Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA054583, Martin L. Herscovitz, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
A jury convicted defendant Vladimir Mizerovski of one count of grand theft of personal property (Pen. Code, § 487, subd. (a)), and one count of burglary (Pen. Code, § 459). On appeal, defendant contends: (1) there was insufficient evidence to support the convictions; (2) the trial court erred by failing to grant a motion to quash the venire following a prospective juror’s prejudicial statements during voir dire; (3) the trial court erred by failing to grant a mistrial due to the prosecution’s discovery violation; (4) the trial court erred by failing to instruct the jury sua sponte regarding an accomplice’s out-of-court statement; (5) the trial court erred by failing to sua sponte give a unanimity instruction; and (6) cumulatively the trial court’s errors prejudiced defendant. Respondent requests that we modify the trial court’s judgment to include various mandatory statutory penalties. We reject defendant’s claims, and modify and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
BACKGROUND
On January 12, 2007, Daniela Castellanos and Juan Sanchez, loss prevention officers at Bloomingdale’s, were monitoring the Bloomingdale’s store floor on closed-circuit security cameras. Castellanos had worked as a loss prevention officer at Bloomingdale’s for over four years; Sanchez for three years. They first noticed defendant because he was carrying an item not on a hanger, was looking around the store, and had abnormal “body behavior.” Castellanos and Sanchez observed defendant trying on blazers and looking to the left and right until he encountered another man holding an empty Bloomingdale’s shopping bag. The other man (who later falsely identified himself as Theo Robbins) was also carrying two pairs of jeans. Defendant and Robbins began talking to each other while also scanning the store. Castellanos found the men’s behavior suspicious because they were not checking clothing sizes or price tags. Robbins walked to a rack of leather jackets, tapped a jacket while speaking, turned away, and put the two pairs of jeans he was carrying into his shopping bag. Meanwhile, defendant went to the jacket Robbins had tapped, took it off the hanger, looked around, and moved behind a pillar in the store. While the pillar partially obstructed defendant from the camera’s view, Robbins—with his back to the camera—opened the shopping bag. Castellanos saw movement in the bag, and inferred that defendant had placed the jacket in the bag. Sanchez saw defendant put the jacket into Robbins’s bag. Defendant quickly walked away in one direction, and Robbins in another. Sanchez then left the security office to observe Robbins and detain him. Robbins passed several cash registers and left the store. When Sanchez called out for Robbins to stop, Robbins dropped the shopping bag and slipped and fell as he tried to run away. Two pairs of jeans and a leather jacket were in the bag. The jacket cost $1,295, and the two pairs of jeans totaled $495.
At trial, the jury viewed the surveillance video during Castellanos and Sanchez’s testimony. We also have reviewed the video.
The man’s real name was Timur Nabiullim.
Sanchez caught up with defendant as he was about to leave the store through a different exit. Loss prevention officers took both men to the store’s security office, and defendant immediately turned to Robbins and stated that he did not know him (Robbins). However, defendant and Robbins repeatedly spoke to each other in Russian, and eventually loss prevention officers told them to stop talking. While in the security office, defendant offered to pay for everything.
At trial, defendant testified that he worked as a fashion designer and stylist. One of his jobs as a stylist was to help clients select clothes. Defendant testified that on January 12, 2007, he had planned to meet a client at Bloomingdale’s. The client was running late so defendant called her on his cell phone and left a message in Russian. A man nearby (Robbins), asked if defendant spoke Russian, told defendant that he was visiting from Moscow, and said that he was buying things to take back with him. Defendant told Robbins that he was also from Moscow, the two spoke briefly, and then went their separate ways. Defendant decided to pick out a few items in the men’s department to prepare for the client he intended to meet that day. While browsing in the men’s department, defendant ran into Robbins again. The two exchanged additional pleasantries. Defendant testified that Robbins showed him a jacket and asked if defendant liked it; Robbins then said that the jacket did not have a price tag and that he did not know how much it cost. Defendant told Robbins he would find out how much the jacket cost, took the jacket off the hanger, and began walking toward a cash register. Defendant claimed that he did not notice that Robbins had put the jeans he was carrying into his shopping bag. According to defendant, on the way to the cash register, Robbins said he was going to buy the jacket, ripped the jacket out of defendant’s hands, turned away and left. By that time, defendant’s client was an hour and a half late, and because he could not get cell phone reception inside Bloomingdale’s, defendant made his way to the store exit so that he could call the client. As he was leaving the store, security officers stopped him.
