbery and extortion are structurally similar. (People v. Hesslink, supra, 167 Cal.App.3d at p. 790.) Both offenses have their roots in common law larceny and both share a common element-acquisition by means of force or fear. (People v. Torres, supra, 33 Cal.App.4th at p. 50.) The two crimes are distinguishable-in an extortion, the property is taken with the victims consent, while in a robbery, the property is taken against the victims will. (People v. Chacon (1995) 37 Cal.App.4th 52, 63.)

Cases and statutes define the term "property" in the context of theft-based offenses as the exclusive right to use or possess a thing or the exclusive ownership of a thing. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1250-1251 (Kwok) [taking of lock to make unauthorized copy of key was theft]; People v. Sadowski (1984) 155 Cal.App.3d 332, 335 [cat as property for purposes of theft]; see Civ. Code, 654.) The term is all-embracing, including every intangible benefit and prerogative susceptible of possession or disposition. (Kwok, supra, 63 Cal.App.4th at p. 1251.) The right to own property implies the right to possess or use a thing to the exclusion of others. (State of California v. Superior Court (2000) 78 Cal.App.4th 1019, 1027.) With these general concepts in mind, we turn to the specific issue before us-whether a PIN is "property" for purposes of extortion.

A PIN is a code number that operates as a means of account access. (See People v. Butler, supra, 43 Cal.App.4th at p. 1235.) We may take judicial notice of the common knowledge that a PIN code is more valuable if not disclosed to others-or, put another way, if it is exclusively possessed. (See Evid. Code, 452, subd. (g), 459, subd. (a).) In like manner, the means to bank account access is an intangible benefit susceptible of possession. (See Kwok, supra, 63 Cal.App.4th at p. 1251.) Thus, it may reasonably be said that a PIN code is property because it implies the right to use that access code-and to access the funds in the related bank account by means of that code. (See State of California v. Superior Court, supra, 78 Cal.App.4th at p. 1027.) Operating as it does as a means of account access, a PIN code can be characterized as intangible property. (See People v. Butler, supra, 43 Cal.App.4th at p. 1235.)

Kozlowski and Gatson argue that a PIN code is no more than a means to obtain property-merely a series of numbers that serves as an access device. They contend that it is a condition or concept incidental to the transfer of property, but not tangible property that can be owned or exclusively possessed in and of itself. (See People v. Butler, supra, 43 Cal.App.4th at p. 1235; see also 18 U.S.C. 1029(e)(1) [defining PIN as access device for purposes of federal criminal fraud provisions]; People v. Parker (1963) 217 Cal.App.2d 422, 426-427 [receiving stolen property conviction proper when defendant obtained confidential telephone directory supplements offering new telephone listings, copied and returned them]; but see People v. Dolbeer (1963) 214 Cal.App.2d 619, 622-624 [finding paper listing information was property, but suggesting in dicta that information alone might not be property].)

The gist of this claim of error appears to be that a PIN code cannot be property for purposes of extortion because it is not tangible. However, the term "property" in the Penal Code specifically includes within its definition intangible property. (See 7, subd. 12.) A thing in action is a right to recover money or other personal property by a judicial proceeding, such as a right of action for personal injury, breach of contract or fraud. (Civ. Code, 953; see People v. Baker, supra, 88 Cal.App.3d at p. 119.) Thus, the right to take and prosecute an appeal has been held to be property within the meaning of our extortion statute. (People v. Cadman (1881) 57 Cal. 562, 563-564; People v. Baker, supra, 88 Cal.App.3d at p. 119.) The statutory right to file a protest with the Alcoholic Beverage Control Board is also considered property within the meaning of our extortion law because it is a thing in action. (See People v. Baker, supra, 88 Cal.App.3d at p. 119.) These are all examples of intangible items which are expressly included within the definition of property within the Penal Code. Thus, the fact that a PIN code is intangible property does not preclude a finding that it constitutes property within the meaning of our extortion statute.

Although there are no cases directly on point, we find one involving a house key that persuades us to find that a PIN code is property for purposes of kidnapping for extortion. In Kwok, supra, 63 Cal.App.4th 1236, a defendant was convicted of two counts of residential burglary. He went to his victims home when he knew she was away, used a code number to open her garage door and entered the garage. The interior of the victims home could be entered by means of a door inside the garage. Without the victims knowledge, Kwok removed a lock from this interior door, took it to a locksmith, had a key made for the lock, retained the newly made key and replaced the lock in its original position. A month later, he returned to the home, entered the garage by using the coded garage door opener and entered the unlocked interior door-apparently, without needing to use the key. When the victim returned home, he assaulted her. (Id. at pp. 1240-1245.)

On appeal, Kwok argued that there was insufficient evidence to support the first count of residential burglary-based on his removal of the lock and making a key to fit it. He contended that there was insufficient evidence of an intent to commit a theft or felony at the time of entry. He reasoned that he could not be guilty of the theft of the lock because he had no intent to permanently deprive his victim of her lock-only to remove the lock temporarily in order to make a key that fit it. Implicit in this argument was a second one-that his act of making and retaining an unauthorized key to his victims home did not itself constitute theft. (Kwok, supra, 63 Cal.App.4th at pp. 1245, 1248-1249.)

The appellate court found little California authority on the question of whether making an unauthorized copy of a key constituted theft, but found persuasive a Wyoming Supreme Court opinion concluding that theft had been committed when the defendant retained a copy of the victims keys, even though the original keys were returned to the victim. Both courts noted that copying the key deprived the victim of something valuable-in that case, her right to have exclusive access to her home and vehicle. The value of the original key was diminished by the copies that were made and retained because an unwanted person also had access to the home and vehicle. (Kwok, supra, 63 Cal.App.4th at pp. 1249-1250; see Dreiman v. State (Wyo. 1992) 825 P.2d 758, 761.) The California appellate court reasoned that a house key is property. Even if the victim retains other copies of the key, the defendants unauthorized possession of the stolen key impairs the victims right of ownership-the exclusive possession and use-of the house. (Kwok, supra, 63 Cal.App.4th at p. 1251.)

Applying Kwok, the People argue that when Kozlowski and Gatson compelled Lisa and Robyn to reveal their PIN codes-in effect, the "key" that "unlocked" their bank accounts and allowed access to their bank funds at an ATM-the victims lost the ability to control access to those funds. For their part, Kozlowski and Gatson counter that Kwok is distinguishable because in that case the defendant made a tangible object-a key-from the article that he took from the victim. We disagree. Our reading of Kwok satisfies us that it is the intangible loss, not the tangible one, that prompted its ruling. In that case, while the house key itself was a tangible object, the real harm that its making created was that harm to the owners intangible ability to control access to the house. (See Kwok, supra, 63 Cal.App.4th at p. 1251.)

