P. v. Perez

Filed 9/18/07 P. v. Perez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Brian Yep, Judge. Modified and, as so modified, affirmed.

Emry J. Allen, 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, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Frank Perez appeals the judgment entered following his conviction by jury of first degree murder. (Pen. Code, 187.)^[1] Perez admitted two prior convictions within the meaning of the Three Strikes law ( 667, subs. (b)-(i), 1170.12) and section 667, subdivision (a)(1). The trial court sentenced Perez to a prison term of 85 years to life. We reject Perezs various claims of error and affirm the judgment as modified to include a mandatory $20 court security fee.

FACTUAL AND PROCEDURAL BACKGROUND

1. Count One (Murder of Arraiga).

a. Prosecutions evidence.

On September 10, 2004, Perez was an inmate in the Enhanced Outpatient Placement (EOP) program in the administrative segregation unit of Lancaster State Prison.^[2] At approximately noon, correctional officer Kris Danko escorted Perez to cell 149, where Perez was housed. In response to questions from Danko, Perez said he was doin fine and he was gettin along well with his cell mate.

At approximately 2:20 p.m., Danko heard someone yell there was a man down in cell 149. Danko went to cell 149 and saw Eddie Arraiga, Perezs cell mate, lying face down in a pool of blood. When Danko asked what happened, Perez replied, I killed my cellie.

Adam David la Duca (La Duca), a state prison inmate, testified he was in cell 148 during the attack that resulted in Arraigas death. During the attack, Arraiga repeatedly called to La Duca for help. La Duca could hear Perez slamming [Arraiga] from wall to wall and on the sink. Arraiga repeatedly said to Perez, Im sorry. I apologize. La Duca kicked his cell door for 20 to 30 minutes to attract attention. During this time, Arraiga continued to say, Im sorry. Stop. Stop. La Duca heard Perez say, Im going to kill you. After the commotion in cell 149 ended, Perez came to the door of his cell and told La Duca, Dave, I killed my cellie.

Earlier Perez suggested to La Duca that they might be cousins. La Duca responded that he did not know Perez.

Perez forcefully kicked the fallen Arraiga three times in the side before complying with directions that he back out of the cell. Correctional sergeant Dennis Romero testified Perez was calm and his demeanor was very casual after he was removed from the cell. Romero saw no injuries to Perez and did not see any blood on his clothing. Perez was escorted from the cell to a shower area without incident.

Coroners investigator Dana Bee found Arraiga had severe gashes and tearing to the skin on the forehead, exposing the skull. Bee found ligature marks around the entire circumference of Arraigas neck, bruising to the left hip and abrasions on both knees. Arraiga also had shoe sole imprints on his upper back. These imprints matched the soles of the shoes Perez was wearing at the time of the attack. Arraigas pants were pulled slightly down, exposing his buttocks. Investigators found torn bed sheets in cell 149 and found two pieces of fabric ligature, one of which was consistent with the marks on Arraigas neck, in the plumbing boot of cell 149.

Medical technical assistant (MTA) Ramona Palean heard Perez yelling and went to the shower to evaluate him. Palean found Perez slamming himself into the shower walls, just flailing all over. When Correctional officer Cynthia Martinez arrived in the shower area to photograph Perez, he was lying in the fetal position on the floor of the shower. Perez was mumbling but the background noise was too loud to permit Martinez to hear what Perez was saying. Perez complied with Martinezs instructions as she photographed him. At one point Perez spontaneously stated, I killed him Ms. Martinez. I killed the guy. The guy was dirty.

Correctional officer Uriel Gamboa escorted Perez from the shower area to the facility A and B Courtroom. Once there, Perez made rambling statements indicating he was a hit man for the Mexican mafia and the CIA. Perez also said he was sorry but that his cellie was very dirty and he refused to shower. Perez indicated he was taking a bird bath but his cell mate pushed him out of the way to use the toilet.

Robert Alvarado, a lieutenant in the Investigative Services Unit, saw Perez in the A B courtroom. Perez said he and his mother were hit men for the Mexican mafia. He also said, If I tell you that if you dont get my cellie outta here, Im going to kill him then Im going to kill him.

