Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA061092 Candace Beason, Judge.
Randy S. Kravis, 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, Senior Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Nathaniel Ryan Regalado was convicted by jury of first degree residential burglary (Pen. Code, § 459), two counts of attempted first degree robbery (§§ 664, 211), two counts of assault with a semiautomatic or firearm (§ 245, subd. (b)), two counts of false imprisonment by violence (§ 236), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Other than the section 245, subdivision (a)(1) conviction, each count included a finding that defendant personally used a firearm. Defendant was sentenced to 15 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
In his timely appeal from the judgment, defendant contends as follows: (1) the trial court violated his rights to due process and to present a defense by failing to grant immunity to two witnesses who exercised their Fifth Amendment privilege against self-incrimination at trial, and if the issue is forfeited due to defense counsel’s failure to raise it below, defendant was denied the effective assistance of trial counsel; (2) trial counsel provided constitutionally ineffective assistance by failing to introduce a witness’s out-of-court statements; (3) the conviction in count 12 for violation of section 245, subdivision (a)(1) must be reversed because it is based on the same conduct supporting the conviction in count 6 for violation of section 245, subdivision (b); (4) defendant’s Sixth Amendment rights were violated by admission of out-of-court statements by anonymous callers to 911; (5) the convictions for assault with a semiautomatic firearm in counts 5 and 6 must be reduced to assault with a generic firearm, as the jury’s verdict did not specify that a semiautomatic firearm was used; (6) the trial court committed reversible error by failing to instruct that a defendant’s out-of-court statements must be viewed with caution; (7) the five-year sentence for attempted first degree robbery is not authorized, as the statutory maximum is three years; (8) imposition of the upper term on one of the attempted robbery convictions, based upon facts not found by a jury beyond a reasonable doubt, violated the Sixth Amendment; and (9) the trial court miscalculated defendant’s pretrial custody credits. The Attorney General argues the trial court erred by failing to impose a security fee of $20 on seven of the eight counts.
We hold that the punishment for attempted first degree robbery in count 3 must be reduced to three years, defendant is entitled to three additional days of presententce credit, and the abstract of judgment and minute order must be amended to reflect a $20 security fee as to each count. In all other respects, the judgment is affirmed.
FACTS
Prosecution Evidence
Greg Martinez lived with his girlfriend, Roberta Hill, in a ground floor apartment at 112 North Mar Vista in Pasadena on Friday, March 18, 2005. They owned a docile pit bull named Bowser. Martinez attended a culinary school located six to seven blocks from the apartment.
Martinez and Hill knew Evan Baugh through culinary school. They also knew defendant, who was Baugh’s friend. Martinez did not sell marijuana from the apartment.
On March 18, Martinez received a call in the afternoon from Baugh, who asked to see him at the apartment. Martinez and Hill went out to dinner, finishing around 8:00 to 8:30. As they were driving home, Martinez called Baugh to let him know he could stop by.
There was a knock on the door within five minutes of Baugh’s arrival. When Hill opened the door slightly, it was forcefully pushed in and defendant and an unidentified male entered the apartment. Defendant had a gun in his hand and said, “Get on the fucking ground. I’m not afraid to shoot you. I’ll fucking shoot you. Get on the ground.” Defendant held the gun about one foot from Hill’s face. She was shocked and scared when defendant put the gun in front of her face. Martinez was scared “shitless” because he had a gun in his face and did not know what to do.
Defendant identified the accomplice as Daniel Canales, but Hill and Martinez were unable to make an identification.
The second man had a can of pepper spray and a roll of tape. Martinez got on the floor. The second man taped Hill’s hands in front of her using clear cream colored tape and sprayed her in the face with the pepper spray. Baugh remained seated on a Lazy Boy. Defendant demanded money, shouting, “Give me the fucking money. Where’s some fucking money.”
Defendant got on Martinez’s back, punching and pistol whipping him. Hill was kicking and screaming, trying to cause a commotion. The clip fell from defendant’s gun as he was striking Martinez, allowing Martinez an opportunity to fight back. Hill described defendant’s gun as a black semiautomatic with a clip, which did not have a spinning revolver. Martinez testified the gun did not have a round revolver housing, and because a clip came out of it, it must have been a semiautomatic. It felt like metal as he was struck with it in the head.
