Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF098483A
DAVIS, J.
A jury convicted defendant Ismael Viveros, Jr., of murder (with the special circumstance of its occurrence in the commission of a robbery), robbery, and illegal possession of a firearm, along with related firearm enhancements. The court sustained recidivist allegations and sentenced defendant to state prison for a life term without the possibility of parole for the murder conviction, imposed a consecutive minimum term of 25 years for one of its firearm enhancements (staying the other), stayed sentence on the robbery conviction and its firearm enhancements, and imposed a concurrent term for the possession conviction.
Defendant contends that the trial court should not have allowed the prosecution to amend the information after trial began to allege a different firearm enhancement. He contends that he was guilty only of extortion rather than robbery, so the court should have granted his motion for acquittal. He also disputes the sufficiency of the evidence to support the special circumstance, and the adequacy of the instruction related to it. He faults the trial court for refusing to instruct on the use of circumstantial evidence generally rather than just in the context of his mental state. Finally, he cites several deficiencies in the structuring of his sentence. We shall affirm as modified.
FACTS
The eyewitness to the crimes was going to the victim’s home to give an estimate for electrical work on the victim’s garage. Defendant asked to come along; the three men had been friends for 20 years. They drove over in the Chevy truck that belonged to the eyewitness. Defendant was somewhat irritated with the eyewitness because the latter owed him $700-800 for some rims, but the eyewitness was unaware of any enmity between the victim and defendant, and did not have any reason to think defendant might want to harm the victim. When they arrived, the eyewitness did not see or hear anyone else at the victim’s home. He hugged the victim in the doorway and went straight to the bathroom.
When the eyewitness returned from the bathroom, the victim and defendant had just finished snorting some “crystal meth” using a rolled $100 bill. The three went into the garage and drank some beer. Defendant began to argue with the victim, accusing him of claiming to be pimping defendant’s sister. He pulled out a gun, which the eyewitness recognized as a chrome .357 revolver. The victim exclaimed, “‘It’s like that? It’s like that?’” Defendant then demanded drugs and money (the victim apparently owing him money for some drugs). The victim queried whether defendant needed money, claimed that he had only $500 available, then pulled cash out of his pocket and handed it to defendant. Pocketing the money, defendant demanded drugs, but the victim slapped his pockets and denied having any more. Defendant told the victim, “‘I got a lot of love for you Ruben, but you gots to go.’” He then shot him in the middle of the forehead. The eyewitness estimated that the gun was about a foot from the victim’s head.
The eyewitness had drank seven beers before defendant joined him.
According to the eyewitness, it was five $100 bills folded in half. He did not notice any money falling to the floor.
Defendant turned to the eyewitness and suggested that he should shoot the eyewitness as well. The eyewitness told him that he just wanted to get out of there, and walked out of the garage. Defendant followed and got into the truck. As they drove away, defendant told him, “That was a gan[g]ster hit. Ruben melted like butter.” He kissed the eyewitness on his cheek and said, “Yeah, that mother fucker . . ., I will do a line for this mother fucker.” The eyewitness drove defendant to his parents’ home. He did not see the gun while they were driving, though the cab reeked of gunpowder. Defendant discarded the weapon at his parents’ home, then the eyewitness drove defendant back to his car. The eyewitness reported the crime to his parole agent the next day.
The eyewitness admitted to several felony convictions, which included auto theft, assault, gun possession, and other offenses.
A detective testified about various inconsistencies between the statements of the eyewitness to the police and at trial. The defense also introduced inconsistencies from the testimony of the eyewitness at the preliminary hearing. None of these, however, contradicted his testimony that defendant displayed the gun and demanded the victim’s property before the victim offered him the money (his prior statement in fact being consistent with this account at trial).
Another long-time friend of the victim had been at his house earlier in the day, along with a drywaller who was helping the victim fix up the house and who had a cot in one of the bedroom closets in which he slept. The friend thought that the drywaller was “acting funny”; he had been drinking but not to the point where he would have fallen off the ladder he was using while sanding the ceiling. The friend left to bring gas to his stranded wife. At the time he left, the victim was chiding the drywaller for the slow pace of his work. The friend called the victim from his truck to let him know someone was arriving at the house.
