Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. MA034561, Hayden A. Zacky, Judge.
Carla Castillo, under appointment by the Court of Appeal, for Defendant and Appellant Kimberli Linnell Baxley.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant Darrell E. Haynes.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellants Kimberli Linnell Baxley and Darrell Eugene Haynes appeal from the judgments entered following their convictions by jury on count 1 – first degree murder with a robbery special circumstance, count 2 – first degree residential robbery, and count 3 – grand theft of personal property, with admissions by Haynes that he suffered a prior felony conviction, a prior serious felony conviction, and six prior felony convictions for which he served separate prison terms. The court sentenced Baxley to prison for life without the possibility of parole, and sentenced Haynes to prison for life without the possibility of parole, plus 11 years. We modify the judgments and, as modified, affirm them with directions.
On July 15, 2010, Baxley filed a petition for a writ of habeas corpus (B225809) and, on July 20, 2010, this court ordered that her appeal and the petition be concurrently considered. The petition will be the subject of a separate order.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that in February 2006, Sean Spaniol, the decedent, lived in Lancaster with his mother Kathleen Yingling, and Todd Hudson. About 11:00 p.m. on February 13, 2006, Spaniol went by cab to a bar. About closing time, the cab driver picked up from the bar Spaniol, an African-American man, and two Caucasian women. Spaniol indicated to the driver that Spaniol and the others were going to his house to party. The driver eventually took the group to Spaniol’s house.
Ashley Jackson testified that, about February 13, 2006, she had been using cocaine with her friend Anthony Walker. During the early morning on February 14, 2006, Baxley called Walker. Walker had known Baxley for a few months. Baxley was a prostitute. During the call, Baxley asked Walker to bring her cocaine. Walker agreed to provide cocaine to Baxley, and Walker and Jackson drove to Spaniol’s house. Walker entered the house while Jackson waited.
At trial, Jackson testified that her preliminary hearing testimony that she did not know that Walker sold drugs was a lie.
Walker sold cocaine inside the house and later sent Baxley to get Jackson. Jackson knew Baxley “through the streets.” As the two entered the house, Baxley told Jackson that Baxley was “going to rob him.” Appellants, Spaniol, Walker, and Jackson used drugs. About 30 minutes later, Walker and Jackson left. About 5:00 a.m. or 6:00 a.m., Baxley called Walker and apparently asked for a ride to a motel. Walker and Jackson returned to Spaniol’s house and Walker honked the car’s horn.
Paul Lane, who was outside walking his dogs, heard the horn. Shortly thereafter, he saw a pillowcase fly over a wall and, when the pillowcase landed; items including a tool came out. An African-American man jumped over the wall and asked Lane if his dogs would bite, and a Caucasian woman on the wall giggled. The man put the items back in the bag. After Lane denied his dogs would bite, the man helped the woman down from the wall. The man and woman then left. Lane hurried home and asked his wife to call the sheriff’s department because he needed to report a burglary.
Jackson saw appellants jump over the wall and, at the time, Haynes was carrying two bags. Appellants were arguing as they entered Walker’s car. Walker drove to an alley where he and Haynes exited the car and put the bags in the trunk. Baxley was panicking and crying, and exited the car to vomit. Jackson testified that Baxley said, “I think we killed him.”
Appellants, Walker, and Jackson went to a Motel 6 and, once inside a motel room, appellants emptied the jewelry from the bags onto a bed. Haynes said it was okay to take the jewelry, but he was saving expensive jewelry for himself. Jackson took some of the jewelry. While the group was near the bed, Haynes said, “Kim really was stupid because she had a knife at first and dropped it and picked up a wrench.” Walker and Jackson later left.
Sometime after 6:28 a.m. on February 14, 2006, Los Angeles County Sheriff’s Deputy Miguel Ortega went to Spaniol’s house. Ortega saw Spaniol’s nude dead body in the master bedroom. A blood-soaked pillow was under Spaniol’s head and the bedroom had been ransacked.
The cause of Spaniol’s death was neck compression. Effects of cocaine and alcohol contributed to Spaniol’s death, as these substances impaired his ability to fight back. A laceration on Spaniol’s scalp could have been consistent with his having been hit on the head with a wrench.
Yingling returned home that morning and found out Spaniol was dead. Inside the master bedroom there was blood all over the carpet, a dresser, and a pillow. Her dresser drawers and her jewelry boxes had been ransacked. Yingling’s checks, jewelry, her mother’s death certificate, one of Hudson’s cell phones, and a pillowcase were missing. At least $5,000 worth of property had been taken from her home.
On March 20, 2006, a jailhouse conversation occurred between Haynes and Walker and, during that conversation, Haynes indicated the following concerning the events of February 14, 2006. Haynes and Spaniol got into an argument and a scuffle over money. Spaniol would not stop hollering, but Haynes tried to calm him. Haynes told Walker, “I’m not... leav[ing] no witness that can point us out or come get us in the street.” At some point, Haynes grabbed Spaniol to quiet him. Haynes wiped everything, except a beer bottle and a cigarette he had thrown in the trash. Haynes did not tell Walker that Haynes was going to rob Spaniol, but Haynes did say Haynes was thinking about it and it was on Haynes’s mind.
2. Defense Evidence.
a. The Testimony of Baxley.
In defense, Baxley testified that in December 2005, Brandon Willard and Baxley went to a Lancaster motel, Willard began drinking, and he assaulted Baxley. Police arrested Willard and took Baxley to a safe location. During cross-examination, the prosecutor without objection asked Baxley concerning this incident if “this is the same Brandon Willard that you came after with a hammer in Nashville, Tennessee, in 2005 and were arrested for aggravated assault?” Baxley replied, “I was arrested, but not convicted.” Baxley later testified without objection that she did not come after Willard with a hammer and smash down the bathroom door with a hammer, and that she did not admit to police that she had done this.
Over an unspecified objection by Haynes, Baxley testified “there were two arrests for domestic violence between [Baxley] and [Willard.]”
On February 13, 2006, Haynes met Spaniol at a bar. Appellants and Spaniol later went to Spaniol’s house where they smoked cocaine and drank alcohol. Walker later joined the group and, still later, Walker asked Baxley to get Jackson. Baxley did so but did not speak to her. The group smoked cocaine for perhaps about 30 minutes. Walker and Jackson then left, but appellants and Spaniol continued using cocaine.