During the beating, Martinez said his wallet was on the coffee table, but he did not have cash in it, as he only uses credit cards. Martinez put defendant in a headlock and punched him. Defendant bit him, so Martinez threw him toward a snake tank. Hill was able to get out of the tape and tried to open the front door, but found that the deadbolt was locked. She unlocked and opened the door and yelled for help. Defendant and Canales ran from the apartment. Canales picked up the clip before leaving the apartment. Bowser uncharacteristically ran out of the apartment when the door opened and was never found. Nothing was taken from the house. Tape recovered at the scene was similar to that used to bind Hill’s wrists. There was a small amount of marijuana on the table, but they had not been smoking.
Martinez cut the tape off Baugh, grabbed the phone, and tried to dial 911. The neighbor from apartment five, Zeke Nelson, was already on the phone with 911 and handed the phone to Martinez. Martinez had blood dripping down his face. Martinez told the police what had happened and asked for help to be sent right away. The police arrived within two minutes. Martinez had two open wounds to the back of his head, a slit above the eye, and a bite to the chest. His eyes were burning from the pepper spray.
According to police records, the first 911call was made at 8:16 p.m.
Nelson had heard a women yell several times, “Help. Somebody call 911.” The woman said, “He has a gun. He has a gun.” Her tone of voice was desperate or frantic. He looked outside and saw Hill in her doorway and a male run into her on his way out. The man, whom Nelson could not identify, had a gun in his hand, ran out the gate, and down the street. He was sure he saw a black gun in the man’s hand. Nelson called 911 seconds after the man fled. Nelson saw that Martinez had blood dripping down the back of his neck and heard Martinez express surprise that this man had come to his apartment.
Three recordings of 911 calls were played for the jury. In the first call, made by Nelson, he describes a woman saying someone has a gun and observing a man running out with a gun. Martinez came on the line and said two guys tried to rob him, he was sprayed with mace, and hit in the head with a gun. Martinez identified defendant by name in the call and provided a description. Martinez said the men taped Hill’s hand and held a gun to his head. Baugh also took the phone and said he saw the two suspects in the apartment, but he did not know where they went or whether they were in a car.
Of the three persons placing 911 calls, only Nelson testified at trial. As discussed more fully below, the other two calls were admitted over defendant’s objections.
In the second 911 tape, a caller identified herself as “Sally,” told the operator a woman in a downstairs apartment was yelling that a man has a gun, and to call 911. Sally said there was a man bleeding and a woman screaming.
The third 911 caller identified himself as Gregory Perry, who reported that he heard a woman say a neighbor had a gun. As the conversation continued, Perry said the woman was saying, “He has a gun.”
Officer Steve Oberon of the City of Pasadena Police Department responded to the 911 calls on March 18, 2005, at 112 North Mar Vista. He saw Hill crying and screaming as she was looking for her dog. She was hysterical, making it difficult to communicate with her. Martinez was bleeding heavily from the head and face. Baugh seemed offended that he was being asked questions, and the officer believed Baugh had information he was not sharing. Officer Oberon looked in the apartment and did not see indications of marijuana sales.
Officer Oberon saw Hill, Martinez, and Baugh at the hospital. Hill and Martinez were cooperative. The officer explained to the jury that the difference between a semiautomatic and revolver is that a gun with a clip is semiautomatic.
Officer Jaime Robison also responded to the scene. He saw Martinez bleeding and upset. Hill was screaming, upset, and crying. He saw no evidence of drug sales in the apartment. He found masking tape at the scene, just outside of the apartment on a metal fence.
Corporal Josef Munger of the City of Ventura Police Department was dispatched at 10:11 p.m. on March 18, 2005, to Community Memorial Hospital in response to a call from a nurse. He saw defendant being treated at the hospital. Defendant did not want to talk to him and said he did not want to make a police report. Defendant smelled of a strong odor of alcohol, had a laceration on his forehead, and a dislocated shoulder. Defendant told Corporal Munger that before going to the emergency room he had refused to give a transient money, they had an altercation, and defendant was pushed down a flight of stairs. He had been hanging out with his friend, Canales.
