P. v. Mejia

Filed 9/26/06 P. v. Mejia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following a jury trial, Juan Jose Mejia (appellant) was convicted of first degree murder (Pen. Code, § 187, subd. (a))^[1] and attempted carjacking (§§ 664, 215, subd. (a)). The jury found true three special circumstance allegations that the murder was committed during the commission of an attempted carjacking, an attempted robbery, and an attempted burglary (§ 190.2, subd. (a)(17)), and also found true allegations attached to each count that appellant was personally armed with and intentionally discharged a gun (§§ 12022, subd. (a)(1), 12022.53, subd. (c)). Appellant’s sentence is a determinate term of 22 years 6 months on the attempted carjacking count; on the murder count, the sentence is life without possibility of parole, plus 20 years. The sentence orders payment of various fines and fees, including a court security assessment and a restitution fine pursuant to section 1202.45.

Appellant contends: (1) he received ineffective assistance of counsel at trial; (2) the trial court erred in imposing sentence on the attempted carjacking conviction, in violation of section 654, double jeopardy, and the “multiple conviction rule“; (3) the trial court erred in imposing a court security assessment; and (4) the trial court erred in imposing a fine pursuant to section 1202.45. We agree only with appellant’s last contention and in all other respects affirm the judgment.

FACTS

Andrew and Jason Parks were visiting their brother, Joshua, at his Visalia apartment on December 24, 2003. At 5:30 a.m. the following morning, Andrew was asleep in the living room when he heard two short warning honks of a vehicle. He looked outside and saw two people in his parked truck and a third person circling around the back of the truck. As Andrew went out the front door of the apartment, he heard the truck start and saw the third person hop into the passenger seat of the truck. Jason, also wakened from sleep in the living room, also ran outside. Jason was almost positive there were three people in Andrew’s truck.

Andrew ran for the driver’s side, opened the door, yelled, “You like my truck, mother fucker,” and punched the driver in the ear. Jason ran to the passenger side of the truck, opened the door, and pulled the man seated there out of the truck. Jason tried to pull the man in the middle of the seat out of the truck, but fell down onto his knees. He then wrestled with the man he had first thrown out of the truck.

At one point, someone from the middle of the truck pulled out a semiautomatic handgun and pointed it at Andrew’s face. Andrew grabbed the barrel of the gun, pushed it toward the windshield, and yelled at everyone to get out of his truck. One of the two men in the truck said “[T]his isn’t working. Let’s go. Let’s get out of here.” The men then did get out of the truck. Andrew could not recall whether they exited from the passenger side, or whether one person exited on the driver’s side.

By this time, the gun was no longer in Andrew’s grip. Out of the corner of his eye, Jason saw someone at the back of the truck. The brothers heard a gunshot or “pop,” and Jason saw a muzzle flash and tasted gunpowder. The passenger Jason had been struggling with fell to the ground.

Andrew and Jason hopped into the truck. The third brother, Joshua, saw two people run away and saw his brothers in the cab of the truck, which was running. Andrew also saw two people run away. Andrew backed up the truck, but the driver’s door was open and hung up on a carport post. Joshua saw a car leaving the apartment parking lot.

The brothers then noticed a body on the ground on the passenger side of the truck. They called 911. A recording of their call was played for the jury.

Officer Mike Verissimo arrived at the scene and found a damaged truck in the middle of the parking lot and a dead body near the passenger door. Officer Verissimo discovered a nine-millimeter shell casing five feet from the body. The victim was identified as Sabas Rodriguez.

Detective Candido Alvarez testified that he arrived at the scene close to 8:00 a.m. and that Rodriguez’s body was removed by the coroner about an hour later. During the time Alvarez observed the body, Rodriguez’s cell phone rang five or six separate times.

Robert Douglas, a police identification technician, arrived to collect evidence. He discovered four 9-millimeter cartridges, consistent with the collected shell casing, inside Rodriguez’s pocket. Douglas found an orange-handled screwdriver inside the truck that Andrew did not recognize. The sliding window of the truck was open and the latch assembly broken.