Haynes later told Baxley that Spaniol wanted to have sex with her. Baxley agreed to do so for $80. After smoking cigarettes in the garage, appellants and Spaniol returned to the house to smoke cocaine. Baxley and Spaniol then entered the bedroom. Spaniol told Baxley that he had only $50. Baxley began to leave, but Spaniol grabbed her, pulled her back, and burned her finger with his crack pipe. Haynes entered the bedroom, Baxley told Haynes that Spaniol did not have the money, but Haynes left after convincing her to have sex with Spaniol.
Baxley and Spaniol removed their clothes, and Baxley sat near the bed. Spaniol tried to burn her with his crack pipe and Baxley told him to leave her alone. Spaniol burned her hand. Baxley stood, Spaniol grabbed her, and he pulled her onto the bed and got on top of her. Baxley tried to get Spaniol off of her.
Baxley screamed for Haynes. Haynes entered and told Spaniol to get off of her. Spaniol complied and Baxley got her clothes and began exiting the bedroom. Spaniol ran to Haynes, grabbed him, and threw Baxley against the door. Spaniol began hitting Haynes. Haynes held Spaniol to try to make Spaniol stop. Baxley ran to the kitchen and Haynes and Spaniol continued fighting.
Baxley called Walker and asked him to come and get appellants. When Baxley returned to the bedroom, Haynes had Spaniol on the floor and was trying to calm him, but Spaniol kept hitting Haynes. Haynes put his arm around Spaniol’s neck. Spaniol grunted but kept hitting Haynes. Haynes got up while Spaniol remained on the floor, and Baxley thought Spaniol was unconscious. Baxley left the bedroom, but Haynes remained there about five minutes. Appellants exited the house and Haynes was carrying a pillowcase. Appellants went over a wall, met a man walking his dog, entered Walker’s car, and went with Jackson to a Motel 6.
Baxley did not intend to rob Spaniol, did not rob him, and did not tell Jackson that Baxley intended to rob him. Appellants did not discuss robbing Spaniol. Baxley did not have a knife or wrench while she was in Spaniol’s house, and did not hit him with a wrench. Baxley did not hear Haynes say at the Motel 6 that she was stupid for dropping a knife and picking up a wrench.
b. The Testimony of Haynes.
In defense, Haynes testified that Spaniol, drunk, approached Haynes outside a bar and asked where drugs were. Haynes sold cocaine to Spaniol. Spaniol told Haynes that Spaniol wanted to have sex with a girl. Haynes told Spaniol that Haynes had Baxley and Dreamer. Eventually, appellants and Spaniol went to Spaniol’s house.
Appellants and Spaniol drank alcohol and smoked cocaine in excess of 45 minutes. Spaniol indicated to Haynes that Spaniol wanted to have sex with Baxley, and Haynes indicated it would cost $80. Baxley and Spaniol entered the bedroom, and Haynes assumed Spaniol and Baxley were having sex.
Haynes heard Baxley call him. He entered the bedroom and saw Spaniol on top of Baxley. Both were nude. Baxley told Haynes to get Spaniol off of her. Haynes complied, and Baxley grabbed her clothes and left the room.
Haynes asked Spaniol what happened, Spaniol expressed anger toward Baxley, and Haynes and Spaniol began arguing over money. Spaniol then attacked Haynes. Haynes grabbed him and the two wrestled. Haynes eventually put his arms around Spaniol’s neck and, as they wrestled, Spaniol’s head hit the door. Haynes flipped Spaniol to the floor, and Spaniol struck Haynes. Haynes told Spaniol to calm down and eventually pinned him down. Spaniol kept hitting Haynes and used a racial epithet to refer to him. Haynes was frightened and Spaniol eventually stopped moving. Haynes stood and, at that time, Spaniol was breathing. Haynes decided to steal jewelry and placed jewelry in a pillowcase. Appellants then left.
3. Rebuttal Evidence.
a. Anderson’s Testimony Regarding the Hammer Incident.
In rebuttal, Metropolitan Nashville-Davidson County Police Detective Mark Anderson testified that about 3:00 a.m. on February 24, 2005, he responded to a residence in Tennessee. Anderson saw that the bathroom door of the residence had been extensively damaged, and had been struck with a heavy object. Baxley told Anderson that Willard had entered the bathroom and its door was locked from the inside. Baxley, trying to get her phone, struck the door with a hammer.
b. The Jailhouse Conversation Between Haynes and Walker.
A tape of the entire jailhouse conversation between Haynes and Walker was played for the jury and, during that conversation, Haynes indicated as follows. Haynes and Spaniol got into a scuffle over money. Haynes claimed Baxley started it. First, Baxley had a knife behind her back. Haynes was called into the room. Haynes suggested appellants would “[g]et all the money.”
Spaniol had asked Baxley to get Spaniol a little girl with whom Spaniol could have sex, and Baxley became upset. About 30 minutes later, Baxley said, “ ‘Daddy, I’m gonna kill him. I’m gonna get ‘em Daddy.’ ” Baxley did not like Spaniol from the beginning. Spaniol and Baxley argued. She later returned with a monkey wrench.
Spaniol would not stop hollering, although Haynes tried to calm him. Haynes did not want Spaniol to get a nearby gun. Baxley said, “ ‘Kill him, kill him.’ ” Haynes said no one would do anything, but Spaniol kept hollering. Haynes and Spaniol began struggling and Spaniol bit Haynes. Haynes held Spaniol until he passed out. Baxley started it and Haynes finished it. Baxley also said, “Don’t kill him, don’t kill him.” Haynes told Baxley to shut up and made the previously mentioned statement about his not leaving a witness.
During the jailhouse conversation, Haynes told Walker, “Damn, I didn’t think she would do that. I was fixin’ to take him, I would hold the wrench.” (Sic.) Walker asked Haynes if “[s]he cracked him with the wrench[, ]” and Haynes replied, “She cracked him. I’m tellin’ you she flipped homie, once.” The transcript of the jailhouse conversation later reflects, “[Haynes:]... I was putting shit together it’s like she wanted me to do it. You know. (Laughing).” At the motel, Haynes told Baxley not to say anything.
c. Perry’s Interviews of Baxley.