Detective Richard Cassidy of the City of Pasadena Police Department was assigned to conduct a follow-up investigation of defendant in March 2005. He received a lead that led him to Ventura, resulting from a police report filed at the Ventura Police Department. Detective Cassidy went to two locations to try to locate defendant—defendant’s father’s business in San Gabriel and a month later to defendant’s mother’s house in Ventura. He told both he was looking for defendant. Although the mother and father knew Detective Cassidy was looking for defendant, he never received a call back from either of them. Defendant was arrested in March 2006.
Defense Evidence
Defendant was introduced to Martinez about one year before the night of the charged offenses by Baugh, for the purpose of buying marijuana. He went to Martinez’s apartment 50 times or more to buy “weed,” sometimes once or twice per week. He began with small purchases for himself, but increased to larger amounts.
On March 18, 2005, defendant was living in Ventura. He and his friend, Canales, drove to Pasadena because defendant wanted to buy two pounds of marijuana. Canales may have had a can of pepper spray on his key chain. Defendant did not have a gun. Defendant had spoken to Martinez the previous night and told him he had the $600 he owed for previous drug purchases and wanted to purchase two pounds of marijuana. Defendant had sex with Hill in 2004 at his apartment in Pasadena.
Defendant had five or six Cadillac margaritas before going to Martinez’s apartment. He felt “buzzed” and “pretty laid back.” Hill opened the door to allow entry to defendant and Canales. Martinez asked who was with defendant and immediately accused defendant of sleeping with Hill and owing money. Defendant assured Martinez that Canales was okay. Defendant did not want to talk about Martinez’s complaints because he had just had a few drinks. Martinez was upset and irrational.
A fight started between defendant and Martinez, with each striking the other. Defendant hit Martinez in the head, but not with a gun. Martinez put defendant in a headlock. Because defendant started to pass out, he bit Martinez. At that point they separated, defendant took off his belt, and hit Martinez in the head with the metal belt buckle. After Martinez was struck three to five times, he tackled defendant, who land on his shoulder, which popped out of the socket. Defendant left the apartment after Canales fled.
Defendant went to the hospital for his dislocated shoulder, where he was given morphine. He lied to the officer about being thrown down the stairs in Ventura because he did not want to admit he had been in a fight at a drug deal.
Defendant was arrested for driving under the influence in January 2006. He had no knowledge of the arrest warrant in this case before that time, although he had heard through relatives that his mother said the police were looking for him.
DISCUSSION
I
FAILURE OF THE COURT TO GRANT IMMUNITY TO CANALES AND BAUGH TO ALLOW THEM TO TESTIFY FOR THE DEFENSE
Defendant’s first argument is that the trial court violated his rights under the Fifth, Sixth, and Fourteenth Amendments when it failed to confer immunity on Baugh and Canales at trial to allow them to testify as defense witnesses. Recognizing that no request was made in the trial court for judicial immunity, defendant further argues that if the issue is forfeited, it was as a result of deprivation of the effective assistance of counsel. Neither contention has merit.
Background
Initially, Canales and Baugh were cooperative defense witnesses. They provided oral statements to defendant’s former attorney, Deputy Public Defender John Love. The prosecutor believed these statements gave rise to possible self-incrimination issues. There were no witnesses to Love’s conversations with Canales and Baugh.
According to Love, Canales said he had travelled to Pasadena with defendant to buy marijuana from Martinez. Canales saw no gun and no one was tied up. He saw a fight break out between defendant and Martinez over money and Hill. Canales ran from the apartment and later took defendant to the hospital in Ventura, where he lied about how defendant was injured to avoid admitting the intended marijuana purchase.
Baugh told Love he was at Martinez’s apartment for 10 to 15 minutes before defendant arrived. Defendant and Martinez talked about money and Hill, which lead to a fight in which both were hit. Canales ran from the apartment. Baugh knew Martinez had a large amount of marijuana in the apartment, and Baugh lied to assist Martinez. No tape, gun, or rope was used.
Satisfied that a conflict of interest existed, the trial court relieved the public defender and appointed new counsel for defendant. The prosecution declined to provide immunity to Canales and Baugh. The trial court appointed counsel for both men. Canales immediately invoked his privilege against self-incrimination. Baugh originally stated he would testify but later decided he too would invoke the privilege.