Two correctional officers testified that an inmate would consider it disrespectful if one inmate waved his penis in the face of another inmate.

Approximately three days after the incident, correctional sergeant Robert Ellis attended an Interdiscipline Treatment Team (IDTT) meeting at which one of the doctors asked if Perez knew why he was there. Perez replied, Yes. Because I killed my cellie. Perez said, He waved his dick at me; so I . . . punched him in the mouth. I choked him. Then I banged his head on the floor.

Deputy Medical Examiner Irwin Golden determined the cause of Arraigas death to be asphyxia due to strangulation. Death by strangulation requires about one to two minutes of continuous pressure to cause cardiac arrest.

b. Defense evidence.

The defense presented the testimony of Hugh Hammant and George Grosso, both of whom were mental health care professionals employed in the infirmary of the Lancaster State Prison. Hammant and Grosso testified Perezs diagnosis on Axis I is schizoaffective disorder and his diagnosis on Axis II is antisocial personality disorder.

Hammant and Grosso were involved in Perezs care on four different occasions when Perez was admitted to the mental health crisis bed of the prison infirmary. The first two of these hospitalizations occurred from June 17 to 24, 2004, and from September 10 to 17, 2004. On both occasions, Perez was referred to the hospital based on violence toward others. Perezs hospitalization in June of 2004 was the result of an assault on a correctional officer. At that time Perez reported a variety of auditory and visual hallucinations. However, in September of 2004, Perez denied hallucinations and suicidal or homicidal ideation. In September of 2004, Perez was discharged to the prison mental hospital at Corcoran from September 23, 2004 to October 17, 2004. Perez was readmitted to the mental health crisis bed of the Lancaster prison infirmary from April 28 to May 7, 2005, and from May 23 to May 31, 2005. In May of 2005, Perez was hospitalized after four incidents of staff assault in which he attacked without warning while being escorted to and from his cell. Each of Perezs hospitalizations was the result of Perez presenting a danger to others.

Hammant testified Perez presented an interesting case, psychiatrically speaking, in that his mental status varied considerably. Although Perez frequently made unusual statements, at other times his presentation was extremely lucid with normal behavior and emotionality. This caused the medical staff to wonder whether Perez might be malingering, i.e., intentionally presenting himself as having a psychiatric illness to gain some secondary advantage.

Grosso testified that, on each occasion when Perez was admitted to the mental health crisis bed, his thought processes were disjointed and semi-delusional. However, he very often quickly recompensated upon treatment. At the time Perez attacked Arraiga, Perez was prescribed Risperdal, Zoloft and Depakote.

During an IDTT, Perez told Hammant and Grosso that he killed his cell mate because he waved his dick before me, disrespecting my manhood. Perez also said he hit Arraiga, choked him and banged his head on the wall. At no point did Perez indicate that he was sorry for what he had done or suggest that he did not know what he had done. Perezs statements regarding the attack on Arraiga were made spontaneously by Perez. Hammant and Grosso were interviewing Perez to determine his mental health, not to investigate the attack on Arraiga.

Following this evaluation, Grosso concluded Perez was not delusional at the time of the attack on Arraiga. Because Perez made multi-faceted statements concerning the attack on Arraiga, Grosso concluded Perez was functioning at a level that was inconsistent with hallucinations. Also, Perez demonstrated the ability to use abstract reasoning to predict the outcome of his actions in that he took steps to conceal the ligature he used to strangle Arraiga.

2. Count Two (attempted murder of McGowan).

Michael McGowan, a correctional officer at the Lancaster State Prison, testified that on April 27, 2005, he was assigned to move Perez from his cell to a group meeting. McGowan held Perez by the right arm and escorted him along a second tier walkway. Perez was handcuffed behind his back and was compliant with McGowans instructions until Perez suddenly dropped down and rose forcefully, shoving his shoulders into McGowans upper body. Perez pushed McGowan into the 3.5 foot high railing and continued to apply pressure, trying to force McGowan over the railing to the concrete floor approximately 12 feet below. McGowan momentarily lost his balance but maintained a grip on Perez and was able to force Perez to the ground without going over the rail. McGowan, who is six feet one inch tall, testified there was no doubt in his mind that Perez, five feet four inches tall and 185 pounds, was trying to push him over the railing. McGowan was aware of other incidents in which individuals who fell from the second tier suffered serious injuries.