On February 16, 2006, Los Angeles County Sheriff’s Sergeant Ken Perry interviewed Baxley twice. Tape recordings of the interviews were played to the jury. During the first interview, Baxley indicated, inter alia, as follows. Spaniol paid Baxley and the two had sex. Spaniol then began smoking cocaine and burning Baxley with his pipe. Spaniol apologized and tried to kiss her, but Baxley refused to kiss him and he became upset. Spaniol rose, smoked more cocaine, and called Baxley a bitch and a whore. Spaniol got on top of Baxley, and she told him to get off. Spaniol refused and Baxley yelled at him to get off of her. Spaniol told Haynes that Spaniol had paid for Baxley, and Baxley asked Haynes to get Spaniol off of her. Haynes pulled Spaniol off of Baxley, and she ran out of the room with her clothes. Baxley ran to the kitchen and dressed, and it sounded like Spaniol and Haynes were fighting. Appellants left the house and, when they climbed over the wall, Haynes was carrying a pillowcase which Baxley later found out contained jewelry.
Perry testified regular rock cocaine smokers have discoloration and calluses on their fingers. Baxley’s injury to her finger was consistent with her having held a crack pipe in that hand.
During the second interview, Baxley indicated as follows. As Haynes pushed Spaniol off of her, Spaniol told them that he wanted to see appellants have sex. Appellants initially agreed, then Baxley disagreed. Haynes left the room, Spaniol yanked Baxley onto the bed, used profanity, and called her a whore. Haynes returned and Baxley told him what happened.
Haynes and Spaniol began fighting. Haynes put his arm around Spaniol’s neck as Spaniol tried to hit Haynes. Baxley left the room to use the phone. When she returned, Haynes was choking Spaniol on the floor. Baxley told Haynes to release Spaniol, but Haynes stared at Baxley as if he did not recognize her. Baxley left and tried to call Walker on the phone to make Haynes stop. When Baxley returned, Spaniol appeared to be unconscious. Haynes was rifling through jewelry boxes and numerous objects, and was placing items in a pillowcase. Baxley did not know Haynes would take property.
We will present additional facts below where pertinent.
CONTENTIONS
Appellants claim the trial court erroneously (1) admitted evidence that Baxley demolished a bathroom door with a hammer, (2) excluded evidence of prior violence by Spaniol, (3) restricted appellants’ cross-examination of Jackson concerning her being a prostitute and her previous perjury, and (4) admitted evidence of Jackson’s prior consistent statements. Haynes claims the trial court erroneously failed to instruct on voluntary intoxication. Baxley claims the trial court erroneously failed to give various accomplice instructions regarding Haynes. Appellants also claim (1) the trial court erroneously gave CALCRIM No. 376, (2) the trial court erroneously instructed on mutual combat and contrived self-defense, (3) cumulative prejudicial error occurred, (4) there is insufficient evidence supporting their convictions for first degree murder, (5) there is insufficient evidence supporting appellants’ robbery special circumstance findings, and (6) appellants’ $10,000 Penal Code section 1202.45 parole revocation fines must be stricken.
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
DISCUSSION
1. Evidence of the 2005 Hammer Incident Was Properly Admitted to Impeach Baxley.
a. Pertinent Facts.
In defense, Baxley, during the afternoon court session on Thursday, January 22, 2009, testified at trial without objection concerning the 2005 Nashville, Tennessee hammer incident as set forth in our Factual Summary.
We take judicial notice that January 22, 2009 was a Thursday. (Evid. Code, §§ 451, subd. (f), 459, subds. (a), (c); People v. Hallman (1973) 35 Cal.App.3d 638, 641.)
Later, the prosecutor asked Baxley if the police report of the Nashville Police Department would refresh her recollection. Baxley’s counsel asked to see the report. The prosecutor indicated there were several reports and provided them to appellants.
During a sidebar conference, the court indicated appellants had had a brief opportunity to review the Tennessee police reports. Baxley noted a fax cover sheet indicated the reports had been sent to a detective at 1:30 p.m. on January 21, 2009. Baxley objected the prosecutor’s withholding of the Tennessee police reports was a discovery violation, asked that the court instruct the jury to disregard Baxley’s testimony on the issue, and moved for a mistrial.
The prosecutor indicated as follows. She had learned about January 19 or January 20, 2009 that something had occurred in Tennessee, but she did not know exactly what had happened until January 21, 2009. The prosecutor had intended to use the information only to impeach Baxley. The court indicated the People first became aware of the matter, and received the reports, on January 21, 2009, no discovery violation had occurred, and the People had turned over the reports as soon as had been practical. The court denied the mistrial motion.
On January 26, 2009, Baxley filed a document seeking sanctions against the People on the ground, inter alia, they had failed to provide the police reports earlier. The court ruled no discovery violation had occurred and the evidence was impeachment evidence to which Baxley was not entitled unless she testified. The court noted Baxley was in the best position to know about the information at issue. As to admissibility, the court ruled that evidence of the 2005 hammer incident was relevant to Baxley’s credibility and not excludable under Evidence Code section 352.
Baxley indicated the prosecutor had suggested she would call Tennessee police officers to testify. Baxley’s counsel commented that if there was going to be a “trial within a trial, ” he was entitled to introduce Tennessee medical reports and witnesses, and he wanted a continuance.
At a later Evidence Code section 402 hearing on January 26, 2009, Anderson, the Tennessee police officer, testified that on February 24, 2005, two assaults occurred. The first occurred when Willard assaulted Baxley. Willard subsequently took a phone into a bathroom, and Willard told Anderson that Willard had removed himself from the situation. According to Anderson, there was a break between that assault and the second assault which occurred when Baxley proceeded to use a hammer to try to get her phone from the bathroom.
Another officer testified concerning a June 1, 2005 incident during which Baxley threw a beer bottle at Willard.
The court indicated the second of the two assaults on February 24, 2005 was the hammer incident, and evidence of that incident was relevant and admissible solely on the issue of Baxley’s credibility because assault with a deadly weapon was a crime of moral turpitude and, even if Baxley did not commit that crime, she committed vandalism which was a crime of moral turpitude. As to the assault with a deadly weapon, the court observed Baxley was “attacking the door, presumably, to get to [Willard] inside.” The court also indicated evidence of the hammer incident was not excludable under Evidence Code section 352. The court further indicated that evidence of the hammer incident was inadmissible as propensity evidence to prove Baxley’s character for violence, and evidence of the first assault was irrelevant. The court again denied the mistrial motion.
Anderson later testified as to the hammer incident during rebuttal as reflected in our Factual Summary. Prior to, as well as following, said testimony, the court gave a limiting instruction indicating Anderson’s testimony was being admitted only on the issue of Baxley’s credibility. During said instruction which occurred prior to Anderson’s testimony, the court told the jury that his testimony was not admitted as propensity evidence. We will present additional facts below as pertinent.
