Opinion
C037213.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. DONALD RAY BOWCUTT, Defendant and Appellant.
A jury convicted defendant Donald Ray Bowcutt of kidnapping, rape, and murder with special circumstances. (Pen. Code, §§ 187(a), 190.2, subd. (a)(17)(B) and (C), 207, subd. (a), 261, subd. (a)(2), further undesignated statutory references are to the Penal Code.) Sentenced to a prison term of life without the possibility of parole, defendant appeals, contending that (1) certain DNA evidence should have been excluded from trial, (2) prosecutorial misconduct compels reversal, (3) statements by the victim were erroneously admitted into evidence, (4) aiding and abetting instructions should not have been given, and (5) there was no basis for imposing a restitution fine under section 1202.45. Only this last claim has merit. We strike the challenged fine and otherwise affirm the judgment.
Facts and Proceedings
The victim, Barbara Tolbert, lived in a house with a roommate and worked the 3:30 p.m. to midnight shift at a local lumber mill. Next door to the victims house was a burned-out house that had been partially rebuilt with plywood and tarps. This shack was approximately eight to 12 feet from the deck of the victims house. The property was owned by the family of Bruce Fasig, who lived there on occasion.
Sometime before the victims murder, Fasig met defendant, who needed a place to live. Fasig told defendant he could stay at his property; once defendant moved in, Fasig no longer stayed there.
The victim expressed concerns about defendant to coworkers and friends. She did not refer to defendant by name but talked about the person who had moved in next door. She thought defendant was "strange" and "real creepy," and she was frightened of him. She told one friend that defendant had been saying "vulgar things" to her and "threatening her." She asked coworkers to follow her home from work to make sure she got into her house safely.
The victim made plans to meet friends at her house after work on the night of June 14-15, 1988. When one friend arrived, he discovered the door to the victims house had been kicked open. Items from the victims purse lay on the floor, and the victims car was gone.
Shortly after 2:00 a.m., a police officer discovered the victims car abandoned along Interstate 5. Womens clothing was inside the car. The car was very dirty, as though it had been driven on a dirt road, and weeds stuck out of the door. The undercarriage was gouged and dented, and had some weed debris. There were blood spatters on the outside of the car and blood streaks along the interior roof.
On June 16, a neighborhood resident gave police what he had initially thought to be a black rag. He had found the object on the side of a country road, across from his driveway. It was the tank top the victim had been wearing when she disappeared. It had five slash marks on it.
Rodney McIntosh lived and worked at a ranch near the same country road. Early on the morning of June 17, as McIntosh was returning to the ranch after a night out, he noticed birds flying nearby. He went over to investigate, and found the victims body lying about 100 feet from the road in a rocky field. Tire tracks were visible, and it appeared that boulders had been hit by a vehicle.
The victim had been stabbed 12 times, and a pathologist concluded that she had bled to death. Sperm was found in the victims vagina and a semen stain was found on a jacket in the victims car.
Numerous witnesses testified in a lengthy trial. In addition to the evidence already outlined, a convenience store clerk testified that defendant came into her store at approximately 1:30 a.m. the night of the murder. This store was located near where the victims car was found. The clerk described defendant as a "weird man" with "wild eyes," filthy clothing, and debris in his hair. He had a knife holder attached to his belt.
Two other people gave defendant a ride after they encountered him walking along the road after midnight on the night of the murder. Defendant was carrying a bundle of clothes and seemed nervous.
DNA evidence played a prominent role at trial. DNA tests examining different loci were done at different times by different laboratories. A criminalist from Forensic Science Associates (FSA) performed DNA analysis on the sperm samples, utilizing PCR DQ-alpha testing in 1991, and polymarker and D1S80 testing in 1994. The same three techniques were used in 1996 to analyze the semen stain on the jacket. These tests yielded identical results: The sperm samples from the victims vagina and from the stain on the jacket were consistent with defendants DNA. The frequency of occurrence for such a DNA sample was estimated to be 1 in 68,000 in the Caucasian population, 1 in 160,000 in the Hispanic population, 1 in 1.5 million in Native American populations, and 1 in 2.7 million in African Americans.
