P. v. Minjares

Filed 1/3/08 P. v. Minjares CA2/2

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed as modified.

Patricia Ihara, 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, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Sergio E. Minjares appeals from a judgment entered after a jury found him guilty of first degree murder. (Pen. Code, 187, subd. (a).)^[1] The jury found true the allegations that appellant committed murder while engaged in the commission of robbery, within the meaning of section 190.2, subdivision (a)(17) and that appellant personally used a firearm, within the meaning of sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a).

The trial court sentenced appellant to life without possibility of parole, plus a consecutive term of 10 years for the firearm enhancement.

We affirm with modifications.

CONTENTIONS

Appellant contends that: (1) the 16 1/2 year delay from the victims murder to the filing of the murder charge violated appellants due process rights; (2) his right to due process of law was violated when the jury was presented with a legally incorrect theory of the felony murder doctrine as a basis for first degree murder; (3) the trial courts failure to instruct the jury with CALJIC No. 8.80 requires reversal of the special circumstance finding; (4) the trial courts imposition of a consecutive 10-year upper term sentence for the firearm enhancement under section 12022.5 was ex post facto and violated appellants right to due process of law; (5) the trial court erred when it failed to award good time/work time presentence credits; (6) the trial court erred when it imposed a security fee of $20 because the offense occurred before enactment of the statute which authorized its imposition; and (7) if any of these issues are deemed waived by defense counsels failure to raise or preserve them for appellate review, appellant was denied effective assistance of counsel.

FACTS AND PROCEDURAL HISTORY

The 1989 Robberies and Murder

On January 15, 1989, Martin Pineda (Pineda) was shot and killed during a robbery of the Sunny Liquor store by two armed gunmen. Young Lee owned the liquor store. At 5:45 p.m. that day, Lees son, Tony Lee (Tony), and Pineda, a box boy, were working behind the cash register, helping customers Robert Huerta (Huerta) and Jose Luis (Luis). Two Hispanic men entered the store, went to the cooler, got a six-pack of Budweiser beer, and set it on the sales counter. Both men brandished guns. One of them grabbed then 15-year old Huerta by the collar and pulled him to the other side of the counter. He then jumped over the counter, ordering Tony and Pineda to kneel down. Luis ran out of the store at that point, and the other gunman ran after him, but returned alone a few seconds later. At a live lineup in January 1989, Tony identified appellant and another man as possible suspects. He felt that appellant was the stronger choice.

Young Lee, who was taking a nap in the back office, woke up when he heard banging noises. Young Lee came out of the office and saw the gunmen pointing guns in the direction of the register and saw Pineda lying on the floor. He heard shots fired and retreated to his office, where he retrieved a handgun called a Walther PPK and fired a shot in an upward direction through the one-way window. He was too scared to shoot again. Young Lee did not think he hit Pineda because he later saw a bullet hole on the top of the wall, above the refrigerator, opposite from where he was shooting. Huerta heard shots fired before he saw the gunmen fire. He thought two of the robbers bullets hit Pineda in the chest and stomach. Both robbers shot while inside the store.

The same coroner who examined Pinedas body in 1989 testified at trial in 2006 that Pineda died of a gunshot wound made by a medium caliber bullet that entered the left lower back and exited the right lower abdomen. He opined that the wound could have been caused by a gunman shooting directly at the standing Pineda; or a gunman shooting downward while Pineda was bending or lying down. He testified that a bullet from a medium caliber handgun will likely pass all the way through the body, while a small caliber bullet, after passing through organs, will often be trapped underneath the skin. Also, the exit wound was consistent with a medium or large caliber gun. Young Lees ear was grazed by a bullet, and Huerta was shot in the leg.