The eyewitness did not know this person.
At trial, the friend minimized the degree of the disagreement. He had told a police investigator, however, that it was a heated argument.
The friend returned about an hour later. The front door was open and a stereo was loudly blaring. He did not see the drywaller as he headed straight for the garage. He found the victim gasping for breath. He tried to tend to him, and called for assistance. Emergency personnel arrived and took the victim to the hospital at 7:15 p.m. The victim died and an autopsy was performed the next day. Blood tests showed that the victim was under the influence of methamphetamine at the time of the shooting.
The drywaller owned a white Chevy Blazer with a blue stripe on its side. It was not there when the eyewitness arrived or when the friend returned. In letting her cat in the house, a neighbor of the victim saw a white, blue-striped Blazer parked in front of the victim’s house. After hearing what sounded like a gunshot, she heard what she believed was the Blazer drive off at a high rate of speed. A second neighbor was sitting in her idling car in the driveway waiting for her husband. It was about 6:40 p.m. She saw a man, who appeared jumpy, smoking outside the victim’s house. He went inside. A few minutes later he rushed out of the house to an SUV that she thought was a Blazer, and drove off at a high rate of speed. Her car idled very loudly, so she could not hear anything before her husband joined her and they drove off. Yet another neighbor was smoking on her front porch when she saw a white and blue Blazer speed erratically down the street. The police and emergency personnel arrived at the victim’s house within 10 minutes after the Blazer left.
The victim had a .380 semiautomatic firearm in the house for protection. The firearm belonged to the friend, and the friend had seen it a few days before. The drywaller had previously played around with it. Neither the friend nor the police were able to find it.
The friend directed the police to the home of the drywaller. The Blazer was not there when an officer checked at 7:38 p.m., but when another officer went by a couple of hours later, it was parked out front. When other officers came by the residence between 3:00 and 4:00 in the morning on a cold and foggy night, they found the drywaller hiding between the garage and the back fence.
The police apparently did not take the drywaller into custody, and never evaluated gunshot residue samples they obtained from him. His parents testified that he left the country for Central America shortly before trial, before the defense could serve him with a subpoena to appear as a witness.
The wound did not have any gunpowder residue near it. This means that a gun such as a .357 had to have fired at the victim from a distance of greater than three feet. The bullet in the head of the victim “was most likely fired from a revolver chambered for either the .38 Special or a .357 Magnum cartridge.” The police did not find any casings, which was consistent with the use of a revolver but not a semiautomatic weapon. Two hundred fifty-four dollars in assorted currency was found underneath a bloody pair of jeans that appeared to have been cut open (presumably by the paramedics). In one of the pockets was a baggie that contained over eight grams of methamphetamine.
The police arrested defendant the next day and searched his residence. They found a gun holster, a bag of ammunition of various calibers (one of which was a .357), and a .357 cartridge in a plastic bin outside the house. None of the bullets matched the bullet fragments retrieved from the victim’s head.
Under police questioning, defendant’s statement evolved over time, beginning with a denial of any interaction with the victim on that day (other than stopping by in the afternoon to pick up “crystal”) and a claim that he and the eyewitness had been drinking beer in a park at the time of the shooting. At long last, defendant said he might as well admit shooting the victim because that was what everyone was apparently telling the police. He agreed that he had snorted a line with the victim in the kitchen and had been drinking beer in the garage. He agreed that he challenged the victim about making the untrue statements about his sister, and that the victim offered him money. But he claimed that at the crucial point he had gone blank while hearing a gunshot, at the same time insisting that neither he nor the eyewitness was the shooter or had a gun.