The Department of Justice conducted further DNA testing on the semen stain, using the RFLP method of analysis. Defendants DNA and the semen sample matched at six sites, which the criminalist testified was "strong evidence" that the sperm on the jacket was defendants. The frequency of this DNA profile was 1 in 50 billion in the Caucasian population, 1 in 530 billion in the Hispanic population, and 1 in 2.5 trillion in the African-American population.
The DNA testing eliminated McIntosh, Fasig, and others as the source of the sperm found in the victims vagina and as the source of the semen stain on the jacket.
Defendant challenged the reliability of the DNA evidence. He denied responsibility for the crimes and argued that someone else, perhaps McIntosh or Fasig, committed the murder. He pointed out that the victim had never identified him by name when she told friends that she was afraid of her neighbor, and he argued that "the creepy guy" the victim had referred to might have been Fasig, not defendant.
The jury convicted defendant of kidnapping, rape, and murder with special circumstances, and the trial court sentenced defendant to a prison term of life without possibility of parole.
This appeal followed.
DISCUSSION
I
Admissibility of DNA Evidence
Defendant raises a limited challenge to the DNA evidence admitted at trial. He does not question the validity of DNA analysis in general, nor does he contest the admissibility of the results from the DQ-alpha, polymarker or RFLP testing done in this case. Rather, he focuses his attention on the D1S80 testing, arguing that the trial court erred in admitting this evidence because FSA failed to follow the requisite protocols for the test. He notes that in performing the D1S80 testing, FSA utilized a homemade test kit rather than the commercially available kit. Defendant contends that the prosecution did not establish that correct scientific procedures were used and therefore the testing results should have been excluded as unreliable. (See People v. Venegas (1998) 18 Cal.4th 47, 78, 81; People v. Kelly (1976) 17 Cal.3d 24, 30.)
We need not resolve whether FSA followed correct procedures in performing the D1S80 test, because even if we assume that the laboratory erred, the error was harmless.
The prosecution introduced evidence from three other DNA tests, the results of which were consistent with the D1S80. DQ-alpha tests performed by FSA showed that the sperm in the victims vagina and the semen on the jacket were consistent with defendants DNA. FSA also conducted a polymarker PCR test and obtained the same results. The Department of Justice laboratory conducted RFLP testing on the jacket stain and concluded that the sample was consistent with defendants DNA. The same tests eliminated Fasig and McIntosh as the source of the DNA. The statistical frequency of this DNA profile made it highly unlikely that the donor was anyone other than defendant.
Defendant does not challenge the results of these other tests. Instead, he focuses only on the admissibility of the results of the D1S80 testing. This single-mindedness dooms any claim of prejudice. Three other types of DNA tests linked defendant to the crime. Under these circumstances, the admission of evidence from a fourth test is, at worst, harmless error. Erroneous admission of DNA evidence "requires reversal only if it is reasonably probable the verdict would have been more favorable to defendant in the absence of the error." (People v. Venegas, supra, 18 Cal.4th at p. 93.) Even if the court erred in permitting the prosecution to introduce evidence from the D1S80 testing, other strong DNA evidence linked defendant to the victims murder. There is no likelihood that the verdict would have been any different had the D1S80 evidence been excluded.
II
Prosecutorial Misconduct
Defendant contends the court erred in denying his motion to dismiss for prosecutorial misconduct. He asserts his constitutional rights were violated when the prosecutor contacted an expert witness for the defense, who then refused to testify. We do not agree.
Many of the records relating to this claim remain sealed, although they have been released to the parties. Our discussion of the relevant facts in this opinion is therefore limited. However, we assure the parties that we have carefully and fully reviewed the record.
In brief, the prosecution gave DNA samples to defense counsel, and defendant subsequently filed a motion in limine to exclude evidence of defense DNA testing. Several days later, defendant also filed a motion to dismiss for prosecutorial misconduct, asserting that the prosecutor had contacted Dr. Donald Riley, a defense DNA expert, and that as a result of these conversations, Dr. Riley would no longer testify for the defense.