Meanwhile, Rosemarie Keith (Keith) parked outside the Sunny Liquor store and was about to enter with her child when she saw two Hispanic men in front of the counter shouting in broken English and Spanish. She saw Pineda with a troubled look on his face, behind the counter. She retreated to her car. She saw Luis run out of the store, heard shooting, and saw Pineda fall. Appellant ran after Luis and she got a good look at his face from 10 feet away. She identified appellant at trial and at a photographic lineup. The police did not contact Keith to participate in a live lineup in 1989.

That same evening, Thomas Burns (Burns)was working on the roof of his house, when he heard loud gunshots from the direction of Sunny Liquor store, which was in his direct view. He saw three men run out of the store and two of the men split off and jump into a Toyota Camry. One of the men was carrying a handgun.

Young Lees Walther PPK was a .380-caliber pistol. A fragment from a .380-caliber shell casing was recovered adjacent to the desk in Young Lees office. Police officers also found a live .44-caliber bullet in Young Lees office, and a spent .44-caliber bullet on the floor behind the register, where Pinedas body had lain. Police also recovered .38-caliber bullet fragments. A .44-caliber cartridge is not interchangeable with a .380-caliber cartridge. On January 15, 1989, Pomona Police Department Detective Frank Terrio lifted seven latent prints from the beer carton. He looked at the prints during his afternoon shift, but was unable to match them to appellants exemplar.

At 6:15 p.m. the same evening, the 3-M Market, seven blocks away from Sunny Liquor, was robbed. The two robbers approached the counter with two six-packs of Miller beer. In broken English with a Spanish accent, one ordered Enny Wong (Wong) to give him money, and the other pointed two guns at Peng Siong Lam. One of the gunman leapt over the counter when Wong did not move fast enough. Prints lifted from a shoebox type container matched appellants exemplar card. In March 1989, appellant pled guilty to the robbery of 3-M Market and was sentenced to two years in state prison.

Later that evening at 6:42 p.m., two men robbed M & H Market, which was 1.25 miles away from 3-M Market. Part of the robbery was captured on videotape by a surveillance camera. On January 16, 1989, Pomona Police Department Detective John Holzberger saw appellant at the Montclair Police Department and also looked at mug shots of appellant taken that day. He viewed the videotape and believed it depicted appellant as one of the robbers. On January 15, 1989, Pomona Police Department Detective Phillip Makenzie viewed the videotape and recognized appellant at a live lineup the next day. Officers took five print cards of fingerprints from the counter of the market. Two employees of M & H Market, Martha Gomez (Gomez) and Luis Gonzalez (Gonzalez) identified appellant in a live lineup as the robber with the gun, but could not identify him at the preliminary hearing.

The day after the robberies, appellant was arrested when he fled from officers during a traffic stop. The two passengers also tried to flee, but were apprehended. Appellant tried to escape again after he was detained and handcuffed. A live .44-caliber cartridge, of the same design and brand as the bullet found at the Sunny Liquor store, was found after a struggle with one of the passengers. The Toyota Camry which appellant had been driving had been stolen from a grocery store six days before appellants arrest. Inside the car, police found a six-pack of Miller beer with two latent prints that matched appellants 1989 exemplar.

The 2006 Trial

In 2003, Pomona Police Department Detective Gregg Guenther requested that the latent prints from the Sunny Liquor murder case be reexamined. On March 27, 2003, Adam MacDonald, a Pomona crime scene investigator, matched one of the beer carton latent prints to appellants 1989 exemplar prints. A latent print card with a little finger print taken from Sunny Liquor on January 16, 1989, matched an exemplar print card with appellants prints, taken on February 23, 2005.

Two civilian forensic identification specialists who work for the Los Angeles County Sheriffs Department, William Leo and Peter Kergil, separately matched the print from the carton of beer from Sunny Liquor to appellants fingerprints. Leo matched appellants right little finger to the 2005 exemplar card, and the right index finger, the right palm print, and the left index finger to the 1989 exemplar card. Leo observed that the cardboard container was not an ideal surface from which to obtain fingerprints, because cardboard and paper have a tendency to soak up fingerprints. It was challenging for him, an examiner of 30 years experience, to make these identifications. Also, Leo matched the right thumbprint of a latent print to the 1989 exemplar, using a photograph of the print obtained from the 3-M shoe box.