Judicial Immunity
“The grant of immunity is an executive function, and prosecutors are not under a general obligation to provide immunity to witnesses in order to assist a defendant. (People v. Samuels (2005) 36 Cal.4th 96, 127; People v. Stewart (2004) 33 Cal.4th 425, 468; In re Williams (1994) 7 Cal.4th 572, 609; People v. Cudjo [(1993)] 6 Cal.4th [585,] 619; In re Weber (1974) 11 Cal.3d 703, 720.) Similarly, we have expressed reservations concerning claims that trial courts possess inherent authority to grant immunity (see People v. Samuels, supra, 36 Cal.4th at p. 127), and even assuming the court possesses such authority, it has been recognized only when the defense has made a showing that a defense witness should be afforded immunity in order to provide clearly exculpatory testimony. (See People v. Stewart, supra, 33 Cal.4th at pp. 469-470.)” (People v. Williams (2008) 43 Cal.4th 584, 622-623, fn. omitted.)
Forfeiture
As defendant concedes, no request for judicial immunity for Canales and Baugh was made at trial. The issue has been forfeited. (People v. Williams, supra, 43 Cal.4th at p. 624.) We will not find reversible error on an issue never raised before the trial judge.
Effective Assistance of Trial Counsel
“To prevail on such claims, he must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 216, 217.) Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. (Strickland v. Washington [(1984) 466 U.S. 668,] 690.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....’ (People v. Pope [(1979) 23 Cal.3d 412,] 426, fn. omitted.) Finally, prejudice must be affirmatively proved; the record must demonstrate ‘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.’ (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)” (People v. Bolin (1998) 18 Cal.4th 297, 333.)
We reject defendant’s ineffective assistance of counsel claim for three reasons. First, the record does not contain an explanation of why counsel did not ask for judicial immunity, which precludes review on direct appeal. Second, it would have been entirely reasonable for defense counsel to have determined a request for judicial immunity was futile, as there is no California authority holding such a request should have been granted. She also could have concluded that Canales and Baugh would not have been helpful to the defense in view of their prior contradictory statements and their involvement in defendant’s criminal conduct. Third, defendant has not shown prejudice. It is not reasonably probable there would have been a result more favorable to defendant had Canales or Baugh testified, as the prosecution case was strong and consistent, and the potential defense witnesses had significant credibility issues.
II
FAILURE TO CALL DEPUTY PUBLIC DEFENDER LOVE TO TESTIFY TO THE WITNESSES’ OUT-OF-COURT STATEMENTS AS INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues he was denied his Sixth Amendment right to effective assistance of trial counsel because Love was not called to testify to the prior statements of Canales and Baugh. Defendant suggests the witnesses’ out-of-court statements were admissible as declarations against penal interest under Evidence Code section 1230. Contrary to defendant’s contention, there is no basis for a finding of ineffective trial counsel.
Once again, the record is silent as to trial counsel’s determination not to seek admission of the out-of-court statements as declarations against penal interest. Defendant therefore cannot prevail on his claim of ineffective assistance of counsel on direct appeal. (People v. Bolin, supra, 18 Cal.4th at p. 333; People v. Pope, supra, 23 Cal.3d at p. 426.)
Evidence Code section 1230 provides as follows: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”
Canales and Baugh were unavailable as witnesses, having each invoked the privilege against self-incrimination. (Evid. Code, § 240, subd. (a)(1).) The remaining issue is whether their statements fall within the hearsay exception for declarations against penal interest.
In California, Evidence Code section 1230 does not permit admission of out-of-court statements or a portion of a statement that is not disserving to the interests of the declarant. (People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte), citing People v. Leach (1975) 15 Cal.3d 419, 441.) Assuming Evidence Code section 1230 has any application to the statements in issue, only those portions of Canales’s and Baugh’s statements that were specifically disserving of their penal interests would have been admissible. (Duarte, supra, 24 Cal.4th at p. 612.) The trial court would have been obligated to redact any portion not disserving of their penal interests. (Ibid.) Trustworthiness is another foundational element under Evidence Code section 1230. (Id. at p. 613.)
