Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. PA049070 Robert J. Schuit, Judge. Affirmed with modifications.
George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.
TURNER, P. J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Andrew Arrue, appeals from his convictions for: first degree murder while an active participant in a robbery (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)); attempted first degree robbery (§§ 211, 664); and, two counts of firearm assault. (§ 245, subd, (a)(2).) The jurors also found a principal was armed with a firearm in the commission of the murder, attempted robbery, and firearm assaults. Further, the jury found defendant acted in concert with two or more persons in the commission of the attempted robbery within an inhabited dwelling. (§ 213, subd. (a)(1)(A).) Finally, the trial court found defendant was previously convicted of a serious felony. (§§ 667, subd. (a)(1), (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues: the trial court improperly admitted his statements to police; there was insufficient evidence to support the finding that he was a major participant in the robbery; and there was no substantial evidence he acted with reckless indifference to human life. The Attorney General argues that court security fees should have been imposed by the trial court. We affirm as modified.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 7 p.m. on December 22, 2003, Carlee Kuhn went to the home of Christopher Wageman to help him wrap Christmas presents. Four Hispanic men arrived while Ms. Kuhn was there. Ms. Kuhn left at approximately 10 p.m. At that time, Mr. Wagemen and the four men were watching videos. Ms. Kuhn later identified two individuals, Rudy Salazar and Rudy Peralta, as two of those present from a photographic lineup shown to her by police. Ms. Kuhn also believed the men arrived in a white Nissan Xterra truck. William Argueta arrived at Mr. Wageman’s home sometime thereafter. Mr. Wageman used one of the men’s cellular telephones to call Ms. Kuhn to assure she arrived home safely.
Mr. Argueta had known Mr. Wagemen since the sixth or seventh grade. Mr. Argueta at one time lived at Mr. Wageman’s home. Mr. Argueta knew Mr. Wageman’s family well. Mr. Wageman’s father, Steven Wageman, lived in a trailer in the driveway of the home. Mr. Wagemen kept loose change, primarily rolls of quarters and dollars, in a five-gallon paint bucket on the bar. Mr. Wageman was saving the money for new tires on his truck. Mr. Wageman’s wallet was also on the bar. When Mr. Argueta arrived at the Wageman home, Ms. Kuhn, Mr. Peralta, and Mr. Salazar were present. Also present were two other men with whom Mr. Argueta was unfamiliar. A white Nissan Xterra was parked across the street. Mr. Salazar told Mr. Argueta that they were driving a red car parked in front of the house. Mr. Perlata showed Mr. Argueta keys from an Enterprise car rental. Mr. Wageman and Mr. Argueta smoked marijuana together. Mr. Wageman bought it for himself and shared it with his friends. On occasion, Mr. Peralta and Mr. Salazar had obtained small amounts of marijuana from Mr. Wageman. Mr. Argueta had been drinking and smoking marijuana while at the Wageman home. When Mr. Argueta left the Wageman house that evening, Ms. Kuhn and the other four individuals had already left. Mr. Argueta learned that Mr. Wageman had been shot approximately one-half hour to 45 minutes later in a telephone call.
For clarification and out of no disrespect, further references to Steven Wageman will be to “Steven” to avoid confusion with Christopher Wageman.
Anthony Ramirez was living with Mr. Wageman on December 22, 2003. They had been friends for several years. Mr. Ramirez had worked that evening and returned home. Mr. Ramirez saw that a friend of Mr. Wageman’s was present. However, the friend left Mr. Wageman’s home within an hour. Thereafter, Mr. Ramirez and Mr. Wageman were watching television. Both Mr. Wageman and Mr. Ramirez were falling asleep while watching television. Mr. Ramirez heard a commotion near the front door. Mr. Ramirez saw silhouettes near the door. Suddenly someone ran at Mr. Ramirez with a gun. The gun was pointed at Mr. Wageman. Mr. Ramirez stood up. The man ordered Mr. Ramirez to the floor. The man wore a beanie, which was pulled down to his eyebrows and dark clothing. The man pointed a small caliber automatic pistol at Mr. Ramirez’s face. Mr. Ramirez saw a second man with Mr. Wageman. Mr. Wageman had his hands up in the air. Mr. Wageman appeared to be submitting to the man’s orders. Neither Mr. Peralta nor Mr. Salazar was present.