Respondent indicates Baxley’s appellate counsel gave respondent a Tennessee case summary indicating the disposition of the case as “retired” and respondent asserts “This case summary does not appear to be in the record.”
b. Analysis.
(1) Evidence of the Hammer Incident Was Admissible.
Appellants claim the trial court erroneously admitted evidence that Baxley demolished a bathroom door with a hammer. To the extent appellants refer to Baxley’s cross-examination testimony as reflected in our Factual Summary, they waived any relevance, Evidence Code section 352, and/or due process issues by failing to timely object on those grounds when she so testified. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7 (Benson); Evid. Code, § 353.)
To the extent appellants refer to Anderson’s rebuttal testimony concerning the hammer incident, his testimony provided evidence that Baxley, ostensibly in an effort to get her phone, extensively damaged the bathroom door with a hammer after Willard entered the bathroom and locked the door. The jury was not obligated to believe Baxley merely was trying to get her phone, and reasonably could have believed she damaged the door as part of a continuing effort to enter the bathroom and assault Willard with the hammer.
“Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352. (See People v. Wheeler (1992) 4 Cal.4th 284, 295–296.)” (People v. Harris (2005) 37 Cal.4th 310, 337.) Assault with a deadly weapon is a crime of moral turpitude. (People v. Elwell (1988) 206 Cal.App.3d 171, 175.) A hammer can be a deadly weapon. (People v. Van Every (1933) 133 Cal.App. 354, 357.) Vandalism is a crime of moral turpitude. (Cf. People v. Campbell (1994) 23 Cal.App.4th 1488, 1491-1493.)
As for Evidence Code section 352, the 2005 hammer incident to which Anderson testified was recent. Its facts were not more inflammatory than the present offenses. The trial court repeatedly admonished the jury that Anderson’s testimony was being admitted only on the issue of credibility. The jury is presumed to have followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) When a trial court resolves an Evidence Code section 352 issue, all that is required is that the record demonstrates the trial court understood and fulfilled its responsibilities under Evidence Code section 352. (People v. Williams (1997) 16 Cal.4th 153, 213.)
Moreover, the trial court was not compelled, under Evidence Code section 356 or otherwise, to admit evidence of Willard’s assault upon Baxley. The trial court reasonably could have concluded that that was a separate assault, and one which did not involve the same subject as the hammer incident and did not bear on Baxley’s credibility. (See People v. Samuels (2005) 36 Cal.4th 96, 130; People v. Maury (2003) 30 Cal.4th 342, 419; People v. Parrish (2007) 152 Cal.App.4th 263, 274.) The trial court did not err or abuse its discretion by admitting the challenged evidence, and application of the ordinary rules of evidence, as here, did not violate appellants’ constitutional rights to due process and a fair trial (cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428).
Finally, even if the admission in evidence of Baxley’s cross-examination testimony, and Anderson’s rebuttal testimony, concerning the hammer incident was erroneous, it does not follow that reversal of the judgments is warranted. The jury heard Baxley deny that she came after Willard with a hammer or used one to smash down the bathroom door. The jury also heard Baxley’s testimony that there were two arrests for domestic violence between her and Willard, suggesting Willard too had been arrested in connection with the 2005 incident.
We note the court instructed the jury on first degree murder predicated upon, inter alia, a felony murder theory based on robbery. Shortly after the prosecutor began his opening argument to the jury, he told them to consider the charge of first degree felony-murder based on robbery because if the jury convicted appellants on that charge, the jury did not have to be concerned about the other murder instructions. The prosecutor concluded his opening and closing arguments by asking the jury to convict appellants of first degree felony murder, and did not ask them to convict appellants of first degree premeditated murder. Appellants, noting they were convicted of first degree robbery, and first degree murder with a robbery special circumstance, concede “the jury must have considered the felony-based theory as a first order of business[.]” Appellants fail to explain how the alleged error at issue impacted the felony-murder theory of first degree murder.
Further, there was substantial evidence as follows. Baxley told Jackson that Baxley was going to rob Spaniol. Baxley hit Spaniol on the head with a wrench. The laceration on Spaniol’s head could have been consistent with him having been hit on the head with a wrench. Haynes choked Spaniol, killing him. It appeared Baxley wanted Haynes to do this. Appellants stole $5,000 worth of items from the house. When Haynes threw the pillowcase over the wall, Lane saw a tool fall out. Appellants jumped over the wall, with Baxley giggling. Baxley told Jackson, “I think we killed him.” Later in the motel room, appellants emptied the jewelry from the bags onto the bed. Baxley did not deny Haynes’s statement that “Kim really was stupid because she had a knife at first and dropped it and picked up a wrench.” Baxley’s failure to deny Haynes’s statement was an adoptive admission. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. Riel (2000) 22 Cal.4th 1153, 1189.)
During Haynes’s conversation with Walker, Haynes told Walker that Haynes was thinking about robbing Spaniol and this was on Haynes’s mind. Haynes also indicated he would leave no witness. The jury reasonably could have construed the latter statement to mean Haynes would murder Spaniol to leave no witness to appellants’ other crimes, i.e., robbery and grand theft. Haynes also indicated Baxley started the scuffle and had a knife behind her back, then Haynes was called into the room. Haynes indicated they were going to get all the money. At one point, Baxley said she was going to kill Spaniol. She entered the room with a monkey wrench. She told Haynes to kill Spaniol. After the killing, Haynes wiped almost everything and told Baxley not to say anything, evidencing his consciousness of guilt. Appellants’ respective statements and testimony contained conflicts evidencing consciousness of guilt, and the jury reasonably could have concluded that portions of their statements and testimony were fabricated.
In sum, even without the challenged evidence, there was ample evidence that appellants committed first degree premeditated murder with a robbery special circumstance, including ample evidence of intent to kill and reckless indifference to human life required by the robbery special circumstance. Any trial court error in admitting the challenged evidence was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
(2) No Prejudicial Discovery Violation Occurred.
Appellants claim a discovery violation occurred when the prosecutor withheld the Tennessee police reports in violation of Baxley’s “long-standing discovery request for any arrests and convictions Baxley had suffered.” We disagree.
We generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard, and a trial court may, in the exercise of its discretion, consider a wide range of sanctions in response to the prosecution’s violation of a discovery order. (People v. Ayala (2000) 23 Cal.4th 225, 299.) Moreover, the usual remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance (People v. Robbins (1988) 45 Cal.3d 867, 884), and a trial court has broad discretion to grant or deny one. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.)
