Filed 2/28/19
            CERTIFIED FOR PARTIAL PUBLICATION*



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


THE PEOPLE,                                  B286202

       Plaintiff and Respondent,             (Los Angeles County
                                             Super. Ct. No. MA066096)
       v.

NEAL A. MATTHEWS,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Affirmed with
modifications.

     Richard A. Levy, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant


*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts III (B)-(C), IV (A)-(B), V (A)-(C).
Attorney General, Margaret E. Maxwell, Supervising Deputy
Attorney General, and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.

                               ******
       A trial court in a criminal case is charged with properly
instructing the jury on the elements of all crimes and
enhancements. (People v. Tidwell (1970) 3 Cal.3d 82, 87.) Does
the trial court violate its duty to instruct—and potentially entitle
the defendant to a retrial—if the court (1) tells the jury that the
People have to prove an element that the law does not require,
and (2) fails to properly define that element? We conclude that a
mistake pertaining to a superfluous element does not constitute
instructional error. In light of this conclusion, as well as our
determinations that the trial court did not otherwise commit
instructional error and that the prosecution did not commit
misconduct, we affirm the murder conviction in this case. We
nevertheless conclude that there are several sentencing errors
that must be corrected, and remand for the trial court to consider
whether the defendant has the ability to pay a restitution fine.
         FACTS AND PROCEUDRAL BACKGROUND
I.     Facts
       A.    The crime itself
       On December 3, 1978, 20-year-old Leslie Long (Long) was
working at a full-service gas station in Palmdale, California.
Long was a mother of three, including a baby she was still
nursing. As she finished her shift alone that evening, two men
arrived at the station, demanded that she open the safe, and took
between $600 and $1,200. The men abducted Long and drove her
10 to 12 miles outside of town to a secluded spot in the high
desert surrounding Palmdale. Each man vaginally raped Long,




                                 2
and one man anally raped her. Long was shot five times in the
back of the head, “execution-style,” and left for dead.
      B.     The “cold case” investigation
      More than 30 years later, law enforcement ran DNA tests
on the sperm samples collected from Long’s body and ran the
results through its DNA database. There was a hit. Some of the
DNA in Long’s vagina belonged to Terry Moses (Moses), a long-
time gang member and a repeat killer. When confronted with the
DNA match, Moses initially refused to cooperate. Moses later
changed his mind. In exchange for the People’s promise not to
seek the death penalty, Moses pled guilty to the murder of Long
and several others, to be sentenced to five life sentences (three of
which were without the possibility of parole), and to name the
second man who was with him in December 1978. Moses first
fingered a since-deceased man. But when law enforcement
indicated its intent to exhume the deceased man’s body to test for
DNA, Moses admitted that his cohort was Neal Matthews
(defendant). DNA tests confirmed that it was defendant’s sperm
in Long’s vaginal and anal cavities.
II.   Procedural Background
      A.     Charges
      In the operative information, the People charged defendant
with the first degree murder (Pen. Code, § 187)1 of Long. The
People alleged three special circumstances that, if true, would
dictate a mandatory sentence of life without the possibility of
parole (LWOP)—namely, that Long’s murder was committed in
the commission of the crimes of robbery, kidnapping and rape
(§ 190.2, subds. (c)(3)(i), (c)(3)(ii) & (c)(3)(iii)). The People further

1     All further statutory references are to the Penal Code
unless otherwise indicated.



                                    3
alleged that defendant “personally used a firearm” (§ 12022.5,
subd. (a)) and that a principal was armed with a firearm
(§ 12022, subd. (a)(1)). The People additionally alleged that
defendant had three prior felony convictions that qualified as
“strikes” under our Three Strikes Law (§§ 667, subds. (b)-(j),
1170.12, subds. (a)-(d)).
       B.     First trial
       The matter proceeded to trial, but the jury hung 11-1 in
favor of guilt after the jurors reported the 12th juror refused to
deliberate.
       C.     Retrial
       The matter proceeded to a second jury trial.
       The prosecutor read into the record defendant’s testimony
from the first trial. In that testimony, defendant stated that (i)
Long had voluntarily accompanied Moses on the 75 mile trip from
Palmdale to Los Angeles so that Moses could buy angel dust at
the place where defendant was staying; (ii) defendant raped Long
while she was alone with him in the kitchen; and (iii) Long
thereafter left with Moses, which was the last time defendant
ever saw her. Defendant acknowledged that the statute of
limitations had expired on the 1978 rape, so admitting the rape
subjected him to no criminal liability.
       The court instructed the jury on two theories of criminal
liability for Long’s murder—namely, that (1) defendant himself
committed the killing with “malice aforethought,” and (2)
defendant was liable under a felony-murder theory because Long
was killed during the commission of the robbery or rape
defendant aided and abetted. The jury was also instructed on the
special circumstance.




