P. v. Saibu
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Filed 1/4/11; part. pub order 1/11/11 (see end of opn.) COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D054980 Plaintiff and Respondent, v. (Super. Ct. No. SCD207640) SADIQ SAIBU et al., Defendants and Appellants. APPEALS from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed in part, reversed in part, and remanded for further proceedings. I. INTRODUCTION Defendants Sadiq Saibu and Antonio Valentino appeal from their convictions and sentences after a jury trial. Saibu and Valentino were convicted for their roles in committing a robbery of a video store, two attempted robberies of a liquor store, and a murder in the same liquor store during one of the attempted robberies. On appeal, Saibu and Valentino jointly argue that the trial court erred in (1) admitting evidence concerning a bank robbery for which both men were previously convicted; (2) admitting digitally enhanced photographs created from surveillance video of the liquor store, as well as expert testimony regarding the enhancement process; and (3) admitting a videotape of an interview of Saibu's cousin conducted by police detectives. Saibu also contends that the trial court committed reversible error in failing to instruct the jury with CALCRIM No. 703 with respect to the felony-murder special circumstance allegation, and that there is insufficient evidence to support his conviction for attempted murder. Valentino contends that his abstract of judgment contains a number of errors, and that these errors must be corrected. Finally, both defendants assert that their convictions must be reversed due to the collective prejudice from the court's cumulative errors. We conclude that the trial court erred in failing to properly instruct the jury with respect to the felony-murder special circumstance allegation against Saibu, and that this error requires reversal of the jury's true finding as to that special circumstance. We also conclude that Valentino's abstract of judgment must be corrected. However, we reject the defendants' remaining claims of error, and therefore otherwise affirm the judgment. We remand the case to the trial court for further proceedings as may be necessary with respect to the felony-murder special circumstance allegation against Saibu, and for correction of Valentino's abstract of judgment. 2 II. FACTUAL AND PROCEDURAL BACKGROUND A. Factual background During the summer of 2005, Saibu and Valentino spent time with Raheem Judd, Keith Coleman, Coleman's girlfriend Rachel Kinsel, Dewayne Cummings and Ken Buckley at Judd's mother's home on Clay Street in southeast San Diego. 1. The July 7, 2005 Hollywood Video store robbery (counts 6 & 7) At approximately 9:45 p.m. on July 7, 2005, two African-American men wearing hooded sweatshirts entered a Hollywood Video store on El Cajon Boulevard. One man was wearing a gray sweatshirt, and the other was wearing a black sweatshirt. Both men covered the lower portions of their faces with black bandanas. Shift leader Toni Oliver was working near the entrance of the store that night. As the two men entered the store, Oliver turned to greet them. After she turned away, she heard one of the men shout, "Everyone get down. This is a robbery." The man who was wearing the gray hooded sweatshirt had darker skin than the other man and was carrying a shotgun. The man with the shotgun said something like, "I don't want to have to kill someone tonight," or "Am I going to have to kill anybody today?" The man in the black sweatshirt had a pistol and a black duffel bag. The man in the black sweatshirt went to the register and told Oliver to "[h]urry up" and "[g]ive [him] the money." Oliver gave the man approximately $75 from the register. Another employee, June Collins, emptied another register and put the money in the duffel bag that the man in the black sweatshirt was carrying. 3 Mathew Gillie worked at the Hollywood Video store in an area of the store called Game Crazy. Game Crazy closed at 10:00 p.m., although the rest of the store remained open until midnight. Gillie was preparing to close Game Crazy when he heard someone yelling. Gillie saw a man wearing a gray hooded sweatshirt and holding a shotgun inside the store. That man told Gillie not to play around or mess with him. Based on the man's voice, Gillie believed that the man was African-American. Gillie gave the man approximately $650, which was the money for the night deposit from the Game Crazy register. Alejandro Rivera and Stephanie Jenkins lived in an apartment located across the alley behind the Hollywood Video store. On the night of the robbery, they were moving out of their apartment. Rivera was driving a U-Haul truck down the alley intending to back the truck into the driveway of the apartment when he saw two individuals who were wearing baggy clothes including hooded sweatshirts looking into the Hollywood Video store. As Rivera was watching the men, they turned the corner and disappeared. Jenkins, who had just driven her car through the parking lot of the Hollywood Video store, drove into the alley and parked her car across the alley from the U-Haul truck. She heard someone yelling and then saw two men holding guns, running down the alley. The men had their hoods pulled up over their heads, partially concealing their faces. However, the lighting in the alley was good, and Jenkins could see the top portions of the men's faces. She believed that both men were African-American. Rivera also saw the men running through the alley. The men were wearing bandanas and holding guns. The men ran "full speed" toward the U-Haul truck, and then 4 ran through the small space between the truck and the apartment building. The men continued running to the end of the alley and turned right at the street. Rivera and Jenkins ran into their apartment and did not go back outside until they saw that police officers had arrived. The Hollywood Video store had five surveillance cameras. San Diego police officers arrived at the store a few minutes after the robbery. Oliver provided the surveillance video of the robbery to Detective Ronald Hall. The video was played for the jury at trial. Oliver testified that the surveillance video accurately depicted the robbery. 2. The July 12, 2005 T&M Liquor store attempted robbery (count 5) At approximately 11:15 p.m. on July 12, 2005, Farouq Mikho was counting money and preparing the register receipts at the front counter of the T&M Liquor store, which is located on El Cajon Boulevard in the City Heights area of San Diego. Mikho's girlfriend, Paula Vargas, was standing at the counter talking to Mikho, waiting for him to close the store. Mikho saw a man wearing a black hooded sweatshirt with the hood over his head and a bandana covering his nose and mouth. The man pointed a shotgun at Mikho's face and yelled for Mikho to "give him the money." The man also pointed the gun at Vargas and directed her to "get down" and not to move. Vargas could see the man's face and could tell that he was a dark-skinned African-American. Mikho grabbed the money out of the register and threw it on the counter. The man told Mikho to put the money in a bag. As Mikho reached for a bag, he pressed the silent alarm button. 5 Augustine Garcia was in the cooler at the back of the store when he heard a man yelling. Garcia heard the man say, "Put the money in the bag or I'm going to blow your head off," or something similar to that, and he concluded that "it was like a holdup." Garcia started running toward the front of the store and saw a man pointing a shotgun at Mikho. Garcia, who is in his 50's and is five-feet-four inches tall, came up behind the man and grabbed the man's elbows. The man was stiff and holding the gun high and close to his body. Garcia was able to lift the man about three or four inches off the ground and turn the man's body, and the gun, away from Mikho and Vargas. Garcia and the man both fell to the floor, and Garcia landed on top of the man. The force of hitting the floor knocked the shotgun out of the man's hands and it slid away from both of them. The man struggled to get out from underneath Garcia, who was attempting to hold him down. The man eventually was able to get up and run out the door. Garcia retrieved the shotgun and ran after the man. When the man was approximately two or three feet away from the alley, Garcia pointed the gun at him and pulled the trigger. The gun did not fire, and a shell was ejected from the chamber. Garcia watched the man run into the alley, but decided not to follow him and instead ran back to the liquor store. Officers patrolling the area received a call about the robbery at 11:17 p.m. and arrived on the scene at 11:20 p.m. Garcia showed officers the shotgun, which at this point was on the floor behind the front counter. Garcia also directed the officers to the shotgun shell that was ejected when he attempted to fire the gun at the robber. Officer 6 David Yu collected the rifle, the six shells inside the rifle, and the shell that had been ejected outside the store. Detective Eugene Bojorquez collected surveillance video of the attempted robbery from the liquor store's security camera. The video was played for the jury at trial. Vargas testified that the video accurately reflected the incident. On April 4, 2007, Mikho attended a live lineup. Each of the men in the lineup held a shotgun and said, "Give me the 'F' money." Mikho identified the men in positions three and four as sharing some similarities with the suspect from the July 12, 2005 incident. However, Mikho said that the man in position number four did not have the dark skin tone of the suspect, while the skin tone of the person in position three matched the skin tone of the robber. That man's eyes and nose also looked familiar to Mikho. The man in position number 3 was Saibu. The shotgun and shotgun shells that police recovered from the scene were tested for DNA. The lab technician determined that Saibu was a major contributor of the DNA that was found on the textured areas and on the trigger of the shotgun. 