Under these rules, had defendant established the trustworthiness of Canales’s statement to Love, the only portions of his statement truly disserving his penal interests would have been his admission to going with defendant to purchase drugs, taking defendant to the hospital, and lying to the police about what had happened. As to Baugh, the only portion of his statement disserving of his penal interest was the admission that he arrived at Martinez’s apartment 10 to 15 minutes before defendant, and he lied to assist Martinez. The remaining portions of both statements were not disserving to the penal interests of the declarants.
We find no merit to defendant’s argument that all of Canales’s and Baugh’s statements were admissible under the Due Process clause as interpreted in Chambers v. Mississippi (1973) 410 U.S. 284. (See People v. Butler (2009) 46 Cal.4th 847, 866-867.)
While we have substantial doubts as to the trustworthiness of the statements of Canales and Baugh, we need not decide whether the statements were admissible in order to resolve defendant’s claim of inadequate representation of trial counsel, as it fails under both prongs of Strickland v. Washington, supra, 446 U.S. at page 694. Trial counsel could have reasonably concluded as a tactical matter that the admissible portions of Canales’s and Baugh’s statements were of little probative value, and if admitted, the prosecution would have been entitled to introduce their prior statements for impeachment purposes under Evidence Code section 1202, which would have been damaging to the defense case. For the same reason, we are satisfied there is no reasonable probability of a more favorable result to defendant had the statements been admitted.
III
CONVICTION IN COUNT 6 FOR ASSAULT WITH A FIREARM AND COUNT 12 FOR ASSAULT BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY
Defendant argues he should not have been convicted of counts 6 and 12 on victim Martinez. Defendant reasons the convictions were based on the same conduct and only one conviction is permissible under People v. Craig (1941) 17 Cal.2d 453, 455. We hold that Craig is factually and legally distinguishable, and provides no support for defendant’s contention.
In Craig, the defendant was convicted of separate counts of forcible rape and statutory rape, based upon one act of intercourse with a 16-year-old girl. The court held that one act punishable under different subdivisions of former section 261 could not support multiple convictions. (People v. Craig, supra, 17 Cal.2d at p. 455.)
Unlike the situation in Craig, which involved one criminal act punishable under separate subdivisions of the same statute, defendant’s convictions in counts 6 and 12 involved separate and distinct acts, which violated different provisions of section 245. The conviction in count 6 for assault with a firearm (§ 245, subd. (b)) was completed when defendant entered the apartment and put a gun in Martinez’s face. The offense in count 12 was completed when defendant repeatedly struck Martinez in the head with the gun, committing an assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The reasoning in Craig is not a bar to the convictions here in counts 6 and 12.
IV
ADMISSION OF 911 CALLS
Three 911 calls were presented to the jury. Defendant does not challenge the admissibility of the 911 call placed by Nelson, in which Martinez and Baugh also spoke to the 911 operator. Defendant does, however, argue that admission of the calls from two neighbors who did not testify and were not subject to cross-examination—a woman who identified herself as Sally and a man who identified himself as Perry—violated the Sixth Amendment as interpreted by Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We review the issue under the de novo standard of review. (People v. Seijas (2005) 36 Cal.4th 291, 304.)
The Sixth Amendment guarantees a criminal defendant the right to cross examine the declarant of testimonial statements at trial. (Crawford, supra, 541 U.S. at p. 68 [“Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”].) The Supreme Court in Crawford did not set forth a clear definition of what constitutes testimonial evidence. “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” (Ibid., fn. omitted.)
The issue of the admissibility of 911 calls without cross-examination was addressed after Crawford in Davis v. Washington (2006) 547 U.S. 813 (Davis). Davis held, in part, that a 911 call reporting an ongoing domestic dispute was not testimonial evidence and was admissible without cross-examination of the declarant.
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S. at p. 822.) Where the 911 caller’s primary purpose, viewed objectively, is to assist police in an ongoing emergency, the call is not testimonial. (Id. at p. 828.)
We reject defendant’s attempt to take this case outside of the analysis of Davis by arguing that the incident was over at the time of the calls from Sally and Perry. To the contrary, each caller reported an ongoing incident as it was unfolding before her or him. Sally told the 911 operator a woman was screaming that a man had a gun and to call 911. She described seeing a bleeding man and a girl screaming. Similarly, Perry described a screaming woman who said “he has a gun.” As both callers were assisting the police in what objectively appeared to be an ongoing emergency, their calls were not testimonial.