                                4
      The jury found defendant guilty of Long’s murder, found all
three special circumstances to be true, and found that a principal
was armed with a firearm. The jury rejected the allegation that
defendant personally used a firearm.
      Defendant waived his right to a jury trial on his prior
convictions, and the trial court subsequently found them to be
true.
      D.     Sentencing
      The trial court sentenced defendant to prison for life
without the possibility of parole. The court also imposed a
$10,000 restitution fine, a $10,000 parole revocation fine, and
ordered that a hearing be set for restitution to the victim and her
family. The court awarded 901 days of actual pre-sentence
custody credit, and no conduct credits.
      E.     Appeal
      Defendant filed a timely notice of appeal.
                           DISCUSSION
      In this appeal, defendant argues that the special
circumstance finding must be overturned due to three
instructional errors; that his underlying murder conviction is
invalid due to prosecutorial misconduct; and that the trial court
committed a number of sentencing errors.
III. Instructional Errors
      Defendant launches three separate attacks on the
correctness of the special circumstance jury instruction. We
independently review such challenges. (People v. Hamilton
(2009) 45 Cal.4th 863, 948.)
      A.     Failure to define “physically aided”
      Defendant first contends that the special circumstance
instruction is invalid because (1) the jury was instructed under




                                 5
the 1977 version of the special circumstance statute, which
requires that the People prove, among other things, that “the
defendant physically aided or committed [the] act or acts causing
[Long’s death]” (former § 190.2, subd. (c), italics added); (2) the
jury was not instructed that a defendant “physically aid[s] or
commit[s] [the] act or acts causing death,” under the 1977
version, only if “his conduct constitutes an assault or battery
upon the victim or if by word or conduct he orders, initiates, or
coerces the actual killing of the victim” (former § 190.2, subd. (d),
as set forth in Carlos v. Superior Court (1983) 35 Cal.3d 131, 139
(Carlos), overruled on other grounds in People v. Anderson (1987)
43 Cal.3d 1104, 1138-1147); and (3) the trial court’s failure to use
the statutory definition is error because it differs significantly
from the “commonly understood” meaning of the phrase
“physically aided” (People v. Johnson (2015) 234 Cal.App.4th
1432, 1456 [court should instruct on “particular meaning” of
phrase defined by statute]; People v. Griffin (2004) 33 Cal.4th
1015, 1022-1023). The People respond that the trial court’s
failure to define “physically aided” is irrelevant because the 1978
version of the statute—which was the version in effect on the
date of Long’s murder—eliminated the requirement of “physical
aiding.” (Stats. 1977, ch. 316, §§ 1-26, pp. 1255-1266; Carlos, at
pp. 140, 143; see People v. Murtishaw (2011) 51 Cal.4th 574, 586
[noting that 1978 version of special circumstances statute became
effective on November 8, 1978].)
       This case accordingly tees up the question: If a trial court
mistakenly instructs the jury that the People must prove a fact as
an element of a crime but does not properly define that fact, does
that failure constitute instructional error when that fact is not—
in actuality—an element of the crime? In other words, does a




                                 6
mistake in instructing the jury on a superfluous “element” of a
crime constitute instructional error?
       We conclude the answer is “no,” and do so for three reasons.
       First and foremost, what matters to the validity of a
conviction is whether the jury is correctly instructed on the
elements of a crime—that is, on those “fact[s] that, by law,
increase[] the penalty for a crime. (Alleyne v. United States
(2013) 570 U.S. 99, 103.) Those elements are defined by the
statute(s) in effect on the date of the charged crime. (People v.
Anderson (2009) 47 Cal.4th 92, 101 [“‘Every crime consists of a
group of elements laid down by the statute or law defining the
offense . . .’”]; People v. Gardeley (1996) 14 Cal.4th 605, 615
[“consider[ing] the version of the statutory provisions . . . in
effect” at the time the “crimes . . . took place”], overruled on other
grounds in People v. Sanchez (2016) 63 Cal.4th 665.) As a result,
mistakes in instructing on facts that are not elements do not
undermine the validity of a conviction. If, for instance, a trial
court mistakenly instructed a jury that the elements of murder
are (1) the unlawful killing of a human being, (2) with malice
aforethought, (3) when the moon is made of cheese, no court in
California would overturn that murder conviction merely because
the court failed to define what kind of cheese the moon had to be.
The same result obtains here.
       Second, a rule providing that defects in superfluous
“elements” invalidate a conviction leads to further problems that
are best avoided. Such a rule effectively allows a judge’s mistake
in listing the elements of a crime to redefine those elements. This
ostensibly transgresses the separation of powers, which ascribes
the task of defining crimes solely to the legislative branch. (In re
Brown (1973) 9 Cal.3d 612, 624 [“In California all crimes are




