Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CC803093
Duffy, J.
Defendant Clarence Adie Harvey was convicted after a jury trial of two counts of second degree robbery arising out of two liquor store robberies occurring on April 21, 2008. The jury also found true allegations that defendant personally used a firearm in the commission of both offenses. Defendant admitted additional enhancements, and he was sentenced to an aggregate prison term of 18 years and four months.
Defendant asserts four claims of error. He argues that the court erred when it responded to a question by the jury concerning CALCRIM No. 224 by indicating that the jury could disregard unspecified circumstantial evidence that it determined to be “unclear” and consider all other evidence in determining whether the prosecution had proved defendant’s guilt beyond a reasonable doubt. Defendant asserts further that the court erred when it permitted a victim to identify the shoes worn by the masked robber, because the testimony was preceded by a suggestive lineup in which she was shown photographs of six pairs of shoes, including those belonging to defendant. Third, he contends that the court erred in giving an instruction that the concealment or destruction of evidence showed a consciousness of guilt (CALCRIM No. 371), because (1) the instruction, as phrased, was an incorrect statement of the law, and (2) there was no substantial evidence that supported the instruction. Lastly, defendant argues that the restitution and parole revocation fines imposed were improperly calculated under the applicable statutory formula.
We conclude that the first three claims are without merit. Defendant’s contention, however, that the fines were incorrectly calculated—a claim conceded by the Attorney General—is meritorious. We will therefore direct that the judgment and abstract of judgment be amended to reflect the correct amounts of restitution and parole revocation fines, namely, $7,200 for each fine. As modified, we will affirm the judgment.
FACTS
I. Prosecution Evidence
A. The Rented Dodge Avenger
Lacrecia Simms rented a silver gray Dodge Avenger from Enterprise Rent-A-Car on April 18, 2008. She loaned the car to her sister, Venecia Simms. Defendant is the father of one or more of Venecia’s children.
All dates are 2008 unless otherwise specified.
On Sunday, April 20, Venecia dropped the Dodge off at a community car wash in East Palo Alto and arranged to have the car picked up later by Anthony Pratt, a friend of hers and defendant’s and the godfather of one of defendant’s children. She told Pratt that she would call him about getting the car back later that day. Before that time, neither Pratt nor defendant had ridden in the car. Venecia called Pratt later on. “He said that he was handling some business and he would call [her] back....” Venecia tried unsuccessfully to reach Pratt the next day. She never saw the Dodge again.
B. The Mountain View Robbery
Maria Sousa (Sousa) and her husband have owned Sousa’s Wines & Liquors on Moffett Boulevard in Mountain View since 1998. (In or about 2004, Venecia lived on Tyrella Avenue in Mountain View—which is near Sousa’s Wines and Liquors—and defendant visited her there.) At about 12:15 p.m. on April 21, Sousa was working in the back of the store when a man carrying a gun and wearing a hooded black jacket and a ski mask entered the store. He approached her and said, “ ‘Give me the money.’ ” Sousa said the money was in front, and he directed her to get it. She stepped in front of him and went to the cash register. The man was behind her and had the gun in her back. Sousa gave him the money in the register. There was a safe below the register that contained the cash from the previous weekend’s transactions, and the man directed her to open it. Sousa bent down to open the safe and passed the money to the man, who continued to stand behind, pointing a gun at her. He told her to keep her head down. Sousa thought at the time that the man was going to shoot her. She estimated that there was about $2,000 in the register and $4,000 in the safe.
The man’s face was entirely covered by a mask, but Sousa noticed that the skin around his eyes was darker than hers. (Sousa described herself as “dark Portuguese.”) He spoke English without an accent, and Sousa estimated that he was between 18 and 30 years old. While Sousa was opening the safe for the masked robber, she saw that he was wearing Nike tennis shoes that were “grayish with a swoosh of blue.” During trial, after standing next to defendant, Sousa testified that the man who robbed the liquor store was the same height and had the same skin tone as defendant. She also testified that the robber was approximately five feet 10 inches tall, the same height as her husband.
The liquor store had a new, nine-camera video surveillance system that operated 24 hours a day. The system had the capability of capturing still photographs as well. The video surveillance system captured the robbery as it progressed, beginning with an image of the man outside the store. As he entered the store, the system showed him reaching into the right side of his waistband and pulling out a gun.
C. The Campbell Robbery
Stanley Ungson is the co-owner of the U-Save Liquor Store on Hamilton Avenue in Campbell. He was working there on April 21. At about 1:23 p.m., a man with a gun entered the liquor store. He was African American, approximately five feet 11 inches to six feet tall, weighed about 210 to 215 pounds, and wore a ski mask and a black hooded sweatshirt. He approached the check-out stand and demanded of Ungson: “ ‘Give me all your money. Don’t mess around.’ ” Ungson gave the man all the money in the register. The man then asked if there was money in the drawer next to the cash register, and Ungson gave the man the small amount of cash in the drawer.