The court conducted extensive hearings into this allegation and considered declarations filed by the prosecutor, defense counsel and Dr. Riley.
The trial court denied defendants motion to dismiss, concluding that the prosecutor reasonably assumed testing had been done but erred in making certain comments to Dr. Riley. However, the court ruled, this error did not rise to the level of misconduct that would justify granting defendants motion.
Defendant contends this ruling was erroneous because the prosecutors actions deprived him of his constitutional right to present a witness. We do not agree.
"The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. [Citations.] As we have observed, `A defendants constitutional right to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendants right to present witnesses. [Citations.]
"Defendant alleges such interference took place in this case. To prevail in such a claim, . . . he must establish three elements. `First, he must demonstrate prosecutorial misconduct, i.e., conduct that was "entirely unnecessary to the proper performance of the prosecutors duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify." [Citation.] Second, he must establish the prosecutors misconduct was a substantial cause in depriving the defendant of the witnesss testimony. [Citation.] The defendant, however, `is not required to prove that the conduct under challenge was the "direct or exclusive" cause. [Citations.] Rather, he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witnesss refusal to testify. [Citation.] Finally, the defendant must show the testimony he was unable to present was material to his defense." (People v. Lucas (1995) 12 Cal.4th 415, 456-457; accord, In re Martin (1987) 44 Cal.3d 1, 30-31.) "To carry his burden under federal law, `he must at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favorable to his defense. [Citation.] Under California law he must show at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable." (In re Martin, supra, 44 Cal.3d at p. 32.)
Defendant cannot make the requisite showing. Even if we characterize the prosecutors contact with Dr. Riley as misconduct, it was not of such a nature as to transform a defense witness willing to testify into one unwilling to testify, nor was it a substantial cause in depriving defendant of the witnesss testimony. (People v. Lucas, supra, 12 Cal.4th at p. 457.)
This is not a case like People v. Warren (1984) 161 Cal.App.3d 961, 973-974 or People v. Bryant (1984) 157 Cal.App.3d 582, 590, both cited by defendant, in which the prosecutor threatened to prosecute eyewitnesses if they testified, and the witnesses declined to testify as a result. The comments made by the prosecutor to Dr. Riley did not remotely approach this level. Any erroneous assumptions made by the prosecutor and conveyed to Dr. Riley could easily have been corrected. Moreover, Dr. Riley was not testifying as a percipient witness, but as an expert; his testimony was not unique and irreplaceable in the same way that an eyewitnesss testimony is.
The record before us, much of which remains sealed, indicates that all parties understood that Dr. Rileys reluctance to testify stemmed in large part from a number of idiosyncratic factors completely unrelated to the prosecutors telephone call. Additionally, between the time Dr. Riley testified at the Kelly hearing in 1997 and the start of trial in 2000, the California Supreme Court issued opinions upholding the reliability of the RFLP methodology that Dr. Riley had criticized. (People v. Soto (1999) 21 Cal.4th 512; People v. Venegas, supra, 18 Cal.4th 47.) Given these circumstances, the comments by the prosecutor to Dr. Riley cannot be deemed a substantial cause in depriving defendant of Dr. Rileys testimony.
The trial court did not err in denying defendants motion for dismissal.
III
Admissibility of Victims Statements
Defendant contends the trial court erred in permitting witnesses to testify that the victim had expressed her fear of defendant. This evidence was properly admitted.
Evidence Code section 1250, subdivision (a) provides that if trustworthy, "evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant."
"The trial court is vested with broad discretion in determining the admissibility of evidence. [Citation.] This is particularly true where, as here, underlying that determination are questions of relevancy, the state of mind exception to the hearsay rule and undue prejudice. [Citation.] The lower courts determination will be reversed only upon a finding of abuse." (People v. Ortiz (1995) 38 Cal.App.4th 377, 386.)
