Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA080460, Jesse I. Rodriguez, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Cody Adam Brown appeals the judgment entered following his conviction by jury of second degree murder, gross vehicular manslaughter while intoxicated and evading a peace officer causing death. (Pen. Code, §§ 187, 191.5, subd. (a); Veh. Code, § 2800.3, subd. (b).) We reject Brown’s claim of reversible error in the exclusion of the testimony of a defense witness as a discovery sanction for the untimely disclosure of the identity of the witness. However, we shall direct the trial court to order the probation department, if it has not already done so, to prepare a postsentence report that comports with the requirements of Penal Code section 1203c. We also order the abstract of judgment corrected in several respects and modified to stay a one-year enhancement imposed pursuant to Vehicle Code section 23558. As so modified, the judgment is affirmed.
FACTS AND PROCEDURAL BACKGROUND
1. The People’s evidence.
a. Brown’s flight from Officer Steinhauser and the ensuing fatal traffic collision.
On December 6, 2008, at approximately 2:00 a.m., Long Beach Police Officer Jonathan Steinhauser attempted to stop a blue Chevy pickup truck after it went through a red light at Pacific Coast Highway and Bellflower Boulevard. Steinhauser followed the truck for approximately a mile as it went through numerous stop signs on Colorado Street without slowing and straddled the center yellow line as it drove 15 to 25 miles per hour in excess of the posted speed limit in a residential area.
At Colorado Street and Appian Way, Steinhauser activated the police vehicle’s light bar and siren. The truck began to pull over at the intersection of Appian Way and Park Avenue. However, it then pulled back into traffic and accelerated west on Appian Way, which turns into Fourth Street, at approximately 80 miles per hour in a 25 mile an hour zone. Just past Roswell Avenue, the truck nearly collided with a vehicle turning into a driveway and three or four people standing in the roadway had to jump to avoid being hit by the truck. The truck continued west, again traveling down the center line, and went through a red light at Termino Avenue at approximately 85 miles an hour. Steinhauser slowed for the red light but the truck continued to accelerate, traveling at approximately 100 miles per hour, and was substantially ahead of Steinhauser when it entered the intersection of Fourth Street and Redondo Avenue against a red light and collided with a BMW driven by Jason Siebert. The truck went airborne, flipped, landed on the hood of a cab and came to rest on its roof.
Trevon Stanley was driving south on Redondo Avenue behind the BMW. As the BMW entered the intersection with Fourth Street, a blue truck came through the intersection on a red light and crashed into it. Stanley estimated the speed of the blue truck at between 65 and 75 miles an hour.
When Steinhauser arrived at the scene, Brown was crawling from the passenger side window of the truck. Steinhauser ordered Brown to lie on his stomach and handcuffed him. Steinhauser noticed a strong odor of an alcoholic beverage emanating from Brown. Brown needed assistance walking to the police vehicle.
Long Beach Police Officer Todd Neveling arrived at the scene shortly after the collision. Brown “appeared to be extremely indifferent and fairly uncooperative” in that he “had to be detained physically in order not to flee....”
Long Beach Police Detective David Lauro observed scuff marks and gouge marks from the tires of the truck and the BMW. There were no pre-impact skid marks, indicating the driver of the truck did not attempt to brake before impact. Lauro observed a bottle of Smirnoff vodka without a lid laying on the roof of the truck below the passenger seat. Long Beach Police Officer Quincy Miles recovered the bottle, which contained approximately three inches of an alcoholic beverage.
A nurse drew a sample of Brown’s blood at Long Beach Community Hospital at 2:40 a.m. A criminalist testified Brown’s blood sample had a blood-alcohol content of 0.22 percent. At the Long Beach police station, intoxilyzer tests indicated Brown’s blood-alcohol level was 0.18 and 0.17 percent at 3:24 and 3:26 a.m., respectively.
