Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LA060702 Clifford L. Klein, Judge. Affirmed with modifications.
Brian A. Wright, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Gomez.
William L. McKinney for Defendant and Appellant Manuel Ayala.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, Manuel Ayala and Carlos Gomez, appeal from their convictions for attempted second degree robbery. (Pen. Code, §§ 211, 664, subd. (a).) Mr. Ayala admitted that he was previously convicted of a serious felony and served a prison term. (§§ 667, subd. (a)(1), 667.5, subd. (b).) Mr. Ayala argues: there was insufficient evidence to support his conviction; defense counsel provided ineffective assistance; the trial court improperly denied his substitution of counsel motion; the prosecutor improperly commented on his post-arrest silence; he was deprived of his right to be present at an evidentiary hearing; and the cumulative effect of error requires reversal. Mr. Gomez argues that the trial court improperly imposed a crime prevention fine. We address additional sentencing issues and affirm the judgments with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 9 p.m. on November 30, 2008, Edward Kharineh was speaking to his girlfriend on a public telephone. Mr. Kharineh saw defendants approaching him. Mr. Kharineh believed defendants might cause trouble. Mr. Ayala leaned into the open phone booth. Mr. Gomez stepped behind Mr. Kharineh. Mr. Ayala asked Mr. Kharineh for the time. Mr. Kharineh told his girlfriend, “I’m going to call you as soon as I’m out of this mess.” Immediately after he hung up the phone, Mr. Gomez grabbed Mr. Kharineh from behind. Contemporaneously, Mr. Ayala reached into Mr. Kharineh’s pockets. Mr. Gomez held Mr. Kharineh’s arms and shoulders. Mr. Kharineh kicked Mr. Ayala. Mr. Ayala punched Mr. Kharineh twice in the forehead with a closed fist. The struggle continued, with Mr. Gomez pulling at Mr. Kharineh’s jacket. Suddenly defendants said something to one another in Spanish and released Mr. Kharineh. Mr. Kharineh was shaking and terrified.
Within a minute, Mr. Kharineh saw a police patrol car stopped at the intersection. Mr. Kharineh ran to the patrol car. Mr. Kharineh told the officers, “I’ve been attacked and I’ve been robbed.” Mr. Kharineh pointed to defendants, who were walking away. Los Angeles Police Officer Kevin Johnston and a partner were in their patrol car near the center lane when Mr. Kharineh ran up to them. Mr. Kharineh seemed frantic and yelled that he had been attacked. Officer Johnston asked Mr. Kharineh if anything was taken. Mr. Kharineh said they tried to take his property. Officer Johnston saw Mr. Ayala walking eastbound. Mr. Gomez was walking westbound approximately 25 feet away. The officers made a U-turn, parked and ran after defendants. Both defendants were arrested. Thereafter, Mr. Kharineh identified defendants as his assailants.
III. DISCUSSION
A. Sufficiency of the Evidence
Mr. Ayala argues there was insufficient evidence to support his conviction. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Wyatt (2010) 48 Cal.4th 776, 781; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]’ [Citation.]” (People v. D’Arcy (2010) 48 Cal.4th 257, 293, quoting People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 211 defines robbery, “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Section 664, states, “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished....” Our Supreme Court has held, “‘An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.’ [Citation.]” (People v. Lindberg, supra, 45 Cal.4th at p. 24, quoting People v. Medina (2007) 41 Cal.4th 685, 694.) In Medina, our Supreme Court held: “‘“When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.” [Citation.]’ [Citation.]” (People v. Medina, supra, 41 Cal.4th at p. 694, quoting People v. Toledo (2001) 26 Cal.4th 221, 229-230.)
