Filed 12/24/13 P. v. Murillo CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038775
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F22521)

         v.

MANUEL JOHN MURILLO,

         Defendant and Appellant.



         A jury found Manuel Murillo (appellant) guilty of one count of possession for sale
of a controlled substance—heroin (Health & Saf. Code, § 11351, count one) and one
count of destroying or concealing evidence (Pen. Code, § 135, count two). Subsequently,
the court found true an allegation that appellant had suffered one prior strike conviction
within the meaning of Penal Code section 667, subdivisions (b)-(i),1 and that he was
ineligible for a county jail sentence. (Pen. Code § 1170, subds. (h)(3) and (f).)
         After the court denied appellant's Romero motion (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497), the court sentenced appellant to six years in state
prison consisting of the midterm of three years on count one, doubled pursuant to Penal
Code section 667, subdivision (c). As to count two, a misdemeanor, the court sentenced


1
      The court found not true the allegation that appellant had suffered a second strike
conviction.
appellant to 37 days in county jail, credit for time served. The court imposed various
fines and fees and recommended that appellant participate in a drug treatment program.
       Appellant filed a timely notice of appeal. On appeal, appellant challenges the
sufficiency of the evidence to 1) support his conviction for possession for sale of a
controlled substance on the ground that the prosecution failed to establish the chain of
custody for the drugs and 2) support his conviction for destroying or concealing evidence
on the ground that there was no evidence that evidence was destroyed or concealed; he
alleges that the trial court erred by failing to instruct sua sponte as to the lesser included
crime of attempted destruction or concealment of evidence; and finally, appellant
challenges the imposition of one fine and one fee that were imposed by the court—an
AIDS education fine and a drug program fee. For reasons that follow, we modify
appellant's conviction on count two, and strike the AIDS education fine. As so modified,
we affirm the judgment.
                                Facts and Proceedings Below
The Prosecution Case
       On December 20, 2011, City of Watsonville Police Officer Scott Mead was on
patrol in his marked police car in an area known for high narcotics activity. At
approximately 1:30 p.m., as he was travelling through the parking lot at the rear of the
Resetar Hotel, Officer Mead saw appellant. Officer Mead saw Luis Galvan by a vehicle;
it appeared that he was rummaging through papers. Appellant walked past Officer
Mead's patrol car and told Galvan that it was time to go. Officer Mead knew appellant
from prior contact he had had with him.
       Officer Mead parked alongside Galvan's vehicle. As Officer Mead got out of his
patrol car he ordered appellant to stop.2 Appellant did not stop; he got into Galvan's
vehicle. Officer Mead asked Galvan, who was standing by the open driver's side door of

2
       Counsel stipulated that Officer Mead's contact, detention, and later search of
appellant were "entirely lawful."
                                               2
his vehicle, to step away. As Galvan stepped away, he put up his hands. Officer Mead
saw appellant throw back his head and "throw something inside of his mouth." Officer
Mead saw that the object was "little and red." Appellant appeared to choke and then
leaned toward the driver's side of the vehicle. The next thing Officer Mead saw was
"small balloon bindles come flying outside of the driver's side door." Officer Mead told
Galvan to put his hands on the truck bed. Officer Mead moved around the vehicle to
detain appellant; he placed him in handcuffs. An off-duty police officer arrived and
handcuffed Galvan.
          Officer Mead, who testified that he had investigated 50 to 80 cases of possession
of narcotics, went over to what he suspected were narcotics and found five "little water
balloons that had been wrapped into little balls, or bindles"; each contained a dark
substance. Officer Mead unraveled one balloon and found it contained a "black, tar-like
substance"; Officer Mead suspected that it was heroin. Officer Mead had seen heroin
packaged in a similar manner "[m]any times." He collected the balloons, placed them
into a plastic baggie and then put the baggie into his pocket before completing appellant's
arrest.
          Later, Officer Mead used the field test in "Narcotics Pouch Number 924" to
confirm his suspicions. He tested one of the bindles and it was "presumptive positive for
heroin." Officer Mead testified that due to the fact that the other bindles were the same
"coloring" and "size" he "presumed" that the other bindles "were also heroin." When
asked if the drug testing ended there, or did it go on somewhere else for further testing,
Officer Mead testified that "[i]t then goes to the DOJ, where they will do the actual
testing of the narcotics."
          A search of appellant's person located a cellular telephone, which contained
photographs of appellant and his girlfriend. After Officer Mead told appellant that he had
seen him spit out bindles that contained what he suspected was heroin, appellant said that