V
THE VERDICT FORMS IN COUNTS 5 AND 6 ON ALLEGED VIOLATIONS OF SECTION 245, SUBDIVISION (B)
The prosecutor moved to amend the information to allege in counts 5 and 6 that defendant committed assaults upon Hill and Martinez, respectively, “with a semiautomatic or firearm” in violation of section 245, subdivision (b). The prosecutor was concerned the jury might not be convinced the weapon was a semiautomatic firearm, because it had not been recovered. The jury’s verdict in each count tracked the charging language, finding defendant guilty of assaulting Hill and Martinez “with a semiautomatic or firearm,” without any specification as to which weapon was used in the assaults. Defendant argues that due to the ambiguity in the verdict, the offenses must be reduced to assault with a firearm in violation of section 245, subdivision (a)(2), which carries a lesser sentence than the offense of assault with a semiautomatic firearm in violation of subdivision (b) of section 245. The Attorney General concedes the issue.
Section 245, subdivision (a), prohibiting an assault with a firearm and has a sentencing range of two, three, or four years. A more serious offense is set forth in section 245, subdivision (b), which precludes an assault “with a semiautomatic firearm” and which carries a punishment of three, six, or nine years in prison. Because of the way the information and verdict form read in this case, it is impossible to tell whether the jury found defendant committed the assaults with a firearm, or more seriously, with a semiautomatic firearm.
In view of the ambiguity in the verdict form, we agree the offenses in counts 5 and 6 must be reduced to violations of section 245, subdivision (a)(2), and defendant must be resentenced accordingly.
VI
CAUTIONARY INSTRUCTION ON USE OF DEFENDANT’S OUT-OF-COURT STATEMENTS
Defendant argues admission of Martinez’s testimony that defendant said “get on the fucking ground. I’m not afraid to shoot you. I’ll fucking shoot you. Get on the ground” required a cautionary instruction that the statement be viewed with caution. (See Judicial Council of Cal. Crim. Jury Instns. (2008-2009) CALCRIM No. 358; CALJIC No. 2.71.) Assuming a cautionary instruction should have been given, any error was harmless.
“When the evidence warrants, the court must instruct the jury sua sponte to view evidence of a defendant’s oral admissions or confession with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392 (Carpenter); People v. Bunyard (1988) 45 Cal.3d 1189, 1224 (Bunyard).)” (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).) “The standard of review for erroneous failure to give the cautionary instruction is ‘the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. (People v. Stankewitz (1990) 51 Cal.3d 72, 94; People v. Beagle [(1972)] 6 Cal.3d [441,] 456.)’” (Dickey, supra, at at p. 905.)
The purpose of the cautionary instruction is to assist a jury in deciding if the defendant made the statement in question. (Carpenter, supra, 15 Cal.4th at p. 393.) As a result, reviewing courts determining if error was prejudicial look to see if there is an issue as to the accurate reporting of the defendant’s words. (Dickey, supra, 35 Cal.4th at p. 905; People v. Pensinger (1991) 52 Cal.3d 1210, 1268.) When the record reveals no conflict as to the words spoken, but merely demonstrates a denial by the defendant of having made the statement, the error in failing to give the cautionary instruction is generally harmless. (Dickey, supra, at p. 905; Bunyard, supra, 45 Cal.3d at pp. 1225-1226.)
We have no difficulty in concluding that the alleged instructional error in this case was nonprejudicial. Martinez gave an explicit description of defendant’s statements at the initial stages of the incident. Defendant, on the other hand, denied making the statements, but certainly did not quibble as to the exact words spoken. While the words attributed to defendant by Martinez were relevant to a number of the charges, their main probative value was as to the criminal threats charge in count 11—the one count the jury failed to return a guilty verdict. In addition, the prosecution evidence against defendant was overwhelming, while the defense was greatly hindered by defendant’s falsehoods to the police and flight. A more favorable result to defendant would not be reasonably probable had the cautionary instruction been given.