In 2005, retired Detective Terrio reexamined the latent prints he had taken from Sunny Liquor and matched them to appellants 1989 and 2005 exemplars. He made a match between the right little finger, the left index finger, and a portion of the right palm. Detective Terrio explained that in 2005 he was able to match the prints because he had more experience and the benefit of modern technology in the fingerprint area. Experience taught him that he should have done things differently than he had in 1989. He testified that he could see things better in 2005, and is convinced that this examination was accurate.

Appellants trial commenced in July 2006. The trial court denied appellants pretrial motion to dismiss based on denial of his due process rights caused by the delay between the crime and the filing of the complaint. Appellant was convicted as noted above.

DISCUSSION

I. The Delay in Filing the Murder Charge Did Not Violate Appellants Due Process Rights

A. Appellant Did Not Suffer Prejudice

Appellant contends that he was prejudiced by the delay between the murder of Pineda and the filing of the murder charge against him because the passage of time affected witnesses recall. Appellant also complains that the trial court improperly admitted a photograph and testimony of officers regarding their observation of a surveillance videotape of the M & H Market robbery, which had been destroyed in 1989, and that he lost the opportunity to have a concurrent sentence for the 3-M robbery conviction. He also contends that the People could not justify the delay as it was due entirely to Detective Terrios negligence, and that the prejudice to appellant outweighed the justification for the delay.

A defendants complaint of pre-accusation delay is regulated by the general right to due process under the state and federal Constitutions. (United States v. Marion (1971) 404 U.S. 307, 324; Scherling v. Superior Court (1978) 22 Cal.3d 493, 507.) In asserting a claim of pre-complaint delay, the defendant has the initial burden of showing evidence of actual prejudice, which cannot be presumed. (People v. Archerd (1970) 3 Cal.3d 615, 639-640.) The burden then shifts to the prosecution to justify the delay. (Ibid.) Then, the trial court balances the harm against the justification. (Ibid.)

Prejudice may be shown by the loss of a material witness, missing evidence, fading memory caused by lapse of time, or the Peoples utilization of the delay to strengthen its position by weakening the defense. (People v. Archerd, supra, 3 Cal.3d at pp. 639-640 [pre-indictment delay of 11 years and six years for two separate murders not prejudicial where the defendant did not show that any crucial defense was lost by reason of the delay; the evidence showed that a scientific breakthrough regarding the isolation of insulin in the body occurred years after the murders; and there was no evidence that the delay was arbitrary, oppressive, or deliberately caused to harass defendant].)

Whether prejudice has been shown is a factual question to be determined by the trial court, which we review under the substantial evidence standard. (People v. Hill (1984) 37 Cal.3d 491, 499.)

Here, appellant does not claim that the delay caused defense witnesses to become unavailable, or that the memories of defense witnesses had faded. Rather, in an attempt to show prejudice, appellant points out inconsistencies in a statement given by Keith to a police officer in 1989 and Keiths trial testimony in 2006. He complains that the delay was instrumental in changing [Keiths] testimony to make it more certain. He also refers to Keiths 2006 trial testimony that she was scared and in a state of shock at the time of the incident, and it took her years to sort out what she clearly knew.