The driver of the BMW, Jason Siebert, was partially decapitated as a result of the collision and died at the scene. The driver of the cab, Gerald Wood, struck his face on the steering wheel, knocking out a tooth, and struck his knees on the dashboard. Wood has continuing pain in his knees and his hips and has trouble walking for any length of time. Wood also had blurred vision for a while and he has been unable to drive a cab since that night.
b. The testimony of Jontay Sempson regarding Brown’s activities prior to the police chase.
In December of 2008, Jontay Sempson lived a few houses from Brown on Montair Street in Long Beach. On December 5, 2008, Brown went to Sempson’s work at a restaurant in Long Beach. When Sempson got off work, they split a martini. Brown then drove Sempson home to change. He picked her up later that evening and they went to the home of one of Brown’s friends in Long Beach where they hung out and drank. After approximately an hour and a half, Sempson asked Brown to take her home because Brown and his friends were acting immaturely, “roughhousing with each other.” On the drive, Brown asked Sempson to stay and talk to him but she told him they could talk the next day because she was tired and had to work in the morning. When Brown dropped her off, she told him to go home. Sempson does not recall what time it was when she arrived at her home. Brown was upset that Sempson did not want to talk to him. “He thought that after this incident I didn’t want to talk to him anymore.” “He was just upset and sad, and he was just asking me to stay and talk to him.” Sempson had no concerns about the way Brown was driving.
c. Brown’s prior arrest for driving under the influence.
On April 13, 2007, at 3:40 a.m., Long Beach Police Officer Brian Neal paced a white Chevy pickup truck at 55 miles an hour in a 40 mile an hour zone on Los Coyotes Diagonal. Neal stopped behind the truck at a red light at Bellflower Boulevard. When the light turned green, Neal activated the overhead lights of his police vehicle and attempted to stop the truck to cite the driver. The truck turned south onto Bellflower Boulevard, then drove onto the first service road and continued west until 23rd Street where it turned right and then left onto Montair Avenue and finally stopped at 2212 Montair Avenue, approximately four-tenths of a mile from Bellflower Boulevard and Los Coyotes Diagonal. Brown, the driver of the truck, had the strong odor of an alcoholic beverage on his breath, his eyes were bloodshot and watery, and his face was flushed. Neal arrested Brown for driving under the influence.
Another officer found a partially full bottle of Seagram’s gin on the floorboard behind the front passenger seat of Brown’s truck.
At the Long Beach police station, an intoxilyzer indicated Brown had a blood alcohol content of 0.12 and 0.11 percent at 4:53 and 4:54 a.m., respectively.
On October 3, 2007, Brown pleaded no contest to a violation of Vehicle Code section 23103, pursuant to Vehicle Code section 23103.5, “commonly known as a wet reckless, ” and was placed on probation for 36 months. One of the conditions of Brown’s probation was that he not operate a motor vehicle with any measurable amount of alcohol in his blood. A certified copy of the plea form executed by Brown states: “I understand that being under the influence of alcohol or drugs or both impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of drugs or alcohol or both. [¶] If I continue to drive while under the influence of alcohol or drugs or both, and as a result of my driving someone is killed, I can be charged with murder.”
2. The defense case.
a. The testimony of Brown’s mother and sister.
Deborah Brown, Brown’s mother, testified that as a child Brown had severe migraine headaches and panic attacks, which continued into his young adult life. A physician prescribed Brown anti-anxiety medication. Brown also has a gastrointestinal condition that causes Brown abdominal pain that kept him awake at night and required him to use the bathroom frequently. Prednisone prescribed by a gastroenterologist seemed to dissipate the symptoms of this condition.
In approximately 2004, when Brown was 18 years of age, Deborah and her husband moved to Northern California. Deborah spoke to Brown daily on the telephone and visited him once a month. When Deborah visited Southern California in early June of 2008, Brown was at home when he ordinarily would have been at work. During the summer of 2008, Brown was sick to his stomach and was in a lot of pain. He lost weight, was not sleeping and was depressed. Brown visited Deborah for two weeks in September of 2008. His mood was dark and depressed because he was awake all night in the bathroom in pain. He was anxious to do something with his life and was looking for work. In October, Brown became increasingly anxious, depressed and concerned about his pain. His mood became darker and more negative. Brown and his sister visited Northern California for Thanksgiving. During the visit, Brown was in pain and would be up all night in the bathroom with cramps and diarrhea. Before the visit was scheduled to end, Brown suddenly panicked and said he had to leave. Consumption of alcohol relaxed Brown’s mood and reduced his pain. Deborah had grave concerns for Brown’s physical and mental well-being.