As the man was leaving the store, he bumped into one of the doors; Ungson heard a gunshot, and then heard the man say, “ ‘Oh, shit.’ ” After the man left, Ungson locked the front door and called the police. Ungson testified that defendant’s skin tone and height were the same as the person who had committed the robbery. Ungson thought defendant’s build at the time of trial looked “[a] little slimmer” than the robber, but the robber’s sweatshirt “was a little baggy.”
A neighbor, Michael Broback, heard a loud bang while he was in his backyard. He went to the front and saw an African American male, who was wearing dark clothing, “running peg-legged [with both legs straight] across the street.” He dropped something metallic that clattered on the street and picked it up.
D. Defendant’s Hospital Visit
At approximately 1:30 p.m. on April 21, George Skucius was at the emergency room of Kaiser Hospital in Santa Clara where he worked when a red Camaro with two African American males drove up quickly into the ambulance bay. The driver said that his friend had been shot. Skucius asked the passenger to describe where he had been shot, and he responded that he did not know. When he loaded the man onto a gurney, he saw that “there was blood all over the back side of his pants.” After bringing him inside, the hospital emergency room staff removed the patient’s clothing, which was then given to the police. The bag containing the clothes did not contain any shoes, although there were socks in the bag. Dr. Michelle Holmes, the emergency room treating physician, determined that the patient, defendant, had a wound on his right thigh (a hole with an entrance and exit), an abrasion on his right testicle, and a puncture wound in his left thigh. A bullet was found lodged in his left thigh. She concluded that it was likely he had been wounded by one shot.
Between 2:00 p.m. and 3:00 p.m., Skucius went outside to his truck parked in the employee lot. Parked next to him was the same red Camaro he had seen earlier drive into the emergency bay; there was a pair of tennis shoes that did not belong to him in the bed of his truck. Skucius went back inside and told police officers about the shoes, and they went outside and took custody of them.
The police also obtained permission from Pratt to search his red Camaro. Located inside the car was a black hooded sweatshirt, and the key to the rented silver Dodge Avenger.
E. Post-Robbery Investigation
Detective Cary Shueh of the Mountain View Police Department was assigned to investigate the Mountain View robbery. Sousa told him that she might be able to recognize the robber’s shoes. Detective Shueh obtained from the Campbell police department the tennis shoes that had been retrieved from Skucius’s truck and photographed them. He also took photographs of five pairs of Nike tennis shoes from a Mountain View shoe store. About a week after the robbery, he showed Sousa the photographs of the six pairs of tennis shoes. She indicated that the photograph depicting the shoes retrieved from Skucius’s truck looked similar to the ones worn by the robber.
Those tennis shoes were tested by a criminalist, who determined that defendant was the major source of the DNA found on the tag on the interior tongue of the left shoe. In addition, the sleeves of the hooded sweatshirt retrieved from Pratt’s car were swabbed and tested. The sample from the left sleeve yielded “one consistent particle of gunshot residue, ” and the sample from the right sleeve had “a few characteristic particles of gunshot residue.”
The check-cashing business next door to the Campbell U-Save Liquor Store had a video surveillance system. An expert on Dodge vehicles testified that there was a Dodge Avenger depicted in the video taken at the time of the robbery. The same expert opined, after looking at video and several still photographs extracted from the video surveillance system at Sousa’s Wines and Liquors on April 21 at the time of the robbery, that a silver Dodge Avenger was also depicted in those photographs and was circling the parking lot before the robbery.
Sometime after the robberies occurred on April 21, the police determined that the Dodge Avenger had been parked in a space at an apartment complex in San Jose; the space had been assigned to Alisha Farmer, Pratt’s girlfriend. Before its whereabouts were discovered by the police, the car was towed to the home of Patrick Cooper, the tow truck driver, who had been instructed to clean it. The front passenger seat had a brown stain that Cooper, after repeated cleaning efforts, was able to clean. About a week later, Cooper’s boss had the Dodge towed to a lot in San Jose. When the car was ultimately located by the police, the lead investigator for the Campbell robbery determined that the keys recovered from Pratt’s Camaro belonged to the Dodge. A criminalist ripped the front passenger seat and determined that the seat appeared to be stained with blood. He determined from DNA testing that the traces of blood found in the seat cushion were a match to defendant’s DNA.