Appellant has not shown actual prejudice by the delay, but only speculates that Keith and other witnesses testimony would have been more favorable to him had they testified in 1989. There is no indication that Keith would have testified at trial differently in 1989 than she did in 2006. Her statement and trial testimony coincided in most important aspects. In her statement she said that she pulled into the parking lot; saw the employee give her a troubled look; removed her child from the car; saw an employee on top of the counter grabbed by a male Hispanic; and saw a second male Hispanic pointing a gun at the employee behind the counter. One of the suspects then grabbed an employee from behind, and based on the comments being made by the men, she feared that a robbery was in progress. The major inconsistency between the 1989 statement and her trial testimony was that she testified at trial that she saw appellant participate in the robbery and then run from the store. In her statement she had left the store before the robbery and the shooting began. This inconsistency was the subject of intense cross-examination by defense counsel. Appellants trial strategy of emphasizing inconsistencies in Keiths testimony, was not affected by the delay as it might have been if a defense witness were unavailable, for example. (Scherling v. Superior Court, supra, 22 Cal.3d at pp. 505-506 [no prejudice where the defendant did not exhibit faded memory but testified as to specific details, and the testimony of unavailable witnesses was cumulative to that of other witnesses]; People v. Champion (1995) 9 Cal.4th 879, 926-927 overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860 [inconsistencies in eyewitness testimony is a basis on which the jury can determine credibility].)

Appellant also contends that witnesses Gomez and Gonzalez, who were unable to identify appellant in court at the M & H Market preliminary hearing in 1989, testified in the 2006 Sunny Liquor trial that they were certain of their 1989 live lineup identifications and thus were more favorable to the prosecution after the passage of time. At the 1989 M & H Market preliminary hearing, Gomez testified that she identified someone at the live lineup, but that she was not very sure about the identification. At trial she was thoroughly cross-examined and admitted that her memory of the event was fresher in 1989 than in 2006. Gonzalez, however, never testified at the 1989 M & H preliminary hearing that his live lineup identification was incorrect. He simply could not positively identify appellant when he appeared in court at the 1989 preliminary hearing. In fact, Gonzalezs testimony in 2006 was consistent. He stated that he believed he identified the robber in the live lineup, and that he remembered being unable to make an identification at the 1989 preliminary hearing. Nothing hindered appellants counsel from pointing out inconsistencies between the witnesses 1989 preliminary hearing testimony and the 2006 trial, and it was within the province of the jury to determine whether the People met their burden of proving by a preponderance of evidence that appellant committed the other crime.

Appellant relies on the rule set forth in People v.Hill, supra, 37 Cal.3d 491, which concerned violation of the speedy trial right under the federal and state Constitutions. In that case, witness identification was the only evidence connecting the defendant to the rape, robbery, and burglary of two women. Thus, the failure of two victims to identify the defendant at the preliminary hearing more than a year after the filing of the criminal complaint, though they had identified him in a live lineup within a few months of the crime, was prejudicial because their memories [were] apparently too uncertain to permit adequate cross-examination on the particulars of the person who attacked them. (Id. at p. 498.) Here, on the other hand, Keiths recall of the events at trial was very specific and detailed. And, while Gomez and Gonzalez did not identify appellant in court in 2006, they testified that they were sure of their lineup identifications in 1989.

Moreover, unlike People v. Hill, in addition to the witness identification testimony, other evidence connected appellant to the crime. That is, the robberies of all three businesses were similar in nature and operation, and were conducted within a short time and distance of each other; fingerprint evidence connecting appellant to the Sunny Liquor murder existed; the photo from the videotape of the M & H Market identified appellant as one of the robbers; appellant was apprehended in a Toyota Camry as identified by Burns; a Miller beer six-pack was found in the Toyota Camry; a .44-caliber bullet of the same brand and design as the one found at Sunny Liquor was found when appellant was apprehended; and appellant fled from police when he was stopped and then tried to escape a second time. Thus, even if the witness identifications had been excluded, appellant would not have been prejudiced because there was ample additional evidence that showed appellant was one of the robbers of the Sunny Liquor store.

Appellant also complains of prejudicial error as a result of the admission of the photograph taken from the now-destroyed surveillance videotape of the M & H Market robbery. He urges that because the videotape was destroyed and no longer available, he was prejudiced by his inability to challenge the reliability, context or accuracy of the tape. But, as the trial court explained in overruling appellants objection to the admission of the evidence, the destruction of the tape was a normal police department procedure for closed cases, and the reliability of the photo taken from the tape was a matter for cross-examination.