Katie Brown, Brown’s older sister by six years, testified Brown had difficulty in school and would get anxious about tests and projects. He would come home crying and would be very withdrawn, anxious, nervous and fearful. When he was in the ninth grade, he pursued a home study program and got his GED when he was 18 years old. When their parents moved to Northern California, Brown lived at 2212 Montair Avenue with the woman who raised their father. Brown had Crohn’s disease which caused him a lot of pain and forced him to spend a lot of time in the bathroom. When Brown had medication, he used it sparingly. In the summer and fall of 2008, Brown would sometimes go a month without medication. Brown became withdrawn. Katie would not hear from him for a week at a time. On several occasions, Brown called her after he had been drinking and expressed fear regarding his mental and physical condition. On one occasion, Brown wanted Katie to come over and make sure he was all right. Katie found Brown in extreme pain and irrationally worried about himself and his life. On another occasion in the summer of 2008, Brown called Katie at 8:30 p.m. and asked her to pick him up at a friend’s house because he was not in a safe area. When Katie arrived, she found Brown was in a perfectly safe area. On another occasion in August of 2008, Brown called Katie and asked if he could come over. When he arrived, he was paranoid. Over the summer of 2008, Brown’s physical condition deteriorated. He was in pain and the frequency of his bathroom visits increased. In September of 2008, Brown called Katie and said he did not feel safe at a friend’s house so he walked to Katie’s house. On each of the incidents where Brown became fearful and called Katie, he was intoxicated. During the Thanksgiving visit, Brown frequently used the bathroom and was physically hunched over in pain because of his stomach problems. Brown seemed to be in much distress, he experienced irrational fears and he had severe mood swings.
The week before December 6, 2008, Katie tried to call Brown numerous times but did not hear from him, which was out of character for him and indicated he was spiraling into “a dark place.” The last conversation she had with Brown was the worst she had ever had with him. “It seemed much darker than other conversations....”
b. The defense medical expert.
William Vicary, M.D., reviewed Brown’s medical records and a series of letters written by Brown’s family members. These documents indicated 22-year-old Brown had a long history of anxiety, depression and mood swings. At age five years, a psychologist described Brown as depressed and, in 2004, Brown was prescribed Paxil for anxiety and panic attacks. In 2007, he was still suffering from anxiety and was described Lexapro, then Wellbutrin and Sinequan. In September of 2007, Brown complained of painful lower abdominal abscesses and was referred to a gastroenterologist who diagnosed Brown as having Crohn’s disease in January of 2008. The symptoms of Crohn’s disease are severe cramping, abdominal pain and diarrhea. To reduce these symptoms, Brown was prescribed Prednisone, Pentasa and Imuran.
Based on the materials he reviewed, an interview with Brown and the results of two standard psychiatric tests Vicary administered to Brown, Vicary opined Brown suffered from a bipolar disorder, specifically, bipolar 2 in which the patient spends 80 to 90 percent of the time either in an anxious or depressed mental state.
Prior to December 6, 2008, Brown experienced a series of major stressors that exacerbated his mental and medical disorders. Six months before the incident, Brown’s employer went out of business, causing Brown to lose his job and his health insurance. At that point, Brown discontinued use of his medications, which cost approximately $800 per month, because he could no longer afford them. Brown also broke up with his long-term girlfriend, telling her he had lost his job and felt he was a burden on her. Family members reported Brown’s mood swings worsened in September of 2008. He thought about joining the Coast Guard but was unable to do so because of his Crohn’s disease. He was unhappy and confused.