The Kwok court held that making an unauthorized copy of a borrowed key-like making an unauthorized copy of a trade secret or of computer data-destroys the intangible benefit and prerogative of being able to control access to ones residence as much as theft of the key would do. (Kwok, supra, 63 Cal.App.4th at p. 1251.) In like manner, when Kozlowski and Gatson compelled Lisa and Robyn to reveal their PIN codes, that knowledge destroyed the intangible benefit of being able to control access to the bank accounts. The intangible property taken-the PIN codes-were the means to obtain the more tangible property-the bank funds-contained in those accounts.

Nevertheless, Kozlowski and Gatson argue that a PIN code has no intrinsic value-that it only becomes valuable when used in conjunction with an ATM card. This argument has a facial appeal, but we find it unpersuasive. Unless the holder has both the tangible ATM card and the intangible PIN code, the holder cannot access any funds in the account. In our case, the evidence establishes that Kozlowski and Gatson obtained the PIN codes from Lisa and Robyn after finding each girls ATM card in her purse. Thus, their own conduct supports a finding that the joint possession of the ATM cards and the necessary PIN codes rendered both the cards and the PIN codes valuable.

For all these reasons, we conclude that a PIN code constitutes property for purposes of kidnapping for extortion.

B. Sufficiency of Evidence

1. Extortion of Money or Valuable Property

Next, Kozlowski and Gatson raise several challenges to the sufficiency of evidence to their convictions for kidnapping for extortion, arguing first that they cannot be guilty of this offense because they did not extort money or valuable property as required by former section 209. They contend that, for this reason, the prosecution failed to adduce sufficient evidence of kidnapping for extortion. As such, Kozlowski and Gatson argue that their convictions violate both federal and state due process because there was insufficient evidence of every element of the charged offense. (See U.S. Const., 14th Amend.; Cal. Const., art. I, 15.) They also reason that the constitutional ban on double jeopardy bars any retrial of these kidnapping charges. This claim of error turns on the success of their related claim that a PIN code is not property that may be extorted within the meaning of kidnapping for extortion. As we have already rejected that contention, this claim of error necessarily fails, as well. (See pt. II.A., ante.)

2. Secondary Extortion Victim

Kozlowski and Gatson also argue that there was insufficient evidence to support their convictions for kidnapping for extortion because there was only a single victim for each offense. They contend that kidnapping for extortion pursuant to former section 209 necessarily requires two victims for each offense-one victim who is kidnapped and a second victim from whom the accused extorted property. They reason that this distinction is essential because it allows us to distinguish between the different punishments imposed for kidnapping for extortion and kidnapping for robbery or rape. Kozlowski and Gatson contend that their convictions of kidnapping for extortion violate state and federal due process because the People did not prove all elements of the offense-that is, a second victim for each offense. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 15.) They raised this issue in the trial court without success in their motion to set aside the kidnapping charges in the information.

On appeal, Kozlowski and Gatson couch this claim as one of statutory interpretation, arguing that because the applicable statute can reasonably be construed in the manner that they suggest, they are entitled to the benefit of any doubt about the meaning of its language. In 1999, section 209 made it a felony for "[a]ny person who . . . kidnaps . . . another person . . . for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or [for] any person [to aid or abet] any such act . . . ." (See former 209, subd. (a), as amended by Stats. 1997, ch. 817, 2, italics added.) Courts interpreting this provision against similar challenges have concluded that kidnapping for extortion does not require that the person being extorted be someone other than the kidnap victim. (People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1693, 1696-1698; see People v. Superior Court (Deardorf) (1986) 183 Cal.App.3d 509, 513-514; People v. Preston (1971) 21 Cal.App.3d 732, 735.) One court explained that because the statute was phrased in the disjunctive, it listed four different types of aggravated kidnapping: (1) for ransom, (2) for reward, (3) to commit extortion, and (4) to exact money or other valuables from another. Construing the statutes language, the court concluded that in only the last of these four types of aggravated kidnapping does the law require both a primary and a secondary victim. (People v. Ibrahim, supra, 19 Cal.App.4th at p. 1696.)

In two other decisions, courts have suggested in dicta that even aggravated kidnapping for extortion is a two-victim crime involving a primary kidnap victim and a secondary extortion victim. (People v. Chacon, supra, 37 Cal.App.4th at p. 63 [kidnapping for ransom case]; People v. Martinez (1984) 150 Cal.App.3d 579, 590-591, disapproved on another point in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10, cert. den. sub nom. Hayes v. California (1991) 502 U.S. 958; see People v. Ibrahim, supra, 19 Cal.App.4th at pp. 1696-1697 [rejecting this interpretation of Martinez].) Citing these cases, Kozlowski and Gatson reason that there are two conflicting lines of case law and argue that we should find the Chacon-Martinez cases more persuasive than Ibrahim. Like the Ibrahim court before us, we read the suggestions in Chacon and Martinez as dicta and decline to elevate them to law. Thus, we find no conflict in the case law. (See People v. Ibrahim, supra, 19 Cal.App.4th at p. 1697.) One may lawfully be convicted of kidnapping for extortion even if the kidnap victim and the extortion victim are the same person. (See, e.g., id. at pp. 1696-1698.)

C. Vagueness Challenge

In a related claim, Kozlowski and Gatson contend that former section 209-the kidnapping for extortion statute-is unconstitutionally vague as applied to them because the provision is ambiguous about whether a secondary extortion victim is required for the commission of this offense. They argue that the ambiguous statute did not give them adequate notice of the prohibited conduct. Their conduct was more like kidnapping for robbery than kidnapping for extortion, they reason. Thus, they conclude that their convictions of kidnapping for extortion violate their due process rights and must therefore be reversed. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 15.) Uncertain statutory language may pose vagueness issues raising due process concerns. (See In re Davis (1966) 242 Cal.App.2d 645, 656 fn. 12.) However, in order to establish a due process issue, we must first find that the statute is ambiguous. We have already rejected a related claim. (See pt. II.B., ante.) We do not find this claim of error to be persuasive, either.