During a subsequent autopsy, a nine-millimeter bullet fragment was removed from Rodriguez’s body. The autopsy revealed that the bullet entered Rodriguez’s head, traveled through his chest and into his abdomen, suggesting that Rodriguez had been shot from straight above or while bent over. The entry wound did not have “tattooing” or powder burns, suggesting he was shot from a distance greater than three to five inches from his head.

Juanita Marquez and Jesus Gaytan were arrested later that day after police received tips from Rodriguez’s family. Gaytan was carrying a .38-caliber revolver when he was arrested. Appellant was arrested the following day. He provided the police with detailed information on the location of a nine-millimeter Glock handgun and two magazines.

Detective Alvarez and Sergeant Steve Puder interviewed appellant at the police station on the afternoon of December 26, 2003. A videotape of the interview was played for the jury. In the interview, appellant told the officers he did not know what had happened because he was drunk when the incident occurred. He admitted that he had tried to steal the truck by entering through the sliding window, but said that someone had socked him and he got out of the truck and ran to the car.

According to appellant, he had a gun, a semiautomatic with a clip, that either Rodriguez or Gaytan had given him. Appellant admitted having the gun out, but claimed he was only trying to get away, not shoot someone. He recalled one shot going off and that it happened when he was coming out of the truck. He stated that the gun “probably went off” while he was running, but he did not want to say “that I shot the gun [when] it wasn’t me.” Eventually, appellant stated, “I was just trying to get away and it just shot.”

According to appellant, he ran to the car and got into the back seat. Marquez was driving and Gaytan was in the front. Gaytan said, “We heard a gun--a gunshot.” No one asked about Rodriguez. Once they were back in Tulare, Marquez tried to call Rodriguez on the phone. Appellant appeared surprised when one of the officers told him that Rodriguez had died. Appellant then provided the officers with detailed information of where the gun could be found.

DISCUSSION

I. Did appellant receive effective assistance of counsel?

Appellant claims defense counsel was ineffective for failing to request redaction of portions of the videotape of his interrogation and for failing to object to Detective Alvarez’s opinion testimony as to his veracity. We disagree.

There are two components to a claim that counsel’s assistance was so defective as to require reversal of a conviction: (1) the defendant must establish that counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant must show prejudice resulting from counsel’s alleged deficiencies. (In re Marquez (1992) 1 Cal.4th 584, 602-603; Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694.)

We presume that counsel’s conduct “‘falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘”perilous process”’ of second-guessing counsel’s trial strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979.) “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.) On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his [or her] act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)

Since failure of either prong is fatal to establishing ineffective assistance of counsel, we need not address both prongs if we find appellant cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, quoting Strickland v. Washington, supra, 466 U.S. at p. 697 [“‘In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies’”].)

A. Failure to redact videotaped interrogation

We look first at appellant’s contention that defense counsel failed to seek adequate redaction of appellant’s videotaped interrogation by Detective Alvarez and Sergeant Puder. Prior to trial, the prosecutor sought to admit into evidence appellant’s interview, which took place after his arrest. According to the prosecutor, some portions of the videotape favored appellant and some favored the prosecution. The prosecutor suggested that the first six pages of the interview, which contained the Miranda^[2] advisement, information on appellant’s prior felony conviction, his custody status, and discussion of some “gang ties” be redacted, but that the balance of the videotape be admitted. Defense counsel agreed, stating his “greatest concern” about the videotape, “references to [appellant’s] prior experience,” had already been addressed, and he did not have a problem with the “rest of it coming in” because it focused entirely on “this incident.”

Appellant now claims defense counsel was ineffective for failing to redact “references to appellant’s gang affiliation and his criminal history,” as well as “speculation and fabrications used by detectives to extract admissions from appellant, as well as inadmissible hearsay and opinions.” We will address each contention in turn.

1. Failure to redact evidence of appellant’s gang affiliation

Appellant highlights 15 or so instances, during the two-and-a-half-hour videotaped interrogation, in which the jury heard reference to appellant’s and Rodriguez, Marquez, and Gaytan’s gang affiliation, and which he now claims should have been redacted. Specifically, appellant objects to the interrogator’s three references to “gangster” and five references to “Sureno,” as well as several potential references to gangs: “your nickname,” “your boy” and “homeboy.”