Defendant testified that while in the Bloomingdale’s security office, Robbins asked him to pay for the jacket because he had left his money in his car. Defendant felt sorry for Robbins, had no idea he had stolen the jacket, and thought Robbins was detained because he did not have the money with him to pay for the jacket. Defendant relented and offered to pay for the jacket, figuring that he would keep it until Robbins gave him the money, and if Robbins did not pay him back he would return the jacket to Bloomingdale’s. Defendant testified that he only offered to pay for the jacket and did not know that Robbins had also stolen two pairs of jeans.
The jury convicted defendant on both counts. The trial court placed defendant on formal felony probation. The trial court also assessed one $20 court security fee, a $10 theft fine, and victim restitution and probation revocation fines.
The trial court imposed a sentence on the grand theft count and stayed the sentence on the burglary count under section 654.
DISCUSSION
I. Sufficiency of the Evidence.
Appellant contends there was insufficient credible evidence to support the convictions. “On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citations.]’ “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’” (People v. Thomas (1992) 2 Cal.4th 489, 514 (Thomas); People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
The prosecution argued that defendant aided and abetted Robbins’s theft. A person aids and abets the commission of a crime when he acts with knowledge of the unlawful purpose of the perpetrator and the intent or purpose of encouraging or facilitating the commission of the crime, and his act or advice in some manner aids, promotes, encourages or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) Presence at the scene of a crime alone is not sufficient to establish criminal liability as an aider and abettor, but the defendant’s presence must be considered along with any other significant evidence in determining whether the defendant aided and abetted the commission of the crime. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) In addition, the requisite intent to support a theft or burglary conviction may be inferred from the facts and circumstances of the case. (People v. Holt (1997) 15 Cal.4th 619, 669; People v. DuBose (1970) 10 Cal.App.3d 544, 551.)
The People presented substantial evidence from which the jury reasonably could find defendant guilty beyond a reasonable doubt. Two loss prevention officers observed defendant scanning the store suspiciously on the day of the incident; they observed defendant and Robbins meeting up and speaking to one another; while defendant and Robbins were standing next to one another, Robbins put two pairs of jeans into his empty Bloomingdale’s shopping bag; Robbins identified a jacket that defendant then took off the rack, and either put it in Robbins’ shopping bag or gave it to Robbins to put in the bag. The jury watched a copy of the surveillance video that, while admittedly of poor video quality, allowed the jurors to see the events Sanchez and Castellanos described. The jury also heard evidence that the two men spoke to each other at length while in the security office, and that defendant offered to pay for all of the stolen clothing. The jury reasonably could believe that defendant and Robbins intended to steal Bloomingdale’s merchandise when they entered the store, that defendant intended to encourage or facilitate the theft, and that he assisted or encouraged Robbins in the theft. Defendant offered a counter-narrative to explain his actions at Bloomingdale’s, but it was up to the jury to evaluate his credibility. On appeal, we are not at liberty to reweigh the evidence. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.)
Both Sanchez and Castellanos testified that the visual quality of the live feed from the security cameras in the store was far superior to that of the recording the jury saw at trial.
Further, the jury reasonably could have viewed defendant’s version of events with skepticism in light of his failure to corroborate his own testimony with that of the client he allegedly intended to meet at Bloomingdale’s, or other evidence, such as telephone records establishing that he called the client as he described in his testimony.