Kozlowski and Gatson rely on language in Ibrahim suggesting that in cases in which there is no secondary victim, the distinction between kidnapping for robbery and kidnapping for extortion is too subtle to warrant such different punishments-life imprisonment with possibility of parole for the former and life imprisonment without possibility of parole for the latter. (People v. Ibrahim, supra, 19 Cal.App.4th at pp. 1698-1699.) In dicta, Ibrahim called on the Legislature to reconsider its sentencing laws. However, that decision does not stand for the proposition that former section 209, subdivision (a) is ambiguous or violates due process. We are satisfied that the former kidnapping for extortion statute applied in this case was unambiguous and did provide Kozlowski and Gatson with sufficient notice of the conduct it intended to prohibit.

III. ATTEMPTED MURDER(FN15)

Kozlowski and Gatson also challenge the sufficiency of evidence to support their convictions for attempted murder. They argue that the evidence does not reliably establish premeditation and deliberation. Thus, they reason that their convictions violate due process. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 15.) Before trial, both defendants unsuccessfully sought to set aside the premeditation allegations of the attempted murder charges filed in the information. (See 995.)

The law of premeditation and deliberation is well settled. At trial, the People bear the burden of proving premeditation and deliberation beyond a reasonable doubt that the attempt to kill was the result of premeditation and deliberation. (See People v. Anderson (1968) 70 Cal.2d 15, 25; People v. Rowland (1982) 134 Cal.App.3d 1, 9.) However, on appeal, we need not be convinced beyond a reasonable doubt that the attempted murder was premeditated and deliberated. Our inquiry is limited to whether any rational trier of fact could have found these essential elements of the crime beyond a reasonable doubt, on this record. (See People v. Sanchez (1995) 12 Cal.4th 1, 31-32, cert. den. sub nom. Sanchez v. California (1996) 519 U.S. 835.) The elements of premeditation and deliberation may be shown by circumstantial evidence. (People v. Anderson, supra, 70 Cal.2d at p. 25.) On appeal from a conviction, we must determine whether the proof furnishes a reasonable foundation for an inference of premeditation and deliberation or whether it leaves only to conjecture and surmise the conclusion that the defendant intended to kill as the result of deliberation and premeditation. (Ibid.)

The reflection necessary to establish premeditation and deliberation is not measured by duration of time. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. The mere fact that the defendant may have had little time to deliberate does not require a conclusion that he or she could not have done so. (People v. Wright (1985) 39 Cal.3d 576, 593.) Premeditation means "thought of beforehand" for any length of time, however short. (In re Larkin (1989) 48 Cal.3d 236, 245; see Blacks Law Dict. (5th ed. 1983) p. 1062, col. 2.)

The type of evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories. The first category is evidence of planning activity-facts about how and what the defendant did before the attempted killing showing that the defendant engaged in activity directed toward and intended to result in the killing. The second category is facts about the defendants previous relationship and/or conduct with the victim from which a jury could reasonably infer a motive to kill the victim-which inference of motive, together with evidence of planning activity or the particular manner of the attempt to kill would in turn support an inference that the attempt to kill was the result of a preexisting reflection and careful thought and weighing of considerations rather than a mere unconsidered or rash impulse hastily executed. The third category is facts about the nature of the attempted killing from which a jury could infer that the manner of attempted killing was so particular and exacting that the defendant must have intentionally attempted to kill according to a preconceived design to take this victims life in a particular way for a reason that the jury can reasonably infer from evidence of planning activity or motive. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Rowland, supra, 134 Cal.App.3d at pp. 7-8.)

On appeal, Kozlowski and Gatson suggest that all three of these factors should be present in order to find substantial evidence of premeditation and deliberation. They argue that there must be extremely strong evidence of planning as well as evidence of motive in conjunction with planning or the manner of the attempted killing in order to find premeditation and deliberation. However, the California Supreme Court instructs us to the contrary, that these three factors need not be present in any special combination nor that they must be accorded any particular weight. (People v. Sanchez, supra, 12 Cal.4th at p. 33.) These factors do not establish normative rules, but provide descriptive, analytical guidelines for use in evaluating whether substantial evidence of premeditation and deliberation was presented to a jury. (People v. Sanchez, supra, 12 Cal.4th at pp. 32-33.) Applying this legal standard, much of Kozlowski and Gatsons argument in support of this claim of error fails.

We find evidence or reasonable inferences of all three factors were presented to the jury in this case. First, there was evidence of planning in Gatsons act of being armed with a weapon before kidnapping Lisa and Robyn. Use of a deadly weapon is not always evidence of a plan to kill, but obtaining a weapon in advance of an attempted killing has been held to support an inference of planning. (People v. Wright, supra, 39 Cal.3d at p. 593, fn. 5; see People v. Alcala (1984) 36 Cal.3d 604, 626; People v. Hayes (1985) 172 Cal.App.3d 517, 525, fn. 6 [presence of gun in car is equivocal on issue of planning].) There was evidence that the tape used by Kozlowski and Gatson to restrain Lisa and Robyn was not from Robyns car, but had been seen before the kidnapping, evidence suggesting that one of the defendants brought the tape. This evidence would allow a reasonable jury to infer that Kozlowski and Gatson planned to commit their crimes. The fact that Robyn was instructed to drive to an isolated area where the attempt to kill occurred also allows a reasonable inference of planning in order to avoid detection and thus, sufficient evidence of premeditation and deliberation. (People v. Alcala, supra, 36 Cal.3d at pp. 626-627.)

Kozlowski and Gatson contend that there was no evidence of motive to kill, arguing that the prosecutor appears to have conceded that he was uncertain what their motive was for the kidnapping. The issue before us is whether there was sufficient evidence of premeditation and deliberation on the attempted murder counts. Even assuming arguendo that there was no clear evidence of motive for the kidnapping, we find ample evidence of motive to attempt to kill Lisa and Robyn. The need to escape apprehension may be a motive to kill for purposes of premeditation and deliberation. (People v. Bloyd (1987) 43 Cal.3d 333, 348.) In this case, the victims friend Holly was dating Kozlowskis brother Anthony. Although neither had ever met Anthony or his brother before the night of the crimes, they could identify their attackers through Holly. (See People v. Perez (1992) 2 Cal.4th 1117, 1126-1127 [possibility of identification as evidence of motive].) This evidence discloses a plausible motive for the attempts to kill Lisa and Robyn-to avoid arrest for kidnapping, carjacking and robbery. (See id. at p. 1126; People v. Alcala, supra, 36 Cal.3d at p. 627.)