Mr. Ramirez heard someone running in the house. Mr. Wageman yelled Mr. Ramirez’s and Steven’s name and saying, “‘Call 911[.]’” Mr. Ramirez looked up. No one else was in the living room. Mr. Ramirez described what was happening, “You could tell that he was putting up a fight or running or something.” Mr. Ramirez got up and ran out the back door. Mr. Ramirez was very frightened. Mr. Ramirez was still afraid at the time of trial. Mr. Ramirez jumped over the fence into a neighbor’s backyard. Mr. Ramirez heard noise on the gravel in front of the house and gunshots. Mr. Ramirez believed Mr. Wageman had been killed. Mr. Ramirez also believed the men had then gone back into the house. Mr. Ramirez ran around the block and came back toward the house on the street. Upon returning to the house, Mr. Ramirez heard Mr. Wageman and Steven talking. Mr. Wageman, who had been shot, was in the bathroom. Mr. Wageman was bleeding from the top of his head and covered in blood. Mr. Ramirez telephoned Mr. Argueta approximately 20 minutes after Mr. Wageman was taken away by ambulance. Later, Mr. Ramirez was given the opportunity to see defendant wearing a watch cap. Although not positive, Mr. Ramirez indicated that defendant looked familiar. As noted, the man wearing the watch cap pointed a gun at Mr. Ramirez’s head. Mr. Ramirez believed defendant matched the size and build of the armed man wearing a watch cap. Mr. Ramirez believed the two men who broke into Mr. Wageman’s home were Hispanic. Mr. Ramirez had testified at the preliminary hearing that Mr. Peralta had been present in the house at the time of the incident. However, Mr. Ramirez never identified Mr. Peralta as the armed individual wearing the watch cap.
Steven went to bed at approximately 11 p.m. on December 22, 2003. At approximately 12:30 or 1 a.m., Steven heard someone knocking on the front door of Mr. Wageman’s house. Steven looked out the trailer window. However, he did not see anyone outside. Thereafter, Steven heard a “ruckus” or fighting and arguing in the house. Mr. Wageman called out loudly to Mr. Ramirez. Steven went to the front door of the house, where he heard scuffling noise inside. As Steven reached for the door handle, the door came open. Steven saw Mr. Wageman was holding onto the wrists of a man. The man, who was dressed in dark clothing and a black hat, pointed a gun in Steven’s face. Mr. Wageman told Steven to call the police. Steven ran back to his trailer and called the police. The tape recording of Steven’s emergency call was played at trial. The jurors were given a transcript of the telephone call. Steven heard noises from the house, including Mr. Wageman calling out to Mr. Ramirez and two gunshots. Steven ran back to the house. However, the door was locked. Mr. Wageman later opened the door. Mr. Wageman had been shot and was bleeding from his head and stomach.
Steven was unable to identify anyone from photographs shown to him by the police. Steven knew that Mr. Wageman sold marijuana. But Steven did not consider Mr. Wageman to be a “big-time” dealer. At the preliminary hearing, Steven identified Mr. Peralta as the individual who pointed the gun when the door to Mr. Wageman’s house was found open. However, at trial, Steven testified defendant was the armed man struggling with Mr. Wageman. Mr. Wageman never identified the assailants to Steven. Mr. Wageman died at the Northridge Medical Center at 1:35 a.m.