                                               3
would have been impossible because his teeth would have come out of his mouth.
Appellant demonstrated by spitting out his dental bridge.
       At trial, Officer Mead identified photographs depicting cellular telephone
messages recovered from appellant's telephone, as well as photographic images that had
been stored there. In addition, Officer Mead identified a photograph depicting the
bindles he located on the ground. He testified that the photograph depicting the "black,
tar-like substance [was] the heroin that [he] tested that was out of the orange, unraveled
balloon . . . ." The photograph showed not only the bindles that Officer Mead found, but
also the test kit that Officer Mead used as well as packaging material—tinfoil, which
Officer Mead located on the passenger side floorboard of Galvan's vehicle. Officer Mead
testified that the tin foil could be used to smoke heroin as well as be used as a packaging
material. Officer Mead said that the gross weight of the heroin with the packaging
material was 1.6 grams, but each piece of heroin without the packaging material weighed
.2 of a gram for a total of 1 gram.
       Rachel Frase, a criminalist at the Department of Justice, testified that her practice
for testing suspected heroin was to perform two separate color tests, then run a chemical
extraction with a gas chromatograph-mass spectrometer on the sample. Frase identified a
photograph that she took, which she testified depicted the "evidence that was in the
evidence envelope" that she retrieved from the Department of Justice's evidence vault.
Frase said that the photograph contained her handwriting. Frase described the evidence
she received as "small balloons and those five bindles inside." Two color tests that she
performed on a sample from the biggest bindle indicated the presence of opiates. A
chloroform sample extraction on the sample she ran through the gas chromatograph-mass
spectrometer showed that it contained heroin. As to the remaining bindles, each had a
brown substance inside plastic. Frase identified People's Exhibit 3 as the laboratory
report she generated in this case in which she had concluded that the sample she analyzed
contained heroin.
                                              4
         Frase testified that police agencies deliver suspected contraband in evidence
envelopes to Department of Justice clerical staff, who then document and place the
envelopes into the evidence vault for eventual testing. In this case, Frase received a
"heat-sealed" pouch containing five bindles from the Watsonville Police Department.
Frase testified that the bindle she tested weighed .2 of a gram. At the bottom of the report
where there was a description of the item as one gram of heroin, she took that from what
was written on the envelope by the law enforcement agency.
         Watsonville Police Officer Juan Trujillo testified that a .2 of a gram bindle would
sell on the street for $20. Officer Trujillo opined that in this case the balloon and plastic
packaging used and the fact that the bindles individually weighed .2 of a gram indicated
that they were packaged for sale. Officer Trujillo explained that the balloons can be
swallowed, secreted from law enforcement and then retrieved after passing through the
digestive tract. In his experience, dealers routinely hold the balloons in their mouth in
anticipation of sales and to secrete them from law enforcement. Based on the totality of
the circumstances, including the sales related texts found on appellant's cellular
telephone, the packaging, the weight of each bindle and the number of bindles, Officer
Trujillo opined they were possessed for sale. In Officer Trujillo's opinion, one text
message retrieved from appellant's telephone suggested "Homie" told appellant that $360
was owed for heroin supplied. Officer Trujillo explained the relevance of numerous
other text messages found on appellant's telephone and testified that they indicated drug
sales.
The Defense Case
         Luis Galvan testified for the defense that on December 20, 2011, his vehicle was
parked at the Ace Hardware parking lot. He had given appellant a ride to the hardware
store. Galvan said that appellant's relatives resided at the Resetar Hotel, which was
nearby. He said that an officer arrived and told him to move away from his vehicle; he
said appellant did not enter the vehicle. Galvan said he was placed in handcuffs; he did
                                               5
not see appellant spit out anything or possess any drugs; appellant did not resist or try to
run away. Galvan admitted that in 2003 he was convicted of a felony.
                                         Discussion
Chain of Custody
       Appellant argues that the prosecution failed to show that the substance that he
possessed was heroin because the prosecution failed to establish that the evidence seized
from him by Officer Mead was the same evidence that was tested by criminalist Rachel
Frase. Appellant frames the issue as one of insufficient evidence to support his
conviction.
       After the court qualified Frase as an expert in the analysis of heroin, the prosecutor
asked her if she was "familiar with the drug analysis that was done in a case involving
defendant Manuel Murillo." Frase confirmed that she was. The prosecutor asked Frase,
"And what did you receive in that case before you began your analysis?" Defense
counsel objected on the ground of "chain of custody." The court overruled the objection.
Frase stated that she was "not sure what [the] question is." Accordingly, the prosecutor
asked her "What made its way to you to analyze?" Frase stated, "We received a[n]
evidence envelope from the law enforcement agency, containing suspected controlled
substances."
       Later when the prosecutor asked if she could publish Exhibit 2 (the photograph
that Frase took of what she received) to the jury, defense counsel again objected on
"chain of custody" grounds. Again, the court overruled the objection. The court stated,
"chain of custody does not necessarily go to admissibility but may go to the weight, and
we'll make a determination as to whether or not there's any further evidence as to chain of
custody."
       Later, when counsel and the court were going through the exhibits in order to
determine whether they should be admitted, defense counsel objected to Exhibits 2 and 3
(the photograph taken by Frase and her report) being admitted into evidence, again on
                                              6
chain of custody grounds. The court stated that it understood the objection, but said that
it was satisfied that a sufficient showing had been made that the items had not been
altered. The court did not feel "that there is any speculation that can be used to exclude
that particular evidence, and, therefore, the Court finds that any defect in the chain of
custody would go [to] the weight of the evidence, as opposed to admissibility . . . . "
Accordingly, the court allowed Exhibits 2 and 3 to be admitted.
       The rules for establishing chain of custody are well established. " 'The burden on
the party offering the evidence is to show to the satisfaction of the trial court that, taking
all the circumstances into account including the ease or difficulty with which the
particular evidence could have been altered, it is reasonably certain that there was no
alteration. [¶] The requirement of reasonable certainty is not met when some vital link in
the chain of possession is not accounted for, because then it is as likely as not that the
evidence analyzed was not the evidence originally received. Left to such speculation the
court must exclude the evidence. [Citations.] Conversely, when it is the barest
speculation that there was tampering, it is proper to admit the evidence and let what doubt
remains go to its weight.' [Citation.]" (People v. Williams (1989) 48 Cal.3d 1112, 1134;
Accord People v. Diaz (1992) 3 Cal.4th 495, 559; People v. Catlin (2001) 26 Cal.4th 81,
134 (Catlin).)
       " 'While a perfect chain of custody is desirable, gaps will not result in the
exclusion of the evidence, so long as the links offered connect the evidence with the case
and raise no serious questions of tampering.' " (Catlin, supra, 26 Cal.4th at p. 134, citing
Mendez, Cal. Evidence (1993) § 13.05, p. 237.)
       Appellant argues as "in People v. Jimenez (2008) 165 Cal.App.4th 75, 80, the
chain of custody in this case was inadequate to establish that the evidence analyzed was
the same evidence collected during [his] arrest."3