We do not agree with appellant that he was prejudiced because he lost the opportunity to serve a concurrent sentence for the 3-M Market robbery. Prejudice cannot be shown solely based on the lost opportunity to serve concurrent time, which is speculative. (People v. Lowe (2007) 40 Cal.4th 937, 939, 946.) But, if the defense makes an initial showing that delay has impaired his ability to defend against the charged crime because, for instance, a witness has become unavailable, the trial court may consider the defendants loss of an opportunity to serve a concurrent sentence in weighing all of the prejudice to the defendant against the prosecutions justification for the delay. (Id. at p. 946.) Here, appellant has made no such showing of prejudice in the first instance, and we conclude that the speculative opportunity to serve a concurrent sentence does not outweigh justification for the delay, as discussed post.

B. The Peoples Delay Was Justified

Appellant contends that, assuming he has shown prejudice, the delay on the part of the People in filing charges, was not justified. We have concluded that appellant was not prejudiced, but find that in any event, the delay was justified.

Delay must be purposeful, oppressive, and even smack of deliberate obstruction on the part of the government, before relief will be granted. (People v. Archerd, supra, 3 Cal.3d at p. 640.) Appellant, however, contends that the delay may be merely negligent, and that the delay here was unjustified because it was caused by Detective Terrios negligent examination in 1989. Appellant relies on Penney v. Superior Court (1972) 28 Cal.App.3d 941, 953-954, which has been disapproved by People v. Hannon (1977) 19 Cal.3d 588, 610 for reading Jones v. Superior Court (1970) 3 Cal.3d 734, People v. Archerd, supra, 3 Cal.3d 615, and United States v. Marion, supra, 404 U.S. 307 together to conclude[] that negligence on the part of the state resulting in prejudice to defendant can, if not outweighed by sufficient justification for the delay, violate due process. (People v. Hannon, supra, at p. 610, fn. 12.)

Here, the delay between the murder and the filing of the charges was not due to intentional conduct on the part of the People. Rather, the delay occurred because, while the latent prints themselves had always existed, there was no evidence that the latent prints matched appellant until 2003. It was not until 2003 and 2004, that MacDonald, Leo and Kergil matched prints taken from the Budweiser beer carton to appellants 1989 and 2005 exemplars. In 2005, retired Detective Terrio was asked to, and did, reexamine the prints from the beer carton, and was able to make a match. Detective Terrio testified that in 1989 he had only three years experience in fingerprint analysis and that he learned over the years better methods of analysis, including spacing his reviews over a week instead of an afternoon and the use of new technology in the form of a scanner and photo editing software, which assisted him in matching prints. Thus, there is no evidence of intentional, purposeful, or oppressive conduct on the part of the People in delaying in filing the charges.

We conclude that the trial court did not err in balancing the effect of the delay on appellant against the Peoples justification for the delay, and in concluding that appellants due process rights were not violated.

II. The Trial Court Did Not Err in Instructing on Felony Murder

Appellant contends that the trial court erred when it failed to disabuse the jury of the prosecutors invalid theory of the felony-murder doctrine by appropriate instruction. We conclude that the trial court did not err in instructing the jury by giving the felony-murder instructions.

The felony-murder rule holds felons strictly responsible for any killing committed by a co-felon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony. (People v.Cavitt (2004) 33 Cal.4th 187, 197.)

The trial court instructed the jury with CALJIC No. 8.10^[2](Murder Defined) which provides that a person who unlawfully kills a human being during the commission of robbery, a felony inherently dangerous to human life, is guilty of the crime of murder; and CALJIC No. 8.21^[3](First Degree Felony-Murder) which instructs that the unlawful killing of a human being which occurs during a robbery is murder of the first degree when the perpetrator had the specific intent to commit that crime. The jury was also instructed with CALJIC No. 3.02^[4](Principals-- Liability for Natural and Probable Consequences), which provided that an aider or abettor is liable for a principals crime of murder, which was a natural and probable consequence of the robbery.