We do not cite to each instance of which appellant complains, but provide the following examples representative of appellant’s concern. In response to one question, appellant admits that he is a Sureno. In a number of questions, the references to appellant as a Sureno or gangster are made by the interrogator to elicit a response from appellant. For instance, at one point Detective Alvarez states:

“ I think two things happened and you’re gonna help and explain it. You--you were trying to help your friend ‘cause he’s your friend and you don’t want him getting beat down. Or you--you panicked. You had it--you had the gun and--and this has happened even to cops sometimes, man. They have their finger on the trigger, and, you know, shit’s going down, you’re running, you just got hit, and a round accidentally got discharged. But one of those two things happened; that’s what I believe, and actually, that’s what my partner here thinks, you know. Our boss thinks different. He thinks that you’re a--you know, thinks that you’re some--’cause you’re a Surreno, you’re all gangsters, and that you guys wouldn’t--that just because you, you know, you got guns, that you’re a killer.”

In other statements, the gang references are made in the context of appellant’s relationship with Rodriguez, Marquez, or Gaytan, such as the interrogator’s comment that “[Marquez] got booked for murder, and so did [Gaytan] get booked for murder, and the conspiracy to commit auto theft, and uh, ‘cause you’re all Surrenos, you got the gang--the gang.”

Appellant assumes that the “gang” evidence would likely have been redacted, if counsel had made a request. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 193.) Even where a basis for objection exists, however,

“‘[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.’ [Citation.] ‘In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.’ [Citation.]” (People v. Williams, supra, at p. 215.)

Counsel could have made a reasonable tactical decision that presentation of the balance of this videotaped interview--without interruption caused by redaction--would assist appellant’s case. Throughout the interview, although appellant admitted being at the scene and trying to steal the truck, he steadfastly denied that he intended to shoot anyone and insisted that he was just trying to flee the scene when he heard a gunshot. Appellant appeared surprised by the news that Rodriguez had been shot and subsequently had died. Appellant was forthcoming with information on where the gun could be found, and willingly drew the officers a map.

Appellant did not testify at trial. Thus, the interview provided the only opportunity for the jurors to hear his consistent denial of his intent to shoot anyone, his repeated insistence that his only goal was to get away from the scene, and his repeated disbelief that it was his gun that had been fired.

Eliminating the first six pages or so of the interview was a logical way to present the interview. Any further editing of the videotape might have been obvious, possibly leading the jury to surmise that some damaging material had been cut out. If so, counsel may have decided it was better to leave in the relatively brief references to the objectionable “gang” material than to have the jury speculate that something worse had been excised.

Counsel reviewed the videotaped interview, objected to certain portions, and expressly stated he “wouldn’t have a problem with the rest of it coming in.” Under these circumstances, and where the record suggests a legitimate tactical basis for counsel’s decision, appellant’s ineffective assistance claim fails. (See People v. Kraft (2000) 23 Cal.4th 978, 1068-1069 [counsel reviewed notes and voir dire, hinting at decision to retain juror; at least, record failed to eliminate possibility].)

2. Failure to redact evidence that appellant had previously been in jail

Appellant next contends defense counsel should have requested redaction of a reference to his past criminal history. At the conclusion of the interview, while discussing appellant’s present incarceration on the instant charges, Detective Alvarez stated, “you’re gonna go to county jail,” and then added, “you’ve been at county. Yeah[,]” to which appellant replied, “Yeah.” Appellant contends this latter statement by Detective Alvarez prejudiced him.

Prior to admission of the videotaped interview, defense counsel expressed concern that reference to appellant’s past criminal history be redacted and, for the most part, it was. The reference to appellant having “been at county,” while an indication that appellant may have had some past contact with law enforcement, was not direct evidence that appellant had been previously convicted of, or even charged with, a crime.