After this incident, Perez told MTA Kathleen Morgan that he was feeling suicidal and he was hoping he would either fall over the rail or that someone would shoot him.

3. Verdicts and Sentencing.

The jury convicted Perez as charged as to count one but hung 10-2 in favor of guilty on the attempted murder count.

Prior to sentencing, the prosecutor amended the information to allege two prior convictions of carjacking, which already were alleged as prior convictions within the meaning of the Three Strikes law, as prior serious or violent felony convictions within the meaning of section 667, subdivision (a)(1).

After Perez admitted the prior conviction allegations, the trial court denied Perezs motion to strike one or both of the prior strike convictions in furtherance of justice and sentenced Perez to a term of 25 years to life for the murder of Arraiga, tripled on account of the prior strike convictions, plus five years for each of the two prior serious or violent felony convictions, for a total term of 85 years to life in state prison.

CONTENTIONS

Perez contends defense counsel rendered ineffective assistance in failing to present an insanity defense, the evidence does not demonstrate deliberation and premeditation, the trial of the murder case improperly was consolidated with the trial of the attempted murder case, the trial court erroneously excused a prospective juror for cause, the prior conviction allegations within the meaning of section 667, subdivision (a)(1), were not timely pleaded, the trial court abused its discretion in refusing to strike Perezs prior convictions in furtherance of justice and the term imposed constitutes cruel and unusual punishment.

DISCUSSION

1. Ineffective assistance of counsel.

Perez contends the failure to present an insanity defense constituted ineffective assistance of counsel in light of Perezs long standing mental illness and his bizarre behavior in connection with the current offense. Perez argues the evidence showed a mindless frenzy or an act of uncontrolled rage and suggests his mental process may have deteriorated to the point that he did not understand the nature or quality of his actions. Perez asserts the facts of this case, combined with the testimony of Hammant and Grosso, afforded defense counsel a basis on which to argue insanity. According to Perez, the failure to do so constitutes ineffective assistance of counsel.

Initially, we note that a claim of ineffective assistance of counsel generally is presented in a petition for writ of habeas corpus filed concurrently with the appellants opening brief. Trial counsels rational for his or her choice of trial tactics generally is disclosed in a declaration accompanying the petition. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Here, Perez has opted to attempt to demonstrate ineffective assistance based solely on the record on appeal. He is unable to do so.

In order to prevail on a defense of insanity the defendant must show, by a preponderance of the evidence, that, at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his or her act or of distinguishing right from wrong. (People v. Lawley (2002) 27 Cal.4th 102, 169-170; People v. Hernandez (2000) 22 Cal.4th 512, 520-521; People v. Skinner (1985) 39 Cal.3d 765, 769; 25, subd. (b).)

However, the evidence presented at trial indicated Perez was aware of the wrongfulness of his conduct at the time of the homicide. Perez viciously attacked Arraiga for approximately 20 minutes. La Duca heard Perez state his intent to kill Arraiga, which Perez carried out by strangling Arraiga with a ligature made from bed sheets. Perez thereafter told La Duca, correctional officers and medical personnel that he killed Arraiga because he was dirty and he had disrespected Perez by waving his penis in Perezs face. Grosso testified Perez was capable of distinguishing right from wrong at the time of the offense and that Perezs statements concerning the attack demonstrated a level of reasoning that was inconsistent with hallucinations. Finally, after Perez choked Arraiga to death, he attempted to dispose of the ligature by flushing it down the toilet.

Because the evidence thus demonstrated Perez understood the quality of his act and was aware that his conduct was wrong, there was no basis for an insanity defense. It follows that defense counsel did not render ineffective assistance in failing to present an insanity defense.