Defendant argues: “The evidence proved only a fist fight after a vocal warning to ‘Step back!’ by the victim. This warned that one person was standing too close, violating the personal space of another. It may have provoked the altercation. The conduct by the assailants was at best, ambiguous.” We disagree. As noted above, we may not reweigh the evidence. Mr. Gomez struggled with Mr. Kharineh. This occurred while Mr. Ayala intentionally went through Mr. Kharineh’s pockets. Mr. Ayala hit Mr. Kharineh in the face to gain compliance. A juror could reasonably conclude that both defendants intended to take Mr. Kharineh’s possessions from his person and against his will by force or fear. Mr. Kharineh prevented the actual completion of the robbery by resisting Mr. Ayala and Mr. Gomez. The jurors could reasonably find defendants terminated their attempts to rob Mr. Kharineh because they saw police officers he had summoned as they walked away. This constitutes substantial evidence Mr. Ayala attempted to rob Mr. Kharineh.
B. Effectiveness of Counsel
Mr. Ayala argues that he was denied effective assistance of counsel. Mr. Kharineh repeatedly testified he had been “robbed” or that defendants tried to take money from his pockets. Mr. Ayala argues his attorney, Anna Brief, should have objected to this aspect of Mr. Kharineh’s testimony. In a footnote, Mr. Ayala references various excerpts from Mr. Kharineh’s testimony.
Our standard of review in determining whether defendant was denied effective assistance of counsel was specified by the Supreme Court as follows: ‘“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)’ (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶]... ‘... “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)’ (People v. Williams, supra, 16 Cal.4th at p. 215.)” (People v. Majors (1998) 18 Cal.4th 385, 403.) The Supreme Court has also held: “Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.)
Counsel need not pursue futile or meritless objections or argument. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) “‘The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsel’s part and seldom establish a counsel’s incompetence.... “‘In the heat of a trial, defendant’s counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel....’”’ [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1140, quoting People v. Frierson (1979) 25 Cal.3d 142, 158.) Our Supreme Court has determined that in ruling on the effectiveness of counsel, the reviewing court must also consider the record of what counsel did do at trial. (In re Ross (1995) 10 Cal.4th 184, 209; People v. Miranda (1987) 44 Cal.3d 57, 121.)
In this case, Ms. Brief conclusively established on cross-examination that Mr. Ayala did not remove anything from Mr. Kharineh’s pockets. In addition, Ms. Brief established that Mr. Kharineh was “fighting” with defendants and at some point was not restrained. In her summation, Ms. Brief argued that the prosecution had failed to demonstrate that Mr. Ayala had the specific intent element of attempted robbery. Ms. Brief argued that Mr. Ayala and Mr. Gomez were “somewhat intoxicated” when they approached Mr. Kharineh at the open phone booth. Defendants began “bugging” Mr. Kharineh. Ms. Brief acknowledged Mr. Ayala’s hands were in Mr. Kharineh’s pocket. But she asserted there was no evidence Mr. Ayala tried to grab anything inside. The “little tussle” that followed may have caused Mr. Kharineh’s head injury as they circled around. Ms. Brief further argued that defendants were capable of overpowering Mr. Kharineh but did not do so. Ms. Brief noted that there was no evidence that defendants either saw the nearby officers or took flight. On this record, we must presume that Ms. Brief had a strategy to contradict Mr. Kharineh’s testimony as to Mr. Ayala’s intent. We may not second guess her motivation in failing to object to those portions of Mr. Kharineh’s testimony cited by Mr. Ayala. Further, Mr. Ayala has failed to demonstrate prejudice as a result of Ms. Brief's representation.
C. Mr. Ayala’s Substitution of Counsel Motion
1. Factual and procedural background
Mr. Ayala argues that the trial court improperly denied his substitution of counsel motion. On December 12, 2008, the same day as the preliminary hearing, Mr. Ayala was offered a 32-month sentence in exchange for a guilty plea. At Ms. Brief’s request, that offer was allowed to remain open. On December 26, 2008, the information was filed charging defendants with attempted robbery. Defendants were arraigned and pled not guilty. On February 17, 2009, the amended information was filed, which added special allegations regarding Mr. Ayala’s alleged prior prison terms and a serious felony conviction. On February 17, 2009, Mr. Ayala was arraigned on the amended information and pled not guilty. At that time, Mr. Ayala indicated that he wanted to substitute appointed counsel. Thereafter, the trial court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 124-126.