                                  7
statutory and there are no common law crimes. Only the
Legislature and not the courts may make conduct criminal.”].)
Such a rule effectively creates a “greater included” offense
comprised of the statutory elements plus the superfluous
element, and then puts the jury to an all-or-nothing choice of
finding defendant guilty of this newly created offense or
acquitting him of all criminal conduct. This ostensibly
transgresses the rule that eschews “forc[ing] the jury to make an
‘all or nothing’ choice between conviction of [a greater crime] or
complete acquittal.” (People v. Barton (1995) 12 Cal.4th 186,
196.) Just as a jury must be permitted to convict a defendant of a
lesser included offense, so must a “lesser” conviction for the crime
defined by its actual statutory elements be permitted to stand.
Such a rule also effectively erects a game of “procedural gotcha”:
Mess up the elements by adding an extra one, and—“gotcha”—
now you have to properly instruct on that superfluous element on
pains of reversal, even though reversal undermines the People’s
“legitimate interest” in upholding a conviction for which all
statutorily required elements are found beyond a reasonable
doubt (see People v. Breverman (1998) 19 Cal.4th 142, 155; People
v. St. Martin (1970) 1 Cal.3d 524, 533).
        Third, the cases that have considered related issues are
consistent with the holding we reach today. In People v. Dayan
(1995) 34 Cal.App.4th 707 (Dayan), the appellate court upheld a
conviction for misdemeanor sexual battery notwithstanding the
trial court’s mistake in instructing the jury with the narrow
definition of “touching” applicable to felony sexual battery. The
court squarely rejected the “startling proposition” advanced by
the defendant that “a conviction must be reversed” “if a court’s
instruction erroneously adds an element to an offense.” (Id. at p.




                                 8
717.) Our Supreme Court cited Dayan’s analysis on this point
favorably in People v. Santana (2013) 56 Cal.4th 999, when it
ruled that the mistaken addition of a “serious bodily injury”
requirement to the crime of mayhem “did not prejudice
defendant.” (Id. at p. 1011.) And the United States Supreme
Court in Musacchio v. United States (2016) 136 S.Ct. 709
(Musacchio) unanimously held that “when a jury instruction sets
forth all the elements of the charged crime but incorrectly adds
one more element, a sufficiency [of the evidence] challenge should
be assessed against the elements of the charged crime, not
against the erroneously heightened command in the jury
instruction.” (Id. at p. 715.) Defendant urges that Dayan is not
directly on point because the instructional mistake in that case
was not due to a mix-up as to which version of a statute to apply,
and that Musacchio analyzed the sufficiency of the evidence, not
an instructional error. But we do not see how the reason why a
superfluous “element” is added matters. And whether or not
Dayan, Santana and Musacchio dictate the result we reach, they
are undoubtedly consistent with it.
      Defendant makes three arguments in response.
      First, he argues that the People, in proposing the version of
the special circumstance statute with the “physically aided”
element, elected between the 1977 and 1978 versions of the
statute and must be held to that election. To be sure, when the
People elect between one of two statutory methods of proving a
crime (People v. Centers (1999) 73 Cal.App.4th 84, 91-92) or
between one of several factual theories for proving an element of
a crime (People v. Mabini (2001) 92 Cal.App.4th 654, 657-658;
People v. Nunez & Satele (2013) 57 Cal.4th 1, 37), the People will
be held to that election. But this principle applies when the




                                 9
People are choosing among statutorily authorized ways of proving
a crime. This principle does not by its terms or rationale extend
to the choice between proving a statutorily authorized crime and
something other than the statutorily authorized crime.
Defendant also cites In re Stankewitz (1985) 40 Cal.3d 391 in
support of this argument, but that case dealt with a juror’s
injection of outside information into jury deliberations. (Id. at pp.
399-400.)
       Second, defendant contends that the state of Washington’s
“law of the case” doctrine obligates the People to prove a
superfluous “element” if the People mistakenly submit an
instruction that contains that element. (State v. Johnson (Wash.
2017) 188 Wash. 2d 742, 756; State v. Hickman (Wash. 1998) 135
Wash. 2d 97, 102.) Because California also has a “law of the
case” doctrine, defendant reasons, we should adopt the same rule
as Washington. We reject this argument because its central
premise—that California’s law of the case doctrine is the same as
Washington’s—is wrong. Washington applies its law of the case
doctrine whenever the People include an “element” in an
instruction without objection. (Johnson, at p. 756.) California’s
law of the case doctrine, however, only applies when a higher
appellate court has passed on an issue (People v. Gray (2005) 37
Cal.4th 168, 196-197; accord, Musacchio, supra, 136 S.Ct. at p.
716 [federal law of the case doctrine does not apply when “an
appellate court assesses a lower court’s rulings”].) More to the
point, California’s doctrine—unlike Washington’s—does not bind
an appellate court to follow an “erroneous [jury] instruction.”
(O’Neill v. Thomas Day Co. (1907) 152 Cal. 357, 361-362.) The
closest analogue to Washington’s law of the case doctrine is
California’s “invited error” doctrine, but that binds a litigant only