Leticia Kugler, who used the alias Traviesa, was living at the Good-Nite Inn with defendant in December 2003. Ms. Kugler did not want to testify in this case. Ms. Kugler’s brother-in-law, Rudy Peralta, visited her on December 22, 2003. Mr. Peralta was driving a white Nissan Xterra truck. Ms. Kugler made a number of statements to the police she could not recall making while testifying at trial. At trial, Ms. Kugler did not recall telling the police that: she had gone to a gas station to pick up defendant; on December 22, 2003, defendant had a gun; Mr. Peralta drove defendant somewhere to get marijuana; upon returning from the trip to buy marijuana with Mr. Peralta, defendant said everything had gone bad; defendant had a gun with him when he returned; and defendant said, “‘Leticia, it’s bad . . . I just killed somebody.’” Ms. Kugler admitted she knew Mr. Peralta, Victor Corona, and Mr. Salazar at the time of the shooting.
Detective Martinez arrived at the murder scene. Two .22 caliber bullet casings were recovered from Mr. Wageman’s driveway. Mr. Wageman’s wallet was on the bar. The wallet contained $1,900 in cash. There was approximately $700 cash in the nearby coin bucket. The coin wrappers were actually stuffed with $10 bills.
Detective Martinez interviewed Ms. Kugler on September 1, 2004, regarding the incidents of December 22 and 23, 2003. Ms. Kugler did not know that her interview was being recorded. Ms. Kugler had been arrested on a parole warrant. Ms. Kugler was interviewed on a second occasion; again without knowledge that her interview was recorded. When Detective Martinez spoke to Ms. Kugler prior to her trial testimony, she indicated that she did not want to testify. Portions of the tape of the September 1, 2004 interview with Ms. Kugler were played for the jury at trial. A transcript of the specific segments of the interview played in court were also provided to the jurors.
During the actual interview, Ms. Kugler identified photographs of defendant, Mr. Peralta, and Mr. Salazar. Ms. Kugler related her conversations with defendant and observations around the time of the shooting. Defendant and Mr. Peralta left the motel to buy marijuana. Upon returning, defendant said he went inside and “just snapped.” The following day, defendant received a phone call. Defendant was “spooked.” Defendant said: “‘Leticia, it’s bad. I just killed somebody yesterday.’” Ms. Kugler said Mr. Peralta did not go inside and was not involved. Ms. Kugler believed that Mr. Salazar was with defendant and Mr. Peralta at the time. Ms. Kugler admitting she had been “holding” the gun used by defendant. Ms. Kugler said defendant told her if she opened her mouth she was dead. Ms. Kugler said that Mr. Corona was the other individual who was present at the scene of the murder.
Maria Salazar had known defendant for six years on December 23, 2003. Ms. Salazar went to the Good-Nite Inn on December 23, 2003, while on a day pass from a narcotics program. Ms. Salazar had previously lived with defendant. Ms. Salazar also knew David Reyes and Mr. Corona. Mr. Reyes and Mr. Corona were brothers. Ms. Salazar saw these individuals and Ms. Kugler at the Good-Nite Inn on that day.
Defendant was interviewed by Detective Martinez on separate occasions. On January 14, 2004, defendant identified himself at Christopher Malave. Defendant indicated that he had heard about some things that had occurred between two rival gangs in the area where he resided. After looking through a photo book depicting gang members, defendant identified two individuals by their gang names of “Casper” and “Gonzo.” Casper had come to defendant’s hotel room dressed like a ninja in dark clothing, beanie, and shoes. Defendant told Detective Martinez, “Yeah like he’d seen a ghost like he was really scared you know what I mean?” According to defendant, the person identified only as Casper said, “‘[M]e and my homie man we went to go do this jack move.’ . . . ‘for some money man some bud they have some good bud I heard they have some good bud.’”