3. The July 13, 2005 T&M Liquor store murder, attempted murder and attempted robbery (counts 1, 2 and 3) At approximately 8:00 a.m. on July 13, 2005, Lap Tran drove his white Mercedes Benz to the auto repair shop that he owns in Lemon Grove. Tran parked the car in front of the shop and left the keys in the car. At around 11:00 a.m., Tran noticed that his car was gone. 7 Tran had seen Valentino with another customer at the repair shop the day before his car was stolen. The auto repair shop was located approximately a block and a half from the Value Inn Hotel, where Valentino had been staying.1 That day, Ayesha Majid was sleeping on the couch of an apartment that she shared with her brother, Naz Almajid, when Saibu, who is her cousin, came to the apartment. Saibu was being very loud and woke her up. Between 1:30 p.m. and 3:30 p.m., Majid telephoned Almajid to tell him that Saibu had come over to the apartment and that he had gone into Almajid's bedroom. Later that afternoon, Tran's white Mercedes was used in an attempted robbery at the T&M Liquor store. Store manager Waleed Yakou was sitting behind the counter at the cash register talking with his friend and candy, cigar and cigarette vendor, Doraid Toma, who was standing on the customer side of the counter near the entrance to the store. At approximately 3:40 p.m., a man wearing dark clothing, a bandana on his face, and a hooded sweatshirt with the hood over his head walked into the liquor store. The man pointed a silver revolver at Yakou and said, "Give me the money." Yakou could see the man's face from the middle of his nose to his eyes. Based on the portion of the man's face that he could see, as well as the tone of the man's voice, Yakou thought that the man was African-American and about 19 to 21 years old. 1 While in jail, Valentino talked on the telephone with his mother, who said to him, "They said that your prints were in that Mercedes . . . that was stolen from across the street from that motel you were staying at." 8 Yakou told the man to calm down and tried to open the cash register. The man said, "Give me the money" several times, and Toma turned in reaction to the man's loud voice. The man then shot Toma in the chest from less than five feet away. Toma appeared surprised and tried to back away from the man. The man walked toward Toma and, as Toma fell to the floor, shot him again. While the man was shooting Toma, Yakou pressed the silent alarm button. The man then walked toward Yakou, who was ducking behind the counter. The man looked over the counter and fired two shots in Yakou's direction. Neither bullet hit Yakou. The man then ran out of the store without taking any money. Yakou grabbed a gun that was in a drawer behind the counter and went to check on Toma. Toma was bleeding from his mouth and indicated to Yakou that he could not breathe. At 4:45 p.m., San Diego Police Officers Jason Scott and Thomas Seiver separately responded to a call regarding the shooting at the liquor store. Scott arrived to find Yakou with blood on his hands, arms, and shirt, saying, "He shot him." Someone told Scott that the suspect had run out of the store and had turned southbound in the alley. Both of the police officers attempted to aid Toma by administering CPR. Toma was not breathing and did not have a pulse. Emergency medical personnel arrived at the liquor store and determined that Toma was dead. Toma died from gunshot wounds to his shoulder and torso. A bullet was recovered from his body during an autopsy. Officers also recovered two other bullets from the scene of the shooting. 9 Officer Scott viewed surveillance video from the liquor store and broadcast a description of the shooting suspect to police officers in the area. The surveillance video was played for the jury. Yakou testified that the video accurately reflected the events that he witnessed that day. Maria Morales lived in an apartment located about two blocks from the T&M Liquor store. Morales was standing in the alley behind her apartment waiting for her mother when she saw a white Mercedes Benz in the alley. The driver of the Mercedes drove toward her and parked. Two African-American men got out of the car and started to change clothes, which Morales thought was suspicious. The passenger had lighter skin than the driver. The passenger removed what looked like black tights from his head. When he removed the tights, Morales could see that he had curly hair. Both men walked away from the car in the alley wearing dark clothes. Police later lifted Valentino's left palm print and right palm print from the trunk of the Mercedes. That day, Morales attended two live lineups, but was unable to identify anyone. However, in court, Morales identified Valentino as the passenger of the white Mercedes. Although his hair was shorter and in braids at trial, she recognized his build, height, and the portion of his face that she had seen on the day of the shooting. Naz Almajid testified that he clocked out from his job at a Longs Drug store on July 13, 2005 at 10:30 p.m. He went home and saw the news on television. Almajid saw 10 a video clip about the shooting at the T&M Liquor store and Toma's murder.2 Almajid knew Toma, and was familiar with the liquor store, which was located two blocks from his apartment. Almajid testified that he thought it was possible that a .38-caliber pistol that he had purchased from a coworker had been used in the shooting. Almajid explained that he thought the gun might be his because his sister had called him and told him that Saibu had visited their apartment and gone into Almajid's bedroom, where Almajid kept the gun, the gun in the video was the same caliber as his gun, and the number of shots that had been fired at the liquor store was the same as the number of bullets that were in the gun. Almajid looked on the internet for video of the shooting, and then looked for his .38-caliber pistol in his bedroom. He was unable to find the gun. That night, Almajid had a telephone conversation with Saibu during which he asked Saibu, "That wasn't you right?" Saibu answered, "No, it wasn't me but . . . ." Almajid asked Saibu, "Were you famous[?]" Saibu responded, "Maybe." "Why are you asking?" In late December 2005, the coworker from whom Almajid had bought the pistol received a telephone call from Almajid. Almajid asked the man if he was watching the television program "America's Most Wanted." The coworker replied that he was not. Almajid then told the man that the gun the man had sold to Almajid had been used in a robbery. Almajid said that his cousin had come to his house to get the gun, and that the 2 The San Diego police department did not provide a copy of the surveillance videotape of the T&M Liquor store shooting to television stations until the following day. 11 gun had been used to kill someone. The coworker told detectives that Almajid had told him that after the robbery his cousin had taken the gun to Florida and that everything was "okay." 4. The uncharged August 29, 2005 Wells Fargo Bank robbery On August 29, 2005, at approximately 9:40 a.m., three African-American men wearing hooded sweatshirts and bandanas over their faces entered the Wells Fargo Bank on Black Mountain Road in San Diego. Witnesses saw three weapons a shotgun, an assault rifle, and a machine gun pistol. Photographs taken from surveillance video at the bank showed one man holding a black duffel bag and wearing black clothing and black gloves, and another man pointing a weapon. The men yelled that it was a robbery and ordered the customers and bank employees to the ground. Two of the men jumped over the counter and demanded money from the bank employees. The men grabbed money from two teller drawers, and then ordered several employees into the vault area in the back of the bank. One of the men pointed a gun at an employee and demanded that she open the vault. After the employee opened the vault, the men took money from inside the vault and put it into the black duffel bag. After the men got the money from the vault and the teller drawers, they ran out of the bank. The men ran to a waiting silver vehicle that was parked in front of the bank. That vehicle had been reported stolen the day before by the owner, who had left the key in the ignition while he went into a store. The location where the vehicle had been stolen was a few blocks away from where Coleman and Judd lived, i.e., the home where Saibu and 12 Valentino had been hanging out that summer. Police officers eventually recovered the vehicle about three or four blocks away from the bank. A witness who was driving on Ricker Road noticed two men, dressed all in black, running from a silver vehicle and getting into a red vehicle. The witness thought that these circumstances were suspicious, so he wrote down the license plate number of the red vehicle. Police traced ownership of the red vehicle to Rachel Kinsel, who was Coleman's girlfriend. Police interviewed Kinsel, and subsequently conducted a search of Dewayne Cummings's home, where they recovered weapons. Federal Bureau of Investigation Special Agent David Eaton testified that Saibu and Valentino had been identified as two of the three men who robbed the Wells Fargo Bank, and that both had been tried and convicted for that robbery. Ken Buckley was also considered a person of interest in the Wells Fargo Bank robbery. 5. Buckley's plea agreement and testimony Buckley was arrested on September 8, 2005, along with Valentino, and was charged with bank robbery. Buckley was a friend of Valentino's and knew Saibu. Buckley testified for the prosecution in this case, pursuant to plea agreement. He identified both Saibu and Valentino in court. According to Buckley, Valentino often stayed at the Value Inn in Lemon Grove. Buckley worked at an adult bookstore located near the Value Inn. Valentino would visit Buckley at the bookstore. 13 Buckley was tried with Saibu and Valentino on charges related to the Wells Fargo Bank robbery. During that trial, Buckley participated in a "free talk" that was attended by the prosecutor, Detective Anthony Johnson (who was investigating the T&M Liquor store murder), and Buckley's defense counsel. Buckley disclosed information that he knew about the T&M Liquor store murder, with the understanding that the information would not be used unless Buckley agreed to cooperate with the prosecutor. Buckley originally decided not to cooperate, and did not testify against Saibu or Valentino in the trial of the Wells Fargo robbery. At the conclusion of that trial, the jury convicted Saibu and Valentino, but was unable to reach a unanimous verdict as to Buckley. Buckley was ordered to return for retrial. In March 2007, Buckley reached an agreement with the prosecutor to testify in this case. Buckley pled guilty to robbery with the use of a firearm for his role in the Wells Fargo Bank robbery. After Buckley provided testimony at the preliminary hearing in this case, he was sentenced to three years in state prison. Buckley testified about a conversation that he had with Valentino regarding the T&M Liquor store shooting. Valentino had picked up Buckley from Judd's house and the two went to a car wash. Valentino asked Buckley if he had heard anything about robberies that had taken place in the area. Valentino told Buckley that Buckley could not tell anyone about what Valentino was going to say. Valentino proceeded to tell Buckley that he had robbed a store and just "shot the guy's head off with the gauge." Valentino said that the shooting had taken place on 14 El Cajon Boulevard. Valentino was angry because they were supposed to get $50,000 from the robbery, but ended up not getting any money. Approximately a week after this conversation, Buckley went to Judd's house to talk with Saibu and Valentino about participating in a robbery with them. Saibu was planning the robbery, and Buckley was going to be the driver. Buckley heard Saibu say to Valentino, "Man, . . . I just told you to rob the place. I didn't know you [were] going there to shoot the guy['s] head off." Valentino responded, "Man, don't talk about that," and then walked out of the room. While awaiting trial in the Wells Fargo Bank robbery case, Buckley spoke with Saibu while they were being detained together in the same jail cell. Buckley told Saibu that his lawyer had allowed him to see videotapes of the robberies and the shooting at the T&M Liquor store. Buckley