Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. Ct. No. BA337761, Curtis B. Rappe, Judge.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Michael C. Keller and Beverly K. Falk, Deputy Attorneys General for Plaintiff and Respondent.
GRIMES, J.
A jury found defendant and appellant McKenzie Carl Bryant guilty of murder, as well as possession of a firearm by a felon, first degree robbery and attempted first degree robbery arising from an incident in which defendant accosted two individuals at an automatic teller machine (ATM), killing one of them. Defendant was sentenced to state prison for life without the possibility of parole, plus additional determinate and indeterminate terms. Defendant raises five issues on appeal: (1) the trial court erred in denying his request for a Franks hearing; (2) the court erred in excluding defense evidence of third-party culpability; (3) the court erred in instructing the jury on CALCRIM No. 376; (4) the sentence on count 2 fails to reflect the court’s imposition of the low term and must be reduced to a term of 18 months stayed; and (5) the abstract of judgment fails to accurately reflect the court’s orders regarding restitution. We affirm.
Franks v. Delaware (1978) 438 U.S. 154 (Franks).
BACKGROUND
Shortly before midnight on March 9, 2008, Bondie Gambrell left the TGI Friday’s restaurant in the Ladera Shopping Center, where he had been eating and watching the Lakers basketball game with friends, and went across the parking lot to the ATM at the Bank of America. He attempted to withdraw $20 but the screen registered there was only $9 in his account. He was about to leave when someone approached him from behind and demanded, “Get everything you can out of the ATM machine right now, don’t play any games.” Mr. Gambrell handed the man his wallet and noticed the man’s arm and determined he was an African-American male, like he was. He pointed to the screen and tried to explain to the man he could not withdraw any amount of money because he only had $9, but the man demanded he attempt the transaction again. Mr. Gambrell complied and the screen once again showed only $9 in his account and would not allow a withdrawal.
The man then reached around Mr. Gambrell’s waist and showed him a gun, which he believed was a revolver, and the man asked if he knew what he would do with it. Mr. Gambrell said yes. The man demanded Mr. Gambrell once again attempt a withdrawal, which was refused again for lack of funds. Mr. Gambrell then felt what he believed to be the gun against the back of his head, at the same time he heard a car pull up.
The man with the gun turned his attention to the person who had just pulled up. Mr. Gambrell did not look over but continued to face the ATM. He heard the man demand the individual who had just arrived to give him everything out of the ATM immediately. He repeated the demand a second time. Mr. Gambrell then heard what sounded like a scuffle, followed by two sets of footsteps running away and then four to six gunshots. At that point, Mr. Gambrell ran in the opposite direction and hid behind a tree until the police arrived shortly thereafter.
Mylus Mondy was the man who arrived at the ATM while Mr. Gambrell was being ordered at gunpoint to attempt a withdrawal. After being shot by the man with the gun, Mr. Mondy ran into the Ralph’s grocery store located in the shopping center, where he collapsed. While awaiting the arrival of paramedics, Mr. Mondy was able to talk, to some extent, with Officer Michael Switzer of the Los Angeles Police Department (LAPD), who had arrived on the scene. Mr. Mondy told the officer his name, that a black male had attempted to rob him at the ATM, and that the man had shot him as he tried to get away. Mr. Mondy was transported to the hospital by ambulance and later died from the gunshot wound.
T. Thomas lived in an apartment near the Ladera Shopping Center. Sometime after 11:30 p.m. on March 9, 2008, she was at home talking on the telephone when she heard approximately four loud pops--pops louder than the sound of a firecracker. She went to the window and saw a man running toward the Ralph’s grocery store. She turned to check on her children and then looked out the window again and saw a man getting in to the passenger side of a gray station wagon. He appeared to be African-American. Ms. Thomas did not recognize the car as belonging to any neighbors and thought it seemed suspicious, so she wrote down the license plate number (5ML653) and called 911.
The LAPD obtained the video clips from the ATM camera showing an image of the suspect who had committed the robberies. Detective Corbin Rheault, a homicide detective with the LAPD and lead investigating officer, released the clips to the news media for broadcast and also had community-alert fliers created from still photographs taken from the video clips. The fliers were posted in the neighborhood around the Ladera Shopping Center, requesting anyone with information to call the LAPD tip line.