                                 10
when that litigant “mislead[s] the trial court” or otherwise
engages in “affirmative conduct demonstrating a deliberate
tactical choice.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,
403; Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th
679, 706.) Contrary to what defendant suggests, nothing
indicates that the People’s mistaken reliance on the wrong
version of the special circumstance statute was meant to mislead
the court or evinced a deliberate tactical choice; nor would it, as
there was no advantage to be gained from using that version.
      Lastly, defendant asserts for the first time in his reply brief
that the trial court’s failure to define the superfluous “element”
somehow reduced the People’s burden of proof. As explained
above, any reduction in the burden of proving a fact the People
were not statutorily required to prove is not a cognizable
statutory or constitutional error.
      B.     Failure to include intent to kill element in
pretrial jury instructions
      Defendant next contends that the special circumstance
instruction is invalid because the trial court, when explaining the
special circumstance at the beginning of trial, did not tell the jury
that the People must prove that the defendant must aid and abet
the kidnapping, robbery or rape “with [the] specific intent to
cause death.”
      Defendant is correct that the court’s pretrial instruction
omitted the “intent to cause death” element, but this does not
constitute error for two independent reasons. First, the court
included the “intent to cause death” element in its final
instructions to the jury on this special circumstance. We must
“evaluate the instructions as a whole, not in isolation” (People v.
Nelson (2016) 1 Cal.5th 513, 544), recognizing that “[t]he absence
of an essential element from one instruction may be cured by




                                 11
another instruction or [by] the instructions as a whole.” (People
v. Smith (2008) 168 Cal.App.4th 7, 13, citing People v.
Musselwhite (1998) 17 Cal.4th 1216, 1248.) Applying these
standards, there was no error because end-of-trial instructions
cured any defect with the pretrial instruction. (See People v.
Dunkle (2005) 36 Cal.4th 861, 928-929 [error in pretrial
instruction cured by correct instruction at the end of trial],
overruled on other grounds in People v. Doolin (2009) 45 Cal.4th
390, 421; People v. Livaditis (1992) 2 Cal.4th 759, 780-781
[same].) What is more, the trial court told the jury it would
receive “final” “instructions” after the jury heard all the evidence,
and when the trial court gave its final instruction containing the
“intent to cause death” element in this case, the court
emphasized the finality of that instruction by handing out hard
copies of that instruction and by collecting the hard copies of the
pretrial instructions it had previously distributed to the jurors.
Second, “intent to cause death” was not an element of the special
circumstance as applied to the 1978 murder in this case because
it was an element only during the window between 1983 and
1987 (People v. Bolden (2002) 29 Cal.4th 515, 560 [so noting]).
       Defendant argues that the trial court’s pretrial instruction
must be given dispositive weight because, in his view, jurors are
at a “heigh[tened]” state of “attent[ion]” at the beginning of trial
and end up having the pretrial instructions in their hands for the
whole duration of the trial. As a result, defendant urges, the only
way an error in a pretrial instruction may be cured by a correct
end-of-trial instruction is if the court expressly tells the jury to
disregard the pretrial instruction or points out how the end-of-
trial instruction is different. This argument not only ignores that
courts must read the instructions as a whole, but also ignores




                                 12
that the trial court’s substitution of the hard copies of the final
instructions for the initial instructions was a pretty strong
indication as to which set of instructions was to be used in the
jury room. “[W]e presume that jurors are intelligent individuals
who are capable of understanding instructions and applying them
to the facts of the case before them” (People v. Hajek & Vo (2014)
58 Cal.4th 1144, 1246, overruled on other grounds in People v.
Rangel (2016) 62 Cal.4th 1192, 1216) and decline to read the
instructions in a manner that assumes the jurors would
impermissibly fixate on language in a set of instructions that the
trial court replaced with a new set.
       C.     Failure to instruct that the kidnapping and
rape of Long must be “incidental” to her murder
       Defendant further argues that the special circumstance
instruction was legally incorrect because the court did not tell the
jury, in its posttrial instructions, that a murder is committed in
the course of a felony—and that the special circumstance is
consequently true—only if that felony is the “primary crime”
rather than “incidental” to the murder.
       The 1978 version of the special circumstance applies only if
the charged “murder was committed while the defendant was
engaged in or was an accomplice in the commission of” one of
several felonies, including robbery, rape and kidnapping.
(Former § 190.2, subd. (a), as set forth in Carlos, supra, 35 Cal.3d
at p. 140.) However, the special circumstance has a limitation—
namely, it applies only if the robbery, kidnapping or rape is the
“primary crime” or is a concurrent crime rather than being
merely “incidental to the murder”; a robbery, kidnapping or rape
is “incidental” if its “sole object” “is to facilitate or conceal” the
murder. (People v. Green (1980) 27 Cal.3d 1, 61 (Green),
overruled on other grounds in People v. Martinez (1999) 20