Defendant argues that this case is similar to Pinell v. The City and County of San Francisco (1965) 232 Cal.App.2d 284 (Pinell), in which the court found insufficient evidence supported the conviction of the defendant on an aiding and abetting theory. We disagree. The intensely factual nature of a review for insufficiency of the evidence often makes comparison to other cases only minimally helpful. (Thomas, supra, 2 Cal.4th at p. 516.) Such is the case here. In Pinell, there was no evidence that the defendant in any way participated in or encouraged the other perpetrators in the crimes charged: rape, robbery, oral copulation and sodomy. (Pinell, supra, 232 Cal.App.2d at pp. 287-288.) The court found that the defendant could not be prosecuted on an aiding or abetting theory because there was no evidence that he knew the perpetrators planned to kidnap the victim and bring her to defendant’s home; he was angry when he discovered they had hit the victim; and his only contact with the victim was to put a bandage over her bleeding eye. (Ibid.)
In contrast, in this case, there was evidence that defendant was acting suspiciously while in the store, and that at least one of the loss prevention officers saw defendant conceal a leather jacket in Robbins’s shopping bag. Defendant and Robbins spoke to each other while on the store floor and while in the store’s security office, yet defendant denied that he knew Robbins. While in Pinell even the victim’s account of the defendant’s involvement failed to suggest that he was involved in or encouraged the acts against her, in this case there was credible circumstantial evidence from which the jury could infer that defendant and Robbins were working in concert to steal merchandise.
We therefore conclude that sufficient evidence supported the convictions.
II. Defendant’s Motion to Dismiss the Venire.
Although defendant refers to the motion on this issue as a motion for mistrial, the record reveals that at trial defendant only moved to quash the venire. Accordingly, that is the ruling we review.
During the second day of voir dire, the trial court questioned Prospective Juror No. 26, a Los Angeles County police officer. Juror No. 26 stated that he had testified on numerous occasions and had made several theft-related arrests. Defendant contends the following exchange between the court and Juror No. 26 irreparably tainted the jury:
“THE COURT: Do you think that your position as a law enforcement officer would prevent you from being fair in this case in giving both sides a fair trial?
“PROSPECTIVE JUROR 26: I’ve thought about that; and this specific case, just listening, my thoughts on it, if the police went so far as to take this person into custody, book him, book evidence
“THE COURT: Well, let me play devil’s advocate here for a moment. A police officer takes what someone else told them, right? So if a police officer doesn’t witness the theft, the police officer listens to what the security guard says, if the person makes a private citizen arrest, you take the person into custody; right?
“PROSPECTIVE JUROR 26: Yes.
“THE COURT: Okay. So do you think just because a police officer arrested someone, that means they’re guilty?
“PROSPECTIVE JUROR 26: Well, to a certain extent. If there’s not enough there to make the arrest, then the officer won’t, even under private persons now.
“THE COURT: Isn’t a police officer under an obligation to take anyone into custody who’s been arrested by a private person under our code?
“PROSPECTIVE JUROR 26: The law has changed slightly now. It gives the officer a little bit more—”
The trial court did not let Juror No. 26 finish his explanation, but instead instructed him, and the other seated and potential jurors, on the presumption of innocence and the rules for jurors, mainly “that we wipe the slate clean and we decide the case based upon the evidence that’s presented in this courtroom and the law that I will give you at the end of the case.” Juror No. 26 agreed that he could follow this rule, and when the court asked if there was any reason any of the seated jurors could not also follow that rule, no one responded. The trial court denied defendant’s motion to dismiss the venire and the defense later used a peremptory challenge to dismiss Juror No. 26. We review the denial of a motion to quash the venire for an abuse of discretion. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466-1467 (Martinez).)
A defendant has a constitutional right to a fair and impartial jury. (Martinez, supra, 228 Cal.App.3d at p. 1459.) But in general, “discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (People v. Medina (1990) 51 Cal.3d 870, 888.) In this case, the court’s denial of the motion to dismiss the venire did not deprive defendant of his right to a fair and impartial jury. Juror No. 26’s comments were equivocal and incomplete, and the court immediately instructed the entire venire on the presumption of innocence. Moreover, the court properly prevented Juror No. 26 from expounding on his understanding of the law governing when a law enforcement officer may refuse to arrest a person following a private citizen’s arrest. After the court instructed the entire jury on the presumption of innocence, Juror No. 26 agreed that he could decide the case based only on the law and evidence presented, as did the seated jurors. In addition, at the beginning of the trial, the court again instructed the jury in detail on the presumption of innocence and the prosecution’s burden of proof. Thus, the record does not support defendant’s claim that Juror No. 26’s comments irreparably tainted the jury.