On the morning of March 13, 2008, Detective Rheault interviewed T. Lytle. A redacted tape of her interview was played during trial because she denied on the witness stand having made some of the statements that were audio-recorded. Ms. Lytle considered defendant to be her best friend. They had known each other since they were in grade school. She believed he sometimes stayed at his parents’ home, but also moved around a lot, staying temporarily with different women he was seeing. Ms. Lytle told Detective Rheault that defendant had phoned her a few days before and said he had messed up, that he and a girl had robbed someone and it had gone badly. He did not tell her a lot of details, just primarily that he had messed up. Ms. Lytle told Detective Rheault she had seen the news coverage of the incident at the ATM on March 9, 2008, and the video clip of the suspect that law enforcement had released. She admitted she was 100 percent certain the person in the video was defendant, that she hated to say that because he was her friend, but he had distinctive features, particularly his eyes.
At trial, Ms. Lytle’s taped interview was played for the jury, and she acknowledged that everything she told Detective Rheault was the truth.
Also on March 13, Enjoli McClendon was detained for questioning and her residence searched pursuant to a warrant. McClendon’s gray Pontiac Vibe, bearing license plate number 5MAJ653, was also taken into custody and held to be examined for prints and evidence.
McClendon was originally charged as a codefendant in this action, but the charges against her (on counts 1 through 3) were severed and tried separately. McClendon filed a separate appeal of her conviction (B221394).
T. Frazier, a woman with whom defendant had a young son, lived in an apartment located at 2939 1/2 Van Buren Place in the City of Los Angeles. Information received by the LAPD indicated defendant was in the vicinity of that address on March 14, 2008. Surveillance of the area was initiated, and defendant was eventually observed by LAPD Detective Donald Walthers leaving that apartment building. Detective Walthers put out a radio call, identifying what defendant was wearing and the direction in which he was walking. LAPD Detective Victor Ross, in conjunction with several other officers involved in the surveillance, stopped defendant on the street, just north of Ms. Frazier’s apartment, and placed him under arrest. Defendant did not resist. Defendant was in possession of two cell phones at that time, and they were taken into evidence.
In the meantime, a search warrant was obtained for the search of Ms. Frazier’s apartment, due in part to the belief defendant had been living there. Officers searching Ms. Frazier’s apartment located a packed suitcase in the apartment containing items with defendant’s name on them, including his Social Security card and a bus ticket to Santa Barbara. They also located credit cards and items bearing Mr. Gambrell’s name hidden in a clothes hamper.
Defendant was charged by information in count 1 with the murder of Mr. Mondy (Pen. Code, § 187, subd. (a)), in count 2 with attempted first degree ATM robbery of Mr. Mondy (Pen. Code, §§ 211, 212.5, subd. (b), 664), in count 3 with the first degree ATM robbery of Mr. Gambrell (Pen. Code, §§ 211, 212.5, subd. (b)), and in count 4 with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). The murder count included the special circumstances allegation that the murder of Mr. Mondy had occurred during the commission of an attempted robbery at an ATM. The information also contained special allegations concerning the personal use and discharge of a firearm pursuant to Penal Code section 12022.53, subdivisions (b), (c) and (d).
During pretrial proceedings, defendant filed a motion to traverse the affidavits in support of the two warrants authorizing the search of Ms. Frazier’s apartment and the resulting seizure of the evidence located there. Defendant contended there were six material misrepresentations in the supporting affidavits and that, without those statements, there was no proper basis for probable cause and all items seized from the apartment should be excluded from trial. Respondent opposed, primarily on the grounds the motion lacked the requisite offer of proof. After allowing argument, the court denied the motion, finding defendant had failed to make the required substantial preliminary showing in support of an evidentiary hearing.
Defendant also sought to put on the testimony of LAPD Detective Edwards regarding out-of-court identifications of third-party suspects by several individuals who had been victims of, or witnesses to, three robberies that had occurred at that same ATM location in the seven months before the March 9, 2008 incident. The court tentatively ruled that defendant could put on the victims and witnesses to the other incidents and question them about any identifications they had made. However, defendant was unable to locate any victims or witnesses to the prior incidents and therefore sought to put on the identification evidence through Detective Edwards. The court excluded the testimony of Detective Edwards regarding the out-of-court identifications, sustaining respondent’s hearsay objection.