The trial court inquired as to Mr. Ayala’s request for a new attorney. Mr. Ayala stated Ms. Brief said: he was guilty; he had a prior as bad as the current charges; she did not have much time to take care of this case; she did not get paid very well; and, if she went to trial, she would lose the case. Mr. Ayala further stated Ms. Brief: had not given him any papers; had not shown him anything; or told him anything. When asked to respond, Ms. Brief stated: “Other than that the fact it’s all lies. I never said any of that. I have been representing him from the initial preliminary hearing dates. This is a co-defendant matter. I’ve spent a lot of time speaking with him. I advised him of the charges in this case and how his prior record affects this case as far as sentencing is concerned. [¶] So to that effect, I did go into his strike prior. I did tell him what the offer was. I did go over the police report with him. I did give him my opinion of the police report. [¶] We had a preliminary hearing in which a witness testified. And, as the district attorney pointed out, that witness did identify him in court as being one of the perpetrators. I have gone over the facts of this case. I’ve gone over my opinion as to whether or not he should proceed to trial or whether or not he should take a deal. [¶] I never discuss my salary with anybody, other than my family members, and I never tell people I don’t want to go to trial. As a matter of fact, I have a reputation for going to trial in this court and in other courts, so I - -” The trial court interrupted, “Well, he says you told him he was guilty.” Ms. Brief responded: “No. I never make the decision on whether or not to go to trial for my clients. That is solely within their power and their right to decide whether or not we go to trial or whether they take the deal. My opinion either way, I will do it. I’ll go to trial even on a completely indefensible matter if the clients wants to go to trial.”
When the trial court inquired about Ms. Brief’s investigation and preparation for trial, Ms. Brief answered: “There are no witnesses, other than the two defendants and the victim in this case. The victim refused to talk to my investigator. My hands are tied. Police officers never talked to the defense counsel or their investigators prior to them taking the stand and being cross-examined, so there is really nothing for me to do in this case. There were no videos, there were no pictures.” The trial court asked if Ms. Brief requested that the investigator try to conduct some investigation. Ms. Brief answered: “Yes. Yes.” Ms. Brief indicated that she could continue to work with Mr. Ayala.
Thereafter, the trial court ruled: “Mr. Ayala, it sounds like your lawyer is doing everything she can on the case. Just from what I’ve seen of you in court today, you strike me as someone who wants to have your lawyer be very honest with you; is that correct?” Mr. Ayala indicated Ms. Brief would not give him papers. Mr. Ayala proclaimed his innocence. Mr. Ayala stated he wanted someone who could help him. Mr. Ayala indicated he had no witnesses to be interviewed. Mr. Ayala stated he did not want Ms. Brief to defend him. After inquiring further of Ms. Brief, the trial court explained she had been honest with him regarding his odds of winning his case. Defendant stated he wanted to go trial. The trial court indicated: “All right. I don’t find anything - - any specific reason here why she can’t represent you. I find nothing about a breakdown in the relationship. If you want to work with her, you can. She can represent you, all right? I need something more specific. But at this point she can say ‘ready for trial’ and bring in the jurors if you don’t want to take the deal. I don’t even know what the deal is.” Ms. Brief explained that she and her office had a policy to not give copies of police reports to defendants because of recent problems in the jail, where such reports were used to harass victims and witnesses. Ms. Brief indicated she had read the reports to Mr. Ayala and kept him fully informed of witness statements. The trial court then denied the substitution of counsel motion.