The burden is on appellants to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) No written informal or formal discovery request is part of the record before this court. Appellants have failed to demonstrate Baxley had a “long-standing discovery request for any arrests and convictions Baxley had suffered.” Even if such a discovery request had existed, appellants have failed to demonstrate Baxley had suffered a conviction in connection with the hammer incident or, a fortiori, that the prosecutor committed a discovery violation by withholding information about any such conviction. Baxley concedes there is no evidence she suffered a conviction as a result of the February 2005 hammer incident. Nor was she impeached with any such conviction.
Baxley does not expressly claim any prosecutorial violation of any particular provision of the discovery statute, i.e., section 1054.1. Appellants have failed to demonstrate that “arrests and convictions” of Baxley fell within the scope of section 1054.1, and because the record does not establish the existence of undisclosed evidence properly discoverable under that statute, no discovery violation of that section occurred. (Cf. People v. Tillis (1998) 18 Cal.4th 284, 287, 292.)
Moreover, fairly read, the record reflects the prosecutor’s office had not received the Tennessee police reports until 3:30 p.m. on January 21, 2009, and the prosecutor first personally received them later, i.e., after the afternoon court session that day. Although the trial court concluded no discovery violation had occurred and did not grant a continuance, the court noted it was closed the next day and gave Baxley the weekend to obtain any evidence concerning her arrest in connection with the hammer incident. The court noted Baxley was in the best position to know about the information at issue. There was ample evidence supporting appellants’ convictions and the jury’s findings. The trial court did not abuse its discretion by concluding no discovery violation occurred, and any discovery violation was not prejudicial. (Watson, supra, 46 Cal.2d at p. 836.)
None of the cases cited by Baxley compels a contrary conclusion. This includes In re Steele (2004) 32 Cal.4th 682, People v. Santos (1994) 30 Cal.App.4th 169, and People v. Hayes (1992) 3 Cal.App.4th 1238.
2. The Trial Court Did Not Erroneously Exclude Evidence of Prior Violence by Spaniol.
a. Pertinent Facts.
On January 21, 2009, Baxley effectively filed a motion to permit her to introduce (1) evidence of Spaniol’s April 1998 conviction for criminal threats (§ 422) against Cheryl Lewis and (2) Lewis’s testimony concerning the matter. (We refer to said conviction and testimony as the criminal threats evidence.) Baxley indicated as follows. A defense to murder was that Haynes was acting in defense of a third party, i.e., Baxley. The criminal threats evidence was relevant and admissible propensity evidence of Spaniol’s character for violence against women under Evidence Code section 1103 to show Spaniol was the aggressor in the present case.
At the January 21, 2009 hearing on the matter, the court noted the following. The pertinent police report, dated January 5, 1998, reflected Spaniol was the house guest of Lewis, the victim, and was told to leave. Spaniol vandalized the location and cut wires in the garage. Lewis found a note which Spaniol had written to her. The note said, “Did you know how bad I could screw you? Fire. Thievery.” The prosecutor indicated none of the events involved a personal confrontation between Spaniol and Lewis.
The court indicated the criminal threats evidence was evidence of Spaniol’s character for making threats, but not his character for violence. The court concluded the criminal threats evidence was not propensity evidence for purposes of Evidence Code section 1103. The court also concluded that, even if the criminal threats evidence was not inadmissible under Evidence Code section 1103, said evidence was excludable under Evidence Code section 352. Regarding the latter section, the court indicated the relevance of the criminal threats evidence was tangential and marginal, said evidence involved a remote incident, and the probative value of the evidence was substantially outweighed by the confusion of issues and undue consumption of time which would result absent exclusion.
Baxley represented that Spaniol had cut the wires and placed them under a throw rug where they presented a risk of arson. The court noted the present case involved prostitution and drug use, the Lewis incident did not, and the Lewis incident involved Spaniol being evicted. Baxley represented Lewis would testify she asked Spaniol to leave because she had discovered drugs he was using, and Spaniol became aggressive and exhibited threatening behavior when he used drugs and was drinking. The court denied Baxley’s motion.
b. Analysis.
Appellants claim the trial court, by its denial of Baxley’s above motion, erroneously excluded, under Evidence Code sections 1103 and 352, the criminal threats evidence and thereby violated appellants’ constitutional rights to present a defense and to due process. We conclude otherwise.
Haynes never sought admission of the criminal threats evidence and never joined Baxley’s motion. Haynes waived the issues, constitutional or otherwise, which he now raises. (Cf. Benson, supra, 52 Cal.3d at pp. 786-787, fn. 7; Evid. Code, § 353.) The fact Haynes may have joined in Baxley’s motion for a new trial that presented these issues did not preserve them for appellate review. (People v. Memory (2010) 182 Cal.App.4th 835, 856, fn. 6 (Memory).)
As to the merits, and assuming arguendo the trial court erred by concluding the criminal threats evidence was not propensity evidence, we review a trial court’s ruling on an Evidence Code section 352 issue for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 723-724 (Waidla).)
The criminal threats evidence pertained to a 1998 incident, i.e., an incident that occurred about eight years before the present offenses. Spaniol did not, during the 1998 incident, assault a person. Instead, he committed property damage and suggested a threat of physical violence. The trial court reasonably concluded the criminal threats evidence was tangential and marginal, and that the probative value of the evidence was substantially outweighed by the confusion of issues and undue consumption of time which would result absent exclusion.
The trial court did not abuse its discretion by excluding the criminal threats evidence, and the application of ordinary rules of evidence, as here, did not violate appellants’ constitutional rights to present a defense and to due process. Moreover, as discussed previously, there was ample evidence supporting appellant’s convictions and the jury’s findings, and this is true with or without the criminal threats evidence. That ample evidence included evidence that appellants committed first degree felony murder, a theory of first degree murder as to which the criminal threats evidence would have been largely irrelevant. Haynes concedes the criminal threats evidence did not impact his convictions for robbery and grand theft. Exclusion of the criminal threats evidence was not prejudicial. (Watson, supra, 46 Cal.2d at p. 836.)
3. The Trial Court Did Not Erroneously Restrict Appellants’ Cross-Examination of Jackson.
a. Pertinent Facts.