At trial, defendant presented the testimony of J. Vega and J. Valenzuela, two individuals who had called the LAPD tip line in response to the community fliers posted after the March 9, 2008 incident. Both Ms. Vega and Mr. Valenzuela testified to their belief the suspect shown in the video clip from the ATM camera was someone other than defendant. The court also allowed defense counsel to question Ms. Lytle as to whether or not she felt there were similarities in the facial features of one of those third-party suspects and the person in the ATM video clip. She testified they were similar in the nose area and forehead.
The jury returned a verdict finding defendant guilty as charged on all four counts and finding the special allegations true. The court sentenced defendant on September 4, 2009. On count 1 for the special circumstances murder of Mr. Mondy, the base count, defendant was sentenced to life in prison without the possibility of parole, plus a consecutive term of 25 years to life on the special allegation of personal use of a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)). In addition, the court imposed and stayed an additional 20 years and 10 years on the special allegations pursuant to Penal Code section 12022.53, subdivisions (c) and (b), respectively.
On count 2, the attempted first degree ATM robbery of Mr. Mondy, the court imposed sentence as follows: “the low term of two years in state prison plus an additional [25] year to life on the 12022.53(d), [20] years on subsection (c) allegation and [10] years on the subsection (b) allegation and all of that, as I say, is stayed pursuant to 654 of the Penal Code.” The record does not contain any objection by defense counsel or statement of any kind concerning any impropriety in the court’s imposition of sentence on count 2.
On count 3, the first degree ATM robbery of Mr. Gambrell, the court imposed a consecutive six-year term. The court made a finding of no mitigating circumstances and the existence of aggravating circumstances, including the sophistication of the crime, the fact that defendant committed the crime while on probation, and that the seriousness of defendant’s crimes was increasing. Further, the court imposed consecutive terms of 25 years to life, 20 years, and 10 years as to the allegations pursuant to Penal Code section 12022.53, subsections (d), (c) and (b), respectively. The 20-year and 10-year terms were stayed.
On count 4, possession of a firearm by a felon, the court imposed a concurrent term of two years. Defendant was awarded 540 days of presentence custody credits and was ordered to pay a $30 security fee on each of the four counts. The court also imposed “a restitution fine in the amount of ten-thousand dollars to be paid from the defendant’s prison earnings.” The court did not impose any other fines or assessments during the sentencing hearing.
The minute order from the sentencing hearing and the abstract of judgment reflect the court’s oral sentence, except that they also include imposition of a parole revocation restitution fine in the amount of $10,000 pursuant to Penal Code section 1202.45 and indicate imposition of the “midterm” on count 2. This appeal followed.
DISCUSSION
1. The Denial of the Franks Hearing Was Not Error.
Defendant contends the trial court erred in denying his request for a Franks hearing, thus violating his constitutional rights, pursuant to the Fourth Amendment, against illegal searches and seizures. We review de novo a trial court’s order denying a defendant’s request for a Franks hearing. (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316 (Sandlin); accord, People v. Box (1993) 14 Cal.App.4th 177, 183 (Box).) Based on our independent review, we find no error.
In Franks, the United States Supreme Court held that, under the Fourth Amendment, a defendant has a limited right to challenge the truthfulness and accuracy of an affidavit supporting a facially valid warrant. “[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” (Franks, supra, 438 U.S. at pp. 155-156.)
A defendant cannot obtain a Franks hearing by simply asserting the alleged falsity of a supporting affidavit. A defendant must make a “substantial preliminary showing.” (Franks, supra, 438 U.S. at p. 155.) “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the [defendant’s] attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted... is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. [Footnote omitted.] On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.” (Franks, supra, 438 U.S. at pp. 171-172, italics added.)