2. Sufficiency of the evidence to support the finding of first degree murder.

Perez contends the evidence did not establish deliberation and premeditation under the three part Anderson test (People v. Anderson (1968) 70 Cal.2d 15, 26-27). Under this test, we look to evidence of planning activity, motive and the manner of killing to determine whether the offense was deliberate and premeditated. Perez claims planning activity is absent from the instant facts because the attack occurred after he flew into a rage when Arraiga exposed himself. The tearing of the sheets into ligatures, Perez asserts, probably was done toward the end of the attack and thus must be seen as part and parcel of the spontaneous attack and not evidence of true deliberation and premeditation. Perez claims the manner of the attack suggests a mindless assault, not the execution of a preconceived design. Motive, Perez argues, was supplied by Arraigas provocative act of exposing himself, causing Perez to act in the heat of passion such that the elements of deliberation and premeditation were negated. Thus, Perez was guilty only of murder in the second degree.

In reviewing the sufficiency of the evidence of premeditation and deliberation, we assess whether the evidence supports an inference that the killing occurred as the result of preexisting reflection, as opposed to an unconsidered or rash impulse. (People v. Pride (1992) 3 Cal.4th 195, 247.) The Andersonfactors need not all be present, or in any special combination; nor must they be accorded a particular weight. (People v. Pride, supra, at p. 247.) We draw all inferences in support of the verdict that can reasonably be deduced and must affirm the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational jury could find premeditation and deliberation beyond a reasonable doubt. (Ibid.; see also People v. Perez (1992) 2 Cal.4th 1117, 1124.)

Here, there is substantial evidence that Perezs murder of Arraiga was deliberate and premeditated. First, Perezs use of a ligature to strangle Perez required some planning in that Perez had to make the ligature from bed sheets. With respect to motive, Perez concedes he attacked Arraiga because Arraiga disrespected his manhood. The manner of the killing also suggests deliberation and premeditation in that Perez repeatedly smashed Arraigas head into the floor and walls of the cell. Perez said he was going to kill Arraiga, then fashioned a ligature from the bed sheets and choked Arraiga to death while standing on his back. It repeatedly has been observed that, although ligature strangulation does not establish deliberation as a matter of law, it is an inherently deliberate act. (People v. Stitely (2005) 35 Cal.4th 514, 544;People v. Combs (2004) 34 Cal.4th 821, 851; People v. Davis (1995) 10 Cal.4th 463, 510; People v. Bonillas (1989) 48 Cal.3d 757, 792-793.)

With respect to Perezs assertion the homicide was the result of an uncontrollable rage, it is well settled that the reflection required for first degree murder need not span a specific or extended period of time. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 332.) Here, Perez attacked Arraiga for approximately 20 minutes, culminating the assault by strangling Arraiga to death. Patently, this afforded Perez an adequate opportunity to deliberate and premeditate the murder of Arraiga. Accordingly, we conclude there is sufficient evidence to sustain the jury's finding of first degree murder.

3. Consolidation.

Perez contends consolidation of the attempted murder case with the murder case had an unduly inflammatory effect on the jury and denied him a fair trial on the murder count. Perez argues the evidence offered with respect to the attempted murder count was weak. He asserts that, because Perez was diminutive as compared to correctional officer McGowan, the count of attempted murder was vastly overcharged and destined to result in mistrial or acquittal, thereby increasing the pressure on the jurors to convict Perez of the murder of Arraiga to prevent Perez from escaping punishment. Thus, the weak attempted murder count had spillover effect on the murder case, which Perez claims was not strong because of his mental illness. Also, the attempted murder count involved an attack on a correctional officer, which inherently was prejudicial. Thus, joinder presented the danger Perez would be convicted of first degree murder because he was a bad man. Perez concludes joinder was error on these facts. (People v. Balderas (1985) 41 Cal.3d 144, 173 [determining whether joinder is proper is a highly individualized exercise, necessarily dependent on the particular circumstances of each individual case. ].)

This claim is meritless. The law prefers consolidation of charges. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) To effectuate this preference, section 954 provides if two or more accusatory pleadings are filed charging two or more different offenses of the same class of crimes or offenses, . . . the court may order them to be consolidated. ( 954.) Murder and attempted murder are crimes of the same class. Thus, joinder was proper under section 954. (People v. Jenkins (2000) 22 Cal.4th 900, 947.) When the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish an abuse of discretion by the trial court. (People v. Valdez (2004)32 Cal.4th 73, 119; People v. Marshall (1997) 15 Cal.4th 1, 27.)