Pursuant to a search warrant, the police obtained the call records for defendant’s cellular phone from the provider, Metro PCS. On the day of the robberies, April 21, there was a record of 30 calls involving defendant’s cell phone between 11:48 a.m. and 1:37 p.m. There were no connected calls that occurred with defendant’s cell phone during the times that the Mountain View or Campbell robberies transpired.
II. Pertinent Defense Evidence
Around noon or 1:00 p.m. on April 21, Marvella Millan, a clerk at the hotel next door to Sousa’s Wines and Liquors, encountered an African American male who “kind of looked suspicious.” He came to the front desk inquiring about a room. He and Millan never made eye contact when they spoke, and after asking some questions, he left the hotel. She described the man as about five feet six inches tall, and wearing a black hooded sweater.
Another hotel employee, Patricia Demeza, saw an African American man on April 21 shortly before the time she heard there had been a robbery. He was on the other side of the wall between the hotel and the liquor store walking toward the store entrance. She did not see him go into the liquor store. The man wore a hooded sweatshirt and was about five feet six inches tall. Demeza also testified that at that time, there was a trailer behind the liquor store where several Hispanic and African American people would loiter, occasionally drink, and periodically go into the liquor store.
Detective Shueh arranged a photo lineup that included the photographs of six men, including defendant. Neither Millan nor Demeza was able to identify the man seen at or outside the hotel.
PROCEDURAL BACKGROUND
Defendant was charged by amended information with two counts of robbery in the second degree (Pen. Code, §§ 211-212.5, subd. (c), 187). It was alleged that in committing the offenses, defendant personally used a firearm (handgun) (§ 12022.53, subd. (b)). The amended information contained the further allegations that at the time defendant committed the offenses, he had been released from custody on bail in connection with another offense (Pen. Code, § 12022.1); and that he had previously been convicted of two felonies for which he had served prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
On November 3, 2009, the jury found defendant guilty of both robbery counts and found true the firearm allegations. Defendant admitted the remaining allegations. The court sentenced defendant to an aggregate prison term of 18 years and four months. Defendant filed a timely notice of appeal.
DISCUSSION
I. Response to Jury Question Regarding Circumstantial Evidence
A. Background and Contentions
During its deliberations, the jury sent the following question to the court: “Per CALCRIM 224 (pg. 7), if 1 part of circumstantial evidence is unclear, can we disregard that piece of evidence and weigh the remaining pieces of evidence to come to a verdict?” The court met with counsel and discussed a response to the jury’s question. The court prepared the response based upon that discussion, and it was delivered, without objection by either counsel, to the jury. The response read: “Yes, if by unclear you are referring to the first paragraph of CALCRIM 224: Lines 3-5 on page 7 of the instructions. [¶] [The Court is assuming your question refers to the first paragraph only and not the second paragraph of CALCRIM 224.] [¶] That paragraph states: [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.’ [¶] If I have not answered your question or misunderstood your question, please let me know and re-ask your question.” (Original italics.)
Defendant contends the court committed prejudicial error when it instructed the jury it could disregard certain circumstantial evidence that it deemed “unclear.” He argues that the response was contrary to the requirement that the prosecution must prove its case beyond a reasonable doubt based upon all of the evidence presented. (See § 1096.) The Attorney General responds that defendant’s argument is “technical hairsplitting” inappropriate for examining whether a jury has been misinstructed. The Attorney General contends that, considering the court’s response in context—by looking at CALCRIM No. 224, the jury’s question, the court’s response, and the remaining instructions—it was not reasonably likely that the jury misapplied the law.
B. Discussion of Claim of Error
1. Forfeiture
Defense counsel did not object to the court’s response to the jury’s question concerning CALCRIM No. 224. This absence of objection notwithstanding, defendant contends that he did not forfeit the appellate claim. The Attorney General does not address the question of forfeiture.
Section 1259 reads in relevant part: “The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (See also People v. Prieto (2003) 30 Cal.4th 226, 247.) A defendant’s substantial rights are deemed to have been affected where the instructional error is reversible error under People v. Watson (1956) 46 Cal.2d 818. (People v. Felix (2008) 160 Cal.App.4th 849, 857.) And a determination of whether the claimed instructional error affects the defendant’s substantial rights is one which, of necessity, requires a review of the merits of the claim. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Here, however, defense counsel not only did not object to the court’s response to the jury’s question, she, along with the prosecution, met with the trial judge and arrived at the language that should be provided in the response. Under similar circumstances, our high court has applied the forfeiture doctrine to unpreserved challenges to instructions given in response to jury inquiries. (See, e.g., People v. Hamilton (2009) 45 Cal.4th 863, 949-950 [challenge to court’s response to jury question concerning meaning of “lingering doubt” forfeited where defense counsel agreed to language]; People v. Harris (2008) 43 Cal.4th 1269, 1317 [defendant forfeited challenge where he “specifically agree[d] below to the court’s handling of the jury’s question” as to meaning of life without the possibility of parole and the death penalty]; People v. Turner (2004) 34 Cal.4th 406, 437 [defendant forfeited challenge to court’s response to jury inquiry as to meaning of life without possibility of parole where he did not object and apparently agreed to response].) We therefore conclude that the claim was forfeited; we will nonetheless address the merits of defendant’s claim below.