Defendant filed a motion to traverse challenging the veracity of the affidavits underlying the two search warrants authorizing the search of Ms. Frazier’s apartment on March 14, 2008. The motion alleged the existence of six material misrepresentations in the supporting affidavits, including the representation that defendant resided at that location. Defendant therefore adequately identified those portions of the supporting affidavits deemed false. However, the motion was supported only by a declaration of defense counsel. There were no declarations from any of the witnesses defendant claimed could attest to the facts establishing that those portions of the affidavits were in fact false. The motion lacked any reliable, evidentiary offer of proof in support of defendant’s claims of falsity as required by Franks.
At the hearing on the motion to determine whether defendant had made a proper preliminary showing of entitlement to a Franks hearing, respondent argued the motion must fail as it lacked any supporting witness statements or credible evidence. Defense counsel responded that defendant could take the stand in support of the motion. However, defendant could only have addressed one of the six representations claimed to be false, i.e., the statement he resided at 2939 1/2 Van Buren. The court correctly found that even if that one statement was excised from the affidavit, there were still sufficient facts to support a finding of probable cause and therefore no basis for a Franks hearing.
Respondent also submitted opposition evidence showing that Ms. Frazier gave express consent for her apartment to be searched, providing an independent basis for the validity of the search.
The preliminary showing here was even less than that found deficient in Sandlin, supra, 230 Cal.App.3d 1310. In Sandlin, the Fourth District affirmed a trial court order denying a Franks hearing where the motion had been supported only by conclusory declarations from the defendants themselves that they had not engaged in the drug sales activity attributed to them by the warrant affiant. (Id. at pp. 1318-1319.) Here, there was not even a declaration from defendant or any pertinent witness, conclusory or otherwise, but merely a declaration of counsel.
Moreover, in Box, supra, 14 Cal.App.4th 177, the motion to traverse was supported by an unsworn declaration of a purported witness, in addition to some other supporting evidence. In upholding the trial court’s denial of a Franks hearing, the Fifth District inferred from such a showing that counsel had been unable to obtain a statement from the main witness under oath, raising questions about the reliability of the unsworn statements and whether the witness would actually take the stand at a Franks hearing and provide reliable testimony contrary to the warrant affiant. (Box, at p. 184.) The same inference may be drawn here from defendant’s failure to present any witness statements.
Plainly, defendant’s motion was not adequate, and defendant made no attempt to explain why he did not provide witness statements. Ms. Frazier was the main person from whom a declaration was needed, based on some of the allegedly false statements in the affidavits attributed to her. Defense counsel acknowledged speaking with her in order to prepare his declaration but did not explain why the motion was not supported by a declaration from Ms. Frazier to provide a proper basis for the court to find that a Franks hearing was warranted. The trial court correctly denied the motion for failure to make the “substantial preliminary showing” required by Franks.
2. The Court’s Exclusion of Testimony from Detective Edwards Was Well Within Its Discretion.
Defendant also contends the trial court erroneously excluded his proffered evidence of third-party culpability. The trial court is vested with significant discretion concerning the admission or exclusion of evidence generally and to control the proceedings before it with a view to the expeditious and effective ascertainment of the truth. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1080-1081; see also Pen. Code, § 1044 & Evid. Code, § 765, subd. (a).) We find no abuse in the court’s evidentiary ruling precluding defendant from eliciting testimony from Detective Edwards regarding purported out-of-court identifications of third-party suspects.
“ ‘To be admissible, the third-party evidence need not show “substantial proof of a probability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability.... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ [Citation.] We emphasized that ‘courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code, ] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code, ] § 352).’ [Footnote and citation omitted.] A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion.” (People v. Lewis (2001) 26 Cal.4th 334, 372-373, italics added.)
Defendant sought to introduce evidence there were three robberies at that same ATM location in the months leading up to the March 9, 2008 incident. It was undisputed robberies had occurred at that ATM in August 2007 and on January 7 and February 17, 2008. An individual by the name of Roger Wilburn had been tentatively identified in a six-pack photographic lineup by at least one victim and potentially two witnesses to those prior incidents. Those extra-judicial identifications were made in the presence of Detective Edwards, the LAPD detective investigating those prior incidents. The trial court was willing to permit defendant to offer the testimony of the victim and witnesses who identified Wilburn, even though other victims and witnesses had identified defendant in photographic lineups as the perpetrator of two of the earlier robberies.