Defendant relies on Mach v. Stewart (9th Cir. 1997) 137 F.3d 630 (Mach), to support his arguments. However, Mach is distinguishable from this case. In Mach, a sexual conduct with a minor case, one prospective juror was an experienced social worker with Arizona child protective services. During voir dire, the prospective juror opined that in her several years of experience she had never known a child to lie about sexual assault, and, to the contrary, in each case in which one of her clients alleged a sexual assault, the allegations were confirmed to be true. (Id. at p. 632.) The court allowed the prospective juror to make at least four separate statements along those lines. (Id. at p. 633.) In contrast, Juror No. 26 arguably did not make even one complete, unequivocal statement that could have been seen as particularly persuasive to the other prospective or seated jurors. And, instead of eliciting potentially prejudicial statements from Juror No. 26—as was the case in Mach—here, the trial court interrupted Juror No. 26 when he began to explain his understanding of the law and immediately instructed him and the rest of the jury on the presumption of innocence. While in Mach, the court asked the jurors if they disagreed with the prospective juror’s statement that she had never known a child to lie about sexual assault, and no jurors responded (ibid), in this case all seated jurors agreed (by their silence) that they could decide the case solely on the law and evidence presented in the trial. Thus, Mach does not compel a particular outcome in this case.
“[T]he trial judge is in a better position to gauge the level of bias and prejudice created by juror comments.” (Martinez, supra, 228 Cal.App.3d at p. 1466.) Therefore, the trial court’s conclusion on jury “bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion.” (Ibid.) We conclude that the trial court did not abuse its discretion by denying defendant’s motion to dismiss the venire.
III. Defendant’s Motion for a Mistrial Based on an Alleged Discovery Violation.
In her opening statement, the prosecutor told the jurors the evidence would show that defendant and Robbins denied knowing each other when they were in the store security office. On direct examination, security guard Castellanos testified that defendant said he did not know Robbins upon seeing him in the security office. However, on cross-examination, Castellanos testified that she could not recall whether Robbins denied knowing defendant. When defense counsel repeated the question, Castellanos answered: “At first.” On re-cross, defense counsel asked Castellanos if it was correct that defendant and Robbins never admitted knowing each other, and she responded “Theo Robbins.” However, Castellanos admitted that although she wrote a report about the incident immediately after it happened, she did not write in the report that Robbins claimed to know defendant, even though she also acknowledged that Robbins’s concession would have meant that he and defendant had lied when they claimed not to know one another.
On further re-direct, Castellanos testified that she had asked Robbins why he and defendant denied knowing each other since they were also talking to each other. According to Castellanos, Robbins said: “It doesn’t matter if I know him or not. I’m still going to jail. [¶] . . . Does it matter? Is it going to change?” Only on further re-cross did Castellanos coherently testify that Robbins actually said that he knew defendant, specifically: “At that time, when [Robbins] said, ‘Does it matter? I’m still going to jail,’ I [Castellanos] said, ‘It does matter. That way, we can get the facts straight and tell me the story straight.’ And he said, ‘Well, yeah. I do, yeah.’ That’s what he said.”
Castellanos further testified that she told the prosecutor that Robbins had admitted that he knew defendant, but she could not remember when she imparted this information. The prosecutor informed the court and defense counsel that Castellanos had told her that Robbins asked her, “What different does it make?” but not that he claimed to know defendant. Defendant asserted that the prosecution had engaged in a discovery violation by not revealing Robbins’s statement before trial, and moved for a mistrial, which the trial court denied. We review the court’s denial of a motion for mistrial for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573.) “‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 686.) A violation of the statutory discovery provisions in a criminal case will be a basis for reversal only where it is reasonably probable that the discovery violation affected the trial result. (People v. Zambrano (2007) 41 Cal.4th 1082, 1135; People v. Watson (1956) 46 Cal.2d 818, 836.)