3
      Defense counsel argued to the jury that he was disturbed by the difference on
Exhibits 1 and 2. Specifically, he stated "I see . . . a couple of red things, a blue one, the
                                               7
       In People v. Jimenez, supra, 165 Cal.App.4th 75, the evidence at issue was a DNA
swab taken from the bicycle on which a bank robbery suspect was seen fleeing the scene
and a subsequent DNA sample taken from the defendant for comparison. (Id. at p. 79.)
The Jimenez court identified a lengthy list of questions that remained unanswered by the
chain of custody evidence presented by the prosecution, noting that the record was silent
as to who labeled and sealed the swabs, and who if anyone segregated them from other
evidence and placed them in secure storage to minimize the possibility of inadvertent
substitution. (Id. at p. 80.) In addition, the court noted the absence of evidence
establishing that protocol was followed for the secure transfer of the evidence within the
department and the DOJ. (Ibid.) At trial, a police sergeant testified "conclusorily" that
he made arrangements with a technician to take DNA swabs from the defendant and then
either he or the chief investigating officer instructed someone to send the swabs to the
criminalist. (Id. at p. 79.) The criminalist testified that he received the swabs and also
the probability that a random person would have the same profile. (Ibid.) On appeal, the
Jimenez court found the chain of custody to be "woefully inadequate," which raised