                                 13
Cal.4th 225, 241; People v. Navarette (2003) 30 Cal.4th 458, 505
(Navarette); People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 851 [circumstance applies “so long as defendants had ‘a
concurrent purpose to commit both the murder’” and the other
felony]; People v. Rundle (2008) 43 Cal.4th 76, 156 [the rape or
kidnapping must “not merely [be] an afterthought to the
murder”], overruled on other grounds in People v. Doolin (2009)
45 Cal.4th 390, 421.) A trial court is required to instruct on this
limitation only “where the evidence suggests”—that is, when “‘the
evidence supports an inference’”—that the robbery, kidnapping or
rape was “merely incidental to achieving the murder.” (People v.
D’Arcy (2010) 48 Cal.4th 257, 296-297; People v. Hardy (2018) 5
Cal.5th 56, 102.)
       In this case, the evidence does not support an inference
that the robbery, kidnapping and rape of Long was “incidental” or
an “afterthought” to murdering her. The jury found defendant
guilty of murder, so we take as a starting point that defendant
was present with Moses during the robbery and the events that
occurred thereafter. Moses testified that the two men traveled to
Palmdale to rob a gas station, so the robbery was certainly not
incidental to Long’s subsequent murder. The evidence further
established that they drove Long—along with some of the money
bags from the gas station—out to a secluded area, and only there
repeatedly raped her. Then, and only then, did one of the men
put five bullets in her skull. On these facts, the murder was a
way to conceal—and hence, incidental to—the robbery,
kidnapping and rape; not the other way around. On similar facts,
courts have consistently found no need to instruct on the
“incidental” limitation. (See People v. Wright (1990) 52 Cal.3d
367, 417 [murder to prevent victim from reporting other crimes;




                                14
not incidental], overruled on other grounds in People v. Williams
(2010) 49 Cal.4th 405, 459; People v. Prieto (2003) 30 Cal.4th 226,
257 [murder after defendants robbed, kidnapped and raped
victims; at most, concurrent intent to kill and commit other
crimes, so not incidental]; cf. People v. Brooks (2017) 3 Cal.5th 1,
118 [plan all along was to murder victim; other crimes
incidental]; People v. Marshall (1997) 15 Cal.4th 1, 40-41
[defendant took items from deceased as a token; robbery was
incidental]; Green, supra, 27 Cal.3d at pp. 61-62 [defendant took
items from deceased to burn after murder; robbery was
incidental].)
         Defendant makes three sets of arguments in response.
First, he argues that the jury could have disbelieved portions of
Moses’s testimony indicating that they committed the kidnapping
and rape opportunistically. While juries may disregard all or
part of a witness’s testimony (In re Hamilton (1999) 20 Cal.4th
273, 296-297, fn. 18), this does not aid defendant because
factoring out Moses’s testimony does not place into the “record
. . . significant evidence of any motive for the murder[] other
than” the robbery, kidnapping and rape. (Navarette, supra, 30
Cal.4th at p. 505; cf. People v. Morris (1988) 46 Cal.3d 1, 21 [a
“reasonable inference” may not be based on speculation],
overruled on other grounds in In re Sassounian, 9 Cal.4th 535,
543.) Second, defendant argues that he did not realize in 1978
that the DNA in his sperm could be used to identify him or that
the felony-murder might apply to his conduct. We do not
understand how the defendant’s subjective awareness of his
criminal liability for the special circumstance-related crimes has
any bearing on the instructional issue he raises. Lastly,
defendant urges that he kidnapped and raped Long to facilitate