Because we have elected to consider defendant’s claim, notwithstanding its forfeiture, we need not address his supplemental argument that he was deprived of effective assistance of counsel due to his counsel’s failure to challenge the court’s instruction.
2. Merits of instructional error challenge
CALCRIM No. 224 is an instruction concerning circumstantial evidence. It is one that must be given where “the prosecution substantially relies on circumstantial evidence to establish any element of the case. [Citations.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171; see also People v. Heishman (1988) 45 Cal.3d 147, 167 [trial court required to give instruction sua sponte where prosecution relies substantially on circumstantial evidence].) CALCRIM No. 224 “does not concern the burden of proof but [only] the threshold inquiry regarding the use of circumstantial evidence.” (People v. Anderson (2007) 152 Cal.App.4th 919, 934.) “The role of CALCRIM No. 224... is not to define reasonable doubt.... [Its] role... is to caution the jury before relying on circumstantial evidence to find the defendant guilty beyond a reasonable doubt.” (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1187.)
The instruction states: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only [the] reasonable conclusions and reject any that are unreasonable.” (CALCRIM No. 224.)
Defendant urges that the trial court’s answer to the jury’s question concerning CALCRIM No. 224 was error because it told the jury it was proper to disregard any circumstantial evidence it deemed “unclear.” The jury must determine whether the prosecution has established the defendant’s guilt beyond a reasonable doubt, and under section 1096, “[r]easonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’ ” (Italics added.) Defendant contends that, by advising the jury that it could disregard “unclear” circumstantial evidence, the court gave the jury “exactly the wrong methodology” in its consideration of the evidence because it “was improperly allowed to view the People’s case as being stronger than it actually was since the persuasive portion of the segregated evidence was segregated from the unpersuasive portion of the People’s case.” He asserts that he was thus deprived of his due process rights under the federal Constitution. We disagree with defendant’s assertion that the court’s instruction resulted in the jury giving an improper “ ‘isolated’ ” appraisal of the evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 577.)
The court was careful in its response to advise the jury that it could disregard circumstantial evidence that it deemed unclear and weigh the remaining evidence, but only in the context of its inquiry concerning the first paragraph of CALCRIM No. 224. The jury was thus instructed that it could disregard an item of circumstantial evidence that it concluded did not prove the fact the People contended that it did. The court’s response confirmed that the jury was entitled to reject one or more pieces of circumstantial evidence relied on by the People to establish some fact, and instructed that it could consider all remaining evidence to determine whether that fact had been proved beyond a reasonable doubt.
Further, defendant’s argument that the court’s response advised that the jury should not consider all of the evidence presented in assessing whether the prosecution proved defendant’s guilt beyond a reasonable doubt ignores another instruction the jury received. The court gave CALCRIM No. 220, which reads in part: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” In addition, the court advised the jury, pursuant to CALCRIM No. 200, that it should “[p]ay careful attention to all of these instructions and consider them together.”
In reviewing a contention that the giving of an ambiguous instruction compels reversal, “we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380; see also People v. Prettyman (1996) 14 Cal.4th 248, 272.) And “ ‘[t]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1016; see also People v. Young (2005) 34 Cal.4th 1149, 1202.)
Here, the jury was properly instructed that it was required to “impartially compare and consider all the evidence that was received throughout the entire trial.” Were we to assume the jury interpreted the court’s answer to the question regarding CALCRIM No. 224 in the manner urged by defendant—namely, that it could discard certain evidence entirely and thereby ignore its obligation under section 1096 to compare and consider all the evidence to decide whether the prosecution had proved defendant’s guilt beyond a reasonable doubt—we would infer that it had ignored the instruction given under CALCRIM No. 220. We shall presume the jury obeyed the court’s instructions. (People v. Jones (2011) 51 Cal.4th 346, 371 [jury presumed to have followed court’s instructions concerning proper purpose for which it could consider evidence]; see also People v. Lewis (2001) 26 Cal.4th 334, 390 [jurors presumed intelligent and “ ‘capable of understanding’ ” and correlating jury instructions’ ”].)