The pertinent factors in assessing prejudice are: (1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; [and] (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses . . . . (People v. Marshall, supra, 15 Cal.4th at pp. 27-28.)

These criteria, however, are not equally significant. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) [T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible ... in separate trials on the others. If so, any inference of prejudice is dispelled. [Citations.] (Id. at pp. 1315-1316.)

Here, Perez defended the charge that he committed first degree murder of Arraiga by claiming he lacked the specific intent required for that offense. Thus, even had the murder charge been tried separately, Perez would have sought to introduce evidence of his mental illness. Presentation of evidence of Perezs mental health history necessarily included evidence that he previously attacked correctional officers and prison staff in that numerous of his hospitalizations at the Lancaster prison infirmary were the result of such attacks. Thus, having one of these attacks tried jointly with the trial for the murder of Arraiga cannot be seen as unduly prejudicial to Perez.

Moreover, even if evidence of the attempted murder of McGowan was not admissible at the trial for the murder of Arraiga, cross-admissibility is not the sine qua non of joint trials and its absence does not demonstrate prejudice. (People v. Mendoza (2000) 24 Cal.4th 130, 161; People v. Mason (1991) 52 Cal.3d 909, 934.) Hence, we proceed to evaluate the remaining factors.

With respect to the likelihood of inflaming the jury against Perez, we note both counts alleged senseless attacks upon unsuspecting victims. Further, contrary to Perezs assertion, the evidence in support of count two was not weak. Perezs intent to harm McGowan was evidenced by Perezs statement that he attempted to push McGowan over the rail in order to commit suicide either from the ensuing fall or due to being shot by prison guards. Also, McGowan testified he was aware of other incidents in which serious injuries had been sustained by individuals who fell over the rail. Finally, the fact the jury failed to convict Perez on count two reveals that there was no gross unfairness amounting to a denial of due process resulting from the consolidation of counts. (People v. Valdez, supra, 32 Cal.4th at p. 120.) In sum, Perezs claim of improper joinder fails.

4. The trial court properly excused prospective juror No. 2999 for cause.

a. Background.

During voir dire, prospective juror No. 2999 indicated she was retired. When the trial court asked what the prospective juror used to do, she responded, I live in Palmdale. I have . . . . The trial court interrupted the prospective juror and again asked what she used to do. The prospective juror indicated she worked in a factory that made fluorescent lights. When asked about her place of residence, prospective juror No. 2999 indicated, I reside in Palmdale. I have five I mean no. I have a daughter and three sons. My daughter works for the Sheriffs in . . . Palmdale, and I have a son thats mentally ill, gravely mentally ill. And I love my children very much, more than anything in this world. The prospective juror indicated her oldest son worked for the railroad in Mojave and her other son worked in a restaurant. The prospective juror clarified that her daughter-in-law worked for the sheriffs department and her daughter worked as a dental hygienist. The trial court asked if only one of the prospective jurors children was married. The prospective juror indicated all four of her children were married. The trial court then asked the occupations of the spouses of her children, excluding the daughter-in-law employed by the Sheriffs department. Prospective juror no. 2999 responded by reiterating that her oldest son worked for the railroad. The trial court asked, What does his wife do, maam? The prospective juror responded, Oh, the wife. Oh, okay. Im sorry. . . . One of my daughter[s]-in-law works for the sheriffs in Palmdale, and the other one works for . . . the Walgreens Store. The trial court then asked if only those two children were married. The prospective juror responded affirmatively, indicating neither her daughter nor her mentally ill son were married.

At the side bar, prospective juror No. 2999 indicated her mentally ill son recently had been sentenced to prison for six months and the prospective juror was very displeased and upset because he should have been sent to a state mental hospital. When the trial court asked the prospective juror if she could be fair and impartial, the prospective juror stated: I dont know. . . . I do not feel that I can judge anybody. I dont know. [Its] just not in me.