In any event, even assuming arguendo that counsel’s failure to redact that reference constituted ineffective assistance of counsel, appellant has failed to show resultant prejudice from this sole reference. A result more favorable to appellant would not have been reasonably probable if the statement of appellant’s prior stay at “county” had been excluded. (Strickland v. Washington, supra, 466 U.S. at p. 697.) The overwhelming evidence established appellant as the shooter of Rodriguez and as a participant in the attempted carjacking of the truck. Appellant admitted participating in the attempted taking of the truck. Appellant admitted that he had been in possession of a gun during the attempted taking, and the spent bullet matched the bullet in the gun he hid after the incident. Also, Andrew Parks identified appellant as the individual “with the gun” in his truck. Andrew’s testimony that he punched that person in the ear is consistent with appellant’s version that he was punched by someone as he sat in the truck.

Appellant has failed to show resultant prejudice.

3. Failure to redact inadmissible hearsay evidence

Appellant also pinpoints approximately a dozen instances of “inadmissible hearsay evidence” related by the officers conducting the interrogation, to which he claims defense counsel should have objected. Most of these instances involved the officers relating to appellant that Marquez and Gaytan had admitted to certain actions and events, most likely in hopes of persuading appellant to either correct the officer’s version or agree to it. For instance, at one point, the interviewer stated, “[W]e talked to [Marquez and Gaytan] separately, and they gave the exact story. But your story is like way off.” In another instance, the interviewer asked what type of gun appellant had. When he stated he did not know, the interviewer again asked what type of gun appellant had, claiming “[Marquez] knew and [Gaytan] knew.”

Appellant may be correct that the videotaped interview contained hearsay and speculation by the officers in the sense that Detective Alvarez and Sergeant Puder may well have used subterfuge in interrogating appellant. Police are not prohibited from using such interrogation techniques, however, so long as those techniques are not coercive and the suspect’s statements remain voluntary. (See People v. Andersen (1980) 101 Cal.App.3d 563, 576.) Thus, police use of deception or communication of false information by itself is not improper. (People v. Hogan (1982) 31 Cal.3d 815, 840, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836.)

The issue presented here, however, is not the propriety of the interrogation, but whether counsel was ineffective for failing to request that these statements be redacted. Again, counsel may have had a rational tactical purpose for not objecting--to demonstrate the cohesive nature of appellant’s statement even in the face of the officers’ continued insistence that they knew what had happened and that appellant’s story was not in conformity with what they already knew. Over the course of the lengthy interview, even in light of the officers’ insistence that they had obtained all of the details from Marquez and Gaytan, appellant’s story essentially did not change. Although appellant first stated that he did not recall what had happened because he was drunk, he maintained that, once Andrew arrived and punched him, all he wanted to do was get out of the truck and get away. He showed surprise to hear Rodriguez had been shot and killed.

Counsel argued that no attempted carjacking or intentional murder occurred because, although appellant had a gun, when confronted by Andrew, he did not shoot him, and when told to leave the truck, he did. This was consistent with appellant’s version of the events in the videotaped interview, despite the officers’ insistence that they knew otherwise.

Because a possible explanation exists for counsel’s actions, appellant has not established that counsel’s performance was deficient. (People v. Jones (1991) 53 Cal.3d 1115, 1150; People v. Pope (1979) 23 Cal.3d 412, 426.)

Appellant’s claim that he was denied effective assistance of counsel also fails because he cannot show prejudice. (People v. Cox, supra, 53 Cal.3d at p. 656.) Although appellant claims the jury may have believed that the officers’ claims about Marquez and Gaytan were based on fact, Detective Alvarez specifically explained during testimony that this was not necessarily so. When asked if it was “routine” to ask an individual hypothetical questions “assuming that you know things already,” the detective responded:

“Yes. We want a person that’s being interviewed to think that we have the answers to all the questions already. We want them to think that we pretty much know the whole picture and that it would behoove them to be honest with us so we would know that they’re lying because we know the truth.”

It is not reasonably probable there would have been a more favorable result for appellant had the videotaped interview been redacted of the hearsay and speculation by the officers. (People v. Watson (1956) 46 Cal.2d 818, 836.)

