People v. Acosta CA3 ( 2016 )

Filed 9/26/16 P. v. Acosta CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C074628
Plaintiff and Respondent, (Super. Ct. No. SF118511A)
v.
ANTHONY PAUL ACOSTA,
Defendant and Appellant.
Defendant Anthony Paul Acosta shot David Slape once in the head and killed him
for Slape’s gold chain. Convicted of murder and robbery and sentenced to life without
possibility of parole, defendant appeals. He contends: (1) the trial court erred by
admitting YouTube videos showing defendant holding what may have been the murder
weapon, (2) the court erred by not giving the jury an instruction limiting its consideration
of the YouTube videos, (3) the court erred by instructing the jury that a witness’s
custodial status does not, by itself, make the witness more or less believable, (4) the court
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erred by denying defendant’s petition for disclosure of juror identification information,
and (5) the minutes and abstract of judgment must be corrected to show that no parole
revocation fine was imposed. We conclude that only the last contention has merit.
Therefore, we affirm the judgment and remand for the trial court to correct the minutes
and abstract of judgment.
FACTS AND PROCEDURE
During the evening of September 10, 2010, defendant and his friends Jimmie
Turner and Sean Olivas drove around together in Turner’s two-door Buick Regal.
Defendant had a gun in his lap. The gun looked like the gun Turner saw defendant
holding when he made a YouTube video at Turner’s house. Olivas drove, with Turner in
the front passenger seat and defendant in the backseat behind Olivas. Eventually, they
picked up Slape and Sylvia Broderick, who both rode in the backseat with defendant.
Slape was wearing a heavy gold chain.
Defendant wore a long-sleeve, red shirt, along with dark colored pants. He did not
wear a hat. Turner wore a short-sleeve, black shirt, with dark pants and a hat. And
Olivas wore a black and white sweater.
Olivas lost his phone, and he repeatedly asked Slape about it.
The group arrived at an apartment complex, where everyone except Turner and
Olivas got out of the car. As Slape was going into an apartment, Olivas asked again
about the phone. Slape went to the driver’s side of the car and bent down to speak to
Olivas. Defendant, who was about three feet behind Slape, shot Slape in the head. He
stood over Slape, who had fallen to the ground, and took the gold chain from Slape’s
neck.
Defendant got into the car through the driver’s side door and Olivas drove away.
He also said, “I just smacked him,” and, “I have two chains now.” Olivas saw the gun in
defendant’s possession right after the shooting, and Turner saw the gun on defendant’s
lap.
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Mario Arreaga was at the apartment complex and heard a gunshot. When he
looked outside, he saw a short and skinny, light-complexioned, male Mexican, about 18
years old, with dark pants, no hat, and a short-sleeve, red shirt standing over Slape.
(Defendant’s was the only red shirt in the group, but it was long-sleeved. Other than the
length of the sleeves of defendant’s shirt, Arreaga’s description was consistent with
defendant’s appearance.)
The next day, defendant gave a heavy gold chain to Eliza Longoria and had her
pawn it for him. She received $2,880 for the chain and gave the money to defendant.
An investigation of the murder scene revealed no casing from a bullet, which is
consistent with use of a revolver because the casing stays in the gun. The bullet
recovered from Slape’s head was a .38-caliber bullet, most likely fired from a .357
magnum or .38 special, which are revolver calibers.
Talking to his stepfather’s best friend (the victim’s uncle) later, defendant denied
being at the location where Slape was shot. He also lied to a detective, saying he was not
at the murder scene. Defendant told Longoria that, if she told anyone that he had her sell
the chain, she “had something coming.” While in custody, defendant saw Longoria and
made a motion simulating a zipper across his lips. He also threatened her and told her not
to talk.
At trial, defendant admitted he was at the murder scene but claimed Turner got out
of the car, came around to the driver’s side, shot Slape in the head, and got back in the
car.
A jury convicted defendant of (1) first degree murder (count 1; Pen. Code,
§ 187),1 with a true finding that defendant discharged a firearm causing death
(§ 12022.53, subd. (d)) and with a special circumstance that the murder was committed
1 Hereafter, unspecified code citations are to the Penal Code.
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during the commission of robbery; and (2) robbery (count 2; § 211), with a true finding
that defendant discharged a firearm causing death (§ 12022.53, subd. (d)).