Finally, the manner of the assault on Lisa and Robyn supports an inference of premeditation and deliberation. The two girls were repeatedly shot or stabbed, then after a pause, both were knifed again after Kozlowski told Gatson to make sure that they were dead. The opportunity to reflect is circumstantial evidence of premeditation and deliberation. (See People v. Wright, supra, 39 Cal.3d at p. 593; see also In re Larkin, supra, 48 Cal.3d at p. 245.) The fact that the attempt to kill each girl was perpetrated by knife wounds rather than solely by rapid gunfire is also evidence tending to support a finding that the manner of the attempt to kill demonstrated premeditation and deliberation. Common sense tells us that knife wounds may take longer to inflict than bullet wounds and are necessarily perpetrated at close range where the assailant can better assess the injuries as they are being inflicted. Stabbing as the manner of injury may thus be stronger evidence of an opportunity to stop and reconsider these actions-and thus, stronger evidence of an opportunity for premeditation and deliberation-than injury by gunshot might be.

Kozlowski and Gatson construe the evidence in other manners, offering other less culpable inferences that they assert are reasonable based on the evidence. These claims are no more than an argument that the evidence may be construed to support inferences more favorable to the appellant. While that argument may be made to a jury in a trial court, it is unavailing on appeal. (People v. Bloom (1989) 48 Cal.3d 1194, 1209, cert. den. sub nom. Bloom v. California (1990) 494 U.S. 1039.) When reviewing the sufficiency of the evidence to support a jurys verdict, we must view the evidence, and all inferences that may be drawn from it, in favor of the jurys verdict. (See People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Rowland, supra, 134 Cal.App.3d at pp. 5-6.) Having done so, we find evidence of planning, motive and the manner of the killing sufficient to find premeditation and deliberation, and thus, find sufficient evidence to support the jurys verdict that Kozlowski and Gatson each committed attempted murder.

IV. JURY INSTRUCTIONS(FN16)

A. Extortion of PIN Code

Kozlowski and Gatson argue that the trial courts instruction defining extortion for purposes of kidnapping for extortion violated their federal constitutional rights to due process and a jury trial by removing from the jury an element of the offense. (See People v. Flood (1998) 18 Cal.4th 470 [instructing jury that police officers involved were "peace officers," which was element of offense charged, Veh. Code, 2800.3].) The focus of their complaint is the courts reference to PIN code in defining extortion. The contention lacks merit.

In defining the crime of extortion, the trial court instructed: "Every person who obtains money, property or a PIN code from another with her consent, which consent has been induced by a wrongful use of force or fear, is guilty of the crime of extortion in violation of Penal Code Section 518." This instruction did no more than define what objects may be wrongfully obtained for purposes of extortion. It properly left to the jury the duty "to make all essential factual determinations" (People v. Brown (1988) 46 Cal.3d 432, 444; People v. Thompson (2000) 79 Cal.App.4th 40, 60), such as whether property was wrongfully obtained and by whom. Because we have previously determined that a PIN code may be properly capable of being extorted, the instruction was legally correct and did not remove from the jurys determination an essential element of the crime.

B. CALJIC No. 17.41.1

Kozlowski and Gatson also contend that the trial court erred in giving CALJIC No. 17.41.1. They characterize this instruction as one that tells the jurors that they have a duty to inform on one another. As such, they reason that it discourages the jurors candid exchanges of views by rendering the privacy of the jury deliberations a fiction. They also argue that the instruction is impermissible as contrary to the jurys power of nullification. The People sought this jury instruction, which the trial court gave. The jury was instructed that: "The integrity of the trial requires that jurors, at all times during their deliberation, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate, expresses an intention to disregard the law, or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation." (See CALJIC No. 17.41.1 (1998 new).)(FN17)

As Kozlowski requested this jury instruction, he may not challenge it on appeal. An appellant may not raise an issue on appeal when the claimed error was invited. (See People v. Thoi (1989) 213 Cal.App.3d 689, 698 fn. 6; People v. Williams (1980) 102 Cal.App.3d 1018, 1025; see also 6 Witkin & Epstein, Cal. Criminal Law, supra, Reversible Error, 31, p. 489.) However, as Gatson did not seek this instruction, we address the merits of the claim as it pertains to him.

We find no error in the giving of this standard jury instruction. For more than 300 years, jurors have had the power to nullify or disregard the trial courts instructions and the evidence, returning an acquittal when the law and the evidence dictate otherwise. (People v. Baca (1996) 48 Cal.App.4th 1703, 1707; People v. Fernandez (1994) 26 Cal.App.4th 710, 714.) However, despite the power of nullification, there is no right to nullify a verdict. The idea that such a right exists is virtually without support in modern American law. (People v. Baca, supra, 48 Cal.App.4th at p. 1707; see United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1143 [conc. & dis. opn. of Bazelon, C.J.].) The jury has only the right to find facts and apply them to the law as the trial court instructs them on the law. (People v. Lem You (1893) 97 Cal. 224, 228, overruled on another ground in People v. Kobrin (1995) 11 Cal.4th 416, 427, fn. 7.)

Jurors must follow the trial courts instructions. (See People v. Daniels (1991) 52 Cal.3d 815, 865, cert. den. sub nom. Daniels v. California (1991) 502 U.S. 846.) Trial courts are not required to instruct jurors that they possess the power to nullify and should not invite them to do so. (People v. Baca, supra, 48 Cal.App.4th at pp. 1707-1708.) The California Supreme Court recently stated that "[j]ury nullification is contrary to our ideal of equal justice for all and permits both the prosecutions case and the defendants fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law." (People v. Williams, supra, 25 Cal.4th at p. 463.) In light of this admonition from the California Supreme Court, we are satisfied that CALJIC No. 17.41.1 is proper and that Gatsons challenge to it is meritless. (See People v. Sanchez (1997) 58 Cal.App.4th 1435, 1444, 1446, fn. 2; People v. Baca, supra, 48 Cal.App.4th at pp. 1706-1708.)

C. Limiting Instruction

1. Shooting the Police

In a separate argument, Kozlowski alone contends that the trial court erred in refusing his requested limiting jury instruction about the proper use of Gatsons statements made outside his presence. Although the focus of his argument is on another statement, he also criticizes the trial court for not limiting the jurys use of those statements in which Gatson expressed an intent to shoot any police officers that might cross his path. The People argue on appeal that Kozlowski may not raise this issue because he did not pose an objection in the trial court and thus, the issue is waived.