B. Failure to object to opinion evidence

On numerous occasions during the interrogation, the officers repeatedly asserted that appellant was being untruthful. But, near the end of the interview, Detective Alvarez told Sergeant Puder he believed appellant was then being honest. Specifically, Alvarez mentioned to Puder that he thought appellant was “being 100 percent honest about it.” On direct examination, the prosecutor asked Alvarez if he believed appellant was being truthful “towards the end” of the interview. Alvarez stated:

“Partially. I believed many of the things he was telling me. As far as his involvement being there, his intent to steal the car, the fact he had a gun, ultimately probably where the location of the gun was at, and I say partially because I did not believe him when it came to why the gun was shot or fired or how it happened.”

Defense counsel did not object. Appellant now contends defense counsel was ineffective for failing to object to Detective Alvarez’s inadmissible opinion testimony concerning his veracity.

We find support for appellant’s general position that it is error for a witness to express an opinion on the defendant’s guilt. (People v. Coffman (2004) 34 Cal.4th 1, 77.) In People v. Sergill (1982) 138 Cal.App.3d 34, 39-40, the court considered the testimony by police officers that they believed the report of a child molestation victim. After concluding that admission of the evidence could not be justified as character evidence or expert testimony, Sergill found the evidence improper lay opinion, as the officers “were able to describe their interviews with the girl in concrete detail and their opinions or conclusions as to her truthfulness were not ‘helpful to a clear understanding of [their] testimony.’ (Evid. Code, § 800, subd. (b).)” (Id. at p. 40.)

But the fact that the testimony was objectionable and that counsel did not object does not itself render trial counsel ineffective. Even when there is a basis for objection, “[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.” (People v. Hayes (1990) 52 Cal.3d 577, 621.)

Here, defense counsel may have had a viable tactical reason for choosing not to object to Detective Alvarez’s testimony. The record reflects that the testimony of which appellant complains was the last question asked by the prosecutor prior to defense counsel’s cross-examination of Alvarez. The entirety of that exchange suggests that defense counsel wished to enhance appellant’s credibility by establishing, through questions posed to Alvarez, that appellant was, in several ways, truthful when he was interrogated by the police. Defense counsel’s questions emphasized the fact that appellant, toward the end of the interview, “was really holding nothing back” and told the officers “exactly” where to find the gun. Alvarez responded by stating, “Regarding the location of the gun, yes, I think he was being one hundred percent honest regarding that.”

In any event, it is not reasonably probable that appellant would have obtained a more favorable result had counsel objected to Detective Alvarez’s testimony in question. (Strickland v. Washington, supra, 466 U.S. at p. 686.) This testimony simply states the obvious, and Alvarez’s testimony that he did not believe part of appellant’s denials of guilt could hardly have come as news to the jury. In addition, at the conclusion of trial, the jury was instructed that it was to determine what facts had been proven (CALJIC No. 1.00). We assume the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 431.)

We reject appellant’s claim of ineffective assistance of counsel.

II. Did the court err when it failed to stay imposition of sentence on the carjacking conviction pursuant to section 654?

The jury convicted appellant of first degree murder in count 1 and found true three special circumstances that the murder was committed during the commission of an attempted carjacking, an attempted robbery, and an attempted burglary. The jury also convicted appellant, in count 2, of attempted carjacking. The trial court sentenced appellant to consecutive terms for the murder and for the attempted carjacking. Appellant contends that, pursuant to section 654, the court should have stayed the sentence on the attempted carjacking conviction. We disagree.

Section 654, subdivision (a) provides:

“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

The underlying purpose of section 654 is “‘to insure that the defendant’s punishment will be commensurate with his criminal liability.’” (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 4.)

“[T]he application of section 654 to any particular case depends upon the circumstances of that case. ‘The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.] Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.” (People v. Porter (1987) 194 Cal.App.3d 34, 38.)

“Although the question of whether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

Appellant argues that section 654 precludes his unstayed sentence on the attempted carjacking because that crime was the very act that made the homicide a first degree murder. Appellant cites People v. Boyd (1990) 222 Cal.App.3d 541 for this proposition. In Boyd, the defendants robbed and shot the same victim. The trial court imposed a one-year term for one defendant’s robbery conviction, which the appellate court stayed because the robbery was the same act that made the killing felony murder. (Id. at pp. 575-576.)