Brown was obtaining Prednisone from a friend and took it intermittently. Such use of Prednisone can destabilize a person’s mood and can result in a psychotic break. The risk is especially high in someone with a mood disorder. Brown told Vicary that, in the months prior to the incident, he was experiencing a lot of pain, he was drinking excessively to kill the pain, he was having episodes of anxiety and he was depressed. Alcohol mitigates the pain associated with Crohn’s disease but causes increased inflammation.
On the night of the incident, Brown went to a restaurant to meet a friend and later went to a party. He drank at the party and did not plan on leaving but his friend insisted that he drive her home. During the drive, Brown became emotional, started crying and wanted to talk to her. When they arrived at her home and she wanted to call it a night, Brown became “very distraught and upset.” Brown said he wanted to go to his sister’s home after he dropped Sempson off. He recalled heading in that direction and the next thing he remembered was sitting in a police car.
Vicary opined Brown “cracked. All of these factors... placed him in a very vulnerable emotional state so that alcohol intoxication in addition to all these factors led him to one of these episodes that the other people have described where he becomes frightened. He’s very upset, and he becomes desperate.... [W]e have episode at least number 5 where the guy goes over the edge here.”
3. Defense counsel’s theory of the case in argument to the jury.
Defense counsel argued that, after Brown left Sempson’s home, he was going to his sister’s home but became confused and had no memory of what happened until he awoke in a police vehicle. Therefore, he could not have acted with conscious and deliberate disregard for human life. Defense counsel asked the jury to acquit Brown of second degree murder and convict him of gross vehicular manslaughter while intoxicated.
4. Verdicts and sentencing.
The jury convicted Brown of second degree murder but found not true an allegation that he personally inflicted great bodily injury upon Gerald Wood. The jury also convicted Brown of gross vehicular manslaughter while intoxicated and found he proximately caused bodily injury or death to more than one victim, namely, Jason Siebert and Gerald Wood, within the meaning of Vehicle Code section 22358. In count three, the jury convicted Brown of evading an officer causing death.
The verdict incorrectly indicates the enhancement is a Penal Code provision.
The trial court sentenced Brown to a term of 15 years to life in state prison on count one, second degree murder. The trial court stayed the terms associated with counts two and three pursuant to Penal Code section 654. However, the trial court imposed a one-year enhancement pursuant to Vehicle Code section 23558, which the jury found true in connection with count two.
The trial court ordered Brown to pay a $30 security fee (Pen. Code, § 1465.8, subd. (a)(1)) as to each count and a $30 court construction fee (Gov. Code, § 70373, subd. (a)(1)) as to each count. The abstract of judgment reflects a single $30 court security fee.
The abstract of judgment additionally reflects both a term of life without the possibility of parole and a term of 16 years to life in state prison on count one.
CONTENTIONS
Brown contends the trial court erroneously excluded the testimony of a material witness on the grounds of late discovery, the one-year enhancement imposed pursuant to Vehicle Code section 23558 must be stayed, the abstract of judgment must be corrected to delete reference to the term of life without the possibility of parole, and the post-sentence probation report should be corrected.
The People contend the abstract of judgment must be corrected to reflect the fees and assessments imposed by the trial court.
DISCUSSION
1. The trial court committed no reversible error in excluding the testimony of a witness the defense did not disclose until the People were ready to rest.
a. Background.
The last witness called by the People, Jontay Sempson, testified on Monday, August 31, 2009. On the morning of Tuesday, September 1, 2009, shortly before the People rested, the prosecutor indicated defense counsel intended to call a previously undisclosed witness, Ramsey Menendez. The prosecutor indicated defense counsel had placed an amended witness list and a new witness statement in the prosecutor’s inbox the previous day but the prosecutor had not read the documents until that morning. The statement apparently indicated Menendez would testify Brown spoke to Menendez by telephone after he left Sempson’s home but before the traffic collision. The prosecutor objected to the defense calling Menendez on the grounds of late discovery. The prosecutor indicated she had no prior knowledge of the existence of this witness and Menendez’s statement was dated February 24, 2009, indicating the defense had been aware of the witness for some time. The prosecutor complained she had no opportunity to interview the witness or investigate the witness’s statement. Also, the witness’s statement consisted largely of hearsay.