At trial, both girls testified about this statement. Lisa told the jury that while Kozlowski was outside the car and they were parked at a 7-Eleven store, Gatson told Robyn that if a police officer came to the window, "lean back so that I can have a good shot at him." Kozlowski made no objection to this testimony. Robyn also testified that Gatson instructed her that if a police officer pulled the car over, she should lean her seat back and he would shoot the officer. Again, Kozlowski posed no objection to this testimony.

Later, outside the presence of the jury, Kozlowski sought a limiting instruction with respect to a different statement made by Gatson to the effect that Robyn was going to be his girlfriend. Gatson was thought to have made this statement once in Kozlowskis presence and once outside of it. Kozlowski argued that it was unfair to attribute statements Gatson made outside of his presence to him. He asked that the jury be instructed that these hearsay statements of Gatson admitted to show Gatsons intent could not be attributed to him. From the context of the discussion, the parties appeared to be discussing the admissibility of Gatsons statements about making Robyn his girlfriend for the night. The prosecutor argued that these statements were not hearsay-that they were offered to show the intent of Kozlowski and Gatson, not for the truth of the matter asserted.

The hearing was continued until after the lunch recess, at which time the trial court indicated that the parties were discussing the issue of whether Gatsons statements could be admitted against Kozlowski. The prosecutor spoke generally about statements made by Gatson outside Kozlowskis presence and whether they could be attributed to Kozlowski. Kozlowski conceded that they were discussing evidence that was not hearsay, but argued that the evidence was nevertheless inadmissible against him. He argued that Gatsons statements tending to show Gatsons intent did not bear on Kozlowskis intent. The People argued that the two men were already working in concert by the time Gatson made the statements which-the prosecution reasoned-reflected the intention of both Kozlowski and Gatson. Kozlowski again asked the trial court for a limiting jury instruction precluding the jury from considering Gatsons statements against him. After considering case law, the trial court concluded that the evidence was admissible against Kozlowski and that no limiting jury instruction was warranted.

On appeal, Kozlowski argues that his request for a limiting jury instruction was a general one going to all of Gatsons statements and that he was not required to offer a specific objection to the statements indicating that he intended to shoot any police officer who approached the vehicle. We disagree. A judgment may not be set aside because of the erroneous admission of evidence unless the defendant objected to the proffered evidence in a manner that made clear the specific ground of the objection. (Evid. Code, 353, subd. (a).) On appeal, a trial courts judgment is presumed to be correct. We never presume error. The appellant must affirmatively demonstrate error on the face of the record. If the record is silent, the appellant has not sustained his or her burden of establishing error. (See People v. Davis (1996) 50 Cal.App.4th 168, 172.)

The record in the trial court does not affirmatively demonstrate that Kozlowski asked the trial court to give a limiting jury instruction as to all of Gatsons statements rather than those specifically referenced immediately before the discussion. (See People v. Davis, supra, 50 Cal.App.4th at p. 172.) If Kozlowski had objected to the testimony of Lisa and Robyn about this particular statement, we might take a different view of the subsequent discussion of the admissibility of Gatsons statements against Kozlowski and the request for a limiting jury instruction about them. However, when statements are admitted into evidence without objection and no specific mention is made of the particular evidence challenged on appeal when a limiting jury instruction was requested, then the defendant has not established that this particular issue was brought to the attention of the trial court sufficiently to have preserved it on appeal. (See Evid. Code, 353, subd. (a).) Thus, we find that Kozlowski waived any claim of error relating to the admissibility of Gatsons statements about shooting police officers.(FN18)

2. Identification

Kozlowski also contends that the trial court erred when it failed to limit the jurys consideration of Gatsons statement about a prior victim who later identified him in court. Kozlowski reasons that this error denied him due process of law by impermissibly reducing the Peoples burden of proof and creating a substantial risk that he was convicted on the basis of irrelevant and inflammatory evidence rather than evidence of the charged offenses. He argues that because the evidence was critical on the issue of intent to commit attempted murder and kidnapping for extortion, all of the convictions except the robbery conviction must be reversed. At the very least, he urges, the findings of premeditation and deliberation were tainted. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 15.)

Before trial, Gatson moved to preclude the prosecutor from mentioning in an opening statement his comment to the effect that the last time he let a girl go, she identified him in court. The motion was denied. Kozlowski did not participate in this aspect of the proceeding. Later, Lisa testified that while Kozlowski was still in the car, Robyn asked Gatson to release them. Lisa told the jury that Gatson replied that "[t]he last girl that said that to me was sitting up on a stand pointing her finger at me."

When Robyn testified, she was asked about this statement, which she suggested Gatson made while Kozlowski was out of earshot. Kozlowski objected to the question, arguing that the answer would be hearsay. The prosecution argued that the testimony was offered only to explain Robyns subsequent conduct. The trial court received this evidence only for that limited purpose. Robyn told the jury that while Kozlowski was elsewhere, Gatson refused to return her cell phone because his last victim had pointed him out in court, reasoning that if she got her cell phone back, she would call for help. Gatson objected to this answer and asked that it be stricken, but the People prevailed in their argument that the evidence was not hearsay because it was offered to show Gatsons intent. Gatsons objection was overruled.

Kozlowski also objected, arguing that the statement was nevertheless hearsay as to him. The prosecution argued that the evidence was not hearsay and that it was relevant to Kozlowskis case because-even if he was not present when Gatson made this statement-he and Gatson adopted each others actions and words by virtue of their working together in the course of the kidnappings. Kozlowskis objection was overruled, but the trial court indicated that it was willing to hear more on this issue from Kozlowski later.

Later, out of the presence of the jury, Kozlowski argued against attributing to him Gatsons statements that Robyn was to be his girlfriend. He sought a limiting jury instruction to this effect. The court specifically asked Kozlowski if his request for a limiting instruction pertained to this particular statement that Gatson made twice; Kozlowski responded in the affirmative. The prosecution argued that the evidence showed that the statement was made once in Kozlowskis presence and once outside of it. It reasoned that by his conduct, Kozlowski adopted Gatsons statement. The prosecution also argued that the statements were not hearsay.

The trial court ruled that the statements were not hearsay as to Gatson, but continued to hear argument about whether they were hearsay as to Kozlowski. Kozlowski argued against attributing Gatsons intent to him and again sought a limiting instruction to that effect. Ultimately, the trial court ruled that Gatsons statements that Robyn was to be his girlfriend for the night were admissible against Kozlowski and that the jury need not be given any limiting instruction.(FN19)

As with Gatsons statement expressing an intent to shoot the police which Kozlowski challenged on appeal, the record does not clearly establish that Kozlowskis request for a limiting jury instruction encompassed more than Gatsons statements that Robyn was to be his girlfriend. However, because Kozlowski twice posed a hearsay objection to evidence of Gatsons statements that he had been identified in court on a prior occasion, we find that Kozlowski put the trial court on notice that these statements were also at issue when the request for a limiting jury instruction was before it.