As noted by respondent, the facts here involve acts of violence against separate victims: Rodriguez was the victim of the murder; Andrew Parks was the victim of the attempted carjacking. Section 654 does not preclude separate punishment for crimes of violence committed against separate victims. (People v. Champion (1995) 9 Cal.4th 879, 934-935; People v. Jones (1981) 124 Cal.App.3d 749, 754.) “‘”[W]hen a defendant ‘”commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,” his greater culpability precludes application of section 654.’” [Citation.]’ [Citations.]” (People v. Centers (1999) 73 Cal.App.4th 84, 99.) Appellant, when he acted, was endangering each of the separate victims, whether he was acting according to a single criminal intent or not.

Appellant provides neither argument nor citation to authority against application of the multiple victim exception in a situation like that present here--where the victim of a felony murder and the victim of the underlying felony are not the same. We therefore conclude that the court did not err by imposing separate consecutive sentences for the convictions of felony murder and attempted carjacking.

III. Does the carjacking conviction violate double jeopardy and the multiple conviction rule?

In supplemental briefing, as a corollary to his section 654 argument, appellant asserts that his conviction of attempted carjacking must be set aside because, as pled in the information, it was a lesser included offense of special circumstance murder in count 1. Appellant’s argument is based on a syllogism. First, while the maximum term for murder, without a special circumstance, would have been 25 years to life (§ 190, subd. (a)), the attempted carjacking special circumstance increased the maximum term to life without the possibility of parole (§ 190.2, subd. (a)). Second, under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), any fact that increases the maximum possible term for a crime is the functional equivalent of an element of that offense. Therefore, according to appellant, the elements of attempted carjacking in count 2 were also elements of special circumstance murder in count 1, barring conviction and punishment for both under double jeopardy principles in both the United States and California Constitutions, and barring conviction for both under the “multiple conviction rule” of People v. Pearson (1986) 42 Cal.3d 351, 355, 359-360.

Multiple punishment and multiple convictions are both impermissible where one offense is a lesser included offense of the other. (E.g., People v. Smith (1950) 36 Cal.2d 444, 448 [“the doctrine of included offenses is part of the constitutional guarantee against double jeopardy”]; People v. Cole (1982) 31 Cal.3d 568, 582.) “Although the reason for the rule is unclear,” the Supreme Court “has long held that multiple convictions may not be based on necessarily included offenses.” (People v. Pearson, supra, 42 Cal.3d at p. 355.) When two charges arising from a single act involve different offenses with different elements of proof, a defendant may properly be charged and convicted of both (§ 954), but when one charged offense is necessarily included in another, a defendant may not be convicted of both. (People v. Montoya (2004) 33 Cal.4th 1031, 1034; People v. Ortega (1998) 19 Cal.4th 686, 693.)

The People contend, however, that it is not relevant that attempted carjacking could theoretically be a lesser included offense of special circumstance murder. This is because, in California, a special circumstance is a penalty enhancement and not an element of the charged crime (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1231), and penalty enhancements are not part of a greater or lesser offense analysis (People v. Wolcott (1983) 34 Cal.3d 92, 101). In Wolcott, the defendant argued the trial court should have instructed, sua sponte, that assault with a deadly weapon is a lesser included offense of robbery enhanced by use of a firearm. Our Supreme Court rejected this contention and held that “a ‘use’ enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses[.]” (Wolcott, supra, at p. 96.) Wolcott further rejected the argument that the “accusatory pleading test” should apply to make one offense a lesser included offense of another because of an enhancement allegation, when it is not a necessarily included offense as a matter of law. (Id. at p. 101.)^[3]

Appellant acknowledges that special circumstance allegations have not been considered part of the greater or lesser offense analysis, as stated in People v. Superior Court (Jurado), but argues the ruling must be reconsidered in the wake of Apprendi.