Based upon all of the circumstances, including consideration of the instructions in their entirety, we find that it is not reasonably likely that the jury interpreted and applied the court’s answer to the CALCRIM No. 224 question in the improper manner claimed by defendant. Therefore, even were we to deem his constitutional claim not forfeited, we would nonetheless find that it lacks merit.
II. Lineup of Shoes Claimed to Have Been Unduly Suggestive
A. Background and Contentions
Defendant filed a motion in limine to exclude Sousa’s identification of the Nike tennis shoes retrieved from the back of Skucius’s truck as being similar to those worn by the man who robbed the Mountain View liquor store. He contended that the identification was based upon a photographic lineup of shoes that was impermissibly suggestive in that only one of the six pairs of shoes—the one identified by Sousa—had been obviously worn. Defense counsel argued that the lineup was also unduly suggestive because it included shoes with colors different from the color of the robber’s shoes, as described by Sousa to Detective Shueh. After hearing testimony from Detective Shueh and argument of counsel, the court denied defendant’s motion in limine. After observing that it had some question as to whether the cases dealing with identifications based upon suggestive lineups of potential suspects applied to identifications of inanimate objects, the court concluded that “the shoe identification procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.”
Defendant argues on appeal that the court erred in allowing Sousa’s testimony because it was based upon a prejudicially suggestive shoe lineup in that (1) defendant’s used shoes, containing dirt marks, were compared with five pairs of new shoes; (2) the colors of the other five pairs of shoes were dissimilar to defendant’s shoes; (3) the photo of defendant’s shoes had a beige background, while the other photos had black backgrounds; and (4) Detective Shueh could not recall whether he gave an admonition to Sousa before conducting the photographic lineup. Defendant asserts that the shoe lineup procedure should be governed by the same standards that apply to photographic lineups of potential suspects. And he claims that the error was not harmless beyond a reasonable doubt.
The Attorney General responds, citing no apposite authority, that the law concerning lineups of potential suspects is not applicable to inanimate objects. Further, defendant’s conviction was not based upon a tainted eyewitness identification because no one testified that defendant committed either robbery. The Attorney General argues also that Sousa’s identification of the shoes was not critical, in that the jury itself had the opportunity of comparing defendant’s shoes with those of the robber as seen in the video of the Mountain View robbery. Moreover, the Attorney General argues that any assumed error was harmless, because Sousa’s identification of the shoes “was a small part of the case and the rest of the evidence against [defendant] was overwhelming.”
B. Discussion of Claim that Lineup Was Unduly Suggestive
1. Identification of persons based upon lineups
“In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989; see also Manson v. Brathwaite (1977) 432 U.S. 98, 104-107, 114.) Unless the challenged procedure is “unnecessarily suggestive, ” the court need not make an assessment of the reliability of the identification that resulted from the procedure. (People v. Yeoman (2003) 31 Cal.4th 93, 125.) “Moreover, there must be a ‘substantial likelihood of irreparable misidentification’ under the ‘ “ ‘totality of the circumstances’ ” ’ to warrant reversal of a conviction on this ground. [Citation.]” (People v. Cunningham, at p. 990.) “[E]ach case must be considered on its own facts, ...” (Simmons v. United States (1968) 390 U.S. 377, 384 (Simmons).)
In considering the first question of whether the identification procedure was unduly suggestive, “for a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa (1998) 19 Cal.4th 353, 413.) “The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367 (Carpenter), superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
2. Identification of shoes based upon photographic lineup
Our threshold legal issue is whether the foregoing principles for the identification of a suspect based upon an unduly suggestive lineup applies to the identification of inanimate objects. Defendant—after acknowledging the absence of authority supporting his position—argues that the same principles involving an identification of a suspect apply to the shoe identification here. Naturally, the Attorney General contends that there is no basis for extending due process challenges of suspect identifications to identifications of inanimate objects.
Our research has disclosed no cases supporting defendant’s position that legal principles governing a challenge to a witness’s identification of a suspect based upon an unduly suggestive lineup extends to the identification of objects. Indeed, the only California cases of which we are aware are to the contrary. The Third District Court of Appeal, addressing a challenge to a witness’s identification of the defendant’s car, concluded that “the identification of physical evidence by a witness is not suppressible under the Simmons rub[r]ic [citation], upon the ground that the ‘... procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ Instead, the trustworthiness of that identification testimony is to be tested, like other evidence discovered during a criminal investigation, by cross-examination, impeachment and argument.” (People v. Edwards (1981) 126 Cal.App.3d 447, 457 (Edwards), quoting Simmons, supra, 390 U.S. at p. 384.) And in Carpenter, supra, 15 Cal.4th at page 369, the high court, citing Edwards, supra, 126 Cal.App.3d at pages 456-457, rejected a challenge to the trial court’s refusal to conduct an evidentiary hearing concerning the reliability of a witness’s identification of the defendant’s car, holding that the court had correctly “rul[ed] that, although at trial defendant could fully probe any suggestiveness in the identification process, it would go ‘to the weight rather than the admissibility of the evidence.’ ” And the argument was similarly rejected by the Ninth Circuit Court of Appeals, where the court gave it “credit for creativity” (Johnson v. Sublett (9th Cir.1995) 63 F.3d 926, 932), but concluded: “There is no authority holding that a defendant’s due process right to reliable identification procedures extends beyond normal authenticity and identification procedures for physical evidence offered by the prosecution. [Citation.]” (Ibid.)