mentioned that he had seen the gray BMW, and Saibu responded that the car that was used was not a gray BMW, but rather, a white Mercedes. At the trial in the present case, Buckley viewed the surveillance video of the Hollywood Video robbery. Buckley had seen this video during his initial "free talk," and had told the detective that the man wearing the gray hooded sweatshirt was built like Saibu. Buckley believed that the other man was Valentino. According to Buckley, at the time of the robbery of the Hollywood Video store, Valentino had long, black curly hair, which was pushing up the hood of Valentino's sweatshirt. Buckley also viewed video of the July 12 attempted robbery of the T&M Liquor store. Prior to trial, Buckley had told detectives that the robber could have been either 15 Saibu or Valentino, but said that the man had the same body type as Saibu and was wearing clothing that Buckley had previously seen Saibu wearing. Buckley viewed video of the July 13 shooting, as well. Buckley testified that he had told the detective, during his "free talk" interview, that the man in that video had lighter skin than the man who attempted to rob the same store the day before, and that the man's skin tone and complexion matched Valentino's. 6. Kinsel's plea agreement and testimony Rachel Kinsel agreed to cooperate with the prosecution in the bank robbery case, and agreed to provide testimony in the T&M Liquor store shooting case. Kinsel received a four-year prison sentence in exchange for her cooperation. Kinsel met Saibu and Valentino through her ex-boyfriend, Coleman. Coleman lived at Judd's mother's house during the summer of 2005. Kinsel and a group of people including Judd, Coleman, Cummings, Buckley, Valentino, and Saibu would hang out at that house, watch television, play video games, drink alcohol, and smoke marijuana. Kinsel agreed to be the getaway driver for the Wells Fargo Bank robbery. That day, she drove her car to an apartment complex to pick up Saibu. Saibu was carrying a bag with guns in it, which he placed in the trunk. Kinsel and Saibu then drove to Cummings's house, where Valentino eventually arrived in a stolen car. Valentino said that he had waited for someone to leave the keys in the ignition so that he could steal a car. The men moved the bag of guns from Kinsel's car to the stolen car. The men then got into the stolen car, and Kinsel followed them to the bank. Kinsel parked her car and 16 waited for the men to rob the bank. About 10 to 15 minutes later, the men returned and took off their bandanas before getting into Kinsel's car. B. Procedural background On June 23, 2008, the San Diego County District Attorney filed an amended information charging Saibu and Valentino with a number of counts related to the video store robbery and the two liquor store incidents. Saibu was charged with one count of special circumstance murder (Pen. Code,3 §§ 187, subd. (a) and 190.2, subd. (a)(17) (count 1)); one count of attempted murder (§§ 187, subd. (a); 664 (count 2)); one count of attempted robbery (§§ 211, 664 (count 3), July 13, 2005 T&M Liquor store); one count of car theft (Veh. Code, § 10851, subd. (a) (count 4)); one count of attempted robbery (§§ 211, 664 (count 5), July 12, 2005 T&M Liquor store); two counts of robbery (§ 211 (counts 6 and 7), July 7, 2005 Hollywood Video); and six counts of robbery related to incidents other than the Hollywood Video and T&M Liquor store incidents (§ 211 (counts 8-13)). The information also alleged that Saibu personally used a firearm (§ 12022.53, subd. (b)) with respect to counts 5, 6, 7, 10, 11, 12, and 13, and that he had been convicted of car theft and had been imprisoned as a term of probation (§ 499, subd. (a)). Valentino was charged with one count of special circumstance murder (§§ 187, subd. (a); 190.2, subd. (a)(17) (count 1)); one count of attempted murder (§§ 187, subd. (a), 664 (count 2)); one count of attempted robbery (§§ 211, 664 (count 3), July 13, 2005 3 Further statutory references are to the Penal Code unless otherwise indicated. 17 T&M Liquor store); one count of car theft (Veh. Code, § 10851, subd. (a) (count 4)); and two counts of robbery (§ 211 (counts 6 and 7), July 7, 2005 Hollywood Video). The information also alleged that Valentino personally discharged a handgun in committing the offenses charged in counts 1 and 3 (§ 12022.53, subd. (d)); personally discharged a handgun in committing the offense charged in count 2 (§ 12022.53, subd. (c)); and that he had previously been convicted of car theft and had been imprisoned as a term of probation (§ 499, subd. (a)). On December 22, 2008, the trial court dismissed count 8 (alleged against Saibu only), pursuant to section 995. The court severed trial of counts 9 through 13 (all alleged against Saibu only) after determining that trying those charges with the charges in counts 1 through 7 would be unduly prejudicial to both defendants. Jury trial was held between February 3 and March 16, 2009. The jury found both defendants guilty on all counts, and found true the corresponding enhancement allegations. On April 14, 2009, the trial court sentenced Saibu. Pursuant to California Rules of Court, rule 4.452, the court pronounced a single aggregate term by combining Saibu's sentence in case number SCD193335 with the sentence imposed in this case. In the current case, the court sentenced Saibu to life without the possibility of parole on count 1, plus an additional determinate sentence of two years four months on count 2; eight months on count 5, and three years four months for the corresponding firearm enhancement; five years on count 6, and 10 years for the corresponding firearm 18 enhancement; and one year on count 7, with an additional three years four months for the corresponding firearm enhancement. The court stayed execution of the sentences on counts 3 and 4 pursuant to section 654. With respect to the sentence from the prior case (case No. SCD193335), the court sentenced Saibu to eight months on count 2; one year on count 3; one year on count 6; and one year on count 9, with an additional three years four months for the corresponding firearm enhancement. The court also stayed execution of the sentences on counts 1, 7 and 10, pursuant to section 654. Saibu's total determinate term was 32 years eight months. The court sentenced Valentino on May 8, 2009. With respect to count 1, the court sentenced Valentino to life without the possibility of parole, plus 25 years to life for the firearm enhancement. The court also sentenced Valentino to nine years on count 2, plus 20 years for the corresponding firearm enhancement; one year on count 6; and one year on count 7. The court stayed execution of sentence on counts 3 and 4, as well as the enhancement as to count 3. The court also resentenced Valentino in case number SCD193335 in accordance with California Rules of Court, rule 4.452. The only change that the court made with respect to the sentence in the earlier case was to stay execution of Valentino's sentence on count 7, pursuant to section 654. Valentino's total determinate term was 31 years. Both defendants filed timely notices of appeal. 19 III. DISCUSSION A. The Wells Fargo Bank robbery 1. Additional background The prosecutor moved in limine to admit evidence of several bank robberies committed by the defendants, including the August 29, 2005 Wells Fargo Bank robbery, of which Saibu and Valentino had been convicted. The defendants opposed the motion and sought to exclude evidence of the uncharged bank robberies. At a hearing on the parties' motions in limine, the trial court noted that it had read this court's nonpublished opinion in People v. Valentino et al. (Jan. 14, 2009, D049996), upholding Saibu and Valentino's convictions in a Wells Fargo Bank robbery on August 13, 2005, a World Savings Bank robbery on August 19, 2005, and the August 29, 2005 Wells Fargo Bank robbery.4 The prosecutor proffered that both Kinsel and an investigator who had reviewed the surveillance tapes of the robberies would testify that Saibu and Valentino worked together during the robberies, and that when committing the robberies, they would shield their identities by covering themselves from head to toe, thereby establishing a similar modus operandi in the uncharged robberies and the charged offenses. The prosecutor also noted that in some of the charged and uncharged robberies, cars had been stolen 4 Valentino was also separately convicted of a September 8, 2005 USA Federal Credit Union robbery. 20 from near where the defendants had been staying, and that these cars were used in the robberies and then abandoned. The prosecutor argued that evidence regarding the uncharged bank robberies was admissible under Evidence Code section 1101, subdivision (b) to show that Saibu and Valentino intended to rob the T&M Liquor store on July 13, 2005, even though Valentino shot Toma almost immediately and then fired at Yakou. The prosecutor further argued that in addition to showing the defendants' intent, the bank robberies and the T&M Liquor store shooting had sufficient common features to establish the identities of the perpetrators. The prosecutor noted the fact that cars were stolen near the times of the robberies, and that these cars were used to transport the perpetrators to the crime scenes, and then abandoned nearby after the robberies. She further argued that the defendants' joint participation in the robberies showed a thread of similarity between the bank robberies and the attempted robbery and shooting at the T&M Liquor store. In determining the admissibility of evidence of the other robberies, the trial court discussed a number of relevant cases and the legal principles to be drawn from those cases. The court then stated, "If I apply these principles to this case, there is only one of the bank robberies that I think may pass muster. That is the bank robbery that formed the basis for count 9. This was the August 29, 2005, bank robbery." The court explained its reasoning as follows: "Let me begin by acknowledging that there are a host of factors in there that [defense counsel] can and effectively did distinguish as not being the same, and a host of factors that [the prosecutor] points out are the same. But there are some that I think are particularly important. 