                                 15
her murder. However, the evidence does not raise any reasonable
inference to support this theory. If anything, and as noted above,
all of the evidence points the other way.
IV. Prosecutorial Misconduct
        Defendant argues that prosecutor violated his due process
rights by engaging in misconduct during closing argument. A
prosecutor’s conduct violates federal due process if that conduct
“‘“‘infects the trial with such unfairness as to make the conviction
a denial of due process.’”’” (People v. Adams (2014) 60 Cal.4th
541, 568.) A prosecutor’s conduct violates due process under
California law “‘“‘only if [the conduct] involves the use of
deceptive or reprehensible methods to attempt to persuade either
the trial court or the jury.’ [Citation.]”’” (Ibid.) A prosecutor’s
remarks to the jury during closing argument may rise to the level
of misconduct, but only if “‘the defendant . . . show[s] a
reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’
[Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 771-772
(Dykes); People v. Samayoa (1997) 15 Cal.4th 795, 841.) We “do
not lightly infer” that the jury drew the most damaging rather
than the least damaging meaning from the prosecutor’s
statements.” (Dykes, at p. 772.) We review claims of
prosecutorial misconduct for an abuse of discretion. (People v.
Peoples (2016) 62 Cal.4th 718, 792-793.)
        A.    Pertinent facts
        During his closing argument to the jury, defendant urged
the jury that he was not liable for Long’s death under a felony-
murder theory because, under his version of the events, he
finished raping Long hours before Moses (and Moses alone) drove
her back to Palmdale and then killed her. He noted that the




                                16
“felony-murder rule” holds a person “liable for” a death “when
you have an act occur and during that act there’s a death,” but
went on to state that “it’s pretty clear that these words don’t
mean that you’re liable for anything and everything until the end
‘cause that’s what the prosecution wants you to believe.” (Italics
added.) He closed by emphasizing that the prosecution was
“attempting to expand” the felony-murder rule by “basically
saying you’re on the hook no matter how long.”
      The prosecutor responded to this line of argument on
rebuttal:
              “I want you to know, before you go back to
      deliberate, I don’t want you to believe anything. I
      really don’t. If you don’t believe anything I’ve said,
      you want to disregard all of the law and say . . .
      Moses got up here [and] took five life terms, three
      LWOPs . . . and is lying to you altogether and you
      want to believe that when the instruction says ‘“in
      the commission of” or synonymous with ‘in the course
      of’” goes all the way to when they’re trying to avoid
      detection, the crime is not over.
              “If you want to say that when the instruction
      says defendant’s home is not even a place of safety
      until the victim is dead, that, that is not really what
      the instruction says because [defense counsel] knows
      whoever wrote the instruction, what they meant
      somehow, and now he’s telling you to believe him
      because that instruction doesn’t apply even though
      it’s in front of you in black and white, and the judge
      has given it to you. Okay.




                                17
             “But I’m not asking you to believe it. I don’t
      want you to believe anything. You listen to the facts.
      You read the law, and that’s what I want you to
      determine. I don’t want you to believe anything. If
      you don’t believe anything I’ve said, if you don’t
      believe anything that . . . Moses said and you want to
      disregard the law, find this man, find this murderer
      not guilty. Find him not guilty. Doesn’t take but five
      minutes. Go in there, write, “Not Guilty,” and come
      out. I’m going to [go] home at the end. It’s not what I
      want. It’s not what I want. I’m just arguing what
      the facts are showing you. I’m just arguing how the
      facts apply to the law. If you don’t believe me,
      disregard it. Find him not guilty if you don’t believe
      me. If you want to disregard the law that you took an
      oath to follow. You would have to disregard [the jury
      instruction] not to find him guilty of felony murder.
      You would have to disregard it.
             “I’m not saying what it says. Read it. You
      don’t believe . . . Moses, just take what he said. Have
      it read back. Just take what he said.”
      B.     Analysis
             1.    Forfeiture
      “‘To preserve a claim of prosecutorial misconduct for
appeal, a criminal defendant must make a timely objection, make
known the basis of his objection, and ask the trial court to
admonish the jury.’” (People v. Pettie (2017) 16 Cal.App.5th 23,
74, quoting People v. Brown (2003) 31 Cal.4th 518, 553.) A
defendant’s failure to object will be excused only if (1) “[t]he
objection or the request for an admonition would have been




                               18
futile,” or (2) “the admonition would have been insufficient to
cure the harm occasioned by the misconduct.” (Ibid.)
       Defendant did not object to the portions of the prosecutor’s
rebuttal argument that he now challenges on appeal. Nor has
defendant established that his failure to object is excused.
Nothing in the record indicates that an objection or request for
admonition would have been futile, as the trial court entertained
and sustained other objections by defendant to the prosecutor’s
rebuttal argument. Nor, as we discuss below, is the argument so
improper and so egregious that an admonition would be
insufficient to cure the harm.
              2.     Merits
       The prosecutor’s argument did not constitute misconduct.
She was arguing to the jury that the facts and the law together
supported only one plausible conclusion—namely, guilt.
Prosecutors may permissibly argue that a defendant’s position is
“implausible in light of the physical evidence” at trial and the
law. (People v. Lucas (1995) 12 Cal.4th 415, 475 (Lucas).) The
prosecutor went on to emphasize that the only way the jury could
reach the contrary, implausible conclusion was by violating their
oath to follow the law as instructed by the court. In this context,
a prosecutor’s reference to the jurors’ oath was not misconduct.
(People v. Harris (1934) 219 Cal. 727, 732-733 (Harris) [no
misconduct for prosecutor to argue that juror would violate their
oath if they did not return a guilty verdict].) Even if this
argument might have hewn too close to the line of what is
impermissible had it been part of the prosecutor’s initial closing
argument, it is well settled that “a prosecutor is justified in
making comments in rebuttal, perhaps otherwise improper,
which are fairly responsive to argument of defense counsel and