The trial court indicated the prospective juror would not be involved in determining Perezs punishment but would be required to determine whether the People had met their burden of proof based on the facts presented. When the trial court asked if the prospective juror could do that, she responded, I dont know, and I could try. The prospective juror indicated she became very emotional when she had to come to the courthouse based on what happened to her son. [E]very time I have to come to this place, it bugs me. It bothers me. Its just not in me, but I could go through with it if you want me to . . . .

In response to a question from the prosecutor as to whether the prospective juror could be fair to both sides and not take her sons situation into account even though there would be evidence that Perez had a mental illness, prospective juror No. 2999 responded she could not judge that because she did not know the severity of Perezs mental illness. Prospective juror No. 2999 again indicated she could try to be fair and impartial. The prospective juror indicated her son struck his lady friend but he did not know what he did was wrong because he was drinking at the time. However, she would be able to consider this case based on the law given to her by the trial court.

The prosecutor asked the trial court to excuse prospective juror No. 2999 for cause because the prospective juror apparently believed her sons mental illness was a mitigating factor in his case. The prosecutor asserted the prospective juror could not be fair to the Peoples case which would include evidence that Perez had a mental illness and Perezs defense would be lack of specific intent. Defense counsel offered no argument. The trial court granted the motion. I just dont think she understands. She didnt understand the [prosecutors] questions . . . , in my [opinion]; so Ill grant that motion.

b. Perezs contention.

Perez contends the record does not show the prospective juror could not be fair and impartial to both sides. Further, the prospective jurors failure to understand the trial courts questions did not constitute good cause to excuse her. (People v. Heard (2003) 31 Cal.4th 946, 967.) Perez notes the prospective juror appeared to be an individual who would have been sympathetic or at least receptive to the defense arguments while also being fair and impartial. Perez concludes the trial courts error in excusing prospective juror No. 2999 for cause requires reversal.

c. Resolution.

A prospective juror may be excused if his or her views would prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his instructions and oath. [Citation.] Because this determination involves an assessment of the jurors demeanor and credibility, it is one peculiarly within a trial judges province. [Citation.] When applying these rules, the trial courts assessment of a prospective jurors state of mind will generally be binding on the reviewing court if the jurors responses are equivocal or conflicting. [Citation.] (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1006-1007; People v. Ayala (2000) 23 Cal.4th 225, 257.)  In general, the qualification[s] of jurors challenged for cause are matters within the wide discretion of the trial court, seldom disturbed on appeal. [Citations.] (People v. Holt (1997) 15 Cal.4th 619, 655-656; People v. McPeters (1992) 2 Cal.4th 1148, 1176.)

We find no error in the excusal for cause of prospective juror No. 2999. The prospective jurors failure to understand simple questions posed to her during voir dire suggested the prospective juror would not be able to perform the duties of a juror. This lack of comprehension may have been caused by the prospective jurors perception that her mentally ill son had been the victim of injustice at the courthouse. This perception apparently caused the prospective juror to become upset every time she went to the courthouse. The trial court observed the demeanor of the prospective juror and was in the best position to determine the prospective jurors ability to perform the duties of a juror. No abuse of the trial courts discretion appears.

5. No prejudicial cumulative effect.

Perez argues that even if each of the foregoing errors, standing alone, is insufficient to require reversal, the cumulative effect of the errors is more substantial and demonstrates that the trial was unfair.

However, we have found no merit in any of Perezs preceding arguments. Consequently, the cumulative effect of the asserted errors does not warrant reversal of the judgment. (People v. Jablonski (2006) 37 Cal.4th 774, 825.)

6. The prosecutor was entitled to amend the information to allege two prior convictions.

Perez claims the trial court abused its discretion in permitting the information to be amended to allege two prior convictions of carjacking as prior serious or violent prior felony convictions within the meaning of section 667, subdivision (a)(1). Perez asserts he was prejudiced by this late amendment, citing People v. Mancebo (2002) 27 Cal.4th 735, 750-751.

However, the same two carjacking convictions had been alleged from the outset of the case as prior convictions within the meaning of the Three Strikes law. Consequently, Perez is unable to demonstrate prejudice attributable to the timing of the allegation under section 667, subdivision (a)(1).