21 "African-American males, generally generic same kind of clothing and hoodies, hiding the face, the take-down nature or take-over nature of the robbery, the use of the guns, those are general takedown robbery factors. But they are common to the bank robbery in count 9 and the offenses in counts 1, 2 and 3 involving T&M Liquor on July 13th. "The factors that I think are persuasive are the use of a stolen car to get to the scene. [Defense counsel] has done a lot of federal cases, knows a lot about bank robberies, refers to it as a cold car and, in that fashion, as an advocate, wants me to find that that is a real general characteristic. It's certainly not a signature by itself, but I think it's an important one. "The car was stolen from a location near a significant location in this case. It was stolen the same day or the day before. The reasonable inference is that the robbers arrived in that stolen car. They fled in that car. They fled a short distance, a matter of less than a mile, I think, in both cases. They abandoned the car. And what makes this different from any of the others is there were witnesses who said, 'These two guys abandoned this car and then ran into a waiting car that was real close by and took off.' "Another factor that I think is significant, and it is one that really does add a signature-type uniqueness to this case, [the prosecutor] alluded to, and that is the same two guys, looks like to me anyway if I didn't think it was the same two guys, I wouldn't be letting it in but it was, we know in the bank robbery, Mr. Saibu and Mr. Valentino and I think maybe a third person. Also this offense is proximate in time. It's close in time. It's a month later, month and a half later than the T&M robbery murder. "I find and conclude that this uncharged act, and this one alone, will be admissible in this trial. So that I can be very clear, the uncharged act that formed the basis of count 9 in the bank robbery case this was the Wells Fargo Bank robbery on August 29th is admissible as an uncharged act. I find it admissible against both defendants, and I find it can be used to show identity and intent to aid and abet with respect to counts 1 and 3 in this case. It's identity as to counts 1 and 3, and I will appropriately limit the jury instructions upon the request of counsel that that occur. 22 "But I think this act meets the Hovarter/Ewoldt degree of similarity required to prove identity. Not common plan or scheme. Identity. This goes beyond common plan and scheme. This is identity. And I think it's also admissible to show their joint action and intent to aid and abet, which also goes to identity on those counts. The other uncharged acts are not admissible." Later, when the subject of this evidence arose again at trial, the court stated, "It seems to me that subject only to [Evidence Code section ] 352 and cumulative and undue prejudice, the People are entitled to prove any of those generic strokes that make up that signature from the August 29th [robbery] case. I agree with the proposition advanced by [defense counsel] that some of these things may be more relevant to one count or another in this case; however, I allowed the [Evidence Code section] 1101 (b) identity evidence in for all three incidents. It just may be more relevant to some than to others." 2. Legal standards Evidence of a prior crime or bad act is admissible as long as it is relevant to prove a fact such as motive, opportunity, intent, plan, or knowledge. (Evid. Code, § 1101, subd. (b); People v. Davis (2009) 46 Cal.4th 539, 602.) " 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 22.) "We have explained that 'there exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: "The least degree of similarity . . . is required in 23 order to prove intent. [Citation.] . . . In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " ' [Citations.] 'By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.' [Citation.]" (People v. Lynch (2010) 50 Cal.4th 693, 736 (Lynch).) " 'For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] "The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." ' [Citation.] The inference of identity, however, 'need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.' [Citation.] Moreover, 'the likelihood of a particular group of geographically proximate crimes being unrelated diminishes as those crimes are found to share more and more common characteristics.' [Citation.]" (Lynch, supra, 50 Cal.4th at p. 736.) On appeal, we review a trial court's decision to admit or exclude evidence under Evidence Code section 1101 for an abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) 3. Analysis The trial court noted a number of marks of similarity between the Wells Fargo robbery and the charged offenses. Some of these similarities are not unique. However, 24 when combined with a number of unique characteristics shared by the charged offenses and the uncharged offense, there were sufficient unique characteristics to permit the introduction of evidence regarding the uncharged offense for the purpose of establishing not only intent with respect to the T&M Liquor store attempted robbery/shooting, but also the identities of the perpetrators of the charged crimes. The factors that the trial court found to be significant and unique include the fact that the suspects in both the charged offenses and the Wells Fargo robbery used cars that had been stolen (in a similar manner) to transport themselves to the locations of their crimes and to leave those locations. In addition, the men abandoned the stolen cars near the crime scenes and used other means to leave the area. The court also noted the proximity in time of the robberies, which all occurred within a period of approximately a month to a month and a half. The trial court also thought that it was particularly significant that these two men had committed the Wells Fargo Bank robbery together. In other words, evidence linking the two men together in the commission of another armed robbery was relevant to show that Saibu and Valentino know each other, commit crimes together, and, in fact, commit armed robberies together, which in turn is circumstantial evidence that these two were the ones who committed the charged crimes together, and that they harbored the intent to commit robberies. The trial court found that these characteristics, combined with similarities that the court found not to be unique namely the fact that in all of the crimes the perpetrators were African-American males, wearing similar clothing (i.e., hooded sweatshirts and 25 bandanas partially covering their faces), that the crimes involved "take-down nature" robberies, and that the robbers used firearms were sufficient to admit evidence of the Wells Fargo Bank robbery as evidence of the defendants' intent to rob, as well as evidence that they were the persons who perpetrated the charged crimes. In the aggregate, the similarities among the uncharged and charged crimes become more meaningful, and lead to the reasonable inference that Saibu and Valentino were the persons who committed the crimes, and that they intended to rob the T&M Liquor store. (See People v. Medina (1995) 11 Cal.4th 694.) Therefore, the trial court did not abuse its discretion in admitting evidence of the Wells Fargo Bank robbery at the trial in this case. Even if we were to determine that the trial court abused its discretion in admitting evidence of the Wells Fargo Bank robbery for the purpose of proving the identities of the perpetrators of the charged offenses, we would conclude that the error was harmless. Error involving the admission of other crimes evidence is subject to the prejudice standard announced in People v. Watson (1956) 46 Cal.2d 818. (People v. Welch (1999) 20 Cal.4th 702, 749-750.) Under this standard, we determine whether it is reasonably probable that the defendant would have obtained a more favorable outcome if the error had not occurred. (Watson at p. 836.) The trial court did not rely on identity alone as the basis for admitting evidence of the Wells Fargo robbery. Rather, the court concluded that this evidence was also relevant to demonstrate the "joint action" of the appellants, as well as Saibu's intent to aid and abet Valentino in the attempted robbery of the T&M Liquor store. The degree of similarity that is required between evidence of uncharged acts and the charged offense, for the 26 purpose of proving intent, is significantly less than that required to establish identity (see Lynch, supra, 50 Cal.4th at p. 736). The trial court could have reasonably concluded that evidence of the Wells Fargo robbery was more probative than prejudicial with respect to the issue of intent, and, therefore, could have properly admitted evidence of the Wells Fargo robbery for the purpose of proving that the perpetrators intended to rob the liquor store on the day of the shooting.5 Thus, the error that we are presuming, for purposes of argument, is the failure of the trial court to instruct the jury that it could consider the evidence of the Wells Fargo robbery only to determine the defendants' intent. We conclude that it is not reasonably probable that either defendant would have obtained a more favorable outcome if the trial court had admitted the evidence for the purpose of proving the defendants' intent, and had provided a limiting instruction prohibiting the jury from considering the evidence for the purpose of determining identity. The jury viewed videotape evidence from all of the crimes and saw still photos created from those videotapes. With respect to the Hollywood Video store robbery, Saibu's DNA was found on a shotgun used during the robbery, Valentino told Buckley 5 The defendants' intent with respect to the July 13, 2005 incident was at issue at trial, since Valentino shot at the victims almost immediately after yelling "Give me the money." During closing, in arguing that the video evidence of Yakou reaching his hand toward the register demonstrated that the perpetrator's intent was to rob the liquor store, the prosecutor stated: "Mr. Yakou is at the register. His hand is on the register. Why would he be doing that if he had not, in fact, heard the words, 'Give me the money'; if that were not, in fact, the intent of the perpetrator?" Because the evidence left open the possibility that the shooting was done in retaliation for the thwarted robbery attempt the day before, evidence that Valentino and Saibu had previously committed other armed robberies together tended to show that they intended to rob the liquor store on July 13, 2005, as well. 27 that he had robbed a Hollywood Video store, and Buckley identified Saibu and Valentino from the Hollywood Video store security videotape. With respect to the July 12, 2005 T&M Liquor store attempted robbery, during a live lineup, victim Mikho identified Saibu as resembling the perpetrator, Almajid identified Saibu from the surveillance videotape, and Saibu's DNA was found on the shotgun and the shells that police recovered from the scene. With respect to the July 13, 2005 attempted robbery and murder at the T&M Liquor store, there was evidence from which the jury could reasonably infer that Saibu had taken a .38 caliber silver-colored revolver from Almajid's apartment. A witness saw a man wearing baggy clothing and carrying a silver revolver running away from the liquor store after the shooting. Another witness spotted the stolen white Mercedes Benz in an alley and identified Valentino as one of the men who got out of that car. A third witness noticed that one of the men standing next to the Mercedes Benz had darker skin than the other man. Valentino's prints were lifted from the trunk of the Mercedes Benz, and Valentino admitted to Buckley that he had shot a man while robbing a liquor store on El Cajon Boulevard. Buckley also heard Saibu say to Valentino, a couple of weeks after the shooting, "Man, I just told you to rob the place. I didn't know you were going to shoot the guy's head off." During another conversation, when Buckley referred to the car that was used during that attempted robbery as a gray BMW, Saibu corrected him and said that in fact the car was a white Mercedes Benz. In addition, Saibu told Almajid that he was waiting in the car during the shooting. 