A victims out-of-court statements relating fear of the defendant will be admitted under Evidence Code section 1250 "only if the declarants state of mind is an issue in the case, or if the statement is relevant to prove or explain acts or conduct of the declarant." (People v. Arcega (1982) 32 Cal.3d 504, 527; accord, People v. Armendariz (1984) 37 Cal.3d 573, 586.)
As detailed earlier in this opinion, several friends and coworkers of the victim had heard the victim express her fear of defendant, a person she described as "strange" and "real creepy." Defendant sought to exclude this evidence as irrelevant and overly prejudicial. He noted that the victim had not specifically identified this person as defendant and the victim may have been describing Fasig or someone else. He argued that because the only issue at trial was the identity of the perpetrator, the victims fears were irrelevant, and her statements therefore did not fall within the scope of Evidence Code section 1250. Defendant also asserted that this evidence warranted exclusion under Evidence Code section 352.
The prosecutor responded that because only defendant had been living at the burned-out house, the victims references to an unnamed person next door could only have been references to defendant. She also argued that because defendant was charged with rape, kidnapping and murder in the commission of those crimes, the victims lack of consent was in fact at issue in that the prosecutor had to establish that the victim did not willingly go with defendant or have consensual sexual relations with him.
The trial court held a hearing to listen to the proposed testimony. Witnesses described incidents in which the victim expressed her fear of the person who had moved into the burned-out house next door to her. Coworkers said the victim asked them to follow her home from work to make sure she got into her house safely. Fasig testified that he did not stay at the house once defendant moved in.
The trial court ruled most of this evidence admissible, explaining: "I believe that [the victims] state of mind is material and probative on the issue of whether or not she would have socialized with the defendant and whether or not she would have consensually gone with him or anybody next door for any purpose; and further, that it is material on the issue of consensual sexual contact."
Defendant contends this ruling was erroneous, reiterating his claim that whether the victim was afraid of defendant was irrelevant because the only issue was the identity of the assailant. Consequently, he argues, this evidence was not admissible under Evidence Code section 1250. We do not agree.
The California Supreme Court faced a similar situation in People v. Waidla (2000) 22 Cal.4th 690, in which the court held that the victims "underlying statements declaring and/or circumstantially indicating her fear of [defendants] had at least some tendency in reason to prove the fact of lack of consent in the burglary and robbery related to her murder. Lack of consent was material to burglary because it was material to the element of entry [citation], and it was also material to robbery because it was material to the element of taking by means of force or fear [citation]. Lack of consent was also disputed with regard thereto. As a fact going to an element of burglary and an element of robbery, it was put into dispute by [defendants] pleas of not guilty, and remained in dispute until it was resolved [citation], as it was only by the jurys adverse verdicts. That [defendant], by presenting the defense that he did, chose not to dispute it actually is without effect. As a fact going to an element of burglary and an element of robbery, it had to be proved by the People, and proved beyond a reasonable doubt." (Id. at p. 723, italics omitted.)
Here, defendant was charged with kidnapping, rape and murder in the commission of those crimes. The prosecution therefore bore the burden of establishing that the victim did not consent to go with defendant and did not have consensual sexual relations with him. (See §§ 207, 261.) Lack of consent, an element of these crimes, was put into dispute by defendants plea of not guilty. It had to be proved by the People beyond a reasonable doubt. The prosecutions burden was not relieved simply because defendant did not challenge the consent element of the offenses. (People v. Waidla, supra, 22 Cal.4th at p. 723.)
The court properly determined that evidence that the victim was frightened of defendant was relevant to establish that the victim did not willingly go with defendant or engage in consensual sexual relations with him.
Defendant argues that the court should have excluded this evidence because it was more prejudicial than probative under Evidence Code section 352. Again, we do not agree.
Defendant contends the probative value of the victims statements was minimized because the victim did not identify defendant by name or otherwise clearly indicate that defendant was the person she feared. However, as already discussed, the evidence established that defendant was the person who had moved in next door to her and was the only person staying at the burned-out house. The trial court did not abuse its discretion in determining that the probative value of this evidence outweighed its prejudicial effect. (See People v. Karis (1988) 46 Cal.3d 612, 637.)