Although Kozlowski objected to these statements on hearsay grounds, we find that they were not hearsay. Hearsay evidence must be offered to prove the truth of the matter asserted. (Evid. Code, 1200, subd. (a).) When a third partys statement is admitted for reasons other than the truth of the matter asserted, the defendant may not bar admission of the statement on hearsay grounds. (People v. Gonzales (1968) 68 Cal.2d 467, 471, cert. den. sub nom. Gonzales v. California (1969) 393 U.S. 1055.) Gatsons statements that someone had identified him in court before were offered, not to prove that Gatson had ever been on trial before or had been identified by a prior victim, but as evidence tending to establish that he sought to frighten Lisa and Robyn into complying with his demands.

In an analogous case, a narcotics agent approached a defendant and asked if he had any heroin. The defendant said that he did not, but indicated a third party who did. When the defendant pointed to the third party and then to the agent, the third party nodded. The defendant then told the agent that the third party would "take care of you," prompting the third party to shake his head in acknowledgement. The agent approached the third party asking to buy heroin. The third party indicated that he would get it, received money from the agent and returned a few minutes later to hand over a package to the agent. The package, in fact, did not contain a narcotic substance. (See People v. Dalton (1959) 172 Cal.App.2d 15, 17.)

Both the defendant and the third party were convicted of procuring a substitute for narcotics. On appeal, the defendant argued that the trial court erroneously admitted evidence of the conversation between the agent and the third party against the defendant. The appellate court ruled that the evidence was admissible for two independent reasons: because it was not hearsay and because the acts and declarations of the third party form part of the transaction which is a fact in dispute. (People v. Dalton, supra, 172 Cal.App.2d at p. 18.)

Discussing the nonhearsay ground of its ruling, the appellate court appreciated the purpose of the hearsay rule to prevent "the use of a repeated assertion of an absent party as proof of the truth" (People v. Dalton, supra, 172 Cal.App.2d at p. 19) of the matter asserted. However, it found that this concern was not implicated on the facts before the court because the statement that the third party would get the agent some heroin was not offered for the truth of the matter asserted. The third partys statement was not proffered to prove the fact that he would procure heroin or that he intended to do so. The defendant and the third party were charged with procuring a substitute for heroin. Thus, the court ruled that the statement was not hearsay because it "was not offered as a demonstration of the truth of its own subject matter." (Ibid.) A statement introduced to prove a fact other than that expressed in its content is admissible. (Id. at p. 20.)

The court in Dalton found that the third partys statement was not hearsay as to the defendant. As the statement in that case was properly admitted against the defendant, so Gatsons statements that he had been identified in court before was admissible against Kozlowski even if the latter had been absent when the statements were made. We also observe that because Kozlowski and Gatson were clearly acting in concert and the statements were made during the course of the kidnapping, the statements were admissible even if one declarant was not in the immediate presence of the other. (See Evid. Code, 1223.) Finding no error affecting the jurys convictions of Kozlowski and Gatson, we affirm each of them.(FN20)

V. SENTENCING(FN21)

A. Life Imprisonment Without Possibility of Parole

1. Disparate Sentences

Kozlowski and Gatson raise four challenges to the sentences imposed by the trial court. First, they contend that a sentence of life imprisonment without possibility of parole for kidnapping for extortion violates substantive due process because conviction of kidnapping for robbery-a conviction that they reason is almost indistinguishable from kidnapping for extortion under the facts of this case-carries only a sentence of life imprisonment with possibility of parole. They argue that the prosecutors decision to charge them with kidnapping to extort the victims PIN codes resulted in a substantially higher sentence than they would have been eligible to receive if they had been charged with kidnapping to commit robbery of the victims ATM cards, based on almost identical conduct. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 15.)(FN22)

We reject this claim of error, for several reasons. First, the facts of this case demonstrate that the higher sentence imposed was warranted because Lisa and Robyn suffered bodily harm in connection with the acts of Kozlowski and Gatson during the commission of the kidnappings. One convicted of kidnapping to commit robbery must be sentenced to a term of life imprisonment with possibility of parole. (See former 209, subd. (b)(1), as amended by Stats. 1997, ch. 817, 2; last amended by Stats. 2000, ch. 287, 3.) One who kidnaps for purposes of extortion is typically given the same sentence-life imprisonment with possibility of parole. When-as here-the victim suffered bodily harm, the defendant must be sentenced to a term of life imprisonment without possibility of parole. (See former 209, subd. (a).) In this case, the jury found that Lisa and Robyn suffered bodily harm during the commission of the kidnappings in connection with or as a result of acts committed by Kozlowski and Gatson. On these facts, the defendants themselves are responsible for the greater sentences imposed.

Even if this were not so, to the extent that this claim of error assumes that the prosecutor made an improper "tactical decision" to charge the offense as kidnapping for extortion rather than kidnapping to commit robbery, it fails. A prosecutor is under no duty to charge a lesser offense if a greater charge is supported by the evidence. In this case, the bodily harm inflicted on the victims created the possibility of a greater sentence if Kozlowski and Gatson were charged with one form of aggravated kidnapping rather than another.

Kozlowski and Gatsons argument is also unpersuasive for other reasons. First, the case authority that Kozlowski and Gatson rely on in support of their substantive due process argument is a call to the Legislature to reconsider its sentencing schemes, not a substantive due process case. (See People v. Ibrahim, supra, 19 Cal.App.4th at pp. 1698-1699.) Second, this message to the Legislature is dicta and thus, not controlling. (See ibid.) Third, our reading of Ibrahim satisfies us that its comments were rooted in its belief that kidnapping for extortion cannot be committed without a secondary victim-a conclusion with which we disagree. (See ibid.; see also pt. II.B.2., ante.) For all these reasons, we find no merit in this substantive due process challenge to any of the sentences of life imprisonment without possibility of parole imposed for the four kidnapping for extortion convictions.