On January 9, 2009, shortly after the jury was sworn and outside the presence of the jury, the court and parties discussed unresolved issues and the court tentatively ruled that “With respect to Ashley Jackson’s prostitution past, that’s not relevant.” However, the court indicated if it was notified Jackson had suffered a conviction for prostitution, the court would determine whether the conviction was admissible to impeach her. Appellants did not challenge the tentative ruling or indicate they wished to be heard further on the issue.
The next day, outside the presence of the jury, the court returned to the issue of “whether or not [Jackson] ever engaged in prostitution.” The court indicated the prosecutor had provided, and the court had reviewed, Jackson’s rap sheet. The court indicated the rap sheet did not reflect any contacts involving prostitution. The court then stated, “Not only are there no convictions, there are no arrests for prostitution either. So I will not allow that to come in.” Appellants did not challenge the court’s ruling and indicated they did not wish to be heard further on the issue.
In her motion for a new trial, Baxley indicated Jackson had denied at the preliminary hearing that Jackson was a prostitute, and Baxley wanted to present evidence at the trial that Jackson’s denial was a lie. Baxley claimed the trial court, in violation of her rights to cross-examination and a fair trial, erroneously had refused to permit her to cross-examine Jackson regarding Jackson’s denial, and erroneously had refused to permit Baxley to present testimony from Tikia Venable to refute Jackson’s denial. Baxley argued Jackson’s denial was perjury. The court, indicating it had already ruled on the matter, denied the motion.
b. Analysis.
Appellants claim the trial court’s two above mentioned refusals were error and precluded Baxley from presenting evidence of Jackson’s perjury, thereby violating appellants’ constitutional rights to confrontation, a fair trial, due process, and to present a defense. The claim is unavailing. Appellants did not, on January 9, 2009, challenge the court’s tentative ruling, nor did they, on January 10, 2009, challenge the court’s final ruling. Appellants never raised on either of those dates any issues concerning Jackson’s preliminary hearing testimony, cross-examining her at trial concerning her preliminary hearing testimony, or any anticipated testimony from Venable. Appellants waived the issues. (Cf. People v. Morrison (2004) 34 Cal.4th 698, 711; People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10; Evid. Code, § 354.) The fact appellants may have raised these evidentiary issues by way of a motion for a new trial did not preserve them for appellate review. (Memory, supra, 182 Cal.App.4th at p. 856, fn. 6.)
Even if the issues were not waived, and even if trial testimony by Venable that Jackson was a prostitute could have impeached a denial by Jackson at the preliminary hearing that Jackson was a prostitute, Venable’s testimony would not have demonstrated Jackson committed perjury, since Venable’s testimony could have been false. Even if Venable’s testimony were true, it could not have sufficed alone to prove Jackson committed perjury (§ 118, subd. (b)).
Moreover, as respondent observes, the jury already had heard significant evidence casting doubt on Jackson’s credibility, and reasonably might have inferred from such evidence that Jackson was a prostitute. The issue of whether Jackson truthfully denied at the preliminary hearing that she was a prostitute was a minor or subsidiary point, and any exclusion of evidence on that issue did not violate appellants’ constitutional rights. (Cf. People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) There was ample evidence supporting appellants’ convictions and the jury’s findings. Any trial court error in excluding the challenged evidence was not prejudicial. (Watson, supra, 46 Cal.2d at p. 836.)
4. The Trial Court Properly Admitted Evidence of Jackson’s Prior Consistent Statements.
a. Pertinent Facts.
According to the evidence presented at the trial, on March 2, 2006, Sergeant Perry interviewed Jackson. She gave a statement before entering into an agreement pursuant to which, on March 27, 2006, she pled guilty to receiving stolen property, a misdemeanor. She originally had been charged with that offense as a felony. There is no dispute that in August 2006, Jackson testified at appellants’ preliminary hearing. In 2006, she testified at the trial.
During Haynes’s cross-examination of Jackson, she testified she spoke to detectives because she was concerned about the truth and what would happen to her. Detectives told her that they strongly believed she had some part in the murder. Jackson did not want to be charged with murder. Jackson indicated she settled her case in return for pleading to a misdemeanor.
During redirect examination of Jackson, she testified without objection that, at the preliminary hearing, she testified that when she went to the house on the first occasion, Walker entered the house and Jackson sat in the car. The prosecutor then asked Jackson, “Did you also testify -- ” but Baxley’s counsel objected “That’s not prior consistent testimony.” The court overruled the objection. Jackson, without further objection, gave additional testimony as to what she testified at the preliminary hearing.
In particular, Jackson testified that, at the preliminary hearing, she testified that before going to the house, she had been using cocaine with Jackson for one and one-half days; after a period, Baxley exited the house to get Jackson; while going into the house with Jackson, Baxley said Baxley was going to rob the man; everyone was doing drugs in the dining room; everyone but Jackson was drinking; the “white guy was real nice and friendly”; and there were no problems with anyone sitting around the table. After leaving the house, Jackson rode around and used drugs; they returned to the house during sunrise after receiving a telephone call; they stayed in the car and saw appellants jump over the wall with bags in their hands; after Haynes jumped over the wall, Jackson observed blood on his T-shirt and a scratch on his face; appellants brought the bags into the car, and Haynes and Walker later put the bags in the trunk; and Baxley then commented, “I think we killed the guy.” They ended up at Motel 6 and the bags were emptied onto the bed; Jackson took some jewelry; and, in the room, Haynes said Baxley was stupid, she had had a knife, she dropped it, and then picked up a wrench.
The prosecutor later posed multiple questions to Jackson about whether she made various statements to police during her March 2, 2006 interview, to which questions Jackson replied yes. Baxley posed an unspecified objection, the prosecutor indicated he was seeking to introduce the statement as a prior consistent statement, and the court overruled Baxley’s objection. Baxley’s counsel stated, “I think it’s going way beyond, ” but the court overruled the objection. Outside the presence of the jury, the court indicated it had permitted the last series of questions and answers during redirect as prior consistent statements because there had been an express or implied charge that Jackson’s testimony had been recently fabricated or influenced by bias or other motives.
b. Analysis.
Appellants claim the trial court erred by admitting Jackson’s testimony relating her above police interview statements and preliminary hearing testimony as prior consistent statements, thereby violating appellants’ right to due process. We conclude otherwise. Haynes never objected to the admission of the statements or testimony; therefore, he waived the issues, constitutional or otherwise, which he now raises. Similarly, Baxley never raised any constitutional objection; therefore, she waived any constitutional issues.