2. The trial court could properly deny Mr. Ayala’s motion to substitute counsel
A criminal defendant has a right to substitute counsel on demonstrating that his right to counsel would otherwise be substantially impaired. (People v. Abilez (2007) 41 Cal.4th 472, 487-488; People v. Marsden, supra, 2 Cal.3d at p. 123.) The California Supreme Court recently reiterated: “‘“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” [Citations.]’” (People v. Abilez, supra, 41 Cal.4th at pp.487-488; People v. Mendoza (2000) 24 Cal.4th 130, 157; People v. Hart (1999) 20 Cal.4th 546, 603, People v. Fierro (1991) 1 Cal.4th 173, 204; People v. Crandell (1988) 46 Cal.3d 833, 854; see also People v. Nakahara (2003) 30 Cal.4th 705, 718; People v. Barnett, supra, 17 Cal.4th at p.1085; People v. Hines (1997) 15 Cal.4th 997, 1025.) We review the trial court’s denial of a Marsden motion for an abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 681; People v. Smith (2003) 30 Cal.4th 581, 684.)
Mr. Ayala argues that he was “forced to go to trial with an attorney who was likely not prepared, whom he was not comfortable with and with whom he had a problem communicating[]” as a result of the trial court’s failure to “engage in a searching investigation of these charges, ” he was convicted. We disagree. The trial court made extensive inquiry into both Mr. Ayala’s concerns and Ms. Brief’s preparation and representation. Mr. Ayala has failed to demonstrate that he was not provided adequate representation or that he and Ms. Brief became embroiled in such an irreconcilable conflict that ineffective representation was likely to result.
D. Prosecutorial Misconduct
Mr. Ayala argues that the prosecutor, Yael Massry, improperly commented on his post-arrest silence. During the course of her direct examination of Officer Johnston, Ms. Massry inquired, “Now, when you took the defendants into custody, did you smell any type of odor of alcohol on them?” Officer Johnston answered, “I don’t remember smelling alcohol.” Ms. Massry then asked, “Did either of them indicate that they were drunk or anything like that?” Mr. Kalra, counsel for Mr. Gomez objected. The trial court sustained the objection. At a bench conference, Mr. Kalra asked the court to admonish Ms. Massry because she commented on Mr. Gomez’s post-arrest silence following a Miranda invocation. The prosecutor indicated she would withdraw the question. Mr. Kalra requested that the court advise the jury that the question was inappropriate. Thereafter, the trial court again told the jurors that the objection was sustained.
No prejudicial misconduct occurred. The United States Supreme Court has held that a defendant’s silence following the giving of the warnings described in the majority opinion in Miranda v. Arizona (1966) 384 U.S. 436, 444, may not be used to impeach the defendant’s testimony at trial. (Doyle v. Ohio (1976) 426 U.S. 610, 617-619; see also Anderson v. Charles (1980) 447 U.S. 404, 408; People v. Quartermain (1997) 16 Cal.4th 600, 619; People v. Jones (1997) 15 Cal.4th 119, 170-171, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; see also People v. Delgado (2010) 181 Cal.App.4th 839, 853.) Doyle error requires reversal of the judgment unless the error was harmless beyond a reasonable doubt, under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Earp (1999) 20 Cal.4th 826, 858; People v. Crandell, supra, 46 Cal.3d at p. 879; People v. Delgado, supra, 181 Cal.App.4th at p. 854.) The California Supreme Court held: “Under this test, the appropriate inquiry is ‘not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ [Citation.].” (People v. Quartermain, supra, 16 Cal.4th at p. 621, quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 279, original italics.)