Appellant also cites to People v. Seel (2004) 34 Cal.4th 535, in which the Supreme Court concluded that principles of double jeopardy preclude retrial of a section 664, subdivision (a) allegation of premeditation in an attempted murder prosecution when the finding of premeditation is reversed on appeal for insufficient evidence. (People v. Seel, supra, at p. 539.) Based on Apprendi, the Supreme Court concluded in Seel that the premeditation allegation in an attempted murder case constituted the functional equivalent of an element of the greater offense (attempted first degree murder, rather than second degree murder) within the meaning of the federal double jeopardy clause:

“‘[W]hen the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’” (People v. Seel, supra, 34 Cal.4th at pp. 546-547, quoting Apprendi, supra, 530 U.S. at p. 494, fn. 19.)

The Supreme Court recently has granted review in two cases involving the question whether enhancements may be considered in applying the multiple conviction rule of People v. Pearson, supra, 42 Cal.3d 351. (People v. Izaguirre, review granted June 8, 2005, S132980; People v. Sloan, review granted June 8, 2005, S132605.) We need not resolve this issue in the present case, however, because even if the attempted carjacking were considered an element of the murder, there is an independent ground for upholding the conviction for both crimes. As discussed in part II, ante, the facts show appellant attempted to carjack the truck from Andrew Parks and killed Rodriguez during the struggle. Neither section 954 nor, we believe, principles of double jeopardy preclude multiple convictions in such circumstances. (People v Craig (1941) 17 Cal.2d 453, 457 [§ 954 does not preclude multiple convictions where one act injures two victims].) Appellant, again, provides neither argument nor authority to the contrary.

We therefore conclude under the circumstances of this case that convicting appellant of attempted carjacking and special circumstance murder did not violate either double jeopardy or section 954.

IV. Did the trial court err in imposing a security fee?

Appellant contends the trial court erred in imposing a $20 “security assessment“ to be paid to the Trial Court Security Fund, claiming there is no authority for such an assessment. We disagree.

Section 1465.8 provides, in pertinent part:

“(a)(1) 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.”

Section 1465.8 became effective August 17, 2003 (Stats. 2003, ch. 159, §§ 25, 27), four months before appellant committed the crimes for which he is now convicted.

In his reply brief, appellant claims section 1465.8 applies only to misdemeanor and infraction prosecutions, because it appears in part 2, title 11, chapter 1 of the Penal Code, titled “Proceedings in Misdemeanor and Infraction Cases.” Again, we disagree.

Section 1463, the chapter’s definitional provision, states in part: “The following definitions shall apply to terms used in this chapter: (h) ‘Offense’ means any infraction, misdemeanor, or felony, and any act by a juvenile leading to an order to pay a financial sanction by reason of the act being defined as an infraction, misdemeanor, or felony, whether defined in this or any other code, except any parking offense as defined in subdivision (i).” (Italics added.) “Because section 1465.8 applies to ‘every conviction for a criminal offense,’ and section 1463, subdivision (h), defines ‘offense’ to include felonies, [appellant’s] claim that section 1465.8 cannot apply in felony cases is untenable.” (People v. Le (2006) 137 Cal.App.4th 54, 61.)

The security fee was properly imposed.

V. Did the trial court err in imposing a section 1202.45 fine?

Appellant contends the trial court erred in imposing a fine of $200 pursuant to section 1202.45, which fine it stayed pending successful completion of parole. Respondent concedes the issue, and we agree.

Such a fine is not applicable in cases where the defendant’s sentence includes a term of life without possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.) The fine should not have been imposed because appellant was so sentenced.

DISPOSITION

The trial court is ordered to amend the abstract of judgment in this matter to delete the $200 section 1202.45 fine, which was ordered and stayed pending successful completion of parole. In all other respects, the judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

LEVY, Acting P.J.

_______________________________

KANE, J.

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

^[2]Miranda v. Arizona (1966) 384 U.S. 436.

^[3]Very recently, in People v. Reed (2006) 38 Cal.4th 1224, the defendant argued that, as charged, he was improperly convicted of being a felon in possession of a firearm in addition to other weapons crimes. The court disagreed and held that, “In deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (Id. at p. 1229.)