Even if we were to conclude otherwise, reversal is not required. The prosecution presented a strong case, including DNA evidence, against defendant. The court instructed the jury: "Evidence has been introduced concerning statements made by Barbara Tolbert regarding fears she had of an individual or individuals who were present in the Sandpiper neighborhood. [¶] The evidence of these statements, if believed, may be considered by you only for the limited purpose of tending to show Ms. Tolberts thoughts and state of mind. [¶] This evidence may not be considered by you for any other purpose. It may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. The evidence may not be considered by you to prove that the defendant committed, or had a tendency to commit any of the crimes charged."
In argument to the jury, the prosecutor noted that the victim was afraid of defendant and reminded the jurors that this evidence was "being offered to prove [the victims] state of mind." She explained state of mind was important "because, as you recall, kidnapping requires a taking without a victims consent by the use of threat or force. The crime of rape occurs when that intercourse occurred without the victims consent." She continued: "Barbara Tolbert would not have consented to go anywhere with the man living next door to her. She certainly would not have consented to intercourse with him. She would not have willingly gotten into that car with [defendant] unless she had been forced to get in that car or [was] so in fear for her life that that appeared to be the only viable option for her."
In his closing argument, defense counsel reiterated that this evidence was relevant only on the question of consent, adding "If its offered for that purpose, I guess it does serve something." However, he cautioned, evidence of the victims fears had no bearing on the issues of premeditation or deliberation.
Given the strength of the evidence against defendant, the courts instructions, and the arguments of counsel, there is no merit to defendants claim that he was prejudiced by the admission of this evidence or that the hearsay evidence violated his rights under the confrontation clause of the state and federal Constitutions. Any error was harmless. (People v. Cox (2003) 30 Cal.4th 916, 958; People v. Noguera (1992) 4 Cal.4th 599, 623.)
IV
Instructions on Aiding and Abetting
Defendant contends the court erred in instructing the jury on an aiding and abetting theory of liability. The error, if any, was harmless.
The prosecution argued that defendant was the person who kidnapped, raped, and murdered the victim. Defendant denied liability and argued that a third party, probably McIntosh, was responsible for these crimes. During a discussion of jury instructions, the prosecution requested that CALJIC Nos. 3.00 ("Principals—Defined"), 3.01 ("Aiding and Abetting—Defined"), and 3.03 ("Termination of Liability of Aider and Abettor") be given to the jury. Defendant objected, asserting that the prosecution was introducing a new theory of culpability by injecting aiding and abetting concepts at this point in the proceedings.
The prosecutor responded that the DNA evidence put defendant at the scene, and she noted that a trial witness had reported seeing a nude woman on the highway. The prosecutor wondered how the jury might consider the third party culpability evidence and said: "I can see a jury coming back and saying, `What if somebody else actually stabbed [the victim] but we determined that [defendant] raped her?"
Despite defendants continuing protest that the prosecution had never advanced an aiding and abetting theory of liability, the court concluded that the evidence warranted the requested instructions, although it cautioned that these instructions might confuse the jury.
The prosecutor began her argument to the jury by emphasizing that not all of the courts instructions necessarily applied. She argued that defendant should be found guilty of first degree murder under either a felony-murder or premeditation theory. She asserted that the critical issue was who had committed the crimes, and argued that the evidence pointed to defendant.
Defendant challenged the reliability of that evidence and argued third party culpability, suggesting that McIntosh, Fasig, or someone else might have been responsible for the crimes.
In her closing argument, the prosecutor responded to the third party culpability claims and emphasized that DNA testing eliminated McIntosh as the rapist. She then said:
"Even if you believe that Rodney McIntosh was somehow involved in any capacity in this case — and that would be unfair to Mr. McIntosh — that does not absolve the defendant, because if the defendant participated, aided, or abetted in a felony that resulted in [the victims] death, then he is guilty of murder.