Defendant claimed to Detective Martinez that Casper said: “[T]hey told us that two white boys that live in this fucking house they were weanies all we had to do was just point guns at them and they would run and leave and then leave and then the house would be ours to search OK and then so what happened? Well half of it was right he goes and what happened well as soon as we walked in the house with the guns. He said that one of the white guys charged at us man and I was like what He’s like I don’t know what else did he tell me? Yeah he said one of the guys charged and then uh uh one of the guys held his homeboy and that I guess had a gun too but he held him like got him in like you know in uh one of those wrestling type things where they . . .” Defendant related that Casper said: “[T]his guy starts fighting back well that became a problem and he said and when we started hitting him, and hitting him, with the guns and he wouldn’t let . . . his Dad even walked in and he said, and his Dad . . . he even had the, you he still had the strength to say, Dad call the cops, and he said while that shit um, he said started un like from the living room he goes, it ended up all the way in the driveway . . . [¶] outside, outside of the driveway and um he said that the only way he could get him off his homeboy, that his homeboy went up to him and told him, hey shoot him he’s not letting him go and he said he shot him. [¶] . . . [¶] Casper said he shot the dude[.]” Defendant indicated the incident occurred in Granada Hills. Defendant said that “Gonzo” was not present at the time of the shooting. But Gonzo had learned of the shooting from Casper. Detective Martinez later learned the individual known as Casper was in custody at the time of the murder.
Defendant was again interviewed by Detective Martinez on January 19, 2004. At that time, defendant admitted providing false names during the first interview. On this occasion, defendant claimed to have first learned of the killing from a person identified only as Rico. On July 16, 2004, defendant indicated a third individual named “Victor” [Corona], Mr. Reyes’s brother, provided the information about the murders. When Mr. Corona revealed the circumstances of the killing, Mr. Peralta was present according to defendant. On August 12, 2004, defendant identified photographs of Mr. Peralta.
In a fifth interview at Tehachapi state prison, defendant was advised of his constitutional rights. Defendant agreed to speak with the detectives and a deputy district attorney without counsel being present. The tape recording of that interview was played for the jurors at trial and a transcript was provided to them. During that interview, defendant initially denied any involvement in the murder. Defendant again identified “Victor” and Mr. Peralta as two of the individuals involved. Defendant also identified “Rudy” as being involved in the shooting. Defendant ultimately admitted accompanying Victor, Mr. Peralta, and Mr. Salazar to a Granada Hills home in a white “Pathfinder” car. Victor told defendant, “‘We’re gonna do a jacking.” They told defendant that they needed a lookout. Defendant and Mr. Salazar waited outside in the car. Mr. Salazar knew the victim and stayed in the car. Defendant said the other men had told him that they had seen a Sparklett’s bottle full of quarters at the home earlier. They intended to steal the money and marijuana.
III. DISCUSSION
A. Voluntariness of Defendant’s Statements to the Police
Defendant attacks the tactics of the prosecutor and police officers during the fifth interview at the prison in Tehachapi. Defendant argues it was improperly suggested that he “would receive a legal benefit if he confessed and would suffer a legal detriment” if he refused to confess. Defendant further argues that his confession was illegally coerced by these “pressure tactics.” We disagree.
Defendant was interviewed by investigators on five occasions. On each occasion, defendant waived his constitutional rights and agreed to talk about the killing of Mr. Wageman. Defendant filed a pretrial motion to suppress his confession alleging his statements were made as the result of psychological coercion. Defense counsel argued that as the fifth interview progressed, “[T]he investigative technique changes from asking questions to becoming very demanding and very overburdening, using swear words, indicating to [defendant] that this was a special circumstances, that [they] were talking about his life, that this was a life case.” The prosecution argued that the confession was voluntary based on the fact that defendant: had been advised of his constitutional rights on numerous occasions and prior to this interview; understood and waived his rights; “stood his ground” during the interview; was in state prison on another charge at the time of the fifth interview; was a sophisticated criminal; knew the officers; and had been interviewed and released on four prior occasions.