It is not apparent that a discovery violation occurred in this case. Under section 1054.1, the prosecution was required to disclose to defendant, among other things, statements of all defendants, any exculpatory evidence, and “relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial.” (§ 1054.1, subds. (b), (e)-(f).) However, the prosecution is only required to disclose matters in the possession of the prosecuting attorney, or matters the prosecuting attorney knows are in the possession of the investigating agencies. (§ 1054.1; People v. Sanchez (1998) 62 Cal.App.4th 460, 471.) Here, the record does not indicate that the prosecutor had any idea that Castellanos would testify on cross-examination that Robbins said he knew defendant. To the contrary, Castellanos’s recollection of what she told the prosecutor about Robbins’s exact words, and when she gave the prosecutor this information, was spotty at best. In addition, Robbins’s statement did not exculpate defendant. (See People v. Burgener (2003) 29 Cal.4th 833, 875-876 [prosecutor had no constitutional duty to disclose inculpatory evidence].)
However, even if the prosecutor had a duty (and the ability) to disclose Robbins’s complete statement to Castellanos, we cannot conclude that the nondisclosure irreparably damaged defendant’s chances of receiving a fair trial, thereby necessitating a mistrial, or that the outcome of the trial would have been different had the prosecutor disclosed the statement. (People v. Ayala (2000) 23 Cal.4th 225, 282.) Defendant argues that his counsel was “led down . . . a path of ruin” because he was lured into eliciting testimony from Castellanos that Robbins admitted knowing the defendant. Yet, substantial evidence besides Castellanos’s last-minute recollection supported a finding that defendant and Robbins “knew” each other. Further, as the trial court noted, defense counsel thoroughly impeached Castellanos’s testimony. Castellanos admitted that she inexplicably did not include Robbins’s alleged statement in her report, which called into question the accuracy of her recollection. In addition, Castellanos’s testimony on Robbins’s statements to her was sufficiently inconsistent and confused that the trial court could reasonably conclude that the jury would be able to critically and fairly evaluate her alleged recollection.
It is not reasonably probable that the discovery violation, to the extent there was one, affected the outcome of the trial. Therefore, we reject defendant’s arguments that the prosecution’s claimed nondisclosure mandates reversal of the convictions.
IV. Defendant’s Claims of Instructional Error.
a. Accomplice testimony instruction.
Defendant argues that the trial court should have sua sponte instructed the jury to view Robbins’s statement that he knew appellant with caution, as set forth in CALCRIM No. 334. A trial court should give CALCRIM No. 334 when a witness is, or could be, an accomplice, and when the witness gives testimony that tends to incriminate the defendant. (People v. Howard (2008) 42 Cal.4th 1000, 1021-1022; People v. Guiuan (1998) 18 Cal.4th 558, 569.) The instruction informs the jury that an accomplice’s testimony must be viewed with caution, and the jury may not convict on the accomplice’s testimony alone—rather the testimony must be corroborated by independent supporting evidence. (CALCRIM No. 334.) An accomplice’s “testimony” may include “all oral statements made by an accomplice or coconspirator under oath in a court proceeding and all out-of-court statements of accomplices and coconspirators used as substantive evidence of guilt which are made under suspect circumstances.” (People v. Williams (1997) 16 Cal.4th 153, 245; People v. Lawley (2002)27 Cal.4th 102, 160 (Lawley).)
We need not determine whether CALCRIM No. 334 was applicable in this case, because any error of the trial court in failing to give the instruction was harmless. As explained ante, Robbins’s statement came in only through Castellanos, who was thoroughly impeached based on her failure to include the statement in the report she wrote on the day of the alleged theft. Castellanos’s credibility was also damaged by her failure to coherently testify that Robbins admitted knowing defendant until the third time defense counsel cross-examined her. Further, while Robbins claimed to know defendant, both Castellanos and defendant testified that defendant denied knowing Robbins. The jury was also made aware of the possible unreliability of the statement in that it was only reported second-hand by a witness defense counsel impeached, and the prosecution neither elicited the statement nor relied on it in making its case. Finally, substantial evidence aside from Robbins’s statement tied defendant to the thefts. Under these circumstances, it is not reasonably probable that that the jury would have reached a result more favorable to defendant had it been instructed to view Robbins’s out-of-court statement with caution. (See Lawley, supra, 27 Cal.4th at p. 161; People v. Mincey (1992) 2 Cal.4th 408, 461.)