28 Based on the state of the evidence, it is not reasonably probable that either Saibu or Valentino would have obtained a more favorable outcome if the trial court had instructed the jury that it could consider evidence of the Wells Fargo robbery only for the purpose of determining the defendants' intent, and not to determine identity. B. The court did not err in admitting in evidence certain digitally enhanced photographs and expert testimony describing how the images were enhanced Valentino and Saibu contend that the trial court erred in admitting digitally enhanced photographs that the prosecutor utilized in exhibit numbers 146 and 171.6 According to Valentino and Saibu, the court should have excluded the photographs due to discovery violations by the prosecution pertaining to the photographs, and also should have excluded them on the grounds that the photographs lacked sufficient foundation, and that they should have been the subject of a hearing under People v. Kelly (1975) 17 Cal.3d 24 (Kelly). 1. Additional background Nathan Cunningham, an investigative technician with the San Diego County District Attorney's Office, created digital still images from VHS copies of surveillance videotapes from the T&M Liquor store incidents. Cunningham used the still images to prepare photo boards that the prosecutor ultimately used as courtroom exhibits at trial. Prior to Cunningham's testimony, defense counsel asked the trial court for a sidebar conference to discuss the process that Cunningham had used to digitally enhance 6 The exhibits depicted Valentino's and Saibu's booking photographs, together with still images created from the July 12 and July 13 T&M Liquor store surveillance video. 29 the still photographs. The court ultimately held an Evidence Code section 402 hearing, outside the presence of the jury, to consider whether the photographic exhibits were admissible. At the foundational hearing, Cunningham testified that he specialized in graphics and 3-D animation. Cunningham is familiar with computer software programs used to enhance or enlarge photographs, such as Adobe Photoshop (Photoshop). Cunningham has used Photoshop for eight years, and is knowledgeable about the latest versions of the program. According to Cunningham, Photoshop is frequently used by those who prepare demonstrative exhibits and is considered an essential tool that is widely used in that field. Cunningham made exhibit 146, photograph E, and exhibit 171, photograph C, from a VHS videotape. Cunningham enlarged the still images, which is something that he does on almost a daily basis in preparing exhibits. Cunningham explained how he created photograph C of exhibit 146, which is an enlargement of a portion of photograph E of exhibit 146. Cunningham also described how he utilized a particular Photoshop enhancement tool to make the color from the color video stand out more in the still image. Specifically, Cunningham placed a digital copy of the image on top of the original image, and changed the blending mode to "Color Dodge." Cunningham explained that this process causes lighter colors in the image to become brighter than darker colors, which ultimately brightens the color overall. Cunningham used this same process with respect to the photographs depicted in exhibit 171. 30 Cunningham testified that the Color Dodge process did not create the same amount of contrast in the photos in exhibit 171 as in those in exhibit 146. He explained that this is because the videotaped footage used to make the still images in the two exhibits had been taken at different times of day, under different lighting conditions, and from different angles. According to Cunningham, using the Color Dodge mode does not import new or different colors into an image. Rather, the Color Dodge mode allows one to overlap an exact copy of an image over the original image in such a way that it provides additional contrast and makes colors appear brighter. Cunningham also explained pixels, and how the scaling of different images can sometimes affect the quality of the image and/or require the computer software to use a complicated equation to fill in pixels when an image is enlarged. Cunningham said that he had not tried to enhance the skin tone of the person depicted in exhibit 146, photograph A, but that what he was trying to do was to enhance the value and brightness of the entire photograph. Upon further questioning from the court, Cunningham explained that the Color Dodge mode is like the brightness and contrast settings on a television set. It is a mode that affects lighter colors more, such that they become brighter, but allows darker colors to remain the same. It does not add color, but essentially brightens the entire image. After Cunningham testified at the foundational hearing, the prosecutor noted that the photographs in exhibits 146 and 171 had already been introduced at trial, with no objection from defense counsel. 31 Counsel for Valentino argued that he was not aware of the existence of exhibit 146 until Buckley testified at trial.7 Counsel asserted that if he had known that an enhancement process had been used on the photographs, he would have found an expert witness to explain that the skin tone of the individual depicted in exhibit 146, photograph C, was not a fair and accurate depiction of the subject's skin tone. Counsel further argued that it was clear that the process Cunningham had used was a technical process that was outside the common understanding of a juror. Valentino's counsel requested that the trial court exclude exhibit 146, as a remedy for the prosecutor's discovery violation in failing to inform him about the digital enhancement, and also objected to the exhibit on the ground that there was no foundation as to how the exhibit had been enhanced. The trial court considered whether Cunningham's testimony involved a scientific process that implicated expert opinion testimony and Kelly, and whether the prosecutor's failure to disclose the use of the Photoshop enhancement constituted a discovery violation, or rather, whether Cunningham's testimony pertained to a commonly accepted enhancement technique that someone could do on a home computer. The court concluded that Cunningham's testimony about the images, and how he created them, qualified as expert testimony under Evidence Code section 801, but that the technique that Cunningham had used was not new, and, therefore, that Kelly did not apply. The trial court ruled that it would not exclude Cunningham's testimony or the exhibits as a 7 Buckley had testified that he could tell that the person depicted in some of the surveillance video was Valentino, based on that individual's light skin. 32 sanction for the prosecutor's discovery violation in failing to disclose the digital enhancement process, but agreed to allow defense counsel the opportunity to try to find an expert who would cast doubt on the reliability of the process that Cunningham had used in creating the still images. Valentino's counsel acknowledged that he "personally believe[d] that everything Mr. Cunningham did is what everybody does with that software," but indicated that he was more concerned with Cunningham potentially testifying that the photographs accurately depicted the subjects' skin tone. The trial court observed that if the jury understood the photographs as accurately depicting skin tone, this would benefit Valentino, because the skin tone of the individual in exhibit 146 was not similar to Valentino's skin tone. After this discussion, court adjourned for the weekend. On the first day of court the following week, Valentino's counsel informed the court that he had contacted an individual at a company that specializes in preparing exhibits like the ones Cunningham had prepared, but that the person he had contacted believed he had a conflict because he knew Cunningham very well. Valentino's counsel said that he had a list of other potential experts whom he could call, but he did not know whether he would be able to find an expert who would be available to testify. The prosecutor noted that because of a mix-up with witnesses for that day, there was some time for an expert to "look at the process." The court then moved on to other business. 33 The following day, the trial court raised the "Photoshop issue" with the attorneys. Valentino's attorney indicated that he did "not have any expert who can offer an opinion as to whether the process of enlargement" "alters the details of facial features to the point where it could no longer be viewed as a fair and accurate representation of what is depicted." Counsel stated that his concern was "that any facial features may be distorted to the point where you can't look at it and say whether it's a fair and accurate representation of what the person looked like, because it's been enlarged by a computer process." Counsel requested that the court give a limiting instruction to the effect that that the jury could consider exhibit 146 only for the "skin tone of the shooter," and for "no other purpose." The court made three rulings with respect to Cunningham's testimony. The court first addressed the Kelly issue, and determined that the enhancement of digital images, even by computer software, is not new, and that the process that Cunningham used "passes [Kelly] muster." The court also determined that the process that Cunningham used implicated expert opinion and "should have been disclosed as such," but found that the prosecutor had not deliberately violated the discovery rules. The court rejected defense counsel's request that the court give a jury instruction to the effect that the evidence had not been timely disclosed, and also determined that the evidence, including both photographic exhibits (146 and 171), as well as Cunningham's testimony regarding the process that he used to create the exhibits, would be admitted. The court noted that it had "grante[ed] a continuance of sorts to let the defense have a chance to try to meet this testimony." 34 Cunningham later testified at trial regarding the Photoshop process that he used to create photo board exhibits 146 and 171. 