black one that potentially this other balloon contained, but then when I look at what was
tested, I'm concerned that they're not the exact same colors, and that really bothers me.
There's a blue one, there's three red ones, and an orange one, or yellowish orange one. [¶]
You know they're close, but the reason I objected to the chain of custody of the evidence
is that the officer told you he took whatever those bindles were and he just put them in his
pocket, and the next thing you heard was somebody at DOJ tested this stuff. (Indicating.)
And so I don't know if he had other things in his pocket from other arrests. It's entirely
possible. I don't know what happened. There's just no chain of custody, and it disturbs
me that there's different color balloons, and I think that that's reasonable doubt in and of
itself." On this court's own motion we had the record augmented with the Exhibits 1(the
photograph that Officer Mead took of the evidence he collected), 2 (the photograph that
Frase took of the evidence she tested) and 3 (Frase's laboratory report). There are some
similarities in the photographs, but also some differences in the color of the balloons. In
addition, it appears that Frase did not receive the evidence for testing until June 6, 2012,
almost six months after the evidence was collected. There was absolutely no evidence
presented as to what happened to the evidence between the time it was collected and the
time Frase received it.
                                              8
serious questions as to whether the reference sample had anything to do with the
defendant. (Id. at p. 81.) One of the questions the Jimenez court wanted to know was
whether the swabs were still sealed on arrival at the crime lab. (Id. at p. 80.)
       As noted, a party seeking to introduce evidence has the burden of showing that it
is reasonably certain that there was no alteration of the evidence. (People v. Catlin,
supra, 26 Cal.4th at p. 134.) We reiterate that " '[t]he requirement of reasonable certainty
is not met when some vital link in the chain of possession is not accounted for, because
then it is likely as not that the evidence analyzed was not the evidence originally
received.' " (Ibid.) "In the absence of fundamental unfairness, state law error in
admitting evidence over a chain of custody objection is reviewable for abuse of
discretion. [Citations.] Erroneous admission of evidence that is so prejudicial as to
render a trial fundamentally unfair, however, offends due process. [Citations.]" (People
v. Jimenez, supra, 165 Cal.App.4th at pp. 81-82.) In such cases, the judgment will be
reversed unless the error is harmless beyond a reasonable doubt. (Id. at p. 82.)
       In this case, we have serious concerns about the missing links in the chain of
custody. Given, as Officer Mead testified, that heroin is packaged this way, there was no
testimony from Officer Mead about how he took the particular evidence from this case
and placed it into a sealed envelope and labeled it in such a way as to distinguish it from
any other evidence that was being transported to the DOJ lab; and Officer Mead never
testified and no one else testified about how the baggie that Officer Mead put into his
pocket and its contents were stored before being sent to Frase and no testimony about
how it got to Frase.4 Simply put, the People did not meet their burden of showing that all
vital links in the chain of possession were accounted for in this case.