The trial court sentenced defendant to life without possibility of parole for the
special circumstance murder, plus 25 years to life for the discharge enhancement. The
court also sentenced defendant to the upper term of five years for the robbery conviction,
plus 25 years to life for the discharge enhancement, but the court stayed the sentence on
the robbery count under section 654.
Additional facts and procedure are recounted as they become relevant to the
discussion of defendant’s contentions on appeal.
DISCUSSION
I
Admission of YouTube Videos
The trial court, over the defense’s Evidence Code section 352 objection, admitted
two YouTube videos showing defendant in possession of a revolver. The videos laid the
groundwork for a prosecution expert to testify that the revolver that defendant possessed
in the videos could have been the gun used to kill Slape. On appeal, defendant contends
that the trial court abused its discretion in admitting the YouTube video evidence.
However, the contention is without merit. The trial court did not abuse its discretion in
determining that any prejudicial effect of the YouTube video evidence did not
substantially outweigh the probative value of the evidence.
A. Background
The first YouTube video was filmed at night, perhaps just a couple of weeks
before the murder. Defendant and another man are in the same car defendant was in on
the night of the murder, with defendant in the driver’s seat and the other man in the front
passenger seat. Rap music is playing in the stationary car. The other man raps along
with the music to some extent, and defendant does so to a lesser extent. Many of the rap
lyrics are incomprehensible; however, obscenities are used prominently, along with other
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references to sexual activities. There are also references to gangs in the lyrics: “Don’t
fuck with the bloods. Don’t fuck with no crips.”
The relevance of the first clip, as well as the second clip, lies in the fact that
defendant is seen with a revolver in his lap. During the first clip, defendant is twice
shown, in a matter of a few seconds, pointing the revolver at the camera. Before that, he
points to the revolver.
Defendant claims that the lyrics of the rap music, repeated by the other man with
defendant in the car, include the phrase “we deep in the gang.” To the contrary, the
phrase sounds more like “we deep in the game.” The lyrics also include the repeated
words, “I need to know what part of the game is that.” So there are additional references
to a “game” in the lyrics. Defendant’s claim that the phrase “we deep in the gang” is
uttered in the videos is made for the first time on appeal, and it appears to have no
foundation in the video, which has been forwarded to this court as an exhibit.
In the second YouTube video, defendant and the other man are in the same car
during the day. The video shows them driving up to the camera, with defendant in the
front passenger seat. When the camera approaches the open passenger window of the
car, the two men unleash a string of obscenities, and defendant waves the same revolver
at the camera.
During the hearing on whether to admit the YouTube video evidence, the
prosecution read a statement from the Department of Justice, as follows: “Based on
observations made from the videos, the firearm [defendant] is brandishing appears to be a
blue, five-shot double action revolver of unknown manufacture and caliber with a three
or four-inch barrel and fixed sites. Because both Security Industries and Rossi produced
revolvers with characteristics similar to the revolver in the video recordings, this revolver
cannot be ruled out as a possible source of the bullet.” The reference to “the bullet,” was
to the bullet that killed Slape.
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The prosecution also stated that, when Broderick saw the YouTube video, she told
police that the gun in the video looked like the gun she saw in defendant’s possession on
the night of the murder. However, she was drunk and was not sure.
Defendant’s Evidence Code section 352 objection focused on the revolver in the
videos. He argued that “the only possible reason for offering such evidence is to suggest
to the jury that because the defendant owned/possessed a gun, he must have had a
weapon on the night of the homicide.” He also argued it could be used as propensity
evidence.
The trial court ruled on the admissibility of the YouTube video evidence, as
follows:
“Now, the prosecution would argue that this is very probative because it shows the
defendant with a gun two weeks before the incident. In other words, he has access to a
firearm. Maybe DOJ can’t say exactly what caliber it is, although there is a witness who
is going to testify that it looked like the gun, not with great certainty, but that’s what
she’s going to say. The – so there is relevance.
“The question is: Does the prejudicial effect outweigh the probative value? And
there is strong probative value because he’s charged with being in this vehicle and having
a gun and shooting someone with a firearm, a handgun. Well, two weeks before, there he
is, same vehicle, with a firearm. The only difference is there is a question as to whether
or not that was the firearm.
“Now, is it prejudicial? There is a certain amount of prejudice because he’s with a
firearm. And if it’s a different firearm, then the jury might say, well, he’s guilty of this
offense even though he didn’t have the firearm that is involved in this offense in that You
Tube video. However, I think that the probative value outweighs the prejudicial effect
because I think a jury can make a decision as to whether or not this – there is evidence
showing this really was the firearm in the You Tube video. They will be able to
determine the credibility of this witness as to whether or not it was the same firearm.