Appellant urges that during closing argument, the People proposed an invalid, strict liability theory of felony murder when the People argued that Pineda could have been the victim of a stray bullet, and that it did not matter who shot him. First, as we discuss infra, we do not read the Peoples closing argument to imply that anyone other than appellant and his co-felon shot Pineda. Second, where, as here, the trial court did not present the case to the jury on a legally incorrect theory, and [t]he prosecutor arguably misstated some law, [such] an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis. (People v. Morales (2001) 25 Cal.4th 34, 43.) The presumption is that the jury treated the courts instructions as statements of law, and the prosecutors comments as words spoken by an advocate in an attempt to persuade. (Id. at p. 47.)) We presume that the jury relied on the instructions, not arguments of counsel, in convicting appellant. (Ibid.)

We conclude the evidence supported the foregoing instructions on a proper theory of felony murder: that the murder was committed by the principal or perpetrator of the robbery during the commission of the robbery where both robbers were seen shooting.

In light of our conclusion, we need not address the Peoples contention that [e]ven if the jury believed that Young Lee accidentally shot Pineda, appellant would still be culpable for first degree murder under the provocative act murder doctrine.

We find that the trial court did not err in failing to address the jury regarding an invalid theory of felony murder in light of the evidence presented and the felony-murder instructions given.

Additionally, appellant complains that the jury was not instructed with CALJIC No. 8.27 (First Degree Felony-Murder--Aider and Abettor), which provides that all persons who commit the crime during which a human being is killed by any one engaged in a commission of crime, is guilty of felony murder.^[5] The jury was instructed however, with CALJIC Nos. 8.10, 8.21, and 3.02, which define felony murder and provide that an aider or abettor is guilty of crimes committed by a principal which are a natural probable consequence of the crimes aided and abetted, and we conclude that no error occurred. (People v.Kelly (1992) 1 Cal.4th 495, 525 [in reviewing instructions given by the trial court, the appellate court must examine the totality of the instructions to determine whether the applicable law was correctly conveyed to the jury].)

Nor do we agree with appellant that the prosecutor acknowledged that Young Lee could have shot Pineda during his closing argument. Rather, the prosecutor squarely placed the blame on either appellant or his co-felon. The prosecutor argued: Any participant in the robbery or attempted robbery is guilty of first-degree murder. The People will be arguing to you that it was [appellant] that did the killing, but you may reach a different conclusion. Maybe the co-suspect did it. Or poor Mr. Pineda was killed by a stray bullet and well never know who did it. Doesnt matter. [Appellant] would still be on the hook for first-degree murder because he was participating in a robbery and somebody got killed during the commission of the robbery. Doesnt matter if the killing was intentional, unintentional, or accidental. Read in context, we do not conclude the argument admits that Young Lee could have shot Pineda. Rather, the stray bullet remark was likely directed toward the nature of the shooting.

III. Failure to Instruct With CALJIC No. 8.80 Was Harmless Error

Appellant argues that the trial court erred in failing to instruct withCALJIC No. 8.80 (pre-June 6, 1990), which requires that if the jury finds the defendant was the aider or abettor or could not decide whether the defendant was the actual killer or an aider or abettor, the jury must find beyond a reasonable doubt that the defendant, with intent to kill, aided or abetted an actor in commission of the murder in the first degree.