However, defendant was unable to locate any of the victims or witnesses to the three previous ATM robberies and therefore sought to be allowed to have Detective Edwards testify about the victims and witnesses who identified Wilburn as a suspect. Respondent objected on the grounds of hearsay. The court ruled that any such identification testimony would be inadmissible hearsay.
Defendant argues on appeal this was an improper exclusion of his third-party culpability evidence because there were questions that could have been posed to Detective Edwards, the answers to which would have been based on his own personal knowledge and therefore not hearsay. We do not find defendant’s argument persuasive. We cannot glean any basis for finding that any of the testimony defendant sought to elicit from Detective Edwards acknowledging the out-of-court identifications would constitute anything but classic hearsay. The court properly excluded such testimony. (People v. Mayfield (1972) 23 Cal.App.3d 236, 239-241, overruled on other grounds as stated in People v. Hernandez (2004) 33 Cal.4th 1040, 1052, fn. 3; Evid. Code, § 1238.) Moreover, the record reflects defendant was allowed to present other, arguably stronger, third-party culpability evidence through the direct testimony of Ms. Lytle and the two individuals who had called the LAPD tip line, J. Vega and J. Valenzuela. We perceive no error in the court’s evidentiary rulings regarding defendant’s proffered testimony from Detective Edwards as to third-party suspects, nor any resulting prejudice to defendant.
3. The Use of CALCRIM No. 376.
Defendant next argues the court erred in instructing the jury on CALCRIM No. 376. “An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] The court reviews instructions in context of the entire charge of jury instructions rather than in artificial isolation.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574 (O’Dell).) We conclude the court did not err in giving CALCRIM No. 376.
CALCRIM No. 376, as given to the jury, provided: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant or robbery and/or attempted robbery based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery or attempted robbery. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery and/or attempted robbery. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
CALCRIM No. 376 properly informs the jury in a robbery case they may infer from the possession of stolen property the identity of defendant as the one who committed the crime. (O’Dell, supra, 153 Cal.App.4th at pp. 1574-1575). Defendant contends the language of the instruction diverts the jury’s attention from the prosecution’s burden of proof beyond a reasonable doubt with the language that “supporting evidence need only be slight.” This contention has already been discredited, both as to CALCRIM No. 376 (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1035-1036 (Solorzano)) and its predecessor instruction, CALJIC No. 2.15. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 188-189; accord, People v. Gamache (2010) 48 Cal.4th 347, 376.)
The Fifth District in Solorzano aptly noted that CALJIC No. 2.15 had already withstood “repeated constitutional attack” (Solorzano, supra, 153 Cal.App.4th at p. 1036) and that the two instructions were essentially identical save for the fact that CALCRIM No. 376 uses the word “supporting” while CALJIC No. 2.15 uses the synonym “corroborating.” (Solorzano, at p. 1035; see also O’Dell, supra, 153 Cal.App.4th at p. 1575.) The instruction incorporates language regarding the prosecution burden of proof beyond a reasonable doubt and does not create confusion or encourage improper inferences. We reject defendant’s argument the language of CALCRIM No. 376 is constitutionally or linguistically infirm.
Defendant also argues there was insufficient evidence that defendant was in possession of stolen property for CALCRIM No. 376 to be given, and that the instruction served only to confuse the jury. “ ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.’ [Citations.]” (People v. Saddler (1979) 24 Cal.3d 671, 681.) However, there was substantial evidence from which the jury could infer defendant was in possession of Mr. Gambrel’s stolen credit cards, as well as ample evidence tending to show defendant’s guilt of robbing Mr. Gambrel.
Ms. Frazier, the mother of defendant’s child, told police that defendant had been staying with her at her apartment and had admitted to participating in the robbery. LAPD officers conducting surveillance of Ms. Frazier’s apartment building saw defendant leaving from the walkway of that building. Shortly thereafter, when Ms. Frazier’s apartment was searched, the officers found personal items belonging to defendant bearing his name, including a suitcase of clothes and a bus ticket to Santa Barbara. They also found seven credit and business cards in Gambrell’s name hidden in a clothes hamper. Ms. Lytle, the self-described best friend of defendant, told Detective Rheault in a taped interview that was played for the jury that defendant said he had robbed someone and it had gone badly. From this substantial evidence, the jury could infer that defendant, knowing he was in possession of Gambrell’s stolen property, hid it in Frazier’s apartment, and it was correct to instruct the jury with CALCRIM No. 376.