2. Failure to Allege Bodily Harm

Kozlowski and Gatson also argue that their sentences violate due process and the right to a jury trial because the fact of bodily harm in the commission of kidnapping for extortion pursuant to former section 209 was never alleged in the information. They contend that the imposition of a sentence of life imprisonment without possibility of parole when the information failed to specifically allege this fact violates their constitutional rights to notice and to have a jury determine these matters. Thus, they reason that these sentences must be reversed and the matters remanded for resentencing. (See U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, 15-16.)

When a defendant kidnaps a person in order to commit extortion and the victim suffers bodily harm, the defendant must be sentenced to life imprisonment without possibility of parole. If no victim suffered bodily harm, the sentence is life imprisonment with possibility of parole. ( 209, subd. (a).) The United States Supreme Court recently held that in order to increase a state criminal penalty as the result of any fact other than a prior conviction, federal constitutional rights to due process, to notice and a jury trial require that the pertinent fact be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 476; see Jones v. United States (1999) 526 U.S. 227, 243 fn. 6 [federal offense]; People v. Neal (1984) 159 Cal.App.3d 69, 73 [defendants right to notice that prosecution seeks enhanced penalty].) The verdict form specifically asked the jury whether Lisa and Robyn suffered bodily harm when Kozlowski and Gatson kidnapped them and the jury specifically found that they did. However, the information did not allege the fact that Lisa and Robyn suffered bodily harm such that an increased penalty could be imposed for the kidnappings. On appeal, Kozlowski and Gatson contend that their constitutional rights to notice were violated because they were not charged with such an allegation in the information.

Preliminarily, the People argue that Kozlowski and Gatson may not raise this issue on appeal because they did not raise it in the trial court. When a defendant fails to object at trial to the adequacy of the notice given in the information, that objection is deemed to be waived. (People v. Bright (1996) 12 Cal.4th 652, 671, cert. den. sub nom. Bright v. California (1996) 518 U.S. 1006; People v. Carbonie (1975) 48 Cal.App.3d 679, 691.) As the record on appeal reveals no objection to the information on this ground, it appears that Kozlowski and Gatson have not preserved this issue for appeal.

Even if we assume arguendo that this issue was properly before us and reach the merits of this issue, we would find any deficiency in the information to be harmless. The purpose of the information is to provide a criminal defendant with notice of the charges he or she is expected to answer. (People v. Carbonie, supra, 48 Cal.App.3d at p. 691.) Due process requires notice in order to afford a criminal accused with a reasonable opportunity to prepare and present a defense such that the defendant is not surprised by the evidence offered at trial. (People v. Neal, supra, 159 Cal.App.3d at p. 72.) However, when an information puts a defendant on notice that an increased sentence will be sought and alleges the facts supporting the increased sentence, modification of judgment for errors or omissions in the information is required only when the defendant has been misled to his or her prejudice. (People v. Thomas (1987) 43 Cal.3d 818, 831; People v. Neal, supra, 159 Cal.App.3d at p. 73.)

Kozlowski and Gatson both had actual notice of alleged facts that could lead to a term of life imprisonment without possibility of parole. In Kozlowskis motion to set aside the information, his counsel acknowledged that the kidnapping charges were intended to subject Kozlowski and Gatson to a sentence of life imprisonment without possibility of parole. In Gatsons motion to set aside the information, he joined in Kozlowskis motion. Thus, both defendants had actual notice sufficient to satisfy Apprendi v. New Jersey, supra, 530 U.S. 466.

In this case, the information also alleged that during the commission of two counts of kidnapping for extortion, Kozlowski and Gatson personally inflicted great bodily injury on Lisa and/or Robyn for purposes of the sentence enhancement provision of section 12022.7, subdivision (a).(FN23) Assuming arguendo that the terms "bodily harm" and "bodily injury" differ, we are satisfied that there is no meaningful difference between those terms for purposes of this issue. The multiple stab wounds and gunshot wounds provided overwhelming evidence of bodily harm at trial.

On appeal, Kozlowski and Gatson do not argue that they suffered any prejudice from the informations lack of a specific allegation that Lisa and Robyn each suffered bodily harm during their commission of kidnapping for extortion, nor can we see any in the circumstances of this case. (See People v. Thomas, supra, 43 Cal.3d at p. 831; People v. Neal, supra, 159 Cal.App.3d at p. 74.) As the information alleged the fact of bodily injury and Kozlowski and Gatson had actual notice that the information exposed them to a possible term of life imprisonment without possibility of parole, we are satisfied that they were not misled to their prejudice. (See People v. Neal, supra, 159 Cal.App.3d at p. 73 [misstatement of enhancement allegation].)

B. Restitution Fine

Kozlowski and Gatson next contend that the trial court erred by imposing restitution fines in excess of the $10,000 statutory limit. In a felony case, the trial court must impose a restitution fine. The amount of that fine is in the discretion of the trial court, but that discretion is limited to a maximum fine of $10,000. (See former 1202.4, subd. (b); see also fn. 3, ante.) In this case, the trial court imposed a $50,000 fine against both Kozlowski and Gatson. This fine was imposed in excess of the discretion vested in the trial court pursuant to former section 1202.4. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) The Attorney General concedes this error. We reverse the sentence and reduce these fines to the statutory maximum $10,000. The trial court shall issue amended abstracts of judgment that reflect the reduced restitution fines. (See People v. Ngaue (1992) 8 Cal.App.4th 896, 899, 907.)

C. Parole Revocation Fine

The court also imposed a $50,000 parole revocation fine on both Kozlowski and Gatson, ordering the fine to be suspended unless parole was revoked. (See 1202.45.) Kozlowski and Gatson(FN24) argue on appeal that the trial court erred by imposing and suspending these fines. They reason that as these sentences are intended for those eligible for parole, they are not liable for these fines because they were sentenced to life imprisonment without possibility of parole.

In addition to the restitution fine required by section 1202.4, when a persons sentence includes a period of parole, a second fine must be assessed. The fine is to be suspended unless the persons parole is revoked. ( 1202.45.) Courts interpreting section 1202.45 have applied a commonsense approach to its construction. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182; see also People v. Hannah (1999) 73 Cal.App.4th 270, 273.) In this case, neither Kozlowski nor Gatson is eligible for parole, having been sentenced to life imprisonment without possibility of parole. By law, such a term does not include a period of parole. (See 3000, subd. (a)(1).) Each defendant was also given two determinate terms, but those terms were ordered to run consecutive to the indeterminate terms, creating the effect of no determinate term. In our case, the overall sentence did not subject either Kozlowski or Gatson to a period of parole. (See People v. Oganesyan, supra, 70 Cal.App.4th at p. 1185 [fine inapplicable when defendant receives an indeterminate sentence of life imprisonment without possibility of parole and a determinate sentence]; see also People v. Hannah, supra, 73 Cal.App.4th at pp. 274-275 [fine inapplicable when defendant receives suspended determinate sentence and is granted probation].)