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“And I think they’d be able to determine whether this was not the firearm and
whether this is something to be disregarded. But I think it’s very strong evidence that the
defendant had and did, in fact, have the firearm two weeks before this incident. And he
had the opportunity and the means to commit this offense. So I’m going to allow that
evidence over objection.”
B. Analysis
“Relevant evidence is evidence ‘having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.’
(Evid. Code, § 210.) The trial court has broad latitude in determining the relevance of
evidence. [Citations.] We review such determinations for abuse of discretion.
[Citations.] . . . [¶] . . . [¶] A trial court may exclude otherwise relevant evidence when
its probative value is substantially outweighed by concerns of undue prejudice,
confusion, or consumption of time. (Evid. Code, § 352; [citation].) . . . [¶] On appeal,
we review the trial court’s rulings on the admissibility of evidence for abuse of
discretion. [Citations.]” (People v. Scott (2011) 52 Cal.4th 452, 490-491.)
Defendant contends that the prejudicial effect of the YouTube video evidence
substantially outweighed its probative value because (1) the evidence that the revolver in
defendant’s possession in the videos was also the gun used in the murder was minimal
and speculative, (2) there was no evidence that the revolver belonged to defendant or that
he had access to it other than when the video was being shot, (3) the videos showed him
in possession of a gun, (4) the videos portrayed defendant in an odious light, and (5) the
videos improperly introduced gang evidence.
The most fundamental problem with defendant’s contention on appeal is that he
claims that the other man in the car during the first YouTube video said, “we deep in the
gang.” We disagree based on our review of the video, and there is, quite simply, no
indication on this record that the jury interpreted the statement in the YouTube video as
“we deep in the gang.” Along with the other references to “the game,” it sounds like the
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statement was “we deep in the game.” Furthermore, no attention was ever drawn to that
statement by either party, lending credence to our impression from watching the video
that it was not an objectionable reference to any gang membership or activity by
defendant or the other man in the car.
While defendant tries to minimize the probative value of the YouTube video
evidence, we agree with the trial court that, in the context of this case, it was highly
probative. The evidence cited in connection with the Evidence Code section 352
objection sufficiently established that probative value. As little as two weeks before the
murder, defendant was filmed in possession of a revolver that looked like revolvers
manufactured by either Security Industries or Rossi. Broderick said that the gun in the
videos looked like the gun she saw in defendant’s possession the night of the murders.
And the forensic evidence from the bullet, as well as the absence of a casing at the
murder scene, was consistent with use of a revolver like the one shown in the videos.
These facts supported the prosecution’s theory, and they cast doubt on defendant’s claim
that someone else shot Slape.
On the other hand, the prejudicial effect of the evidence is not as pronounced as
defendant argues.
That the evidence showed that defendant was in possession of a gun that may have
been the murder weapon does not rise to the level of prejudice demanding exclusion. To
the contrary, the “prejudice” referred to by Evidence Code section 352 does not refer to
damage “ ‘that naturally flows from relevant, highly probative evidence’ ” (People v.
Zapien (1993) 4 Cal.4th 929, 958), but instead to “evidence that poses an intolerable risk
to the fairness of the proceedings or reliability of the outcome.” (People v. Booker
(2011) 51 Cal.4th 141, 188.) The videos did not simply show defendant possessing a
gun; they showed him in possession of a gun that, based on other evidence, the jury could
have reasonably inferred was the murder weapon.
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As for the arguments that the YouTube videos cast defendant in an odious light
and that they associated him with gangs, the claim of prejudice simply does not outweigh
the probative value. Certainly, the language used in the videos was not socially
appealing, and there were comments in the lyrics associated with gangs. (For example,
“Don’t fuck with the bloods. Don’t fuck with no crips.”) Nevertheless, these matters did
not establish the type of prejudice that requires a trial court to exclude probative
evidence.
The trial court did not abuse its discretion under Evidence Code section 352 by
admitting the YouTube video evidence.
In addition to defendant’s argument that the trial court abused its discretion by
admitting the YouTube evidence, defendant contends: (1) counsel for defendant violated
his right to counsel by failing to preserve the gang-evidence element of the objection,
(2) the trial court erred because it assumed that the jury would disregard the evidence if it
determined that the gun in the video was not the same one used in the murder, and
(3) admission of the evidence violated his due process rights. None of these contentions
has merit.