A video recording of Ms. Frazier’s statement to the police was admitted into evidence because, at trial, she denied parts of her statement to the police.
Moreover, any claimed error was harmless. The language of the instruction warning the jury that mere possession of stolen property alone is insufficient to permit an inference of guilt has been deemed favorable to defendants generally. (See People v. Mendoza (2000) 24 Cal.4th 130, 176 (Mendoza) [discussing same language in CALJIC No. 2.15]; accord, People v. Barker (2001) 91 Cal.App.4th 1166, 1174.) In reading the jury instructions as a whole, including the instruction on the crime of robbery, it is not reasonably probable the jury was confused as to the required elements of robbery or the requisite burden of proof. Given the substantial evidence in the record supporting defendant’s guilt and the totality of the instructions provided to the jury, it is not reasonably probable defendant would have obtained a more favorable result in the absence of CALCRIM No. 376. (Mendoza, supra, 24 Cal.4th at p. 177.)
4. The Sentence on Count 2.
Defendant contends the court intended to impose the low term on count 2, and the minute order and abstract of judgment which erroneously reflect imposition of the middle term, must be modified to reflect the court’s intended sentence. We disagree.
The court’s oral pronouncement of sentence on count 2 was phrased as follows: “the low term of two years in state prison plus an additional [25] to life on the 12022.53(d), [20] years on subsection (c) allegation and [10] years on the subsection (b) allegation and all of that, as I say, is stayed pursuant to 654 of the Penal Code.” (Italics added.) Defendant correctly notes the court’s oral pronouncement contains an error. Robbery of any person using an ATM constitutes first degree robbery and is punishable in state prison for three, four or six years. (Pen. Code, §§ 212.5, subd. (b), 213, subd. (a)(1)(B).) The jury convicted defendant on count 2 of first degree attempted ATM robbery. Pursuant to Penal Code section 664, subdivision (a), if the crime attempted is punishable in state prison, the person guilty of the attempt shall be sentenced to one-half of the specified term for the crime attempted. Accordingly, the “low term” on attempted first degree ATM robbery is 18 months and a two-year term, as imposed here, would be the middle term. The court’s statement that it was sentencing defendant to the “low term of two years” is therefore inaccurate.
Defendant offers no explanation why we should conclude the court’s “true” sentence is best reflected by its reference to the “low term” as opposed to its specification of “two years” as the term of imprisonment, other than to argue that ordinarily the court’s oral pronouncement controls over the abstract of judgment. It is true the general rule is that the court’s oral pronouncement is presumed correct. (People v. Mesa (1975) 14 Cal.3d 466, 471.) However, our Supreme Court has held that when the reporter’s transcript of the court’s oral pronouncement and the clerk’s transcripts are in conflict, the inconsistency need not always be resolved in favor of the reporter’s transcript. (People v. Smith (1983) 33 Cal.3d 596, 599 (Smith).) The Court explained that where the court’s oral ruling and the minutes reflecting same cannot be harmonized, it may be proper that “ ‘that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’ [Citations.]” (Ibid.)
In People v. Cleveland (2004) 32 Cal.4th 704 (Cleveland), the Supreme Court followed the rule articulated in Smith, giving credence to the minute order and abstract of judgment over the reporter’s transcript from the sentencing hearing. There, the reporter’s transcript reflected that the court had sentenced the defendant to a five-year enhancement for a prior felony under Penal Code section 667 and a one-year enhancement for a prior prison term pursuant to Penal Code section 667.5. (Cleveland, at p. 768.) But, the record established the defendant had been charged with, and admitted to, only a prior serious felony and not a prior prison term. (Ibid.) In affirming the validity of the sentence as reflected in the abstract of judgment, the court explained: “Thus, the reference in the reporter’s transcript to a one-year term under section 667.5 is incorrect. However, the minute order and abstract of judgment in the clerk’s transcript are correct. Neither mentions a prior prison term or section 667.5. Under the circumstances, we will deem the minute order and abstract of judgment to prevail over the reporter’s transcript. [Citations.] The erroneous statement in the reporter’s transcript is of no effect.” (Cleveland, at p. 768, italics added; accord, People v. Thompson (2009) 180 Cal.App.4th 974, 977-978 [deeming minute order and abstract of judgment reflecting correct calculation of sentence to prevail over court’s oral pronouncement where court erroneously calculated length of one-third the middle term].)