The felony-murder special-circumstance applies when the murder was committed while the defendant was engaged in or was an accomplice in the commission of robbery. ( 190.2, subd. (a)(17).) Our Supreme Court held in Carlos v. Superior Court (1983) 35 Cal.3d 131, 140, that the felony-murder special-circumstance of section 190.2, subdivision (a)(17) required the prosecution to prove that the defendant intended to kill the victim, irrespective of whether the defendant was the actual killer or an aider or abettor. Subsequently, our Supreme Court overruled Carlos to hold that the felony-murder special-circumstance may be found without proof that the defendant intended to kill, unless the defendant was not the actual killer. (People v. Anderson (1987) 43 Cal.3d 1104, 1142, 1147.)^[6] But when the defendant is an aider and abettor rather than the actual killer, intent must be proved before the trier of fact can find the special circumstance to be true. (Ibid.) Thus, at the time the crime was committed, in order for the felony-murder special circumstance to apply, the jury had to find that the defendant was the actual killer or an aider and abettor with the intent to kill.

We first note that appellant failed to request CALJIC No. 8.80 or to object to the special circumstance instructions as given to the jury, and thus has waived this issue on appeal. (People v. Daya (1994) 29 Cal.App.4th 697, 714.)

Here, the trial court instructed with CALJIC No. 8.81.17 (Special Circumstances--Murder in Commission of Robbery),^[7]which as given, provided that in order to find a special circumstance of murder in the commission of robbery to be true, the murder must be committed while the defendant was engaged in or was an accomplice in the robbery, and the murder was committed to advance the crime of robbery. The People concede that the jury should have been instructed that if appellant had not been proven beyond a reasonable doubt to be the actual killer, then his intent to kill as an accomplice should have been proven in order to find the special circumstance true. But, we agree with the People that the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Williams (1997) 16 Cal.4th 635, 690.) Instructional error can be harmless where in determining the truth of the special circumstance allegation the jury had necessarily found an intent to kill under other properly given jury instructions or that the evidence was overwhelming that the defendant had the intent to kill. (Id. at p. 688.) Here, the evidence of appellants intent to kill was overwhelming. Appellant had a central role in the robbery-murder as he and his co-felon fired multiple shots with handguns aimed at the victims from close range, thereby demonstrating an intent to kill. Accordingly, any instructional error was harmless beyond a reasonable doubt.

IV. Appellants Consecutive 10-year Upper Term Sentence for the Firearm Enhancement Should be Modified

The People concede and we agree that the 10-year term imposed pursuant to section 12022.5, subdivision (a), was a violation of ex post facto laws, and that it should be modified to a two-year enhancement, as provided under the 1989 version of firearm enhancement. Therefore, the judgment should be modified to impose a two-year term for the section 12022.5, subdivision (a) violation.

V. Appellant is Entitled to Presentence Conduct Credit

The People also concede that appellant is entitled to presentence conduct credit in addition to his actual custody credit because section 2933.2, which precludes the award of any presentence conduct credits following a conviction for murder, is limited to offenses occurring after June 3, 1998. Accordingly, the abstract of judgment shall be modified to reflect actual custody credit of 597 days plus 298 days of presentence conduct credit, for a total of 895 days.

VI. The Trial Court Properly Imposed the Court Security Fee

Appellant next urges that the trial court erred in imposing a $20 court security fee under section 1465.8, subdivision (a)(1) because it violated the ex post facto clause of the state and federal Constitutions.^[8] We disagree.

Section 1465.8, imposing a $20 court security fee, became effective on August 2, 2003. In People v. Wallace (2004) 120 Cal.App.4th 867, 879, Division Five of this appellate district held that the court security fee did not violate the prohibition against ex post facto legislation when applied to conduct preceding its effective date because it was enacted for a nonpunitive purpose. The court determined that the law was enacted to insure and maintain adequate funding for court security, and was not so punitive as to override the legislative intent because it imposed a minimal burden. (Id. at pp. 875-876.) Additionally,the law did not meet traditional aims of punishment and was rationally related to a nonpunitive purpose. It therefore did not violate ex post facto laws. (Id. at p. 878.) We agree with the reasoning and conclusion of Division Five.