Even assuming the issues as to each question and answer were preserved for appellate review, a witness’s prior consistent statement is admissible at a trial to support the witness’s credibility, notwithstanding the hearsay rule, when a charge has been made that the trial testimony has been recently fabricated or influenced by bias or other improper motive, and the statement preexisted the alleged bias or improper motive. (Evid. Code, §§ 791, 1236.) We review a trial court’s refusal to admit evidence under these statutes for abuse of discretion. (Waidla, supra, 22 Cal.4th at p. 725.)
There is no dispute the challenged police interview statements and preliminary hearing testimony by Jackson were consistent with her trial testimony. Nor is there any dispute there was an implied charge that said trial testimony had been recently fabricated or influenced by bias or other improper motive.
As for the police interview statements, they preexisted the alleged bias or improper motive arising from Jackson’s favorable plea bargain. Appellants concede Jackson’s negotiated guilty plea resulted in a dramatically reduced charge. They also concede there was evidence of an intervening motive to fabricate. Accordingly, the police interview statements were prior consistent statements and their admission in evidence was proper. (Cf. People v. Hayes (1990) 52 Cal.3d 577, 609.) Moreover, application of the ordinary rules of evidence, as here, generally does not impermissibly infringe on a defendant’s right to due process.
There is no need to decide whether the challenged preliminary hearing testimony was admissible. Even if the challenged police interview statements and preliminary hearing testimony were inadmissible as urged, they were substantially similar to Jackson’s trial testimony; therefore, they were largely cumulative. (Cf. People v. Andrews (1989) 49 Cal.3d 200, 211.) There was ample evidence supporting appellants’ convictions and the jury’s findings. Any trial court error in admitting the challenged evidence was not prejudicial. (Watson, supra, 46 Cal.2d at p. 836.)
5. The Court Properly Gave CALJIC No. 376.
The court gave CALJIC No. 376, pertaining to conscious possession of recently stolen property as evidence of a crime. Appellants claim it was error to give this instruction because it erroneously permitted the jury to convict appellants of robbery, and felony murder based on robbery, and erroneously permitted the jury to find true the robbery special circumstance allegation, despite defense evidence that no robbery occurred because appellants’ intent to steal arose only after force was applied to Spaniol. We disagree.
There was ample evidence appellants intended to rob Spaniol when appellants applied force to him. The jury was not obligated to believe any defense evidence that appellants formulated their intent to steal only after force was applied to Spaniol.
CALCRIM No. 376 applies not only to the crime of theft, but to a theft-related offense such as robbery. (People v. Barker (2001) 91 Cal.App.4th 1166, 1176 (Barker).) Concerning the predecessor of CALCRIM No. 376, i.e., CALJIC No. 2.15, People v. Prieto (2003) 30 Cal.4th 226, 248 (Prieto) stated, “We have approved the use of CALJIC No. 2.15 with respect to theft offenses because, ‘[w]ith the inference from the knowledge and conscious possession of [stolen] property, and slight additional evidence as corroboration, the intent to steal, identity, and the determination a defendant committed the acts necessary to constitute robbery... have been found to naturally and logically flow....’ (Barker, supra, 91 Cal.App.4th at p. 1176, fn. 6.)” (Prieto, supra, 30 Cal.4th at p. 249.)
That is, when the predicate facts exist, a jury reasonably may conclude beyond a reasonable doubt that the defendant is guilty of robbery. (Barker, supra, 91 Cal.App.4th at p. 1173.) This means a jury reasonably may infer, inter alia, the existence of the elements of force or fear, and intent to steal. But such force and intent do not establish a robbery absent concurrence of the force and intent. Since the jury reasonably may conclude the defendant is guilty of robbery, the jury reasonably may infer the requisite concurrence of force and intent to steal. CALCRIM No. 376 properly permitted the jury to convict appellants of robbery if the instruction’s predicate facts existed. Similarly, the instruction properly permitted the jury to find appellants committed the robbery underlying first degree felony murder based on robbery, and the robbery special circumstance.
CALCRIM No. 376 did not lower the prosecution’s burden of proof or absolve the prosecution of its burden of establishing guilt beyond a reasonable doubt, and the instruction was based on a logical connection between conscious possession of recently stolen property and whether a defendant intended to steal at the time force was applied. (Cf. Prieto, supra, 30 Cal.4th at pp. 248-249.) The trial court did not err, in violation of the Fifth, Sixth, or Fourteenth Amendment, or otherwise, by giving CALCRIM No. 376 to the jury.
Finally, even if the trial court erred by giving the instruction, there was ample evidence that appellants harbored an intent to steal when force was applied to Spaniol. The court instructed the jury on the elements of the offense of robbery (CALCRIM No. 1600), the sufficiency of circumstantial evidence to prove intent or a mental state (CALCRIM No. 225), the union of act and intent (CALCRIM No. 251), and the presumption of innocence and the People’s burden of proof beyond a reasonable doubt (CALCRIM No. 103). Any trial court error in giving CALCRIM No. 376 was not prejudicial. (Cf. Watson, supra, 46 Cal.2d at p. 836.)
6. The Trial Court Did Not Erroneously Fail to Instruct that Haynes Was an Accomplice Whose Statements Incriminating Baxley Had to Be Corroborated and Viewed With Caution.
The court gave a modified CALCRIM No. 334, the heading of which was “accomplice testimony must be corroborated: dispute whether witness is accomplice.” (Capitalization omitted.) The instruction did not expressly refer to Haynes.
Baxley claims the trial court prejudicially erred by failing to instruct that Haynes was an accomplice whose statements incriminating Baxley had to be corroborated and viewed with caution. We disagree. First, this is not a case in which the trial court gave no accomplice instructions. The court gave the modified CALCRIM No. 334. That instruction contained only two sentences referring to Jackson and Walker. The rest of the instruction advised the jury concerning principles applicable to accomplice testimony generally, including the requirements that such testimony must be corroborated and viewed with caution. To the extent Haynes was an accomplice (and there is no dispute he was), those general principles applied to him. Although Baxley’s challenge pertains to Haynes’s statements, not to his testimony, the jury was nonetheless alerted by CALCRIM No. 334 that, as a class, accomplices present credibility issues not shared by nonaccomplice witnesses.