We also note that the trial court instructed the jury on witness testimony and accordingly informed the jury that it should evaluate the testimony of each witness and decide how much of the testimony to believe, considering anything that would reasonably tend to prove or disprove the truth or accuracy of the testimony.
b. Unanimity instruction.
Defendant argues that the trial court also erred by failing to sua sponte give a unanimity instruction, such as CALCRIM No. 3500. When the evidence at trial suggests that a defendant committed more than one discrete act upon which a single count could be based, either the prosecutor must elect one of the acts, or the court must instruct the jury members that they must agree that the prosecution has proved that the defendant committed at least one of the acts, and they must all agree on which act the defendant committed. (CALCRIM No. 3500; People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Norman (2007) 157 Cal.App.4th 460, 464-465.) However, a unanimity instruction is not required “‘when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The “continuous conduct” [exception] applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]’” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1295.)
Defendant contends that the theft of the jeans was separate from the theft of the leather jacket, and that the jury may not have agreed on the act defendant aided or abetted. We reject this argument. Both the jeans and the jacket went into Robbins’s shopping bag within moments of one another. To the extent that defendant and Robbins were working together to steal merchandise, there is no reasonable distinction between defendant’s involvement in the taking of the jeans and the jacket. Moreover, defendant does not have separate defenses to the theft of the jeans and the jacket; instead his defense to both is that he was completely uninvolved and was essentially an innocent bystander. In addition, “the failure to instruct is not error ‘unless there is evidence based on which reasonable jurors could disagree as to which act the defendant committed.’ [Citation.]” (People v. Percelle (2005) 126 Cal.App.4th 164, 181-182 (Percelle).) In this case, it is not conceivable that some jurors believed that defendant was guilty of assisting Robbins in stealing the jeans (which he never touched) but not the jacket (which he did). Instead, in light of the evidence, it is only reasonable to infer that the jurors unanimously agreed that defendant at least was guilty of aiding and abetting the theft of the jacket, even if they did not agree on his involvement in the theft of the jeans. (See Percelle, supra, 126 Cal.App.4th at p. 182; People v. Schultz (1987) 192 Cal.App.3d 535, 540.)
Even if the circumstances had warranted a unanimity instruction, we would find the court’s failure to give the instruction harmless. “‘Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]’” (People v. Curry (2007) 158 Cal.App.4th 766, 783.) Here, had the jury found defendant credible, no conviction would have been possible since defendant’s version of the events exculpated him completely. Thus, it is reasonable to conclude that all jurors believed beyond a reasonable doubt that defendant committed the theft of both the jacket and jeans. Accordingly, any error in failing to give a unanimity instruction was harmless under any standard.
There is a split of authority on the proper standard for analyzing the erroneous failure to instruct upon unanimity. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546 (Smith); People v. Vargas (2001) 91 Cal.App.4th 506, 561-562.)
Defendant rests his argument upon three cases, none of which are particularly analogous to this case. People v. Davis (2005) 36 Cal.4th 510 (Davis), People v. King (1991) 231 Cal.App.3d 493 (King), and Smith, supra, 132 Cal.App.4th 1537, each presented facts dissimilar to those here. In Davis, the defendant was convicted of robbery based on the theft of a car from two victims and rings from one of the victims. The reviewing court found that the trial court erred by failing to give a unanimity instruction because it was impossible to determine if some jurors believed the defendant was guilty of only one of the acts, while other jurors believed he was guilty of only the other act. As explained above, this case presents a different situation. King and Smith are even less analogous to this case. We conclude that the lack of a unanimity instruction does not require reversal in this case.