4
       In fact Officer Mead did not even testify that he sent this particular evidence to the
DOJ. Rather, he testified generically that suspected drugs go to the DOJ for further
testing.
                                              9
       The error, however, was harmless because the other evidence that was presented at
trial was sufficient to prove beyond a reasonable doubt that appellant possessed heroin
and that it was possessed for sale. In short, there was ample circumstantial testimony that
shows beyond a reasonable doubt that appellant possessed heroin for sale. We note that
circumstantial evidence may be used to prove the nature of a substance. (People v.
Sonleitner (1986) 183 Cal.App.3d 364, 369.) Similarly, "[g]uilt of possession of a
narcotic may be established without introducing the narcotic in question into evidence.
In other words the prosecution need not physically produce the narcotic to sustain a
proper conviction of possession of narcotics." (People v. Marinos (1968) 260
Cal.App.2d 735, 738; see also People v. Chrisman (1969) 256 Cal.App.2d 425, 431-432
[corpus delicti of drug offense may be proved by circumstantial evidence].)
       "The essential elements of possession of a controlled substance are 'dominion and
control of the substance in a quantity usable for consumption or sale, with knowledge of
its presence and of its restricted dangerous drug character. Each of these elements may
be established circumstantially.' [Citations.]" (People v. Palaschak (1995) 9 Cal.4th
1236, 1242.) As noted, the nature of a substance, similar to any other fact in a criminal
case, may be proved by circumstantial evidence. "It may be proved, for example, by
evidence that the substance was a part of a larger quantity which was chemically
analyzed [citations], by the expert opinion of the arresting officer [citation], and by the
conduct of the defendant indicating consciousness of guilt. [Citation.]" (People v.
Sonleitner, supra, 183 Cal.App.3d at p. 369, italics added.)
       Here, Officer Mead testified that when he examined the bindles and found a "black
tar like substance," based on his experience in investigating numerous drug related cases,
he suspected the substance inside was heroin. A test that he ran confirmed his suspicion.
Officer Mead photographed bindle making material on the floorboard of the passenger
side of the truck, some of which could also be used for smoking heroin. Appellant's
cellular telephone contained text messages that expert testimony established showed that
                                             10
appellant was engaged in drug sales. Finally, Officer Mead saw appellant attempt to
swallow at least one of the bindles and then throw the bindles from the truck; we presume
in an effort to distance himself from the drugs. Based upon this circumstantial evidence,
we conclude that there was substantial evidence that appellant was in possession of
heroin and that he possessed it for sale. Accordingly, we conclude that a jury would have
found beyond a reasonable doubt that appellant was in possession of heroin and that he
possessed it for sale.
Sufficiency of the Evidence to Support the Conviction for Concealing or Destroying
Evidence
       Appellant contends, and respondent concedes that the evidence was insufficient to
support the conviction on count two—concealing or destroying evidence.
       Appellant was charged with destroying or concealing evidence, which is a
misdemeanor violation of Penal Code section 135. The applicable code section sets forth
the elements necessary to establish this charge:
       "Every person who, knowing that any . . . . thing, is about to be produced in
evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully
destroys or conceals the same, with intent thereby to prevent it from being produced, is
guilty of a misdemeanor." (Pen. Code, § 135, italics added.)
       At best, the evidence supports an attempt by appellant to destroy or conceal
evidence. There was no testimony adduced that appellant was successful in either
destroying or concealing the heroin. In fact the evidence was contrary to any such
conclusion. Officer Mead testified that he saw appellant place something in his mouth,
but then spit or throw the bindles out of the truck. Officer Mead was able to recover the
evidence.
       An attempt is a direct but ineffectual act toward the completion of the target crime.
(In re Ryan N. (2001) 92 Cal.App.4th 1359, 1381; see also People v. Dillon (1983) 34
Cal.3d 441, 454–455.) As in the case of People v. Hill (1997) 58 Cal.App.4th 1078