In denying the motion to suppress defendant’s statements made during the fifth interview, the trial court noted: “I’ve had the benefit of not just reading the transcripts, of course, but I have also listened to the tapes which is helpful in a situation like this because you get to hear not just – you don’t just get the sterile reading of the words, but you also get the inflection of voice and intonation and so on. [¶] I’m not persuaded there’s any undue coercion in this case. I think the statements are probably admissible, if that is the ground for seeking to exclude them, because it appears to me that the statements themselves were voluntary. Having had a chance to listen to the actual dialogue on the tapes, I’m satisfied that the defendant’s statements to the officer were voluntary. [¶] The words used, I guess, by both sides occasionally included four-letter words, things of that nature, swear words, but it’s the type of conversation I think you could expect to see on the streets, so to speak, between individuals who are considering themselves to be on equal footing, just have a conversation about a particular issue. They weren’t used, I think, in a way that was designed to coerce the defendant into making any statements. They were used really, I suppose, just to bring themselves either up to or down to the level of the defendant so they could be talking on equal footing. I guess it’s a common investigatory technique. [¶] And there doesn’t appear to be anything in the words of the officers or the situation involved that would render this particular statement involuntary.”
The California Supreme Court has held: “The Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make ‘inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.’ [Citations.] ‘Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the “totality of [the] circumstances.”’ [Citations.]” (People v. Sapp (2003) 31 Cal.4th 240, 267, quoting People v. Neal (2003) 31 Cal.4th 63, 67, 79; see Withrow v. Williams (1993) 507 U.S. 680, 688-690; People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on another point in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.) The prosecution has the burden of proving by a preponderance of the evidence that defendant’s statement was voluntary before it may be admitted into evidence. (People v. Sapp, supra, 31 Cal.4th 240, 267; People v. Williams (1997) 16 Cal.4th 635, 659; People v. Bradford (1997) 14 Cal.4th 1005, 1033.) If a statement is obtained by either express or implied threats or promises of leniency or the exertion of any improper influence, it is involuntary and therefore inadmissible. (See People v. Clark (1993) 5 Cal.4th 950, 988; People v. Benson (1990) 52 Cal.3d 754, 778; People v. Ramos (2004) 121 Cal.App.4th 1194, 1201-1202.) The California Supreme Court has also held: “Although false statements made by the police during questioning may affect the voluntariness of a defendant’s confession, ‘“they are not per se sufficient to make it involuntary.”’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1097, quoting People v. Farnam (2002) 28 Cal.4th 107, 182; People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.)
We independently review the trial court’s determination on the ultimate legal issue of voluntariness. (People v. Williams, supra, 16 Cal.4th at p. 659; People v. Benson, supra, 52 Cal.3d at p. 779.) However, we conduct a deferential review of factual issues: “[A]ny factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘“the characteristics of the accused and the details of the interrogation” [citation]” are subject to review under the deferential substantial evidence standard. [Citation.]” (People v. Williams, supra, 16 Cal.4th at p. 660; See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226, People v. Benson, supra, 52 Cal.3d at p. 779.) The California Supreme Court has held: “‘Under both state and federal law, courts apply a “totality of circumstances” test to determine the voluntariness of a confession. [Citations.] Among the factors to be considered are “‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’” [Citation.]’” (People v. Boyette (2002) 29 Cal.4th 381, 411, quoting People v. Massie (1998) 19 Cal.4th 550, 576; see also People v. Ramos, supra, 121 Cal.App.4th at p. 1202.)
Applying these considerations to defendant’s fifth interview here, we conclude that his confession was voluntary. Defendant initially used a false name when he went to the police voluntarily with information about the shooting. Defendant had spoken to the investigators throughout all of the interviews without hesitation. Defendant offered information regarding what he had “heard” from others about the shooting. Each interview brought either additional details or clarification from defendant. Likewise, in the fifth interview, defendant spoke with the investigators and the prosecutor without resistance. Defendant was read his constitutional rights, repeated the meaning of each right, and agreed to speak to his interlocutors. Detective Martinez explained that other individuals arrested for the crime had implicated defendant. Defendant reiterated that “Victor,” who is Mr. Corona, and “the little fat dude,” who is Mr. Peralta, Ms. Krugler’s brother-in-law, were the individuals that committed the murder.