Defense counsel responded Menendez also made observations about Brown’s mood, “which would be offered in the form of lay opinion testimony.” Defense counsel further indicated the witness was not disclosed previously based on defense counsel’s decision not to call the witness because “there [were] some downside risks in his testimony.” However, after Sempson testified at the end of the People’s case, defense counsel decided to call Menendez. Defense counsel noted Sempson also was an unexpected witness whose name did not appear on the People’s witness list and the defense did not receive Sempson’s statement until shortly before she testified.
The prosecutor clarified Sempson’s statement was not provided sooner because the investigator had difficulty finding Sempson. In any event, the defense was not surprised by Sempson’s testimony as the defense interviewed her “months ago.” Menendez, on the other hand, was not disclosed until the end of the People’s case. The prosecutor requested “[a]t the very least, ... a late discovery instruction.”
Defense counsel, citing relevant statutes and case law, urged the trial court to impose any sanction other than preclusion of Menendez’s testimony.
Trial court found the defense had provided no notice of Menendez’s existence. Further, “[h]alf of the testimony that you propose to use this person for is completely absolutely hearsay. Therefore, the court believes there is no adequate remedy at this time to rectify this... late discovery.... You are just about to call your first witness.... I am not going to take a break here for the investigation.... You should have given [Menendez’s statement] to [the prosecutor] to err on the side of caution. [T]he court believes that the prejudicial effect in this case cannot be remedied. Therefore, the court is not going to allow you to call Mr. Menendez.”
Thereafter, the People rested and the defense portion of the case commenced. That same day, Brown’s mother and sister testified and the testimony of defense medical expert Vicary commenced. Immediately before the defense called Vicary, defense counsel informed the trial court Vicary had taken Menendez’s statement into account in forming his opinions. The trial court indicated it would not allow Vicary to testify based on Menendez’s statement, reiterating its belief there was no acceptable remedy for the failure to disclose the statement in a timely manner.
The next day, before Vicary’s testimony resumed, defense counsel renewed the motion to permit the defense to call Menendez. Defense counsel filed a written offer of proof which indicated Menendez would testify Brown telephoned him between 1:40 and 2:00 a.m. on December 6, 2008. Brown’s voice was shaky and he was distraught, desperate and on the verge of tears. Brown said he “needed a friend” and wanted to speak to Menendez immediately at Menendez’s home. Brown said “he was having a really bad night” and felt “the walls were crashing in on him.” According to Menendez, Brown’s speech at times was slurred and it sounded as if he had been drinking. Menendez had never previously heard Brown speak in this manner. The offer of proof asserted Brown’s conversation with Menendez was the last contact Brown had with anyone before the collision and therefore was the most revealing evidence of his mental state at the time of the incident. Brown’s “statements of distress and despair are consistent with a loss of cognitive control and with an unthinking reaction devoid of conscious consideration of the danger to others.”
The trial court denied the motion for the reasons previously stated.
b. Brown’s contention.
Brown contends the trial court’s refusal to permit Menendez to testify violated his right to compulsory process. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1755-1758.) Brown asserts there was no need for a continuance to permit the prosecutor to investigate Menendez’s statement because, at the time the defense disclosed Menendez’s identity, the defense case had not yet commenced. Thus, the prosecutor had time to interview Menendez and the prosecutor could have obtained a printout of Menendez’s criminal history very quickly. (See People v. Martinez (2000) 22 Cal.4th 106, 112-113.) Also, the prosecutor would have had an opportunity to cross examine Menendez at trial. Brown notes the trial court made no finding the defense willfully failed to disclose Menendez’s identity to gain a tactical advantage, there was no showing of significant prejudice to the People and the trial court failed to consider lesser sanctions. (Taylor v. Illinois (1988) 484 U.S. 400, 415 [98 L.Ed.2d 798]; People v. Gonzales, supra, 22 Cal.App.4th at p. 1759; People v. Edwards (1993) 17 Cal.App.4th 1248, 1263.) Brown concludes the preclusion of Menendez’s testimony was an abuse of the trial court’s discretion. (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459.)