Here, the prosecutor inquired of the arresting officer whether defendants indicated they had been drinking. However, when the trial court sustained Mr. Gomez’s objection, the jurors never heard an answer to the question. The prosecutor withdrew the question. Thereafter, the trial court advised the jurors that the objection was sustained. The jurors were instructed to ignore the questions for which objections were sustained. The California Supreme Court has consistently stated that on appeal: “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’ [Citation.]” (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband, supra, 13 Cal.4th at p. 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Moreover, no evidence was introduced that suggested Mr. Ayala was informed of his right to remain silent and then asserted his right to silence or how he “failed” to answer the question. Even if the prosecutor’s question constituted Doyle error it was harmless under any standard. (People v. Chapman, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Delgado, supra, 181 Cal.App.4th at p. 854.) In light of the evidence presented, Mr. Ayala’s guilty verdict was unattributable to the error. We do not address the question of the correctness of the trial court’s evidentiary ruling in light of the absence of any evidence Mr. Ayala was ever advised of his rights and unequivocally sought the assistance of counsel or to remain silent.
E. Mr. Ayala’s Absence From A Hearing Regarding The Admissibility of Evidence
1. Factual and procedural background
Mr. Ayala argues his federal constitutional rights were violated when the trial court ruled in his absence on the admissibility of the emergency call made by Mr. Kharineh’s girlfriend. Before trial commenced, the prosecutor sought to introduce a recording of an emergency call made to the police by Mr. Kharineh’s girlfriend shortly after he hung up on their telephone conversation which was necessitated by defendants’ menacing approach. The trial court stated, “I’m ready to try and resolve this issue now, or we can wait for your clients to be brought out.” Counsel for Mr. Ayala indicated, “I am fine to resolve it now.” The trial court asked, “Out of the presence of your clients?” Counsel for Mr. Gomez responded, “We would like to resolve it now.” After hearing the arguments of counsel, the trial court ruled the evidence inadmissible pursuant to Evidence Code sections 1240, 1241, and 1250. The trial court indicated, “[D]epending how the testimony comes down, things can always change.” Thereafter, defendants were brought into the courtroom. The tape recording in question was never admitted into evidence.
2. No constitutional violation occurred
Our Supreme Court has held: “Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross-examination.’ (Kentucky v. Stincer (1987) 482 U.S. 730, 744-745, fn. 17; see People v. Harris (2008) 43 Cal.4th 1269, 1306.) Due process guarantees the right to be present at any ‘stage... that is critical to [the] outcome’ and where the defendant’s ‘presence would contribute to the fairness of the procedure.’ ([Kentucky v.] Stincer, [supra, 482 U.S.] at page 745; see [People v.] Harris[, supra, 43 Cal.4th] at p. 1306.)” (People v. Butler (2009) 46 Cal.4th 847, 861; see also People v. Romero (2008) 44 Cal.4th 386, 418; People v. Coddington (2000) 23 Cal.4th 529, 629, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 and Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 984.) However, as our Supreme Court in People v. Butler, supra, 46 Cal.4th at page 861 held: “Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]” (See People v. Harris, supra, 43 Cal.4th at p. 1306; People v. Cole (2004) 33 Cal.4th 1158, 1231.)
In this case, defense counsel specifically waived Mr. Ayala’s presence at the hearing. Moreover, the evidence in question was not admitted. There is no indication that Mr. Ayala’s presence at the hearing would have had any impact. As a result, Mr. Ayala has suffered no prejudice as a result of his absence at the hearing. (See People v. Butler, supra, 46 Cal.4th at p. 864 [review of photographic evidence and discussion regarding defendant’s decision to testify deemed not critical to the outcome]; People v. Holt (1997) 15 Cal.4th 619, 707 [no constitutional violation where defendant prevailed in the matters discussed at in-chambers proceedings absent his presence].)
F. Sentencing Issues
1. Section 1202.5, subdivision (a) fine
Mr. Gomez argues and the Attorney General concedes that the trial court improperly imposed a $10 section 1202.5, subdivision (a) fine as to both defendants. We agree. Section 1202.5, subdivision (a) states, “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, o4 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed.” Attempted robbery is not included in the offenses subject to the fine. As a result, the section 1202.5, subdivision (a) fine is reversed as to both defendants.