First, to the extent the content of the YouTube videos contained references to
gangs, there was no failure of counsel to preserve an objection to that content. Counsel
objected to admission of the YouTube videos under Evidence Code section 352, and the
trial court viewed the videos to determine their admissibility. There is no indication in
the record that the trial court did not consider the entirety of the videos in making its
determination.
Second, defendant claims that the trial court admitted the YouTube video evidence
under Evidence Code section 352 based simply on its belief that the jury would disregard
the evidence if it concluded that the gun in the videos was not used in the murders.
Defendant bases this claim on a statement by the trial court, made during discussions
concerning the Evidence Code section 352 hearing, that the jury would “be able to
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determine whether this was not the firearm and whether this is something to be
disregarded.” There was no error. The court’s statement referred to the argument that
the gun was the one used in the murder and whether the jury would credit that argument.
It did not mean that the jury would simply disregard the evidence and therefore the
evidence was admissible regardless of prejudice. Defendant reads too much into the
statement.
Third and finally, defendant’s argument that admission of the YouTube video
evidence violated his due process rights is premised entirely on the argument that
admission of the evidence was an abuse of discretion under Evidence Code section 352 or
1101 (as propensity evidence, which it was not). Therefore, this argument is also without
merit.
II
Limiting Instruction on YouTube Video
Defendant contends that the trial court erred by not giving the jury an instruction,
on its own motion, that the jury must disregard the YouTube video evidence if it
concludes that the gun in the videos was not the murder weapon and that the evidence
could not be used to show bad character or propensity to commit murder. This
contention is based, at least implicitly, on the mistaken impression that the lyrics of the
rap music tied defendant and the other man in the car to a gang or gang activity. As we
explained, the lyrics did not tie defendant and the other man to a gang or gang activity.
While there were references in the lyrics to gangs, those lyrics did not imply that
defendant and the other man were gang members. Instead, the lyrics implied that
defendant was neither a blood nor a crip, and they made no reference to any other gang.
“Trial courts generally have no duty to instruct on the limited admissibility of
evidence in the absence of a request. [Citation.]” (People v. Lang (1989) 49 Cal.3d 991,
1020.) Defendant does not assert that he requested a limiting instruction; instead, he
claims this is the “occasional extraordinary case in which unprotested evidence of past
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offenses [or, here, simply gang membership] is a dominant part of the evidence against
the accused, and is both highly prejudicial and minimally relevant to any legitimate
purpose.” (People v. Collie (1981) 30 Cal.3d 43, 64 (Collie).)
This is not an extraordinary case, as identified by Collie, because the references to
gangs were minimal and did not imply that defendant was a gang member. Therefore,
the trial court had no duty to give a limiting instruction on its own motion.
Defendant also contends that his trial counsel violated his right to effective
counsel by not requesting a limiting instruction. This contention is also without merit.
To establish ineffective assistance of counsel, a defendant must show (1) counsel’s
performance was deficient and fell below an objective standard of reasonableness and (2)
it is reasonably probable that a more favorable result would have been reached absent the
deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80
L.Ed.2d 674, 693-694].) A reasonable probability is a “probability sufficient to
undermine confidence in the outcome.” (Id. at p. 694.)
“In evaluating a defendant’s claim of deficient performance by counsel, there is a
‘strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance’ [citations], and we accord great deference to counsel’s tactical
decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in
the ‘ “perilous process” ’ of second-guessing counsel’s trial strategy. [Citation.]
Accordingly, a reviewing court will reverse a conviction on the ground of inadequate
counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational
tactical purpose for his act or omission.’ [Citations.]” (People v. Frye (1998) 18 Cal.4th
894, 979-980, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22.)
It is not necessary for the court to examine the performance prong of the test
before examining whether the defendant suffered prejudice as a result of counsel’s
alleged deficiencies. (Strickland v. Washington, supra, 466 U.S. at p. 697.) “If it is
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easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” (Ibid.)
Here, it is not reasonably probable that defendant would have obtained a more
favorable result absent the allegedly deficient performance. The references to gang
activity in the YouTube videos were minimal, and no argument was made in the trial
court that defendant or others were gang members. Also, no argument was made that the
jury should or could use the YouTube videos as evidence of defendant’s character or
propensity to commit murder. This is not a case in which evidence of past acts, as shown
in the YouTube videos, would lead a jury to improperly convict based on character or
propensity or on anything other than relevant and admissible evidence.