As their sentences do not allow for periods of parole, Kozlowski and Gatson cannot be said to have been sentenced to a term including a period of parole within the meaning of section 1202.45. The Attorney General concedes this error. The trial court made an unauthorized sentence(FN25) when it imposed this additional restitution fine. As such, we strike the restitution fine imposed pursuant to that provision and order the abstract of judgment to be corrected accordingly when the matter is remanded to the trial court.

VI. REMITTITUR

The sentences of Kozlowski and Gatson are each modified to reduce the section 1202.4 restitution fine to $10,000 and to strike the section 1202.45 parole revocation fine. A modified abstract of judgment shall be prepared to reflect the lawful fines. In all other respects, the judgments are affirmed.

We concur: Kay, P.J., Sepulveda, J.

Notes:

(FN*). Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III. through V.

(FN1). All statutory references are to the Penal Code unless otherwise indicated.

(FN2). The versions of these provisions in effect on the date of the crime have been amended since that time. However, none of these amendments make any substantive changes to the cited statutes, to the extent relevant to the case before us. (See former 209, subd. (a), as amended by Stats. 1997, ch. 817, 2; last amended by Stats. 2000, ch. 287, 3, 667.5, subd. (b), as amended by Stats. 1997, ch. 371, 2; last amended by initiative in Prop. 21 [approved by voters Mar. 7, 2000], 12022, subd. (b), as amended by Stats. 1995, ch. 377, 8; last amended by Stats. 1999, ch. 129, 4, 12022.7, subd. (a), as amended by Stats. 1995, ch. 341, 1; last amended by Stats. 2000, ch. 919, 1.)

(FN3). The version of this statute in effect on the date of the crime has been amended since that time. However, the amendments make no substantive change to the cited statute, to the extent relevant to the case before us. (See former 1202.4, subd. (b), as amended by Stats. 1998, ch. 587, 5.5; last amended by Stats. 2000, ch. 1016, 9.5.)

(FN4). Each appellant joins in the arguments raised by the other, to the extent that they are applicable. (See Cal. Rules of Court, rule 13.)

(FN5). All dates refer to the 1999 calendar year unless otherwise indicated.

(FN6). To avoid confusion, the opinion refers to Anthony Kozlowski by his given name and refers to appellant Matthew Kozlowski by his surname.

(FN7). An ATM is an automatic teller machine. (See People v. Butler (1996) 43 Cal.App.4th 1224, 1236.)

(FN8). See footnote 2, ante.

(FN9). Evidence of this conversation was admitted against Kozlowski only, not against Gatson.

(FN10). This evidence was admitted against Kozlowski alone, not against Gatson.

(FN11). The trial court also found that Gatson had violated the terms of a grant of probation. His probation was terminated. He raises no issues on appeal pertaining to the probation violation finding.

(FN12). The motions to set aside the kidnapping for extortion counts in the information filed by Kozlowski and Gatson did not challenge the information on the ground now asserted on appeal. However, as this claim of error presents a purely legal question-whether the obtaining of a PIN code under duress can ever constitute extortion-we are satisfied that the question need not have been raised in the trial court to be preserved for review on appeal.

(FN13). A recent New York case assumes without discussion that one who extracts a PIN code by threatening means commits extortion. (See Commonwealth v. Baldwin (2001) 52 Mass.App.Ct. 404, 407 [754 N.E.2d 121, 122, 124].)

(FN14). Such enumeration is found in section 484e, dealing with theft of an access card, where "access card" is defined as "any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value . . . ." ( 484d, subd. (2), italics added.) For purpose of theft, our Legislature has expressly recognized a PIN code as property.

(FN15). See footnote, ante, page 1.

(FN16). See footnote, ante, page 1.

(FN17). In a November 2000 brief, Kozlowski argues that the California Supreme Court has granted review in a series of cases offering the possibility that our states high court will adopt his position on this matter. Since that time, the California Supreme Court has upheld the discharge of a juror who fails to follow the law, thereby rejecting many of the arguments Kozlowski raises on jury nullification. (See People v. Williams (2001) 25 Cal.4th 441, 447-463.)

(FN18). During the discussion of his request for a limiting jury instruction, Kozlowski conceded that the statements at issue were not hearsay. Assuming arguendo that the discussion did, in fact, encompass Gatsons statements about shooting the police as well as the ones specifically mentioned during that discussion, then Kozlowskis admission that the statements were not hearsay would also apply to these statements. Thus, they would be admissible for the same reasons that Gatsons other nonhearsay statements were admissible against Kozlowski. (See pt. IV.C.2., post.)

(FN19). It allowed Kozlowski to raise the issue again when jury instructions were being determined, if he could find any authority supporting his position. There is no suggestion in the record that Kozlowski did so.

(FN20). In light of this conclusion, we need not address the additional contention of Kozlowski and Gatson that the cumulative effect of the trial errors deprived them of due process and a fair trial.

(FN21). See footnote, ante, page 1.

(FN22). At sentencing, the trial court found that a sentence of life imprisonment without possibility of parole for kidnapping for extortion would not constitute cruel and unusual punishment.

(FN23). At the close of the Peoples case-in-chief, the trial court dismissed one of four alleged great bodily injury enhancements-one alleged against Kozlowski relating to Lisas kidnapping. The jury found the remaining three great bodily injury enhancement allegations to be true when they concluded that Kozlowski and Gatson were guilty of two counts of kidnapping.

(FN224). Gatson initially argued that this fine should be reduced to $10,000. However, he also joined in Kozlowskis arguments, one of which was that this fine should not have been imposed at all. Gatson specifically joined this argument in his reply brief. Thus, we construe both claims to be requests to strike this fine in its entirety.

(FN25). Kozlowskis and Gatsons failure to object to the imposition of this fine at sentencing does not constitute a waiver to his right to challenge its imposition on appeal, as an unauthorized sentence may be corrected independent of any trial court discretion or any factual issues presented by the sentencing record. (See People v. Scott (1994) 9 Cal.4th 331, 354; cf. People v. Tillman (2000) 22 Cal.4th 300, 301-303 [lack of objection to trial court failure to make discretionary sentencing choices constitutes waiver of right to raise such issues on appeal].)