2. Government Code Section 70373, subdivision (a)(1)
The abstract of judgment as to Mr. Ayala and the clerk’s minute orders as to both defendants reflect the imposition of a $30 Government Code section 70373, subdivision (a)(1) assessment. However, the transcript of the sentencing proceedings do not reflect the oral pronouncement of such assessments by the trial court. The abstract of judgment must fully comport with the oral pronouncement of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14.) Government Code section 70373, subdivision (a)(1) requires the imposition of such an assessment on every conviction for a criminal offense. Therefore, the oral pronouncement of judgment is modified to reflect the $30 Government Code section 70373, subdivision (a)(1) assessment as to each defendant. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1412-1414 [Gov. Code, § 70373, subd. (a)(1) assessment properly imposed and does not violate ex post facto prohibitions because it serves a nonpunative purpose]; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5-6.)
3. Section 667.5, subdivision (b)
Following our request for further briefing, the parties agree that the trial court should have stricken rather than stayed the section 667.5, subdivision (b) prior prison term enhancement as to Mr. Ayala. In People v. Jones (1993) 5 Cal.4th 1142, 1150-1152, the California Supreme Court held that section 654, subdivision (a) bars cumulative imposition of both the sections 667, subdivision (a)(1) and 667.5, subdivision (b) enhancements. Only the greatest enhancement pursuant to section 667, subdivision (a)(1) should be imposed. (Id. at p. 1152; see also People v. Baird (1995) 12 Cal.4th 126, 134.) As a result, only the section 667, subdivision (a)(1) five-year enhancement may be imposed with respect to defendant’s prior serious conviction. Moreover, the trial court did not have jurisdiction to stay the section 667.5, subdivision (b) enhancement. (§ 12; People v. Bradley (1998) 64 Cal.App.4th 386, 390-392; People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; see also People v. Alexander (1992) 8 Cal.App.4th 602, 604.) Because the section 667, subdivision (a)(1) enhancement was imposed, the trial court only had the authority to strike the section 667.5, subdivision (b) enhancement. In this case, the trial court imposed the five-year section 667, subdivision (a)(1) enhancement and stayed the section 667.5, subdivision (b) enhancement. As a result, the section 667.5, subdivision (b) enhancement is stricken. In addition, the abstract of judgment must be corrected to reflect the trial court’s imposition of the five-year section 667, subdivision (a)(1) enhancement. The section 667, subdivision (a)(1) enhancement is reflected as five one-year enhancements on the abstract of judgment.
4. Presentence conduct credits
Following our request for further briefing, Mr. Ayala argues that he was entitled to additional presentence credits because attempted robbery is not a violent felony as described in section 667.5, subdivision (c). We agree. If the current conviction is not a violent felony, the trial court must award presentence conduct credits under section 4019, subdivisions (b) and (c) rather than section 2933.1, subdivision (c). (People v. Thomas (1999) 21 Cal.4th 1122, 1130; People v. Williams (2000) 79 Cal.App.4th 1157, 1176.) Nothing in the language of section 667.5, subdivision (c) indicates that attempted robbery is a violent felony. Unless otherwise specified, an attempt to commit an enumerated felony does not fall within the scope of section 667.5, subdivision (c). (People v. Ibarra (1982) 134 Cal.App.3d 413, 425; see People v. Finley (1994) 26 Cal.App.4th 454, 458.)
The question remains as to whether Mr. Ayala is entitled to additional custody credit under Penal Code section 4019 as amended effective January 25, 2010. (Stats. 2009-2010 (3rd Ex. Sess.) Ch. 28, § 50.) That amendment took effect while this appeal was pending. The Courts of Appeal disagree about the retroactive effect of the recent amendment to Penal Code section 4019. (Compare People v. Norton (2010) 184 Cal.App.4th 408, 414-420 [retroactive], People v. Keating (2010) 185 Cal.App.4th 364, 382-391 [retroactive] and People v. Bacon (2010) 186 Cal.App.4th 333, ___ [111 Cal.Rptr.3d 573, 574-575] [retroactive] with People v. Eusebio (2010) 185 Cal.App.4th 990, 992-996 [not retroactive].)