Defendant argues that the detectives pressured him into confessing by telling him: others had implicated him; he had only four months left to serve on his current incarceration and would have to wait for two years before trial commenced in this case; his cell was four by six feet; it was about self-preservation and doing the right thing; the district attorney needed to get all the information or “you’re fucked”; and, this is a special circumstance case. Although the detectives said these things, none of them were collectively sufficient to make defendant’s statements involuntary. Defendant was not a naïve individual. Defendant was 32 years old. Defendant readily admitted his involvement with drug sales and use during the interviews. Defendant was in custody for parole violation at the time of his fifth interview. Defendant repeatedly told the detectives that he would not have given them information about a crime that would ultimately implicate him. The use of deception regarding the statements of others implicating defendant was not per se sufficient to make his confession involuntary. (People v. Farnam, supra, 28 Cal.4th at p. 182; People v. Musselwhite, supra, 17 Cal.4th at p. 1240.)
Moreover, there was no inference that defendant would receive leniency if he confessed. In People v. Hill (1967) 66 Cal.2d 536, 549, the California Supreme Court held: “When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible.” (See also People v. Jimenez, supra, 21 Cal.3d at p. 612; People v. Thompson (1890) 84 Cal. 598, 605-606; People v. Cahill (1994) 22 Cal.App.4th 296, 312.) Here, the detectives neither implied or promised that defendant would receive leniency if he confessed. The trial court could reasonably determine, based upon the totality of the circumstances, that defendant’s statements were voluntary. There was no evidence of overreaching, badgering, coercion, or conduct that would break defendant’s will. (See People v. Neal, supra, 31 Cal.4th at pp. 81-85; People v. Ramos, supra, 121 Cal.App.4th at p. 1202-1203.) No abuse of discretion occurred.
Moreover, even if defendant’s statements were involuntary, any error in admitting them into evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Neal, supra, 31 Cal.4th at pp. 86-87; People v. Flood (1998) 18 Cal.4th 470, 488-489; People v. Cahill, supra, 5 Cal.4th at pp. 509-510.) Defendant himself voluntarily provided the details of how the crime occurred during the first interview. Thereafter, he gave additional details that only someone involved would know. In addition, the victim’s father, Steven, identified defendant as one of the armed men involved in the home invasion robbery where Mr. Wageman was killed. Ms. Kugler told Detective Martinez that defendant and Mr. Peralta went to purchase marijuana. Defendant said he went inside and “just snapped.” The following day, defendant received a phone call. Defendant, who in Ms. Kugler’s words, was “spooked,” said: “‘Leticia, it’s bad. I just killed somebody yesterday.’”
B. Sufficient Evidence Supported the Special Circumstance Finding
Defendant argues that there was insufficient evidence he was a major participant and acted with reckless indifference to human life as required to support the special circumstance that the murder of Mr. Wageman was committed in furtherance of the attempted first degree robbery. Section 190.2, subdivision (a)(17)(A) provides for a special circumstance for first degree murder where: “The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit . . . . [¶] . . . Robbery . . . .” Section 190.2, subdivision (c) provides in pertinent part: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4. [¶] [E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefore, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.”