                                19
are based on the record.” (People v. Hill (1967) 66 Cal.2d 536,
560.)
       Defendant makes four arguments in response.
       First, he asserts that the prosecutor was threatening the
jurors with imprisonment if they did not return a guilty verdict
because (1) the prosecutor mentioned the jurors’ oath and that
she would get to “go home” no matter what verdict the jury
returned; and (2) the trial court at the outset of the trial told the
jurors that researching the case or communication with others
about the case “may . . . subject [the jurors] to jail time, a fine, or
other punishment.” Read together, defendant reasons, the
prosecutor was subtly suggesting that the jurors would be
imprisoned—and thus not able to go home—unless they returned
a guilty verdict. Threatening a jury with incarceration,
defendant concludes, is misconduct. (E.g., People v. Sanchez
(2014) 228 Cal.App.4th 1517, 1529.) It is not reasonably likely
that the jury would have connected the prosecutor’s reference to
the jurors’ oath or her lack of personal stake in the outcome of the
trial with a pretrial instruction given days earlier and dealing
with a different prohibition of juror misconduct, and thus not
reasonably likely that the jury would have taken the prosecutor’s
argument as a conditional threat of imprisonment.
       Second, defendant contends that the prosecutor was
engaged in impermissible vouching because she at one point
called the defendant a “murderer” and because the prosecutor’s
entreaties that she did not want the jury to believe anything were
a rhetorical device aimed at suggesting precisely the opposite.
(See People v. Wrest (1992) 3 Cal.4th 1088, 1107 [noting
“paraleipsis” is a “rhetorical device” where a person “strategically
phrase[s]” “what he [is] not arguing” as a means of arguing those




                                  20
precise points].) There was no impermissible vouching. A
prosecutor impermissibly vouches when he or she suggests
“personal knowledge of the defendant’s guilt” “not based upon
legitimate inferences from the evidence.” (People v. Kirkes (1952)
39 Cal.2d 719, 723; People v. Sandoval (1992) 4 Cal.4th 155, 183.)
The prosecutor in this case suggested no such inside information;
instead, she urged the jury to “listen to the facts” and to “read the
law.” (Pettie, supra, 16 Cal.App.5th at p. 75 [“‘No impermissible
“vouching” occurs where “the prosecutor properly relie[s] on facts
of record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief.’” [Citation.]”].)
We decline defendant’s request that we entirely disregard, as a
rhetorical device, the prosecutor’s statements that the jury
should independently look at the law and the facts. This is not a
case where the prosecutor repeatedly argued, “I could talk about
X, but I won’t” in order to get “X” before the jury; instead, the
prosecutor argued that the jury’s independent review of the facts
and the law should lead it to reject defendant’s argument in
support of acquittal.
       Third, defendant argues that a prosecutor may not tell a
jury to “do its job”—or, in this case, to follow its oath. Although
other courts have condemned as misconduct a prosecutor’s
argument that the jury “do its job” (United States v. Young (1985)
470 U.S. 1, 18; United States v. Ayala-Garcia (1st Cir. 2009) 574
F.3d 5, 17-18; Williams v. State (Alaska 1990) 789 P.2d 365, 369),
what renders that argument impermissible is the suggestion that
its job is to find a defendant guilty irrespective of the evidence or
the law. For the reasons outlined above, the prosecutor in this
case did not make that suggestion and, indeed, mentioned only
the juror’s oath, not “doing their job.” This was permissible.