Brown claims the error was prejudicial because the evidence presented at trial left the jury with the false impression Sempson was the last person who spoke to Brown and Sempson’s testimony discredited Brown’s mental disorder defense in that she testified Brown merely was upset because Sempson refused to talk to him but did not testify Brown was emotionally unstable or distraught. Menendez’s testimony would have supported the psychotic break theory advanced by Vicary and might have convinced the jury of the merit of Brown’s mental disorder defense.
Further, the evidence indicating Brown committed second degree murder, as opposed to gross vehicular manslaughter, was not overwhelming. Brown claims his attempt to flee the scene of the accident was consistent with fear and desperation and was consistent with Vicary’s belief Brown experienced a panic attack or an episode of paranoia.
Brown concludes the conviction on counts one and three must be reversed.
c. No reversible error appears.
Pursuant to Penal Code sections 1054.3, subdivision (a) and 1054.7, at least 30 days before trial, the defense must disclose to the prosecutor the name and address of any witness the defense intends to call at trial, together with any relevant written or recorded statements the witness has made. Penal Code section 1054.5, subdivision (b) provides for sanctions for non-compliance. It states: “[A] court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (Pen. Code, § 1054.5, subd. (b).) Penal Code section 1054.5, subdivision (c) provides: “The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted....” (Pen. Code, § 1054.5, subd. (c).)
Alternative sanctions to exclusion are “ ‘adequate and appropriate in most cases.’ ” (People v. Edwards, supra, 17 Cal.App.4th at p. 1262, citing Michigan v. Lucas (1991) 500 U.S. 145, 152 [114 L.Ed.2d 205].) To exclude evidence as a means of ameliorating prejudice, “the prejudice would necessarily have to be substantial and irremediable.” (People v. Gonzales, supra, 22 Cal.App.4th at p. 1757.)
“Under federal law, the factors to be considered in determining the appropriate remedy for discovery violations include: (1) the effectiveness of less severe sanctions, (2) the impact of preclusion on the evidence at trial and the outcome of the case, (3) the extent of... surprise or prejudice, and (4) whether the violation was willful. (Taylor v. Illinois, supra, 484 U.S. at p. 415 [98 L.Ed.2d at p. 814] citing Fendler v. Goldsmith [(9th Cir.1983)] 728 F.2d [1181, ] 1188-1190.)” (People v. Edwards, supra, 17 Cal.App.4th at p. 1264.)
Here, contrary to Brown’s assertion, the trial court at least implicitly found the defense willfully failed to disclose Menendez’s identity in order to gain a tactical advantage at trial. The defense interviewed Menendez months before trial and thus was aware that aspects of his testimony supported the defense theory that Brown was incapable of forming the intent required for second degree murder. However, defense counsel assertedly decided not to call Menendez because his testimony had “some downside risks.” By failing to disclose the existence of Menendez, the defense deprived the prosecution of the opportunity to investigate those “downside risks” until the People were ready to rest. Indeed, defense counsel’s concession Menendez’s undisclosed statement had some downside risks for the defense essentially admitted that the defense obtained a tactical advantage by not disclosing Menendez until the People were ready to rest. Additionally, by not disclosing the existence of Menendez, the defense allowed the prosecution to proceed based on the false premise that Sempson was the last person who spoke to Brown before the fatal collision. Thus, defense counsel’s conduct put the prosecution at a considerable disadvantage and permitted the trial court to conclude the discovery violation was willful and motivated by a desire to obtain a tactical advantage at trial.
Although Brown asserts the prosecution had sufficient time to interview Menendez and investigate his criminal history, the delay in disclosing Menendez’s identity made it difficult for the prosecution to investigate the content of Menendez’s statement, look for possible rebuttal witnesses and comply with its own discovery obligations in a timely fashion. Clearly, the People would have been entitled to a continuance to complete these tasks, thereby causing a significant inconvenience for the jury. The trial court indicated it would not interrupt the trial to permit the People to conduct the investigation required to address the late disclosure. Thus, the trial court considered the option of granting a continuance to address the late discovery but found it inadequate in the circumstances presented. We therefore reject Brown’s claim the trial court did not consider alternatives to exclusion. In addition to expressly rejecting a continuance as inappropriate, it is clear the trial court was aware of the existence of other alternatives in that the prosecutor suggested the People were entitled, at minimum, to an instruction and defense counsel cited the relevant statutory provisions to the trial court during the hearings on the admissibility of the evidence.