VII
THE FIVE-YEAR SENTENCE FOR ATTEMPTED FIRST DEGREE ROBBERY IN COUNT 3
Defendant was convicted in count 3 of attempted first degree robbery. The trial court chose count 3 as the principal term and imposed a five-year sentence. Defendant argues the maximum sentence for attempted first degree robbery is three years and the sentence imposed was beyond the trial court’s jurisdiction. The Attorney General concedes the error.
Robbery in an inhabited dwelling house is robbery of the first degree, with a maximum punishment of six years in state prison. (§§ 212.5, subd. (a), 213, subd. (a)(1)(B).) Because defendant was convicted of attempted first degree robbery, his maximum sentence in count 3 was three years, which is one-half of a six-year maximum. (§ 664, subd. (a).)
Upon issuance of the remittitur, the trial court shall reduce the sentence in count 3 to three years.
VIII
IMPOSITION OF THE UPPER TERM WITHOUT A JURY FINDING OF AGGRAVATING CIRCUMSTANCES
Defendant argues imposition of the upper term for attempted first degree robbery in count three, without a jury determination beyond a reasonable doubt of aggravating circumstances, violates his Sixth Amendment right to a jury trial under Cunningham v. California (207) 549 U.S. 270 (Cunningham). He also argues application of the judicially reformed sentencing scheme set forth in People v. Sandoval (2007) 41 Cal.4th 825(Sandoval) violates the prohibition against ex post facto laws. Defendant recognizes that his contentions are foreclosed in this court by binding California Supreme Court authority, but raises the issues in order to preserve his right to further review.
The Supreme Court held that California’s determinate sentencing law violated the Sixth and Fourteenth Amendments in Cunningham. “California’s determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence. The facts so found are neither inherent in the jury’s verdict nor embraced by the defendant’s plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does.” (Cunningham, supra, 549 U.S. at p. 274.)
Despite the holding in Cunningham, defendant’s argument is without merit for multiple reasons. First, the trial court relied upon two proper aggravating grounds for imposing the upper term—defendant’s probationary status at the time of the offenses and multiple victims. Recidivism factors, including probationary status, are not subject to the Sixth Amendment right to a jury. (Cunningham, supra, 549 U.S. at p. 288; People v. Black (2007) 41 Cal.4th 799, 818.) The jury returned verdicts for offenses against both Martinez and Hill, which supports the trial court’s determination that there were multiple victims. (See People v. Black, supra, at pp. 816-817 [jury verdict reflecting forcible sexual offenses supported aggravating circumstance of use of force on multiple occasions].) Because the trial court properly relied on two aggravating circumstances, the upper term sentence did not run afoul of the Sixth or Fourteenth Amendments.
As a result of our resolution of this issue, we need not discuss in detail defendant’s remaining contentions regarding judicial reformation of California’s sentencing law or the retroactive application of the Legislative amendment to section 1170, subdivision (b), other than to note these contentions have been rejected by our Supreme Court. (Sandoval, supra, 41 Cal.4th at pp. 843-857.)
IX
CALCULATION OF PRESENTENCE CREDIT
Defendant argues the trial court miscalculated his presentence credits by three days. The Attorney General agrees with defendant’s calculation. Accordingly, we order the judgment modified to reflect presentence credit of 788 and good time/work time credit of 118, for a total of 906 days.
X
ADDITIONAL SECURITY FINES
Citing to the clerk’s transcript, the Attorney General argues the trial court erred in imposing only one $20 security fee, instead of imposing the fee on each of the eight counts, as required by section 1465.8. Defendant points out that the trial court did orally impose the $20 fee “per count,” but the fees were only reflected in one count of the judgment. We agree with defendant that the trial court did not err in imposing the fee, but that the abstract of judgment must be corrected to reflect the oral pronouncement of judgment.
DISPOSITION
The judgment shall be corrected as follows: (1) the convictions in counts 5 and 6 are reduced to violations of Penal Code section 245, subdivision (a)(1), and defendant is to be resentenced accordingly on those counts; (2) the punishment for attempted first degree robbery in count 3 is reduced to three years; (3) defendant is awarded 788 days of presentence credit for time served and 118 days of good time/work time credit for a total of 906 days; and (4) a $20 security fee shall be reflected in the judgment as to each count pursuant to Penal Code section 1465.8, subdivision (a)(1). In all other respects, the judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.