                                 21
(Lucas, supra, 12 Cal.4th at p. 475; Harris, supra, 219 Cal. at pp.
732-733.)
        Lastly, defendant cites cases from several other federal and
state jurisdictions decrying certain phrases as prosecutorial
misconduct. These decisions are not binding on us (People v.
Cleveland (2001) 25 Cal.4th 466, 480), and do not dictate a
different result where, as here, the prosecutor’s rebuttal
argument as a whole does not constitute prosecutorial
misconduct under California law.
V.      Sentencing Errors
        Defendant raises six errors with his sentence. These errors
fall into three general categories.
        A.    Use of post-offense sentencing law
        Defendant first asserts that the trial court made four errors
by relying on statutes enacted after he committed the 1978
murder. In particular, defendant points to the court’s (1) award
of only actual presentence custody credits and refusal to award
any conduct credits because current law limits conduct credits for
persons convicted of murder (§§ 2933.1, subd. (d), 2933.2, subd.
(d)); (2) imposition of a parole revocation fine of $10,000 because
current law authorizes that fine (§ 1202.45, subd. (a)); (3)
imposition of a restitution fine of $10,000 without a predicate
finding of ability to pay because current law authorizes that fine
without such a finding (§ 1202.4, subd. (b)); and (4) treatment of
the current offense as “third strike” under our Three Strikes Law
because current law would so authorize (§§ 1170.12 & 667). None
of the statutes underlying these aspects of defendant’s sentence
were in effect in December 1978. (See § 2933.1 [operative in
1994]; 2933.2 [operative in 1997]; 1202.45, subd. (a) [operative in
1995]; 1202.4 [operative in 1984]; 1170.12 & 667 [operative in




                                 22
1994].) As the People concede, applying these punitive statutes
retroactively to defendant would amount to an impermissible ex
post facto application of additional punishment for his 1978
crime. (John L. v. Superior Court (2004) 33 Cal.4th 158, 172
(John L.).) The parole revocation fine is also improper because it
is inapplicable when a defendant is convicted of life without the
possibility of parole (and thus will never be paroled). (People v.
Jenkins (2006) 140 Cal.App.4th 805, 819.)
       The remedy is to conform defendant’s sentence to the law in
effect in December 1978. Because there was no parole revocation
fine or Three Strikes Law on the books at that time, the court’s
imposition of that fine and its Three Strikes Law-related findings
must be stricken. Because the law at the time allowed for
conduct credits at a rate of half of the actual custody time, the
court must award defendant an additional 450 days (half of the
901 days of actual custody credits) of presentence custody credits,
for a total of 1,351 days. And because the law at the time allowed
for a restitution fine if the defendant had the ability to pay (Gov.
Code, § 13967), we vacate the restitution fine but remand for the
court to consider the defendant’s ability to pay that fine.
       B.     Direct restitution
       Defendant next contends that the court erred in ordering
him to pay restitution to the victim’s family because the statute
authorizing such direct restitution was not enacted until 1982
(§ 1202.4, subd. (f)), such that requiring him to pay direct
restitution violates the ex post facto clause. Ex post facto
concerns do not preclude imposition of direct restitution because
those concerns only apply to the retroactive imposition of
punishment (John L., supra, 33 Cal.4th at p. 172) and “[v]ictim
restitution is not punishment” (People v. Kunitz (2004) 122




                                23
Cal.App.4th 652, 657). Defendant cites People v. Zito (1992) 8
Cal.App.4th 736, 740-741, but Zito dealt with imposition of a
restitution fine, not direct restitution paid to the victim or her
family as a means of compensation. The fine is punishment;
direct restitution is not. (Kunitz, at p. 657.)
       C.     Franklin hearing
       Defendant lastly argues that he is entitled to a remand so
that he may present facts regarding his “diminished culpability”
as a younger offender in anticipation of a “youth offender parole
hearing” pursuant to section 3051. (See People v. Franklin (2016)
63 Cal.4th 261, 268-269, 283-284.) No remand is necessary,
however, because section 3051 does not extend the right to a
“youth offender parole hearing” to persons who are “sentenced to
life in prison without the possibility of parole for a controlling
offense that was committed after the person had attained 18
years of age.” (§ 3051, subd. (h).) Because defendant was 21 at
the time he murdered Long and because he was subsequently
sentenced to life without the possibility of parole, he is not
eligible for a “young offender parole hearing” and he is
accordingly not entitled to a remand to obtain evidence for a
hearing he will never receive.




                                24
                          DISPOSITION
      The judgment is modified to reflect an award of
presentence conduct credit of 450 days in addition to defendant’s
901 days of actual credits for a total of 1,351 days. The case is
remanded for resentencing to allow the trial court to (1) conduct a
hearing to determine the defendant’s ability to pay the
restitution fine of $10,000 it previously imposed; (2) strike the
parole revocation fine; and (3) strike the Three Strike findings.
Upon resentencing, the trial court is directed to prepare an
amended abstract of judgment and forward a certified copy of it
to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.
         CERTIFIED FOR PARTIAL PUBLICATION


                                     ______________________, J.
                                     HOFFSTADT

We concur:


_________________________, P. J.
LUI


_________________________, J.
ASHMANN-GERST




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