III
Instruction on In-custody Witness
Both Eliza Longoria and Jimmie Turner were in custody when they testified
because they had earlier failed to appear when subpoenaed. The trial court instructed the
jury concerning their testimony using CALCRIM No. 337, as follows: “When Eliza
Longoria and Jimmie Turner testified, they were in custody. The fact that a witness is in
custody does not by itself make a witness more or less believable. Evaluate the witness’s
testimony according to the instructions I have given you.”
On appeal, defendant contends the trial court erred and violated his Sixth
Amendment rights because the witness’s custody status at the time they testified had a
bearing on their credibility. We conclude that, even assuming for the purpose of
argument that the instruction was erroneous under these circumstances, there was no
prejudice.
Defendant argues that, because he alleges a violation of the Sixth Amendment, we
must apply the harmless error standard stated in Chapman v. California (1967) 386 U.S.
18, at page 24 [17 L.Ed.2d 705, 710-711].) Again, assuming error only for the purpose of
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argument, we apply that standard and ask whether the error was harmless beyond a
reasonable doubt. (Ibid.)
The asserted error in instructing the jury here had no effect on the jury’s verdict
because the jury was allowed to fully evaluate the credibility of the witnesses. While the
instruction told the jury not to draw a conclusion concerning the credibility of Longoria
or Turner based on their “in custody [status,] by itself,” the reason for their custodial
status was revealed to the jury – that is, they both had failed to appear when subpoenaed,
so they were arrested and held. Nothing in the instructions prevented the jury from
considering the custodial status of Longoria or Turner because the reason for their
custodial status was given. In other words, the evidence showed more than custodial
status, by itself.
While the jury could consider the witness’s custodial status in connection with the
reason for that status, there was also no limitation on the defense’s introduction and the
jury’s consideration of other evidence potentially bearing on the credibility of Longoria
and Turner. Thus, the credibility of both Longoria and Turner was fully and fairly
presented for determination by the jury. Indeed, the reason for the custody status of
Longoria and Turner was far more damaging to their credibility than the fact of custody.
Nevertheless, the jury could consider both the reason for and the fact of their custody
status because to do so would not constitute a prohibited credibility determination on the
fact of custody, by itself.
Furthermore, the remaining instructions also rendered harmless any possible error
in giving CALCRIM No. 337 in this case. (People v. Mackey (2015) 233 Cal.App.4th
32, 116 [jury charge considered as a whole].) While the court instructed the jury that the
fact that a witness is in custody does not by itself make a witness more or less believable,
it also directed the jury, in the same instruction, to evaluate the witness’s testimony in
light of all the instructions. This included other instructions on how to assess credibility.
For example, the court posed the question, “Was the witness’s testimony influenced by a
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factor such as bias or prejudice, a personal relationship with someone involved in the
case, or a personal interest in how the case is decided?” (CALCRIM No. 226.)
CALCRIM No. 337 allowed the jury to consider the custodial status of Longoria and
Turner in combination with all the other factors bearing on their credibility. (People v.
Mackey, supra, 233 Cal.App.4th at pp. 114-116.)
We therefore conclude that giving CALCRIM No. 337 was harmless beyond a
reasonable doubt, even if giving the instruction under the circumstances of this case was
error.
IV
Denial of Juror Identification Request
Defendant contends that the trial court erred by denying his request for juror
identification information. After trial, defendant obtained information that a male juror
may have committed misconduct. The trial court granted defendant’s request for
information identifying the two males on the jury and the two males who were alternates.
When it turned out that none of the males could be identified as a juror who committed
misconduct, defendant asked for identifying information on the female jurors. But the
trial court denied the request. We conclude the trial court did not abuse its discretion in
denying the second request.
“After a verdict is entered, a criminal defendant may ‘petition the court for access
to personal juror identifying information within the court’s records necessary for the
defendant to communicate with jurors for the purpose of developing a motion for new
trial or any other lawful purpose.’ (Code Civ. Proc., § 206, subd. (g).) Code of Civil
Procedure section 237, subdivision (b) provides that ‘[t]he petition shall be supported by
a declaration that includes facts sufficient to establish good cause for the release of the
juror’s personal identifying information.’ Absent a showing of good cause for the release
of the information, the public interest in the integrity of the jury system and the jurors’
right to privacy outweighs the defendant’s interest in disclosure. (People v. Avila (2006)
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38 Cal.4th 491, 604; Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096.)” (People
v. McNally (2015) 236 Cal.App.4th 1419.)