We conclude the trial court properly found preclusion of Menendez’s testimony was an appropriate sanction for defense counsel’s failure to disclose the identity of the witness in a timely manner and to ensure the prosecution did not suffer prejudice from the delay in disclosure.
In any event, assuming for the sake of discussion the trial court erred in precluding Menendez’s testimony, the error was harmless. Much of Menendez’s testimony would have been excluded as hearsay and the admissible portions were cumulative to the testimony of Brown’s mother and sister, both of whom testified about Brown’s deteriorating physical and mental condition and that he was increasingly depressed, dark and sensitive to losses in his life. Further, Sempson testified Brown was upset and wanted to talk when he dropped her off. This testimony described conduct that was consistent with events described by Brown’s sister. Finally, Vicary testified at length about Brown’s hearsay statements during Vicary’s interview of Brown. Vicary also related hearsay information obtained from medical reports and letters from family members in reaching his expert opinion that Brown had a psychotic break. The record does not suggest that Vicary’s opinion would have been stronger or different had Menendez’s testimony been admitted at trial.
Based on the foregoing, we confidently conclude the jury’s verdict would have been the same had the trial court permitted Menendez to testify. (People v. Edwards, supra, 17 Cal.App.4th at p. 1266 [applying Chapman standard (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]) to errors involving preclusion of defense evidence].)
2. The one-year enhancement imposed pursuant to Vehicle Code section 23558 must be stayed.
The trial court sentenced Brown on count one, second degree murder, to a term of 15 years to life in state prison. Pursuant to Penal Code section 654, the trial court stayed the terms associated with counts two and three. However, the trial court enhanced the term imposed on count one with a one-year enhancement pursuant to Vehicle Code section 23558, causing injury or death to more than one victim, which the jury found true in connection with count two, vehicular manslaughter while intoxicated. Brown contends, and the People concede, this enhancement must be stayed. (People v. Salazar (1987) 194 Cal.App.3d 634, 640, fn. 6.)
It appears the People’s concession of this point is appropriate. Where the base term of a sentence is stayed under Penal Code section 654, the attendant enhancements must also be stayed. (People v. Guilford (1984) 151 Cal.App.3d 406, 411.) We therefore shall order the judgment modified to stay the one-year Vehicle Code section 23558 enhancement.
3. The abstract of judgment must be corrected to reflect the term imposed.
The abstract of judgment indicates Brown was sentenced to a term of life without the possibility of parole and a term of 16 years to life in state prison on count one. Brown contends, and the People concede, the abstract of judgment must be corrected to reflect the term imposed. We find the People’s concession well taken and order the abstract of judgment corrected to reflect a term of 15 years to life in state prison.
4. The abstract of judgment must be corrected to reflect the fees and assessments imposed by the trial court.
The trial court ordered Brown to pay a $30 security fee (Pen. Code, § 1465.8, subd. (a)(1)) as to each count and a $30 court construction fee (Gov. Code, § 70373, subd. (a)(1)) as to each count. However, the abstract of judgment reflects a single $30 court security fee pursuant to Penal Code section 1465.8.
The People request correction of the abstract of judgment to reflect a $30 court security fee and a $30 criminal conviction assessment as to each count of conviction. (People v. High (2004) 119 Cal.App.4th 1192, 1200 [all fines and fees must be set forth in the abstract of judgment ].)