2. Analysis a. Discovery violation Defendants contend that the trial court should have excluded the challenged photographs and Cunningham's testimony as a sanction for the prosecutor's discovery violation in failing to disclose information about the process that Cunningham had used to create the still images. Although acknowledging that a trial court "may consider a wide range of sanctions in response to a discovery violation," the defendants assert that the trial court abused its discretion in not instructing the jury with CALCRIM No. 306, regarding the untimely disclosure of evidence, and that given the fact that the court arbitrarily refused to give this instruction, the court should have granted a greater sanction, i.e., exclusion of both the photographic evidence and Cunningham's testimony. Pursuant to the Penal Code, the prosecution must disclose to the defense "[a]ll relevant real evidence seized or obtained as part of the investigation of the offenses charged," as well as "[t]he results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecution intends to offer in evidence at the trial." (§ 1054.1, subds. (c), (f).) In response to a violation of the discovery rules, a trial court has the discretion to choose from a range of possible sanctions: "[I]mmediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).) In addition, "the court may advise the jury of any failure or refusal 35 to disclose and of any untimely disclosure." (Ibid.) An appellate court "generally review[s] a trial court's ruling on matters regarding discovery under an abuse of discretion standard. [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 299.) The trial court weighed the nature of the discovery violation and the evidence at issue and ultimately determined that no sanction was warranted. The trial court acted reasonably in reaching this conclusion. There is nothing in the Penal Code that requires a court to impose a sanction for a discovery violation. Rather, the Penal Code states that the trial court "may" make discovery orders, as necessary. Here, it was reasonable for the trial court to determine that giving the defense time to attempt to find an expert was sufficient to remedy any asserted prejudice that the defense was claiming based on the discovery violation at issue. The trial court did not abuse its discretion in declining to impose the discovery sanctions that the defendants requested. b. Kelly analysis Defendants contend that the trial court erred in failing to hold a Kelly hearing with respect to the Photoshop process that Cunningham used to enhance the digital images. Expert testimony that is based on a new scientific technique will not be admitted unless the reliability of the method from which the expert testimony is made has been sufficiently established to have gained general acceptance in the particular field in which it belongs. (Kelly, supra, 17 Cal.3d 24, 30.) The Kelly standards apply only where the evidence set forth at trial involves a "new" scientific technique or principle. (Leahy (1994) 8 Cal.4th 587, 605.) In determining whether a scientific test is "new," the repeated use, study, testing and confirmation by scientists or trained technicians qualifies 36 the test as being generally accepted within the field. (Ibid.) Further, once a trial court has admitted evidence based upon a new scientific technique and that decision is affirmed on appeal by a published appellate decision, that precedent may control at subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community. (Id. at p. 595.) Under these standards, we cannot agree with defendants that the Photoshop program that Cunningham used to enhance digital images is a "new" scientific technique that should have been subject to the Kelly test. First, it is questionable whether the Photoshop program can be considered a scientific technique. Rather, it appears to be more akin to an artist's tool used for making demonstrative exhibits, or a process used to develop digital "film." Further, Cunningham testified that he, personally, has been using Photoshop for eight years, and that it is used widely in his field and is considered to be an essential tool. As long ago as 1998, an appellate court in Washington determined that using Photoshop to enhance latent fingerprints was a process that was "generally accepted in the relevant scientific community." (State v. Hayden (1998) 90 Wn.App. 100, 109.) We conclude that the trial court was not required to hold a Kelly hearing with respect to the Photoshop process that Cunningham used to enhance the photographs. c. Foundation Defendants contend that the trial court should not have admitted the photographs "because no legally sufficient foundation had been established." They argue that "no witness had testified that the photographs were faithful representations of the persons 37 depicted." This argument is without merit. Specifically, Cunningham testified as to how he created the still images from VHS surveillance video from the T&M Liquor store. Other witnesses had testified that the surveillance video accurately depicted the events that they witnessed. This testimony is sufficient to lay a foundation for the admission of the photographic evidence at issue. C. The trial court did not err in admitting the recording of Almajid's conversation with police Defendants contend that the trial court erred in admitting in evidence a partially redacted video recording of Naz Almajid's August 2007 interview with police. At trial, the prosecutor raised a concern that Almajid, who was scheduled to testify, "may be less than forthcoming and may, in fact, testify differently than his prior statement to San Diego police." The prosecutor had provided defense counsel with a copy of a partially redacted transcript of the interview of Almajid that detectives conducted on August 23, 2006. Saibu's attorney objected to admission of the portions of the interview in which detectives made statements that implicated Saibu in the robberies. The prosecutor suggested that the trial court give a limiting instruction to the jury to the effect that "the statements of the police officer are designed to get information, and they don't even have to be true and that the questions are only important as they relate to what the answers are." Saibu's attorney then identified the specific statements that troubled him and to which he was objecting. After going through the entire transcript and each of defense counsel's objections, the trial court stated: "I presided over the preliminary hearing, and I heard Mr. Almajid's testimony. I also conducted the in camera. Mr. Almajid, it struck 38 me that both of those times, was being deliberately evasive. When a person is deliberately evasive, of course, then his I-don't-remembers become the legal equivalent of denials. The reason that is important is because then a prior inconsistent statement may be admitted for the truth of the matter contained in the prior inconsistent statement. That's one principle that I think is at work here. "The other principle is that the Court's sense at the preliminary hearing and during the in camera examination was that Mr. Almajid was frankly feigning his lack of memory. I believed then and, if he testifies consistently, I suspect I will make the same finding today that if he says that well, let me begin that again. If Mr. Almajid attempts to explain this away by virtue of either coercion that he felt he was under or drugs or alcohol that he had consumed or fatigue that he was feeling, it seems to me that the actual video of how he presented himself and how the detectives presented themselves has very high relevance to a trier of fact in evaluating Mr. Almajid's credibility. "[¶[] . . . [¶] ". . . Under those circumstances, I think that the way in which the interview went down is of crucial importance for the ascertainment of the truth with respect to Mr. Almajid's statements. "I think it has a very high probative value. I think that the jury must understand that, just as when a witness is testifying, the questions aren't evidence. They're only relevant insofar as they give meaning to the answer. That same principle would apply to this interview." The court tentatively ruled, contingent on how Almajid testified at trial, that the redacted interview transcript that the prosecutor had originally offered would be admissible as evidence of Almajid's prior inconsistent statements and as evidence going to Almajid's credibility. The court indicated that it would give a limiting instruction to the effect that questions and/or statements of the police are not evidence unless the interviewee adopted them. 39 Almajid testified the following day. Almajid said that he did not remember much about events that occurred around the time one of his guns went missing, or what he had been doing on the day that Toma was shot. He testified that he did not remember telling police that he had cried over Toma's death. Almajid maintained that he did not remember the day of his interview with the detectives, and also did not remember having viewed the surveillance video of the murder on the internet or having told police that he had viewed the surveillance video. After the lunch break, the prosecutor informed the court that she had been told that Almajid's sister had taken him to the hospital during the break, apparently because he was suffering from a panic attack. The trial court indicated its concern that Almajid was violating the court's order that he return to testify at 1:30 p.m. that day. The court found that Almajid was a reluctant witness who "does not wish to be [testifying in court]," and stated, "[F]or purposes of the prima facie finding [of contempt], which is a prerequisite to issuing a warrant, I find that while he may be experiencing stress from his testimony, it is likely that he is seeking to avoid a further appearance in this court on this case." The court issued a bench warrant for Almajid. Two days later, Almajid returned to court and resumed his testimony. He testified that he did not remember specific conversations that he had with detectives. Almajid also testified that on the day he spoke with the detectives, the detectives had threatened to charge him with being an accessory after the murder. After hearing Almajid's testimony, the trial court decided to allow the jury to view the videotape of Almajid's interview, and also to provide the jury with a transcript of the 40 interview. The court instructed the jury that the questions that the detectives posed were not evidence, and that only Almajid's answers were evidence. The court further explained, "You are going to hear examples in this interview where the officers, in interviewing Mr. Almajid, will make assertions of what they believe or they suspect or what they, quote, know is true. Those assertions are not evidence, and you must not consider them. If, for instance, there [was] a place where the officer said, 'We got a bunch of witnesses that say you were there,' you can't consider that as evidence that there were a bunch of witnesses that say he was there." Saibu contends that the trial court should not have admitted the videotape of Almajid's interview with police because "the only points on which the interview did 'impeach' Almajid were irrelevant, tangential minutiae." Saibu contends that the interview contained numerous "conjectural" statements about Saibu's involvement in the crimes, and that because the statements are conjectural, they were irrelevant. The trial court admitted the videotape of Almajid's interview with police as evidence of his prior inconsistent statements. (See Evid. Code, § 1235.) During the interview, Almajid told police that he believed Saibu was the person who could be seen on the surveillance video committing the July 12, 2005 attempted robbery of the T&M Liquor store, based on the movement of the person in the video. Almajid also told the detectives that Saibu had said that he had been waiting in a car in the alley on July 13, 2005, when the shooting at the liquor store occurred. However, at trial, Almajid claimed to have no memory of his interview with police. He claimed that at the time he was tired, on drugs, and/or he was coerced by police to make the