In King, the defendant was convicted of drug possession charges, based on drugs found in three different places in her home, including in a purse and a statue that may not have been hers. The court held that where “possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant,” a unanimity instruction is required. (King, supra, 231 Cal.App.3d at pp. 501-502.) In Smith, the defendant was convicted on one count of lewd and lascivious conduct with a child under 14, but the victim testified to over 25 molestations over a several-year period. (Smith, supra, 132 Cal.App.4th at p. 1541.) The court found error in the lack of a unanimity instruction. In this case, unlike in King and Smith, the two acts occurred in close proximity—both in terms of time and space. And, as explained above, there is no concern here that some jurors found defendant guilty based only on one act, while others found him guilty based on the other.
V. Cumulative Error.
We reject defendant’s argument that multiple errors had a cumulatively prejudicial effect in this case. We have concluded that the trial court did not abuse its discretion in denying defendant’s motion to quash the venire, or by denying defendant’s motion for mistrial based on an alleged discovery violation. We have also determined that the two alleged instructional errors—even if errors—were not prejudicial under the circumstances. This is not a case in which there was a reasonable probability that the jury would have reached a more favorable verdict but for the trial court’s alleged errors. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
VI. The Judgment Will Be Modified to Include Omitted Fees.
The People request that we modify the trial court’s judgment to include an additional $20 security fee (§ 1465.8, subd. (a)(1)), and, on the $10 theft fine the trial court imposed, a 20 percent court surcharge (§ 1465.7, subd. (a)); a 100 percent state penalty assessment (§ 1464); a 10 percent DNA Identification Fund fee (Gov. Code, § 76104.6, subd. (a)); a 70 percent county penalty assessment (Gov. Code, § 76000); and a $3 state court facilities construction fund penalty (Gov. Code, §§ 70372, subd. (a) and 70375, subd. (b)), for a total of $23 in additional penalties. Defendant did not dispute or otherwise respond to the People’s request in his reply.
Although the People raise these objections to the trial court’s judgment for the first time on appeal, to the extent that the penalties are mandatory we may properly modify the judgment to include them. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Smith (2001) 24 Cal.4th 849, 852-853.)
a. Court security fee (§ 1465.8).
Section 1465.8 requires that the trial court impose a $20 fee for every conviction for a criminal offense. The fee is to be imposed for each conviction. (People v. Schoeb (2005) 132 Cal.App.4th 861, 866.) The trial court imposed only a single $20 court security fee, but it should have imposed two court security fees totaling $40.
b. Penalties on the theft fine.
The trial court assessed a $10 theft fine (§ 1202.5, subd. (a)). As an initial matter, although the trial court imposed the theft fine it does not appear in the minute order memorializing the sentence . This should be corrected in a modified order. Section 1464 mandates that the court impose a state penalty on every fine for a criminal offense in the amount of $10 for every $10 of fines ($10). Section 1465.7, subdivision (a), mandates that the court levy a 20 percent surcharge on the base fine used to calculate the section 1464 state penalty assessment ($2). In addition, Government Code section 76000 mandates a penalty of $7 for each $10 of criminal fines assessed ($7), and Government Code sections 70372 and 70375, subdivision (b), mandate the imposition of a state construction penalty, which, when calculated in this case, totals $3. (See People v. McCoy (2007) 156 Cal.App.4th 1246, 1254.) Finally, Government Code section 76104.6, subdivision (a), requires the trial court to assess a $1 fee for every $10 of criminal fines for the DNA Fingerprint, Unsolved Crime and Innocence Protection Act ($1). Thus, a total of $23 should have been assessed on the theft fine.
DISPOSITION
The judgment is modified to: (1) impose a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1) for both of defendant’s convictions, for a total of $40; and (2) impose assessments on the theft fine of $10 pursuant to Penal Code section 1464; $2 pursuant to Penal Code section 1465.7, subdivision (a); $7 pursuant to Government Code section 76000; $3 pursuant to Penal Code sections 70372 and 70375, subdivision (b); and $1 pursuant to Government Code section 76104.6, subdivision (a). The superior court clerk is directed to prepare an amended order reflecting the $10 theft fine pursuant to Penal Code section 1202.5, subdivision (a), and the fees and assessments listed above, specifying the statutory bases. The judgment is affirmed in all other respects.
We concur: RUBIN, J., FLIER, J.