The People are correct. Penal Code “section 654 prohibits the use of a conviction for any punitive purpose if the sentence on that conviction is stayed.” (People v. Pearson (1986) 42 Cal.3d 351, 361.) It follows that fees and assessments that are not punitive in nature may be imposed with respect to counts that are stayed under Penal Code section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)
Neither court security fees imposed pursuant to Penal Code section 1465.8, subdivision (a)(1) nor court construction fees imposed pursuant to Government Code section 70373, subdivision (a)(1) are punitive in nature. (People v. Brooks (2009) 175 Cal.App.4th.Supp. 1, 5-7 [court construction fee]; People v. Crittle, supra, 154 Cal.App.4th at pp. 370-371 [court security fee]; People v. Wallace (2004) 120 Cal.App.4th 867, 874-878 [court security fee].) Additionally, both Penal Code section 1465.8, subdivision (a)(1) and Government Code section 70373, subdivision (a)(1) state the fees are to be imposed “on every conviction for a criminal offense....” (Pen. Code, § 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)
Consequently, we shall order the abstract of judgment modified to reflect the trial court’s imposition of assessments in the total amount of $90 pursuant to Penal Code section 1465.8, subdivision (a)(1) and $90 pursuant to Government Code section 70373, subdivision (a)(1).
5. The postsentence probation report included in the record on appeal does not comply with Penal Code section 1203c .
Approximately two weeks after Brown’s sentencing hearing, the probation officer filed a postsentence probation report which incorrectly states Brown’s conduct resulted in the death of Jason Siebert and Gerald Woods. Brown contends the misstatement is prejudicial on its face and the report should be corrected because it is part of the record concerning the crime for which Brown is serving a life sentence.
Penal Code section 1203c, subdivision (a)(1) requires the probation department to prepare a report in every case in which a defendant is committed to the Department of Corrections and Rehabilitation. (People v. Otto (2001) 26 Cal.4th 200, 212.) The statute directs the probation department to address in the report “the circumstances surrounding the offense and the prior record and history of the defendant, as may be required by the Secretary of the Department of Corrections and Rehabilitation.” (Pen. Code, § 1203c, subd. (a)(1).) The report must accompany the defendant’s commitment papers. (Pen. Code, § 1203c, subd. (b).)
The two-page postsentence report at issue states the probation officer attempted to obtain the arrest report from the Long Beach Police Department and the investigating officer but was unsuccessful. The probation officer indicated he would continue to attempt to obtain the arrest report and the probation report would be modified upon its receipt. As noted by Brown, the report incorrectly indicates both Jason Siebert and Gerald Wood died as a result of a traffic collision caused by Brown. The report further states that, because the probation officer did not receive a copy of the arrest report, the probation officer did not contact relatives of the victims or other interested individuals.
We conclude the postsentence probation report filed in this case failed to comply with Penal Code section 1203c. In addition to misstating the number of fatalities caused by Brown’s conduct, the probation officer failed to contact the relatives of the victim and other interested parties. We find this to be a serious oversight. The reporter’s transcript indicates eight witnesses gave victim impact statements on behalf of Jason Siebert at the sentencing hearing. The augmented record on appeal includes 31 victim impact statements filed by family and friends of Jason Siebert. Because the parole board will make use of the probation officer’s postsentence report at any future parole hearings, misstatement of the number of fatalities as well as the complete omission of any victim impact information requires correction. We therefore shall direct the trial court to order the probation officer, if the probation department has not already done so, to prepare a postsentence probation report that complies with the provisions of Penal Code section 1203c.
DISPOSITION
The abstract of judgment is ordered corrected (1) to delete reference to the term of life without the possibility of parole, and (2) to conform to the trial court’s oral pronouncement of judgment which imposed a $30 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $30 construction fee (Gov. Code, § 70373, subd. (a)(1)) as to each count on which Brown was convicted. The judgment is ordered modified to stay the one-year enhancement imposed pursuant to Vehicle Code section 23558 and, as so modified, the judgment is affirmed. The trial court is directed (1) to prepare and forward an amended abstract of judgment reflecting these changes to the Department of Corrections and Rehabilitation, and (2) to order the probation department, if it has not already done so, to prepare a postsentence report that comports with the requirements of Penal Code section 1203c.
We concur: CROSKEY, J., ALDRICH, J.