The retroactivity question is before the California Supreme Court in: People v. Hopkins (2010) 184 Cal.App.4th 615 (review granted July 28, 2010, S183724) [not retroactive]; People v. Pelayo (2010) 184 Cal.App.4th 481 (review granted July 21, 2010, S183552) [retroactive]; People v. Otubuah (2010) 184 Cal.App.4th 422 (review granted July 21, 2010, S184314) [not retroactive]; People v. Rodriguez (2010) 183 Cal.App.4th 1 (review granted June 9, 2010, S181808) [not retroactive]; People v. Brown (2010) 182 Cal.App.4th 1354 (review granted June 9, 2010, S181963) [retroactive]; People v. House (2010) 183 Cal.App.4th 1049 (review granted June 23, 2010, S182813) [retroactive]; and People v. Landon (2010) 183 Cal.App.4th 1096 (review granted June 23, 1010, S182808) [retroactive] People v. Brown, supra, is the lead case.
We conclude the amendment does not apply retroactively. (People v. Eusebio, supra, 185 Cal.App.4th at pp. 992-996.) We adopt the reasoning of our colleagues in Division Four of this appellate district and hold that the amendment to Penal Code section 4019 effective January 25, 2010, does not apply retroactively. (Ibid.) Mr. Ayala is not entitled to additional custody credit due to the recent amendments to Penal Code section 4019.
As a result, Mr. Ayala is entitled to credits pursuant to the provisions of section 4019, subdivisions (b) and (c) in effect at the time he was sentenced. Mr. Ayala should have received credit for 117 actual days in custody plus 58 days of conduct credit, for a total of 175 days. (See People v. Browning (1991) 233 Cal.App.3d 1410, 1413.) Mr. Gomez received the proper number of presentence credits pursuant to section 4019, subdivisions (b) and (c). The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment as to Mr. Ayala that includes all of the modifications set forth above. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
G. Cumulative Error
Mr. Ayala argues that the cumulative effect of errors committed by the trial court requires the reversal of his convictions. We disagree. There has been no showing of cumulative prejudicial error. (People v. Watson (2008) 43 Cal.4th 652, 705; People v. Abilez, supra, 41 Cal.4th at p. 523; People v. Boyette (2002) 29 Cal.4th 381, 467-468; People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were minor and either individually or cumulatively would not alter the outcome of the trial]; People v. Catlin (2001) 26 Cal.4th 81, 180 [same]; People v. Cudjo (1993) 6 Cal.4th 585, 630 [no cumulative error when the few errors which occurred during the trial were inconsequential].) Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the process or accrue to defendant’s detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As the California Supreme Court has long held, “[A] defendant [is] entitled to a fair trial but not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey, supra, 2 Cal.4th at p. 454; People v. Miranda, supra, 44 Cal.3d at p. 123.) In this case, one of essentially uncontroverted evidence of guilt, both defendants received more than a fair trial.
IV. DISPOSITION
The judgments are modified as follows: the $10 Penal Code section 1202.5, subdivision (a) fine is reversed as to both Mr. Ayala and Mr. Gomez; a $30 Government Code section 70373, subdivision (a)(1) assessment is imposed as to Mr. Ayala and Mr. Gomez; Mr. Ayala’s Penal Code section 667.5, subdivision (b) enhancement is stricken; and Mr. Ayala is awarded presentence credits of 117 actual days in custody and 58 days conduct credit. The judgments are affirmed in all other respects. Upon remittitur issuance, the superior court clerk shall prepare an amended abstract of judgment and forward it to the California Department of Corrections and Rehabilitation.
We concur: MOSK, J.KRIEGLER, J.