Second, a trial court’s failure to instruct that accomplice testimony must be corroborated and viewed with caution is not prejudicial if the testimony is sufficiently corroborated. (People v. Lewis (2001) 26 Cal.4th 334, 370 (Lewis).) There is no dispute a similar analysis applies to a trial court’s failure to instruct regarding an accomplice’s statements. Corroborating evidence may be slight and entirely circumstantial, and need not be sufficient to establish every element of the charged offense. (Id. at p. 370.) Only a portion of the accomplice’s statement need be corroborated (cf. People v. DeJesus (1995) 38 Cal.App.4th 1, 25), and the corroborating evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (Lewis, at p. 370.)
Insofar as corroboration is the issue, we have set forth the pertinent facts in our Factual Summary and have alluded to some of them in that portion of part 1 of our Discussion in which we concluded that any error in the admission of evidence of the hammer incident was not prejudicial. Those facts demonstrate Haynes’s statements were adequately corroborated.
Insofar as the court did not instruct the jury to view Haynes’s statements with caution, we note the evidence at the trial established that between 1989 and 2000, Haynes had suffered convictions for selling marijuana, first degree residential burglary, petty theft with a prior conviction, and receiving stolen property. He testified he sold cocaine to Spaniol. Any trial court failure to instruct the jury that Haynes’s statements had to be viewed with caution was not prejudicial. (Cf. People v. Miranda (1987) 44 Cal.3d 57, 101.) Nor did any trial court failure in this regard violate appellants’ rights to due process.
7. The Trial Court Did Not Err by Failing to Instruct on Voluntary Intoxication.
Haynes did not request that the court give, and the court did not give, to the jury an instruction relating voluntary intoxication to the issues of premeditation, deliberation, intent to kill, or intent to rob. Haynes appears to claim the trial court’s failure to give such an instruction was error, and Haynes claims his trial counsel’s failure to request such an instruction constituted ineffective assistance of counsel. We reject the claims.
Haynes was entitled to such an instruction only if he requested it. He did not. The trial court did not err by failing to give such an instruction sua sponte. (People v. Hughes (2002) 27 Cal.4th 287, 342 (Hughes).)
As for Haynes’s ineffective assistance claim, the record sheds no light on why his trial counsel failed to request a voluntary intoxication instruction, counsel was not asked for an explanation, and we cannot say there simply could not have been a satisfactory explanation. Indeed, on this record, his trial counsel reasonably could have concluded the trial court properly would have denied any such request. For example, even if there was substantial evidence that Haynes had become voluntarily intoxicated, his trial counsel reasonably could have believed that, given the detail of the evidence concerning what happened at the time of the killing and the detail of Haynes’s alleged memory concerning what happened, there was no substantial evidence Haynes became intoxicated to the point he failed to formulate the mental states at issue. (Cf. People v. Marshall (1996) 13 Cal.4th 799, 848; People v. Ivans (1992) 2 Cal.App.4th 1654, 1661-1662.) There was ample evidence supporting appellants’ convictions and the jury’s findings. No ineffective assistance occurred. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219 (Slaughter).)
8. The Court Did Not Err by Giving CALCRIM Nos. 3471 and 3472.
The trial court gave the jury CALCRIM No. 3471 on the right of self-defense in the context of mutual combat or an initial aggressor, and CALCRIM No. 3472 concerning the fact that the right of self-defense may not be contrived. Appellants claim this was error. We disagree.
We have set forth the pertinent facts in our Factual Summary. The jury was free to accept or reject all or part of the evidence, including appellants’ statements and testimony, and was free to draw all rational inferences from the evidence. The jury reasonably could have believed that appellants, working together, were the initial aggressors, and that they provoked a fight or quarrel pursuant to an intent to create an excuse to use force against Spaniol, thereby negating any right of self-defense (or right to defend a third party). The trial court did not err by giving the challenged instructions, nor did the giving of those instructions violate appellants’ Sixth Amendment rights to a jury trial or appellants’ rights to due process.
Moreover, even if the trial court erred by giving the challenged instructions, and notwithstanding any self-defense (or defense of a third party) evidence, there was ample evidence supporting appellants’ convictions and the jury’s findings. We note self-defense is inapplicable as a defense to felony murder based on robbery (People v. Loustaunau (1986) 181 Cal.App.3d 163, 170), the sole theory of first degree murder which the prosecutor argued to the jury. Any trial court error in giving the challenged instructions was not prejudicial. (Watson, supra, 46 Cal.2d at p. 836.)
9. Sufficient Evidence Supported Appellants’ Convictions for First Degree Felony Murder and the Robbery Special Circumstance Finding.
Appellants present related claims that there was insufficient evidence supporting their convictions for first degree felony murder and insufficient evidence supporting their robbery special circumstance findings. Appellants’ insufficiency claims are essentially based on the argument there was insufficient evidence that appellants harbored an intent to take property from, or rob, Spaniol before he was mortally wounded. We reject the claims.
When a person kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery. (Hughes, supra 27 Cal.4th at p. 357.) We have set forth the pertinent facts in our Factual Summary, and conclude there was sufficient evidence supporting appellants’ convictions for first degree murder (based on felony murder and premeditated murder theories) and the jury’s robbery special circumstance findings.
10. Imposition of Section 1202.45 Parole Revocation Fines Was Error.
Each of appellant’s sentences included a prison term of life without the possibility of parole as to count 1, a $10,000 section 1202.4, subdivision (b) restitution fine, and a $10,000 section 1202.45 parole revocation fine. Appellants claim imposition of the section 1202.45 parole revocation fines was error because their respective sentences included a term of life without the possibility of parole. We accept respondent’s concession on the issue (People v. Jenkins (2006) 140 Cal.App.4th 805, 819), and we will modify the judgment accordingly.
To the extent appellants claim they were denied effective assistance of counsel by any waiver of issues resulting from any failure by trial counsel to properly challenge during trial (1) the exclusion from evidence of the criminal threats evidence at issue in part 2 of our Discussion and/or (2) the admission in evidence of the prior consistent statements at issue in part 4 of our Discussion, we conclude, based on those respective discussions, that no prejudicial constitutionally defective assistance occurred. (See Slaughter, supra, 27 Cal.4th at p. 1219.) Moreover, in light of our resolution of appellants’ other contentions, we reject their contention that cumulative prejudicial error occurred.
DISPOSITION
The judgment of each appellant is modified by striking the $10,000 Penal Code section 1202.45 parole revocation fine and, as modified, the judgment of each appellant is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment as to each appellant reflecting the above modification.
We concur: KLEIN, P. J., ALDRICH, J.