DISCUSSION
I
The information alleged defendant’s personal use and discharge of a firearm “within the meaning” of Penal Code section 12022.53, subdivisions (b) and (c) (subsequent undesignated section references will be to this code), which respectively provide for enhancements of 10 and 20 years. At the outset of trial, the prosecution moved to amend the allegation to plead subdivision (d) instead (which imposes a minimum indeterminate life sentence of 25 years as an enhancement for a death resulting from personal discharge of a firearm), and to make explicit that it applied both to the charge of murder and of robbery because “it was clear at the preliminary examination and all the way through, that . . . there was a gun involved and that death did result.” Defense counsel objected that this subjected his client to greater punishment, but could not identify any prejudice. The trial court found that the defense had notice of all the facts necessary for the new enhancement, and could not posit any prejudice to the defense strategy, so it granted the motion. At this point, the first witness had yet to testify.
Defendant invokes the doctrine of “vindictive prosecution” in claiming that the prosecution should not have been permitted to amend the information to increase the severity of the punishment after the empanelment of the jury. He cites the principal cases applying the doctrine (In re Bower (1985) 38 Cal.3d 865, 871, 873-876 [refusal to renew stipulation to lesser degree of murder on retrial after mistrial]; Twiggs v. Superior Court (1983) 34 Cal.3d 360, 364-365, 368-374 [addition of several recidivist allegations in new trial after mistrial]), which based their analysis on United States Supreme Court authority requiring prosecutors to rebut a presumption of vindictiveness in increasing the severity of the charges on retrial after a successful appeal or after requesting a trial de novo (though not before jeopardy attaches). (Bower, supra, 38 Cal.3d at pp. 873-874.)
He also cites cases involving the inapposite prohibition against convicting a defendant or juvenile of an offense not included in the pleadings or the statutory definition of the charged offense. (In re Robert G. (1982) 31 Cal.3d 437; People v. Lohbauer (1981) 29 Cal.3d 364; In re Johnny R. (1995) 33 Cal.App.4th 1579.)
This doctrine has no place in the context of the present case. While jeopardy may have attached, the amendment of the information was not in response to defendant’s exercise of any right, which is the purpose of the protections that the doctrine affords.
Defendant otherwise does not demonstrate any lack of notice in connection with the amendment, remarking instead that notice and an opportunity to defend effectively against the new enhancement are not the only considerations. Rather, he simply speculates that the pretrial plea negotiation process could have taken a different course if this significant increase in the potential punishment had been part of the consideration. However, speculation is not a basis for reversing a court’s exercise of its discretion in ruling on a motion to amend the pleadings, which “is broad and is almost invariably upheld.” (People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 477.) “The focus of the trial court[] . . . should be directed primarily to determining whether, on the facts presented, the requested amendment would prejudice . . . [a defendant]’s substantial rights.” (Ibid., italics added.) Defendant does not present any cogent reason why an increase in an enhancement should have any significance when facing a charge on an underlying offense that carries a penalty of life without possibility of parole. We therefore do not find any abuse of discretion.
II
Renewing a basis of his motion for acquittal (§ 1118.1), defendant contends that the prosecution’s evidence proved only extortion, not robbery. Therefore, the trial court should have dismissed the charge of robbery and the robbery-murder special circumstance, and precluded the prosecution from proceeding on a felony-murder theory in connection with the homicide charge.
He also contested the sufficiency of a conviction for first degree murder on a theory of premeditation, but does not renew this claim on appeal. He instead contends it was not “likely” that the murder verdict is based on a theory of premeditation, so that conviction must be reversed as well. This is not the correct standard, and it is questionable whether the robbery verdict and the special-circumstance finding constitute of themselves the necessary affirmative showing that the jury based the murder verdict on a factually insufficient theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1129; cf. People v. Rundle (2008) 43 Cal.4th 76, 140-141 (Rundle).) In any event, as we find sufficient evidence of a taking against the will of the victim, the point is moot.
Robbery and extortion differ in that the latter requires the use of force or fear with the specific intent to acquire property of another with the other’s “consent” (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 103, p. 136), whereas robbery requires proof of a taking against the victim’s will (id., § 86, p. 115; People v. Kozlowski (2002) 96 Cal.App.4th 853, 866), as well as other distinctions not material here (People v. Torres (1995) 33 Cal.App.4th 37, 50 [extortion does not require either intent to deprive victim permanently of property or taking from victim’s person or immediate presence]; 2 Witkin & Epstein, Cal. Criminal Law, supra, § 104(2), p. 137 [extortion defines “property” broadly]). Another distinction is that traditionally the use of force in extortion consists of some future threat rather than an immediate threat. (Torres, supra, 33 Cal.App.4th at p. 52, fn. 7.)