statements. Under these 41 circumstances, it was reasonable for the trial court to conclude that the jury should be permitted to consider the statements that Almajid made during his interview with police in order to weigh the credibility of Almajid's contradictory testimony at trial. In addition, the videotape provided evidence of Almajid's demeanor during the interview evidence that contradicted his claims that he was fatigued or under the influence of drugs during the interview and that could thus impeach his credibility. The trial court did not abuse its discretion in determining that the videotape of Almajid's interview with police was more probative than prejudicial, pursuant to Evidence Code section 352. As the trial court noted, the statements that Almajid made during the interview became highly probative once Almajid took an inconsistent position at trial in terms of implicating Saibu and Valentino in the charged crimes, and once he attempted to disclaim knowledge of his own conduct around the time of the murder and the description of that conduct that he had previously given to detectives. Almajid's statements and demeanor during the interview served to impeach his trial testimony and were highly relevant to his credibility, in general. The trial court did not err in admitting Almajid's videotaped interview with detectives. D. The trial court erred in failing to properly instruct the jury with respect to the felony-murder special circumstance allegation Saibu contends that the trial court committed reversible error in failing to instruct the jury, sua sponte, with CALCRIM No. 703 regarding the elements of special circumstance murder. The People charged Saibu with special circumstance felonymurder pursuant to section 190.2, subdivision (a)(17). That provision imposes a penalty 42 of death or imprisonment for life without the possibility of parole if a jury finds that "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit" any one of a number of enumerated felonies, including robbery. (§ 190.2, subd. (a)(17)(A).) Subdivision (d) of this provision imposes a specific intent element that is not required for felony murder, alone: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." Saibu contends that the trial court should have instructed the jury with CALCRIM No. 703, which sets forth the elements that the prosecution must prove in order for a jury to return a true finding on a special circumstance murder allegation. CALCRIM No. 703 provides in relevant part: "If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of _________________ <insert felony murder special circumstance[s]> , you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. "In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the People must prove either that the defendant intended to kill, or the People must prove all of the following: 43 '1. The defendant's participation in the crime began before or during the killing; "2. The defendant was a major participant in the crime; "AND "3. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life." "[¶] . . . [¶] "If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that (he/she) acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance[s] of _________________ <insert felony murder special circumstance[s]> to be true. If the People have not met this burden, you must find (this/these) special circumstance[s] (has/have) not been proved true [for that defendant]." It is undisputed that the trial court did not instruct the jury with CALCRIM No. 703, or otherwise instruct the jury that it had to determine that Saibu acted "with reckless indifference to human life and as a major participant" in the robbery in order to return a true finding on the special circumstance allegation. The People appear to concede, and we agree, that the trial court's failure to instruct the jury with CALCRIM No. 703 was error. The People argue that the trial court's error in failing to properly instruct the jury with respect to the special circumstance allegation was harmless. " '[W]hen a trial court fails to instruct the jury on an element of a special circumstance allegation, the prejudicial effect of the error must be measured under the test set forth in Chapman v. California (1967) 386 U.S. 18, 24. [Citations.] Under that test, an error is harmless only when, 44 beyond a reasonable doubt, it did not contribute to the verdict.' [Citation.]" (People v. Jones (2003) 30 Cal.4th 1084, 1119.) We cannot conclude that the failure to give this instruction was harmless beyond a reasonable doubt. The evidence demonstrated that Saibu drove Valentino to the T&M Liquor store on the day of the murder, and also acted as the getaway driver, but that it was Valentino, alone, who entered the store that day. There was also evidence that Saibu knew that Valentino was going to rob the liquor store, and that Saibu was assisting Valentino in this mission. Although a jury may have concluded from these facts that Saibu knew that the armed robbery in which he was participating carried a grave risk of death, it is also possible that a jury would not have reached this conclusion, particularly in light of evidence that these two men had engaged in at least two prior armed robberies together, and that no weapon had been fired during either of those robberies. The jury could have concluded that Saibu did not participate in the July 13 robbery of the T&M Liquor store with the knowledge that the activity carried a grave risk of death, since he had carried out other armed robberies with Valentino during which no shots were fired. The People contend that "the jury necessarily made the required findings under other properly given instructions." However, as the People's brief describes, the jury was not asked to determine whether Saibu had the requisite intent for a felony-murder special circumstance finding. Rather, the jury was asked to determine whether Saibu intended to commit the robbery. It is clear that the jury was never asked to specifically consider whether Saibu either intended that a murder occur, or acted with sufficient knowledge of the dangerousness of the robbery that he could be considered to have acted with reckless 45 indifference for human life. Because we cannot conclude that the error in failing to instruct the jury with respect to the felony-murder special circumstance allegation did not contribute to the jury's true finding on that allegation, we must reverse the jury's true finding on the felony-murder special circumstance allegation. E. There is sufficient evidence to support Saibu's attempted murder conviction as a natural and probable consequence of the robbery Saibu contends that there is insufficient evidence to support his conviction for attempted murder related to the July 13 shooting incident. According to Saibu, because the prosecution's theory of his guilt as to the attempted murder charge was based on his role as an aider and abettor, the prosecution had to establish either that Saibu, himself, harbored the specific intent necessary for attempted murder, or that attempted murder was a natural and probable consequence of the robbery that he aided and abetted. Saibu contends that that the evidence is insufficient to support a conviction under either of those two theories. We disagree. In considering a defendant's challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.) If a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we must affirm. (Jackson v. Virginia (1979) 443 U.S. 307.) "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, 46 aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) " 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' [Citation.] Accordingly, an aider and abettor 'shares the guilt of the actual perpetrator.' [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1122 1123 (Mendoza).) "Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (Mendoza, supra, 18 Cal.4th at p. 1123.) "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." (CALJIC No. 3.02.) "To trigger application of the 'natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman).) "The elements of aider and abettor liability . . . on the natural and probable consequences 47 theory are the following: 'the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; [fn. omitted] and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.' [Citation.] The issue 'is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' [Citation.]" (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) Whether the crime charged is the natural and probable consequence of the target crime is a factual question for the jury. (People v. Cummins (2005) 127 Cal.App.4th 667, 677.) If there is substantial evidence that the defendant aided and abetted the robbery and the attempted murder was a reasonably foreseeable consequence of the robbery, the jury's verdict of guilty on a charge of attempted murder must be upheld. (People v. Prettyman, supra, 14 Cal.4th at pp. 261-262.) Here, the evidence demonstrated that Saibu was Valentino's getaway driver for the attempted armed robbery that Valentino committed at the same liquor store that Saibu had attempted to rob the day before. There was evidence that Saibu not only knew that Valentino entered the liquor store that day in 48 order to rob it, but that Saibu intended for Valentino to rob the liquor store.8 There was thus strong evidence that Saibu aided and abetted Valentino's attempted robbery on July 13. Further, the fact that Valentino used a firearm during the commission of the robbery made the attempted murder reasonably foreseeable. Saibu acknowledges that there are a number of cases in which courts have determined that murder or attempted murder are a natural and probable consequence of armed robbery. Indeed, in Prettyman, the Supreme Court cited multiple cases in which courts have "applied the 'natural and probable consequences' doctrine in situations where a defendant assisted in the commission of an armed robbery, during which a confederate assaulted or tried to kill one of the robbery victims." (Prettyman, supra, 14 Cal.4th at pp. 262-263; see also People v. Cummins (2005) 127 Cal.App.4th 667, 677 [noting there "are a number of California cases which hold murder or attempted murder can be a natural and probable consequence of robbery" and concluding that the charged attempted murder was a natural and probable consequence of a robbery and carjacking where defendant assisted in marching victim to edge of cliff off of which codefendant pushed victim].) Saibu maintains that this case involves two unique circumstances that distinguish it from the cases cited above. According to Saibu, because he was not inside the T&M Liquor store with Valentino when Valentino fired the shots, and because there was no 8 In addition to all of the other evidence that supports this conclusion, after the shooting, there was testimony that Saibu told Valentino, "Man, . . . I just told you to rob a place. I didn't know you [were] going there to shoot the guy['s] head off." 49 evidence that during the other robberies that he and Valentino committed together guns were ever fired or anyone was injured, he had no reason to believe that Valentino would fire a gun during the T&M Liquor robbery on July 13, 2005. However, in determining whether there is sufficient evidence to support Saibu's conviction as an aider and abettor of murder under the natural and probable consequences doctrine, the question is not whether Saibu subjectively believed that Valentino would attempt to murder someone during the course of the robbery that Saibu was aiding and abetting, but, rather, whether an attempted murder was a reasonably foreseeable consequence of the robbery. As we have already stated, courts have answered this question in the affirmative. Regardless of whether Saibu was inside or outside the store when the shooting occurred, or whether Saibu and Valentino had previously committed other armed robberies without firing a weapon, it was reasonably foreseeable that Valentino would fire the gun that he took into the store. F. There is no cumulative error Defendants claim that to the extent this court concludes that no individual error merits reversal, the cumulative error doctrine requires reversal of the judgment. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have concluded that all but one of Saibu's asserted claims of error are without merit; as to that claim of error, we conclude that reversal of the felony-murder special circumstance allegation is warranted. In the absence of any additional errors, we 50 conclude that there is no cumulative error on which to base a reversal of the judgment against either defendant. G. Valentino's abstract of judgment Valentino identifies four claimed errors in the abstract of judgment that he maintains require correction. He indicated in his brief on appeal that he was in the process of seeking correction of the abstract of judgment directly from the trial court. In response to Valentino's request for corrections, the trial court issued a revised abstract of judgment on January 4, 2010. In his reply brief, Valentino asserts that although the trial court "resolved some of the errors raised in the opening brief, making those issues moot, the court did not resolve them all." The remaining errors about which Valentino complains are (1) the failure of the trial court to amend the abstract of judgment in case number SCD193335 to show Valentino's custody credits for the days served in prison and in county jail while he was awaiting resentencing after the judgment had been modified, and (2) the court's failure to change the entries with respect to counts 6 and 7 in case number SCD207640 from the upper term to the middle term. Valentino contends that the abstract of judgment fails to show the number of actual days that he has served in prison in case number SCD193335 (the original case in which Valentino was sentenced). He contends that, pursuant to People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), the trial court should have recalculated "all actual time the defendant has already served, whether in jail or in prison, and whether before or since he was originally committed and delivered to prison custody." (Id. at p. 29.) 51 "Defendants sentenced to prison for criminal conduct are entitled to credit against their terms for all actual days of presentence and postsentence custody (Penal Code, §§ 2900, subd. (c), 2900.5, subds. (a), (b)) . . . ." (People v. Cooper (2002) 27 Cal.4th 38, 40, internal footnote omitted.) However, there are "separate and independent credit schemes for presentence and postsentence custody." (Buckhalter, supra, 26 Cal.4th at p. 30.) For custody "prior to the imposition of sentence," persons detained in a county jail, or other equivalent specified local facility, may be eligible to receive, in addition to actual time credits under section 2900.5, presentence good behavior/worktime credits of up to two days for every four days of actual custody. (§ 4019, subds. (a)(4), (b), (c), (e), (f).) " '[T]he court imposing a sentence' has [the] responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d); see also [§ 2900.5] subd. (a).)" (Buckhalter, supra, 26 Cal.4th at p. 30.) "Once a person begins serving his prison sentence, he is governed by an entirely distinct and exclusive scheme for earning credits to shorten the period of incarceration. Such credits can be earned, if at all, only for time served 'in the custody of the Director' (§ 2933, subd. (a)) and pursuant to article 2.5 of chapter 7 of title 1 of part 3 of the Penal Code (commencing with section 2930) (hereafter article 2.5). Under article 2.5, eligible prisoners may shorten their determinate terms[] . . . by up to six months for every six months actually served by performing, or making themselves available for participation, 52 in work, training or education programs established by the Director. (§ 2933.) Such prison worktime credits, once earned, may be forfeited for prison disciplinary violations and, in some cases, restored after a period of good behavior. (§§ 2932, 2933, subds. (b), (c).) Accrual, forfeiture, and restoration of prison worktime credits are pursuant to procedures established and administered by the Director. (§§ 2932, subd. (c), 2933, subd. (c).)" (Buckhalter, supra, 26 Cal.4th at p. 31.) "The sentence-credit statutes make only one express reference to a sentence modified while in progress," and that reference is found in section 2900.1. (Buckhalter, supra, 26 Cal.4th at p. 32.) Section 2900.1 provides that "where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." The sentencing court must determine such time and reflect it in the abstract of judgment. (§ 2900.5, subds. (a), (d).) Although Buckhalter is not directly on point because it concerns the modification of a defendant's sentence "as a result of an appellate sentence remand," the same principles would appear to apply when a trial court resentences a defendant pursuant to California Rules of Court, rule 4.452. Certainly, a court can be considered to have modified a defendant's original sentence when the court resentences that defendant to a single aggregate term pursuant to rule 4.452. Therefore, under section 2900.1, which specifies that when a sentence is modified while in progress, the "time" already served "shall be credited upon any subsequent sentence [the defendant] may receive upon a new 53 commitment for the same criminal act or acts," the trial court should, "in its new abstract of judgment , . . . credit him with all actual days he had spent in custody, whether in jail or prison, up to that time" (Buckhalter, supra, 26 Cal.4th at p. 37). Valentino served a portion of his sentence in case number SCD193335 before the court sentenced him to a single aggregate term in case numbers SCD207604 and SCD193335, and should be credited for all of the time that he has been in custody. (See Buckhalter, supra, 26 Cal.4th at p. 41 ["the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment"].) We therefore direct the trial court to amend the abstract of judgment to reflect not only the presentence custody credits that Valentino earned in case number SCD193335, but also the number of days that Valentino has served in the custody of the Director of the Department of Corrections and Rehabilitation.9 As to the trial court's failure to change the term entries for counts 6 and 7 in case number SCD207640 in the abstract of judgment, the court correctly identified the sentences imposed on counts 6 and 7 in case number SCD207640 as one year for each count, which is one-third of the middle term for those offenses. This was correct. 9 To be clear, Valentino is not eligible for "credits of the presentence kind" (Buckhalter, supra, 26 Cal.4th at p. 33) for the portion of time that he served in the custody of the Director under his original commitment in case number SCD193335. Rather, for that portion of time, Valentino's "accrual of term-shortening sentence credits can arise only under laws and rules specifically applicable to prisoners in the Director's custody." (Id. at p. 30.) 54 However, in the column in which the court is to identify which of the three terms it is imposing, i.e., the upper, middle, or lower term, the court indicated with a "U" that it was selecting the upper term for each of those counts. In so doing, the trial court was indicating the sentence that it would have selected if it had the option to select a term other than one-third the middle term on those counts.10 Pursuant to section 1170.1, subdivision (a), once the court identified the principal term, the court was required to impose "one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed." We agree with Valentino that the trial court should have indicated the term that the court actually imposed on Valentino, not the sentence that it would have imposed if it had the option of selecting a term other than the middle term. (See People v. Riolo (1983) 33 Cal.3d 223, 227 [" '[T]erm of imprisonment' must refer to the actual sentence imposed by the court, not to the sentence that might have been imposed by the court under other circumstances."].) We therefore direct that Valentino's abstract of judgment be amended to indicate that the court imposed the middle term with respect to counts 6 and 7 in case number SCD207640. 10 The trial court explained that this is what it was doing in a letter that the court sent to the parties along with an amended abstract of judgment. Pursuant to California Rules of Court, rule 8.340, the trial court clerk sent this court a copy of the amended abstract of judgment, and the record on appeal was augmented to include the amended abstract of judgment. 55 IV. DISPOSITION The jury's true finding on the robbery-murder special circumstance under section 190.2, subdivision (a)(17) as to Saibu is reversed and the case is remanded for further proceedings. If the People do not elect to timely retry Saibu on the robbery-murder special circumstance allegation, the trial court shall modify the sentence imposed on the first degree murder count to 25 years to life. The trial court shall modify Valentino's abstract of judgment to reflect not only the presentence custody credits that Valentino earned in case number SCD193335, but also the number of days that Valentino has served in the custody of the Director of the Department of Corrections and Rehabilitation. The court shall also modify Valentino's abstract of judgment to show that the terms associated with counts 6 and 7 in case number SCD207640 are middle terms, not upper terms. The trial court shall forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. AARON, J. WE CONCUR: McDONALD, Acting P. J. O'ROURKE, J. 56 Filed 1/11/11 COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D054980 Plaintiff and Respondent, v. SADIQ SAIBU et al., (Super. Ct. No. SCD207640) ORDER CERTIFYING OPINION FOR PARTIAL PUBLICATION Defendants and Appellants. THE COURT: The opinion filed on January 4, 2011, is ordered certified for partial publication of parts I; II.B; III.G; and IV only. The attorneys of record are: Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Saibu. Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant Valentino. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Gil Gonzalez, Assistant Attorneys General, Anthony DaSilva, Deputy Attorney General, for Plaintiff and Respondent. McDONALD, Acting P. J. 58
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