VII. Appellant Has Not Shown Ineffective Assistance of Counsel

Appellant finally urges that in the event we deem instructional or sentencing error waived for trial counsels failure to adequately preserve it below, his trial counsel was ineffective. We conclude that appellant has not shown ineffective assistance of counsel.

In order to show ineffective assistance of counsel, the defendant must show that his counsels representation fell below an objective standard of reasonableness under prevailing professional norms; and the defendant suffered prejudice such that in the absence of counsels failings, the result would have been more favorable to the defendant. (In re Jones (1996) 13 Cal.4th 552, 561-562.)

First, the People do not claim, and we do not find, that appellants trial counsel waived any claims based on sentencing issues. Second, as to appellants claim that his trial counsel failed to object to the special circumstance instructions, we have concluded that appellant has not shown that he was prejudiced by these instructions and that but for trial counsels deficiencies, the result would have been more favorable to appellant. Nor have we found that appellants trial counsel was ineffective for failing to object to the felony-murder instruction, since that instruction was properly before the jury.

DISPOSITION

The judgment is modified to provide for a two-year term, pursuant to section 12022.5, subdivision (a), rather than the 10-year term imposed by the trial court. The abstract of judgment shall be modified to reflect actual custody credit of 597 days plus 298 days of presentence conduct credit, for a total of 895 days. The trial court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

CHAVEZ

We concur:

___________________, P. J.

BOREN

___________________, J.

DOI TODD

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^[1] All further statutory references are to the Penal Code.

^[2] CALJIC No. 8.10, as given, provided: Defendant is accused in Count 1 of having committed the crime of murder, a violation of 187 of the Penal Code. [] Every person who unlawfully kills a human being during the commission or attempted commission of robbery a felony inherently dangerous to human life, is guilty of the crime of murder in violation of Penal Code 187. [] A killing is unlawful, if it was neither justifiable nor excusable. [] In order to prove this crime, each of the following elements must be proved: [] 1. A human being was killed; [] 2. The killing was unlawful; and [] 3. The killing occurred during the commission or attempted commission of robbery a felony inherently dangerous to human life. Robbery is a felony inherently dangerous to human life.

^[3] CALJIC No. 8.21, as given, provided: The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrator had the specific intent to commit that crime. [] The specific intent to commit robbery and the commission or attempted commission of that crime must be proved beyond a reasonable doubt. [] In law, a killing occurs during the commission or attempted commission of a felony, so long as the fatal blow is struck during its course, even if death does not then result.

^[4] CALJIC No. 3.02, as given, provided: One who aids and abets another in the commission of a crime or crimes is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [] In order to find the defendant guilty of the crime of murder, as charged in Count[] 1, you must be satisfied beyond a reasonable doubt that: [] 1. The crime of robbery was committed; [] 2. That the defendant aided and abetted that crime; [] 3. That a co-principal in that crime committed the crime of murder; and [] 4. The crime of murder was a natural and probable consequence of the commission of the crime of robbery. [] In determining whether a consequence is natural and probable, you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen. [] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of murder was a natural and probable consequence of the commission of that target crime.

^[5] CALJIC No. 8.27 provides: If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of _______, all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.

^[6] Proposition 115, which took effect on June 6, 1990, eliminated the requirement of intent to kill as an element of the felony-murder special-circumstance with respect to an aider or abettor. Instead, for a felony-murder special-circumstance to be found true, an accomplice must have been a major participant and have acted with reckless indifference to human life. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, overruled on other grounds in Collins v. Youngblood (1990) 497 U.S. 37, 42-52.)

^[7] CALJIC No. 8.81.17 as given, provided: To find that the special circumstance referred to in these instructions as murder in the commission of robbery is true, it must be proved: [] 1. The murder was committed while the defendant was engaged in or was an accomplice in the commission or attempted commission of a robbery; or and [] 2. The murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the attempted robbery was merely incidental to the commission of the murder.

^[8] We note that this issue is currently pending before our Supreme Court in People v. Alford, review granted May 10, 2006, S142508.