This paradoxical “consent” is an apparent willingness that is in fact only the result of a desire to forestall “some personal calamity or injury.” (People v. Peck (1919) 43 Cal.App. 638, 645 (Peck).)
The parties dispute whether Peck, a vintage decision of this court, compels a finding that defendant committed only extortion and not robbery. In the first place, the decision involves the converse claim that the events proved robbery rather than extortion. (43 Cal.App. at p. 642.) We simply concluded there was substantial evidence to support an implied finding that the taking was with the victim’s consent. (Id. at p. 644.) The case does not deviate from the black-letter distinction between the crimes, and its holding only represents a fact-specific application of the settled law to a different (albeit colorful) set of circumstances, which does not as a result control the outcome in the present case. (Robison v. City of Manteca (2000) 78 Cal.App.4th 452, 458, fn. 5.)
Defendant premises his argument on an interpretation of the facts in which the victim offered defendant money after the display of the gun but before any demand for the victim’s property, contending that defendant at that point was merely seeking to vindicate family honor. Although this does reflect the initial chronology in his testimony, the eyewitness then agreed that he had told a detective on the next day that defendant had first demanded that the victim “‘give me the money that you owe me’” and “‘the dope you got,’” and the detective later also testified that the eyewitness had told him on that occasion that defendant first demanded money and drugs (“‘some fucking shit’”), then displayed the gun, and then the victim offered the cash. Under these circumstances, the “offer” of the cash at gunpoint after a demand for it is quintessential robbery, not mere extortion.
III
A
In connection with the special circumstance, the court instructed the jury that “If you find the defendant guilty of first degree murder you must also decide if the People have proved that the special circumstance allegation is true. [¶] The People have the burden of proving the special circumstance allegation beyond a reasonable doubt. If the People have not met this burden[,] you must find the special circumstance has not been proved. [¶] . . . [¶] To prove that this special circumstance is true the People must prove [a number of elements, including that t]he act causing the death and the robbery were part of one continuous transaction. [¶] . . . [¶] In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit robbery independent of the killing. If you find that the defendant [intended only] to commit murder and the commission of robbery was incidental to the commission of that murder, then the special circumstance has not been proved.”
Though one might consider this instruction to be relatively straightforward, defendant disagrees. His challenge to the instruction is not a model of clarity. As best we can discern, he seems to contend that the instruction is erroneous because it is inadequate merely to find an independent objective of robbery; the jury must also find that the killing furthered the robbery in some fashion in order for it to have occurred in the robbery’s commission, citing People v. Jennings (1988) 46 Cal.3d 963, 979. He also seems to discern an improper shifting to him of the burden of proof on the issue of the incidental nature of the robbery in order to refute the allegation.
We first reject the People’s contention that the defendant has forfeited this issue on appeal because he did not object to the instruction on this ground in the trial court. A defendant may challenge the legal adequacy of an instruction--even without a contemporaneous objection--under the guise of claiming that it affected his substantial rights. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34, and cases cited therein; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; § 1259.)
The standard by which we gauge defendant’s arguments is whether there is a substantial likelihood that a reasonable juror would have interpreted the instruction in the manner defendant posits. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316]; People v. Catlin (2001) 26 Cal.4th 81, 151.) People v. Horning (2004) 34 Cal.4th 871 stated that the proper interpretation of the felony-murder special circumstance is to require proof that a defendant had a purpose in committing the felony independent of the killing, “‘that is, the commission of the felony was not merely incidental to an intended murder.’” (Id. at p. 907.) Horning stated that it is adequate to instruct a jury that the felony cannot be merely incidental to the commission of an intended murder without any additional explicit instruction that the murder must be committed to further the felony. (Ibid.) “[W]e have never suggested that . . . any precise language was required to explain the concept to the jury,” or that there is anything “magical about the phrase ‘to carry out or advance’ the felony.” (Id. at p. 908.) In short, “the court’s explanation that the [felony] must not be ‘merely incidental to the commission of the murder’ adequately conveyed the requirement.” (Ibid.) The present instruction is equivalent to the instruction in Horning, and we do not find a substantial likelihood that a reasonable juror would fail to understand the concept it intends to convey. (Accord, Rundle, supra, 43 Cal.4th at p. 156.) Defendant is incorrect in attempting to distinguish this holding in Horning as being limited to a determination of the sufficiency of the evidence (which is instead a basis for the alternate holding rejecting the instructional argument. (Horning, supra, 34 Cal.4th at p. 908.)