"So even if Mr. McIntosh was responsible in some way — in some peripheral way, theres no evidence to support that.
"It was the defendant who raped [the victim].
"And I mention this because you are going to hear instructions on third party culpability evidence, evidence that somebody else might be responsible. And you are going to hear instructions telling [you that] someone who aids [sic ], abets in the underlying felony is responsible for murder as a principal.
"And if I didnt mention this theory to you, you might be confused when you heard those aiding and abetting instructions, because theres only one person on trial here, as there should be, and that is [defendant], but I mention that because, even if you believe that there was some evidence connecting Rodney McIntosh, [defendant] is still responsible for the rape, still responsible for the murder.
"Those instructions are another example of an instruction that should be disregarded based on your findings of fact. The courts instructions — the courts responsibility is to instruct you on all principles of law that might be applicable in the case."
On appeal, defendant contends the court erred in giving aiding and abetting instructions because there was no evidence to support such a theory of liability. We do not agree.
One witness had reported seeing a nude woman on the highway. The prosecutor noted that the jury conceivably could have found defendant responsible for the rape but a cohort responsible for the murder. This evidence, although slim, provided a basis for the aiding and abetting instructions.
In arguing otherwise, defendant posits an even more far-fetched scenario, namely, that the jury might have convicted on an aiding and abetting theory even though it believed the rape was unconnected to the kidnapping and murder. Defendant suggests the jury might have believed that the victim was raped by defendant but kidnapped and killed by someone else in totally unrelated incidents. No reasonable trier of fact could accept such a bizarre theory.
But even if we were to conclude otherwise, the error was harmless. "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) However, "instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict. [Thus,] the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Id. at p. 1130.)
Defendant inverts this standard by arguing that there was no evidence that the jury based its verdict on valid grounds. But that is not the test. Here, the aiding and abetting theory was an afterthought, one which the prosecutor explained to the jury but essentially discounted by telling the jury that these instructions could be disregarded. The case against defendant centered on a felony-murder theory for first degree murder, and that was the focus of the prosecutors argument to the jury. The record does not affirmatively demonstrate a reasonable probability that the jury convicted defendant solely on an aiding and abetting theory, and we therefore conclude that instructions on aiding and abetting did not prejudice defendant. (People v. Guiton, supra, 4 Cal.4th at p. 1131.)
V
Section 1202.45 Restitution Fine
Defendant contends that because he was sentenced to a prison term of life without possibility of parole, the trial court erred in imposing a $200 restitution fine pursuant to section 1202.45. We agree.
Section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked." (Italics added.)
Here, the trial court sentenced defendant to life without possibility of parole for murder, and imposed concurrent sentences of eight years each for kidnapping and rape. The People contend the imposition of these determinate sentences justified a restitution fine under section 1202.45. Alternatively, the People argue that even if the fine were improper, the judgment need not be corrected because if defendant is not paroled, no fine will ever be imposed.
In People v. Oganesyan (1999) 70 Cal.App.4th 1178, the defendant received a sentence of life without possibility of parole for one count of first degree murder and another sentence of 15 years to life for second degree murder, the latter therefore being a term for which defendant might conceivably be eligible for parole. The court held that a section 1202.45 restitution fine was not authorized under these circumstances. "[T]he language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fine is to be imposed. Section 1202.45 indicates that it is applicable to a `person . . . whose sentence includes a period of parole. At present, defendants `sentence does not allow for parole. When we apply a commonsense interpretation to the language of section 1202.45 [citations], we conclude that because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed." (Id. at p. 1185.)
Defendant is not eligible for parole under the sentences imposed in the present case. The fine imposed pursuant to section 1202.45 was therefore unauthorized and must be stricken.
DISPOSITION
The judgment is modified to strike the $200 restitution fine imposed under section 1202.45. The trial court is directed to amend the abstract of judgment to reflect this modification, and to forward the amended abstract to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: SCOTLAND, P.J. and MORRISON, J.