Other jurisdictions have similarly rejected claims that the identification of physical objects is subject to the same scrutiny as procedures under which suspects are identified through in-person or photographic lineups. (See, e.g., Inge v. Procunier (4th Cir. 1985) 758 F.2d 1010, 1015 [truck], cert. denied, 474 U.S. 833 (1985); State v. Roscoe (Ariz.1985) 145 Ariz. 212, 224 [700 P.2d 1312, 1324] [car]; Klase v. State (Del.1975) 346 A.2d 160, 162 [knife]; Dee v. State (Ga.2001) 545 S.E.2d 902 [gun]; Brooks v. State (Ind.1990) 560 N.E.2d 49, 58 [handgun]; State v. Bruns (Iowa 1981) 304 N.W.2d 217 [car]; People v. Miller (Mich.Ct.App.1995) 535 N.W.2d 518, 523 [car]; Hughes v. State (Miss.1999) 735 So.2d 238, 261 [truck]; State v. Cyr (N.H.1982) 453 A.2d 1315, 1317 [car]; State v. King (Wash.App.1982) 639 P.2d 809, 811 [jacket].)
We conclude, following Carpenter, supra, 15 Cal.4th at page 369, and Edwards, supra, 126 Cal.App.3d at pages 456 to 457, that the due process considerations involving suggestive lineups of potential suspects are not applicable to circumstances in which the police show witnesses inanimate objects such as vehicles or clothing. The manner in which the witness here identified shoes that she indicated looked similar to those worn by the robber was subject to challenge by defendant, but that challenge bore on “ ‘the weight rather than the admissibility of the evidence.’ ” (Carpenter, at p. 369.) We therefore reject defendant’s due process challenge to Sousa’s identification of the Nike shoes founded on the lineup conducted by Detective Shueh.
III. Consciousness of Guilt Instruction
A. Background
The court during its conference with counsel regarding jury instructions indicated it intended to give an adapted version of CALCRIM No. 371 regarding suppression of evidence as indicative of a consciousness of guilt. The instruction was based upon “<Alternative C—fabrication or suppression by a third party>” of CALCRIM No. 371. Defense counsel objected to the instruction on the ground that there was no evidence to support that defendant, through a third party, suppressed evidence; specifically, she argued that there was no evidence that defendant ever rode in the Dodge Avenger rental car that the prosecution claimed was hidden after the robberies. The court overruled the objection and gave the following instruction: “If someone other than the defendant tried to conceal or destroy evidence, that conduct may show that the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”
Defendant contends that the court committed prejudicial error by giving the consciousness of guilt instruction. He asserts that the instruction as given was a misstatement of the law in that it indicated that the jury could find that defendant suppressed “evidence merely because he was present when a third party disposed of the evidence.” Defendant argues further that there was an insufficient evidentiary basis for the instruction because there was no evidence that defendant (1) concealed the Dodge Avenger before going to the hospital, or (2) authorized Pratt to discard defendant’s tennis shoes.
B. Discussion of Claim of Instructional Error
1. Claimed misstatement of the law
Defendant argues that CALCRIM No. 371 misstated the law insofar as it permitted the jury to find defendant’s consciousness of guilt based upon a circumstance where he was merely present and knew about a third party’s suppression of evidence without a showing that defendant authorized the conduct. He cites by analogy to principles of aider and abettor liability, under which a defendant’s mere presence at a crime scene, absent encouragement or assistance in the crime’s commission, is insufficient to find him or her criminally culpable as an aider and abettor. (See People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) We reject defendant’s assertion that the instruction is an erroneous statement of the law.