Defendant briefly noted in his opening brief a vagueness problem in the instruction’s employment of the terms “independent” and “incidental.” For the first time in his reply brief, he builds on this contention with the claim that the instruction lacked an adequate explanation of the necessity to find a logical connection other than temporal simultaneity between a robbery and a killing. Assuming this contention is not barred under the restriction on “sniper” arguments appearing in a reply brief (Beane v. Paulsen (1993) 21 Cal.App.4th 89, 93, fn. 4), it flounders for the same reason as his primary argument: Horning states that any additional principles are unnecessary beyond the explanation that the robbery cannot be incidental, this being sufficient to explain that a murder cannot be a defendant’s primary objective for the special circumstance to apply.
As for his contention that the instruction somehow puts the burden of proof on him to establish that the robbery was only incidental to the killing in order to refute the allegation, it fails to acknowledge the commonplace meaning of the instruction as a whole. The instruction explicitly iterates that the burden is on the prosecution to prove beyond a reasonable doubt that the robbery and the death were part of a continuous course of events in which there had been an independent purpose to commit robbery. The “finding” that the robbery was merely incidental is nothing more than the flip side of the prosecutorial coin, the alternate state of circumstances if the prosecution fails to convince the jury of an independent purpose. We reject this claim as well.
In his opening brief, defendant noted the constitutional basis for the requirement of an independent felonious purpose in order to sustain a special circumstance qualifying a defendant for the penalty of death. The People discerned this to be a claim that the instruction is constitutionally infirm because it does not adequately distinguish between the general class of murders and those that qualify for the death penalty. In defendant’s reply brief, he states only that “The United States Supreme Court holdings appear to cover this issue,” failing to tell us whether he cited them merely as background or to invoke the rule. Unlike the People, we do not find any constitutional claim to be adequately identified or argued, which absolves us of any duty to respond to it. (Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 592, fn. 8.) In any event, the prosecution did not seek the death penalty, obviating the penalty-phase trial. Under these circumstances, we do not need to consider whether the instruction adequately qualifies the defendant for death. (People v. Rodriguez (1998) 66 Cal.App.4th 157, 165-166.)
B
Defendant also contends that, even if the jury had proper guidance from the instruction on the special circumstance, the finding is not supported by substantial evidence. We disagree.
Defendant simply draws alternative inferences regarding his purposes at the time of the shooting, insisting that the evidence shows that he anticipated receiving additional money from the victim and therefore could not have wanted to kill the victim with this debt outstanding to further an independent goal of robbery; rather, the robbery was merely incidental to his goal of protecting family honor. However, it is equally proper to conclude that defendant, already in a foul mood because the eyewitness had an outstanding debt as well, had lost patience with the victim and wanted to collect what he could and then killed him before retreating to a place of temporary safety because of the resentment about the debt and the bad-mouthing. Consequently, there was an adequate basis for the special circumstance.
IV
On several occasions, defense counsel attempted to persuade the trial court to include an instruction on the sufficiency of circumstantial evidence. The court noted that the People’s case rested on direct evidence except for proof of the mental state of defendant, which was the subject of another of the instructions that the court intended to use. Defense counsel, however, felt he was entitled to the instruction because there was circumstantial evidence that contradicted the direct evidence in the testimony of the eyewitness. The trial court refused the request.
The requested instruction provided, in relevant part, “Before you may rely on circumstantial evidence to conclude that a fact necessary [for conviction] 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 . . . points to innocence and another to guilt, you must accept the one that points to innocence.”