Here, considering all the circumstances, we conclude the minute order and abstract of judgment reflect the court’s “true” sentence, and the erroneous statement in the reporter’s transcript is of no effect. In pronouncing sentence, the court imposed the high term on count 3 with a finding of aggravating circumstances. The court expressly found there were no mitigating circumstances. On count 4, the court imposed the middle term for possession of a firearm by a felon. The court further imposed a life sentence without the possibility of parole for the murder of Mr. Mondy, along with additional terms of 25 years to life, 20 years and 10 years for the enhancements. It belies common sense to then conclude the court intended to impose the low term for the attempted robbery of Mr. Mondy that led to defendant’s murder of Mr. Mondy. The court clearly specified a two-year term for the attempted robbery and also imposed the additional terms of 25 years to life, 20 years and 10 years for the enhancements on count 2. If the experienced trial judge who presided over this trial had intended to impose the low term, we are confident he would have specified the reasons for such an extraordinary sentencing choice.
5. The Parole Revocation Restitution Fine Was Proper.
Defendant argues the abstract of judgment erroneously includes a parole revocation restitution fine pursuant to Penal Code section 1202.45. Defendant contends the fine is not legally authorized given defendant’s indeterminate sentence of life without the possibility of parole, and also improper because such a fine was never imposed by the court at the sentencing hearing. Once again, we disagree.
It is undisputed that at the sentencing hearing, in the presence of defendant, the court orally imposed a restitution fine pursuant to Penal Code section 1202.4, subdivision (b), in the amount of $10,000. It was therefore mandatory for the court to impose a parole revocation restitution fine in the same amount pursuant to Penal Code section 1202.45. “Under section 1202.45, a trial court has no choice and must impose a parole revocation fine equal to the restitution fine whenever the ‘sentence includes a period of parole.’ ” (People v. Smith (2001) 24 Cal.4th 849, 853.) The failure to impose the mandatory parole revocation restitution fine following imposition of a restitution fine pursuant to Penal Code section 1202.4, subdivision (b) results in an unauthorized sentence. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.)
In People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), the defendant had been sentenced to death, but also received additional determinate sentences on related counts, for which a period of parole was applicable. (Id. at p. 1049.) Our Supreme Court held that where the defendant is sentenced to at least one determinate term for which parole is applicable, a parole revocation restitution fine is legally authorized and must be imposed, per statute, if a restitution fine is imposed by the court pursuant to Penal Code section 1202.4, subdivision (b). (Brasure, at p. 1075.)
In so holding, Brasure distinguished People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), relied upon by defendant. The Court explained that the sentence imposed in Oganesyan did not include any determinate terms for which a period of parole applied, but only two indeterminate sentences, including life without the possibility of parole. As such, there was no basis for imposition of a parole revocation restitution fine given the express statutory language of Penal Code section 1202.45. (Brasure, supra, 42 Cal.4th at p. 1075.)
The Court also rejected the argument that the fine was improper because the defendant would not likely ever serve any period of parole. “As in Oganesyan, to be sure, defendant here is unlikely ever to serve any part of the parole period on his determinate sentence. Nonetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine. Defendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked.” (Brasure, supra, 42 Cal.4th at p. 1075.)
Defendant’s sentence here includes the indeterminate sentence on count 1 but also includes, like the defendant’s sentence in Brasure, a determinate term for which parole is applicable. We conclude Brasure is controlling and the imposition of the parole revocation restitution fine was proper. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6.) Because the court’s minute order from the sentencing hearing and the abstract of judgment duly reflect the imposition of the parole revocation restitution fine in the amount of $10,000, stayed, notwithstanding the fact the court did not impose the fine during the sentencing hearing, no order of modification to the judgment is required.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., RUBIN, J.