A defendant’s attempts to suppress evidence are admissible in showing his or her consciousness of guilt. (People v. Hannon (1977) 19 Cal.3d 588, 597 (Hannon), disapproved on another ground in People v. Martinez (2000) 22 Cal.4th 750, 762-763.) Suppression of evidence by third parties may be admissible under certain circumstances as evidence of the defendant’s consciousness of guilt, where those suppression efforts are chargeable to the defendant. (Hannon, at pp. 599-600.) “ ‘Efforts to suppress testimony against himself indicate a consciousness of guilt on the part of a defendant, and evidence thereof is admissible against him. [Citation.] Generally, evidence of the attempt of third persons to suppress testimony is inadmissible against a defendant where the effort did not occur in his presence. [Citation.] However, if the defendant has authorized the attempt of the third person to suppress testimony, evidence of such conduct is admissible against the defendant.’ [Citations.]” (People v. Weiss (1958) 50 Cal.2d 535, 554, superseded by statute on another ground as stated in People v. Griffin (1991) 235 Cal.App.3d 1740, 1746.)
This principle was reaffirmed by the high court in Hannon, supra, 19 Cal.3d 588. Relying on Weiss, the court held that “the admission of evidence purporting to show suppression or attempted suppression of evidence is erroneous absent the prerequisite of proof that the defendant was present at such an incident or proof of authorization of such illegal conduct.” (Hannon, at p. 600.) Thus, under Hannon, a third party’s attempt to suppress evidence is admissible to show the defendant’s consciousness of guilt under two scenarios. When a third party tries to conceal or destroy evidence outside of the defendant’s presence, such suppression is admissible if the defendant authorized that conduct. Alternatively, a jury may infer a consciousness of guilt where the defendant is present when a third party tries to conceal or destroy evidence. This is precisely what “<Alternative C—fabrication or suppression by a third party>” of CALCRIM No. 371 instructs. And the high court recently recognized that CALCRIM No. 371 correctly states the law: “Consciousness of guilt may be shown by (1) a defendant’s own efforts to create false evidence or obtain false testimony, or (2) the efforts of someone else to do so, ‘but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person’s actions.’ (CALCRIM No. 371.)” (People v. Nelson (2011) 51 Cal.4th 198, 214, fn. 9.)
Defendant’s assertion notwithstanding, such an inference of consciousness of guilt in the case of a third party attempting to conceal or destroy evidence in the defendant’s presence is not irrational. A person’s omissions may be just as revealing as his or her actions. Where a defendant stands by while another conceals or destroys evidence unfavorable to the former, this inaction may show a consciousness of guilt on the part of the defendant. We note further that such an inference under CALCRIM No. 371 is not mandatory; it is only permissive. And the giving of the instruction was therefore “beneficial to defendant, to the extent that it made clear the [effort to suppress evidence] did not, in itself, suffice to establish his guilt.” (People v. Johnson (1992) 3 Cal.4th 1183, 1235 [addressing CALJIC No. 2.06, predecessor to CALCRIM No. 371].)
And we reject defendant’s argument by analogy—unsupported by any apposite legal authority—to aider and abettor liability. There is a vast distinction between holding a person culpable vicariously for crimes committed by others in his or her presence, on the one hand, and concluding that a third person’s actions to suppress or destroy evidence occurring in the defendant’s presence, on the other hand, may show a consciousness of the defendant’s guilt that may be considered as one factor (but not by itself) in establishing guilt for the underlying crime. Moreover, acceptance of defendant’s position would be contrary to Hannon, supra, 19 Cal.3d 588, and People v. Nelson, supra, 51 Cal.4th at page 214, footnote 9, among other decisions of the Supreme Court, and we are precluded from disregarding such authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Even assuming (as claimed by defendant) that CALCRIM No. 371 should state—but does not—that the defendant must have authorized the third party’s destruction or suppression of evidence occurring in the defendant’s presence, it is not reasonably likely that the jury applied the instruction to infer a consciousness of guilt from any third party’s evidence suppression occurring in defendant’s presence. The main piece of evidence that the prosecution claimed defendant attempted to suppress was the pair of tennis shoes, which the prosecution argued were disposed of by Pratt in the hospital parking lot after he dropped defendant off at the emergency room. Thus, in order for the jury to have found that Pratt’s disposal of the shoes showed defendant’s consciousness of guilt, it would have necessarily found—pursuant to the second prong of CALCRIM No. 371 not challenged here by defendant (i.e., “if [defendant was] not present, authorized the other person’s actions...”)—that defendant in fact authorized Pratt’s conduct. Moreover, as to the other piece of evidence that the prosecution argued had been suppressed—the Dodge Avenger used in the robberies—the contention was that defendant personally acted to suppress the evidence by “dump[ing] his get-away car” (in which he bled after the Campbell robbery) before going to the hospital. We conclude therefore under the relevant legal standard (see Estelle v. McGuire, supra, 502 U.S. at p. 72), that it is not “reasonably likely that the trial court’s instructions caused the jury to misapply the law. [Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 192.)