After trial in this case, defendant filed a petition for order disclosing personal juror
information under Code of Civil Procedure section 237. He also filed the declaration of
defense counsel providing facts on which the petition was based. While defendant was
being tried in Department 23, Benjamin Serratos was being tried in Department 21.
Serratos’s family members, who attended his trial, told defendant’s attorney that a male
juror from Department 23 had spoken to them twice outside the courtroom. He told them
that, in the trial where he was a juror, the defendant killed a man and stole his gold chain.
The male juror thought the defendant was guilty and was going to make sure he got a life
sentence. The male juror also said that (1) his uncle was a top guy in the FBI, (2) the
male juror was a big shot in the Army, (3) his whole family was in the CIA, (4) he could
help get Serratos off through help from his uncle in the FBI, and (5) he was in charge of
the jurors on that floor of the courthouse. The Serratos family thought his statements
were outlandish, but he had a juror’s badge. They followed him to Department 23 and
saw him sitting in the jury box. The court found sufficient cause to release the
identifying information of the four male jurors (two actual jurors and two alternates) that
heard the case and granted defendant’s petition as to those jurors.
Defendant’s investigator contacted the four male jurors, and each of them denied
being involved in the discussions described by the Serratos family. So the defense made
a supplemental petition to obtain the identifying information for the female jurors. At the
hearing on the supplemental petition, defense counsel informed the court that defendant’s
trial counsel, who had already been replaced by the attorney representing defendant on
the petitions for juror information, had represented Serratos in pretrial proceedings but
had been fired because the family was not happy with him. Defense counsel at the
hearing argued that the Serratos family therefore had no reason to help defendant.
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The trial court denied the supplemental petition to obtain identifying information
for the female jurors.
The trial court held a hearing on defendant’s motion for new trial with live
testimony of Serratos family members. Shown pictures of the four male jurors, the
Serratos family members could not identify any of them as the male juror they spoke to
during trial.
On appeal, defendant asserts the trial court abused its discretion in denying the
petition for identifying information for the female jurors. He argues: “The court was
presented with a baffling competition between two utterly inconsistent scenarios, neither
of which could be dismissed as probably false. On the one hand, two women [from the
Serratos family] who had nothing to gain from their revelation voluntarily came forth and
gave consistent accounts of their encounter with the mysterious ‘juror.’ ” He continues:
“This was thus a case that cried out for further investigation to try to reconcile two
seemingly irreconcilable sets of facts.”
We disagree. This is not a hard case. The inescapable conclusion the court
arrived at is that none of the male jurors in this case was the supposed juror described by
the Serratos family members. Pictures of each of the four male jurors (again, two were
actual jurors, while two were alternates) were shown to the Serratos family members, and
they testified that the supposed juror was not among them. We therefore agree with the
trial court that there was no good cause for the supplemental petition because disclosing
identifying information for the female jurors was unlikely to lead to information
supporting a claim of jury misconduct. The court did not abuse its discretion.
V
Parole Revocation Fine
Defendant contends we must strike a parole revocation fine recorded in the
minutes because it was not imposed by the court. We agree.
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On the murder count (count 1), the trial court imposed an indeterminate sentence.
And on the robbery count (count 2), the court imposed a determinate term of five years,
plus an indeterminate term of 25 years to life for the firearm enhancement. The
punishment on count 2 was stayed under section 654. While the court did not impose a
parole revocation fine under section 1202.45 in its oral pronouncement, the minutes and
abstract of judgment reflect a parole revocation fine. Because the parole revocation fine
was not imposed in the trial court’s oral pronouncement, it was not imposed at all.
(People v. Zackery (2007) 147 Cal.App.4th 380, 385 [oral pronouncement controls over
minutes].) For that reason, the parole revocation fine must be struck from the minutes,
and the abstract of judgment must be corrected to reflect the proper judgment.
Additionally, imposing a parole revocation fine would have been erroneous
because the trial court did not impose an unstayed determinate term. (People v. Carr
(2010) 190 Cal.App.4th 475, 482, fn. 6; People v. Oganesyan (1999) 70 Cal.App.4th
1178, 1185-1186.)
DISPOSITION
The judgment is affirmed. The trial court is directed to (1) strike the parole
revocation fine from the minutes and (2) prepare a corrected abstract of judgment and
send it to the Department of Corrections and Rehabilitation.
NICHOLSON , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
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