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Elliot, supra, 37 Cal.4th at p. 466; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in a determination of the sufficiency of the evidence to support a special circumstance finding. (People v. Mayfield (1997) 14 Cal.4th 668, 790-791; People v. Green (1980) 27 Cal.3d 1, 55, overruled on another point in People v. Morgan (2007) 42 Cal.4th 593, 611, and People v. Dominguez (2006) 39 Cal.4th 1141, 1155, and People v. Martinez (1999) 20 Cal.4th 225, 241.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
In People v. Estrada (1995) 11 Cal.4th 568, 577, the California Supreme Court described the reckless indifference element of a special circumstance allegation as follows: “[W]hen considered in its entirety–as the phrase is presented to the jury–‘reckless indifference to human life’ is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term ‘indifference,’ referring to ‘the state of being indifferent,’ is that which is ‘regarded as being of no significant importance or value.’ (Webster’s New Internat. Dict. (3d ed. 1981) p. 1151, col. 1.) To regard something, even to regard it as worthless, is to be aware of it. (See id. at p. 1911, col. 1 [‘regard’ is synonymous with ‘consider, evaluate, judge’].)” (See also Tison v. Arizona (1987) 481 U.S. 137, 158; People v. Proby (1998) 60 Cal.App.4th 922, 928 [fact that a co-defendant shot one of the victims where all the perpetrators were armed during a robbery and left the victim to die supported the finding that the murder was committed in furtherance of a robbery, the accused was a major participant, and acted with reckless indifference to human life]; see also People v. Bonilla (2007) 41 Cal.4th 313, 332 [special circumstance of lying in wait finding upheld despite fact that the defendant was not present but the actual killers abducted the victim after watchfully waiting]; People v. Hodgson (2003) 111 Cal.App.4th 566, 578-580 [the defendant held an electric gate to an underground garage open to aid the co defendant's escape after the victim was shot in the head]; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1081 [one victim shot at the defendant and struck the woman who was being held at gunpoint by the accused during a robbery]; People v. Mora (1995) 39 Cal.App.4th 607, 617 [defendant planned the home invasion robbery and failed to assist the victim after the shooting]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1753 [reckless indifference to human life demonstrated where: an unarmed defendant accosted a woman in a public restroom to rob her; a co defendant ran in and stabbed the victim; and the two perpetrators fled leaving the victim to die].)
In this case, there was substantial evidence defendant acted with others as a major participant in a robbery with reckless indifference to the life of Mr. Wageman, whom they attempted to rob. Defendant’s own statement demonstrated that: Mr. Corona and Mr. Peralta came “‘looking to buy a gun’”; defendant went to another room at the motel to find guns for them; the two men told him they planned to do a “‘jacking’” and needed a “‘look out’”; defendant inquired about what his role would be; defendant agreed to “‘just kick it in the car’”; Mr. Corona showed defendant a “Desert Eagle” gun; Mr. Peralta also was “packing” a gun; defendant stayed in the car with Mr. Salazar until gunfire erupted; Mr. Corona returned to the car covered in blood; and, Mr. Corona admitted shooting the victim. In addition, Mr. Ramirez testified that neither Mr. Peralta nor Mr. Salazar was present during the robbery. As noted above, Steven identified defendant as the armed individual. Defendant pointed a gun at Mr. Wageman’s head at the front door. Finally, Ms. Kugler told police that defendant had gone to get some “weed” with Mr. Peralta. Defendant told her that, once there, he “‘just snapped’” and killed someone. Regardless of whether defendant was merely a lookout or one of the assailants, this evidence demonstrates he knew that there was to be a robbery and that two of those involved were armed with guns. Defendant also knew that someone was injured so badly that Mr. Corona was covered with blood. Defendant did nothing to assist the victim. Rather, defendant rode away with his accomplices to a location where he got some marijuana then returned home. Substantial evidence supports the reckless indifference element of the robbery special circumstance finding.
C. Court Security Fees
The Attorney General argues and defendant concedes that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Alford (Dec. 3, 2007, S142508) __ Cal.4th ___, ___; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Although the abstract of judgment and minute order of June 19, 2006, indicate that the trial court imposed one section 1465.8, subdivision (a)(1) court security fee, the reporter’s transcript does not reflect such an order. Defendant was convicted of four counts. As a result, four section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is affirmed as modified to impose the court security fees as noted. The trial court is to personally insure a correct abstract of judgment is prepared and forwarded to the Department of Corrections and Rehabilitation.
We concur: ARMSTRONG, J., KRIEGLER, J.