The court instructed the jury that “In order to prove the crime[s] charged . . ., the . . . special circumstance . . ., and the lesser offense[s] . . ., the People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. [¶] An intent or mental state may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to a verdict of guilty . . . or [a] finding that the . . . special circumstance allegation is true, 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 conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, [and] one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state, and another . . . supports a finding that [he] did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence.”
Defendant contends on appeal that the court’s premise was incorrect because the prosecution relied on circumstantial evidence to corroborate the eyewitness in his closing argument. Defendant fails to demonstrate as to any essential element of any conviction or finding that circumstantial evidence was necessary to fill in substantial gaps in the proof otherwise provided in the eyewitness testimony. “[W]e have consistently held that [the analogous former pattern instruction] is not necessary unless the prosecution substantially relies on circumstantial evidence to prove its case.” (People v. Anderson (2001) 25 Cal.4th 543, 582, italics added.) In Anderson, an eyewitness provided proof of an unadjudicated murder to support an aggravating penalty factor (id. at pp. 559, 561-563, 570); there were significant problems with her credibility, including her beliefs in recollection via dreams and in telepathic communication, and her account of giving birth to imaginary triplets who later died (id. at p. 563). “[T]he People relied primarily upon direct evidence, i.e., the eyewitness testimony . . ., to prove that defendant committed the [unadjudicated] murder. . . . [B]y introducing circumstantial evidence merely to corroborate an eyewitness, the prosecution did not substantially rely on such evidence.” (Id. at p. 582, italics added; accord, People v. Brown (2003) 31 Cal.4th 518, 525-528, 562, 563-564 [describing eyewitness testimony of charged and other crimes as being “primary” and circumstantial evidence as being only “incidental” to it]; 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 652, p. 940 [noting in addition that extrajudicial admissions, even if deemed circumstantial, are not the type of evidence requiring instructions on their use].) We therefore conclude that the trial court did not err in refusing to use the more general instruction on circumstantial evidence.
The eyewitness testimony is also sufficient to refute the defendant’s claim of third party culpability.
In any event, defense counsel in closing argument informed the jury without contradiction that the principles for using circumstantial evidence in connection with the issue of mental state or intent can apply to any facts for which the prosecution relies on circumstantial evidence.
V
The court imposed a parole revocation fine. (§ 1202.45.) Defendant maintains that this was error in light of his life term without possibility of parole. He is correct. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) The People concede the error. We shall strike the fine.
In sentencing defendant, the court did not impose a $1,000 “administrative” fee. (§ 1202.4, subd. (l).) The minutes and abstract of judgment, on the other hand, include this fee. Defendant maintains that this must be treated as a presumed clerical error. He is correct. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The People concede the error. We shall strike this fee.
The parties dispute whether the trial court properly stayed the sentences for the lesser firearm enhancements imposed pursuant to section 12022.5, or if we must both vacate the sentences and strike the underlying findings as well in light of the enhancement imposed pursuant to section 12022.53. The Supreme Court has resolved this disputed issue: the trial court correctly imposed and then stayed the other enhancements. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1131.)
Finally, defendant contends that the trial court should have stayed the sentence on his conviction for illegal possession of a firearm rather than impose a concurrent term. The trial court could impliedly have inferred a possession of the firearm antecedent to its use in the other offenses from evidence that defendant did not take advantage of fortuitous circumstances putting a gun in his hand only at the moment of the other crimes, and from the evidence of the firearm accoutrements found in the search of defendant’s home. This is sufficient to impose a separate (and essentially meaningless) punishment. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143-1145.) His claim that the prosecutor “elected” to base this charge on defendant’s possession at the time of the gun’s use in the other offenses overstates the two passing references that illegal possession of a firearm is proven if the jury believed defendant was the person who shot the victim, because that would mean he had possession of a gun. This argument did not explicitly state that the only possession on which the prosecution was relying was contemporaneous with the other crimes.
DISPOSITION
The section 1202.45 fine and section 1202.4, subdivision (l) fee are stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Rehabilitation and Corrections.
We concur: SCOTLAND , P. J., BUTZ , J.