2. Claimed lack of evidentiary support for instruction
Defendant also argues that, irrespective of whether CALCRIM No. 371 properly states the law, the instruction should not have been given because “there was no evidence that [defendant] authorized Mr. Pratt to conceal the Dodge or discard his shoes.” We disagree.
It is, of course, “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. [Citation.]” (Hannon, supra, 19 Cal.3d at p. 597.) A consciousness of guilt instruction such as CALCRIM No. 371 is proper where there is “some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) The determination of whether such evidence exists to support the jury’s inference, thus rendering the instruction proper, is one of law for the trial court to decide. (Hannon, at pp. 597-598.)
Here, contrary to defendant’s claim, some evidence was available from which the jury could have inferred that defendant participated in the suppression of evidence. The prosecution argued, based on the video surveillance evidence showing a Dodge Avenger at both liquor stores at the times of the respective robberies, that the rented Dodge was used in the commission of both crimes. The evidence was uncontroverted that defendant’s blood was present in the Dodge’s passenger seat, supporting the conclusion that it was used in the Campbell robbery. And it was also undisputed that defendant arrived at the hospital in Pratt’s Camaro. Since a person who is shot would ordinarily seek the fastest means of obtaining medical attention, the record supported an inference that defendant decided to switch cars in order to hide the Dodge used to commit the robberies. And as to the Nike shoes, the evidence was undisputed that defendant arrived at the emergency room in socks but without shoes. Shortly after dropping defendant off at the emergency room, Pratt apparently discarded the tennis shoes in a neighboring truck in the hospital parking lot. Defendant’s DNA was present on the shoes, and there is no ready explanation why Pratt would, without permission, discard his friend’s shoes. The jury could have reasonably concluded—contrary to defendant’s claim that such a conclusion would constitute mere speculation—that defendant authorized Pratt to dispose of the shoes to avoid detection.
We therefore conclude that the court did not err in finding there to have been sufficient evidence to warrant giving CALCRIM No. 371.
IV. Restitution and Parole Revocation Fines
The court at the sentencing hearing imposed a restitution fine (§ 1202.4) and parole revocation fine (§ 1202.45) in like amounts of $8,400. In doing so, the court announced that it was basing the fine amounts “under the formula permitted by [section] 1202.4[, subdivision] (b).” Defendant contends that this was error because the fine amounts were improperly calculated under the statutory formula. The Attorney General concedes the error.
Where one is convicted of a crime, section 1202.4 requires the court to impose a restitution fine “separate and additional” to any restitution to the victim(s) of a crime, unless it finds “compelling and extraordinary reasons for not doing so.” (§ 1202.4, subd. (b).) The fine is in a discretionary amount set by the court, but it must be commensurate with the seriousness of the crime; the amount must be fixed between $200 and $10,000. (§ 1202.4, subd. (b)(1).) In the case of a felony conviction, the court may fix the amount of the fine in accordance with a statutory formula, under which “the amount of the fine [is] the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).) At the time a restitution fine is imposed under section 1202.4, the court, where the sentence includes a period of parole, is required to impose and suspend (unless the defendant’s parole is revoked) a parole revocation fine in the same amount as the restitution fine. (§ 1202.45.)
Here, using the permissive statutory formula of subdivision (b)(2) of section 1202.4, the restitution fine should have been $7,200, calculated as follows: $200, multiplied by 18 (years of imprisonment), multiplied by two (felony counts of which defendant was convicted). It is obvious that the court erred in imposing fines of $8,400 by purporting to use the statutory formula.
It is apparent that the source of the court’s error was the recommendation in the probation officer’s report that the restitution amount imposed under the statutory formula be $8,400. The probation officer made this calculation, however, using a 21-year prison term that she recommended for the sentence.
It is appropriate for us to modify the judgment to correct this error. (People v. Turner (2002) 96 Cal.App.4th 1409, 1416.) And, it is in the interests of judicial economy that we do so here. Remand would only serve to unnecessarily increase the costs to the parties and the taxpayers for no good purpose. (See People v. Walker (1991) 54 Cal.3d 1013, 1029 [judicial economy warranted modifying judgment to reduce restitution fine to statutory minimum rather than remand to trial court to determine appropriate amount of fine]; People v. Taylor (2004) 118 Cal.App.4th 454, 456 [judgment modified to include mandatory laboratory analysis fee and penalty assessments in interests of judicial economy].)
DISPOSITION
The judgment is ordered modified to reduce the restitution fine imposed pursuant to section 1202.4, subdivision (b), from $8,400 to $7,200, and the (suspended) parole revocation fine imposed pursuant to section 1202.45 from $8,400 to $7,200. As so modified, the judgment is affirmed. The superior court shall send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Rushing, P.J. Grover, J.
Judge of the Monterey County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.