People v.Mancebo, cited as controlling by Perez, is distinguishable. Manceboheld the trial court could not use an uncharged finding of multiple victims to support a One Strike sentence, even though the defendants victimization of multiple victims was inherent in the jurys verdict. (Mancebo, supra, 27 Cal.4th at p. 749.) Mancebo concluded that because the multiple victim circumstances allegation was not specifically alleged as a basis for application of the One Strike law, the defendant lacked notice the circumstance would be used to support the enhancement. (See id. at p. 747.) Here, Perez continuously was on notice that he would have to defend allegations that he previously had been convicted of carjacking on two separate occasions. Thus, Perez suffered no prejudicial lack of notice. (See People v. Riva (2003) 112 Cal.App.4th 981, 1002.)

7. No abuse of the trial courts discretion appears in its refusal to strike Perezs prior convictions in furtherance of justice.

Perez contends he fell outside the spirit of the Three Strikes law based on his documented history of psychiatric illness and because the record reveals the killing of Arraiga was the result of an episode of schizoaffective disorder. Perez suggests he likely was legally insane at the time of the offense. Thus, the trial court should have granted Perezs motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike one or both of Perezs prior convictions.

The standards for the trial court to follow in determining whether to strike a prior conviction were set forth in People v. Williams (1998) 17 Cal.4th 148, 161: [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Id. at p. 161.)

Applying these standards here, we initially note there is no indication that either of Perezs prior convictions of carjacking was the result of mental illness and Perez does not suggest otherwise. Indeed, the only evidence of mental illness presented by Perez related to his treatment for psychiatric illness while in prison. However, Hammant, one of the defense experts, testified Perez recompensated quickly after the commencement of treatment, causing the medical staff at the prison to suspect Perez might be malingering to obtain favorable housing in the mental health unit. Moreover, the record reveals Perez was aware that his conduct was criminal and that he deliberated and premeditated the attack. Consequently, Perezs mental illness was not a mitigating circumstance. In light of Perezs history of violent crime, no abuse of discretion appears in the trial courts refusal to grant Perezs Romero motion. (People v. Cole (2001) 88 Cal.App.4th 850, 874; People v. Strong (2001) 87 Cal.App.4th 328, 343.)

8. The term imposed does not constitute cruel and unusual punishment.

Perez argues the term imposed is cruel and unusual punishment in light of his documented history of mental illness and because he committed the instant offense while in the throes of mental illness.

This claim fails for the same reasons that Perezs Romero claim fails. As suggested above, Perezs history of being treated for mental illness appears to have commenced in prison, thereby suggesting Perez may have been malingering. Moreover, even if Perez suffered from schizo-affective disorder and anti-social personality, the record reveals Perez was aware that his conduct in this case was criminal. Consequently, considering Perezs lengthy criminal history and Californias interest in incapacitating recidivist offenders, the term imposed for the vicious fatal attack on Arraiga does not shock the conscious or offend fundamental notions of human dignity. (See Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108] [25 years to life for stealing golf clubs not cruel and unusual punishment]; Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144] [50 years to life for stealing $153 worth of videotapes not cruel and unusual punishment].)

9. The judgment must be modified to impose a mandatory court security fee.

The People request modification of the judgment to reflect a $20 court security fee under section 1465.8.^[3]This fee is mandatory, is not subject to a defendants ability to pay and the fee is not waived or forfeited by the failure of the People to object to its omission below. (See People v. Smith (2001) 24 Cal.4th 849, 852-853 [mandatory parole revocation fine]; People v. Turner (2002) 96 Cal.App.4th 1409, 1414-1415 [laboratory fee and penalty assessments].) Consequently, we modify the judgment to reflect the mandatory $20 court security fee.

DISPOSITION

The judgment is modified to provide for a $20 court security fee under section 1465.8, subdivision (a)(1) and, as so modified, affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] Subsequent unspecified statutory references are to the Penal Code.

^[2] The lowest level of psychiatric care at Lancaster State Prison is Correctional Clinical Case Management services. The next level is EOP.

^[3] Section 1465.8, subdivision (a)(1) provides: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.