                                            11
(Hill), the evidence here established that appellant attempted to destroy or conceal the
heroin by attempting to swallow it and then by spitting or throwing it out of the truck.
       In Hill, a case from this court, the defendant tore up stolen or counterfeit traveler's
checks and threw them out of a car. An officer who was pursuing the defendant saw
defendant throw out the torn-up checks, which were later recovered and introduced into
evidence. The defendant was convicted of destroying or concealing evidence. (Hill,
supra, 58 Cal.App.4th at p. 1082.)
       In Hill, we noted that "[t]he purpose of section 135 is to prevent the obstruction of
justice. [Citation.] The plain meaning of 'destroy' is to ruin something completely and
thereby render it beyond restoration or use. (See Webster's New Internat. Dict. (3d ed.
1981) p. 615.) Under this definition, if one destroys evidence, it necessarily becomes
unavailable and cannot be produced. Conversely, if, despite one's efforts, the evidence is
or can be restored and used, then, by definition, it has not been destroyed; rather, such
efforts constitute an attempt: a direct, but ineffectual, act toward the commission of a
crime. [Citations.]" (Hill, supra, 58 Cal.App.4th at p. 1089.)
       We reasoned that "[s]ince the common meaning of 'destroy' is reasonable" and
applying it was consistent with and promoted "the purpose of the statute," we declined to
give it "a broader or narrower construction." (Hill, supra, at p. 1089.) Moreover, we
concluded that the "plain meaning" did not lead to absurd or unintended consequences.
(Ibid.) We explained that "[t]ogether, the statute and the proscription against attempts (§
664) reach any and every direct act taken to destroy evidence committed with the
requisite intent, regardless of whether the acts succeed. This construction also maintains
a clear line between committing and attempting to commit the offense by acts of
destruction." (Ibid.)
       Similarly, with respect to concealing evidence, we reasoned that "[t]he word
'conceal' simply means to hide or cover something from view. (Webster's New Internat.
Dict., supra, at p. 469.) Section 135 proscribes concealing evidence 'about to be
                                             12
produced in evidence upon any trial, inquiry, or investigation.' Given its plain meaning,
'conceal,' in context, does not necessarily or reasonably suggest that a defendant must
render evidence permanently unseen, or . . . unavailable. Rather successful concealment
of evidence from a particular investigation is sufficient." (Hill, supra, at p. 1090.)
       We examined two scenarios to illustrate our point. " For example, a thief eludes
the police and buries his booty in a neighbor's backyard. Police arrive and search him and
his property but find nothing. The next day, a neighbor leads them to freshly tilled earth
in his yard, and they dig up the stolen property. Has the thief violated the statute or
merely attempted to do so? Given the ordinary meaning of 'conceal,' the purpose of the
statute, and its applicability to any investigation, the thief has, in our view, violated the
statute: his conduct successfully hid stolen property from view during the first search of
him and his property and thereby impeded, frustrated, and prolonged an investigation of
the theft. [¶] It follows from our analysis, however, that where a thief does not interfere
with, impede, frustrate, or prolong a lawful investigation, for example, where a thief is
interrupted while concealing evidence or where the police watch him conceal it, he has
not successfully hidden the evidence or appreciably affected an investigation and thereby
obstructed justice. He has merely tried to do so. Thus, his conduct constitutes an attempt
to violate the statute by concealment." (Hill, supra, at p. 1090.)
       In Hill, we found the evidence insufficient to establish the completed crime of
which the defendant was convicted; accordingly, we reversed his conviction. Having
found that the error required reversal, we did not address the court's failure to sua sponte
instruct the jury on the crime of attempted destruction or concealment of evidence. (Id. at
pp. 1091-1092.)
       However, in the light of the current situation where judicial resources are severally
strained, we depart from the ultimate resolution we reached in Hill, where we declined to
resolve the defendant's claim regarding the failure to instruct the jury on the crime of
attempt. (Hill, supra, at p. 1091.) The result we reached in Hill, which effectively
                                              13
allowed the prosecution to retry the defendant for attempted destruction or concealment,
currently, is a waste of strained and scarce judicial resources, or worse, in the event the
prosecution declines to retry a misdemeanor, would relieve appellant of liability for
conduct which was established by the evidence. Therefore, we shall address appellant's
claim as to instructional error, and provide the appropriate and judicious remedy
appellant is entitled to receive.
       Appellant correctly asserts the trial court failed to instruct the jury on the lesser
offense of attempted destruction or concealment of evidence. (Pen. Code, §§ 664/135.)
Respondent concedes this point, and as noted, agrees appellant's misdemeanor conviction
for actual destruction or concealment of the evidence (Pen. Code, § 135) cannot stand.
       The trial court has a sua sponte duty to instruct the jury as to a lesser included
offense, but only when the evidence establishes the offense committed is less than that
which was charged. (People v. Holt (1997) 15 Cal.4th 619, 673–674; People v.
Breverman (1998) 19 Cal.4th 142, 148–149.) That was precisely the case here. As
noted, Officer Mead was able to retrieve the evidence appellant attempted to swallow and
then expel from the truck; the bindles still retained their evidentiary value and as it was
established, contained a useable and saleable amount of heroin. Neither the prosecution
nor the defense specifically requested a jury instruction on the lesser included offense of
attempted destruction or concealment of evidence. However, this does not absolve the
trial court of its duty to "act as a neutral arbiter between the contesting parties to guide
the jury on the law." (People v. Turner (1983) 145 Cal.App.3d 658, 678–679,
disapproved on another ground in People v. Majors (1998) 18 Cal.4th 385, 411, and in
People v. Newman (1999) 21 Cal.4th 413, 422, fn. 6.)
       At least in the context of a noncapital offense, the failure to instruct on a lesser
included offense is an error of California law, and is resolved upon application of the test
announced in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra,
19 Cal.4th at p. 165.) Accordingly, we conclude, after an examination of the entire
                                              14
cause, including the evidence, it is reasonably probable appellant would have obtained a
more favorable outcome "had the error not occurred." (People v. Watson, supra, 46
Cal.2d at p. 836.)
       Here had the jury been instructed on the lesser crime of attempted destruction or
concealment of evidence, it is reasonably probable the jury would have found appellant
guilty of the lesser but not the greater charge. As noted, there was sufficient evidence to
convict appellant of attempt. Therefore, we shall reduce appellant's conviction on count
two to a violation of Penal Code section 664 (attempt) and Penal Code section 135.
Commensurate with this, the punishment allowed for this offense is one-half of that to be
imposed for actual completion of the crime (Pen. Code, § 664, subd. (b)). Appellant's
punishment on count two is therefore reduced to 18 days in custody, credit for time
served.
       An appellate court is not restricted to the remedies of affirming or reversing a
judgment. Where the prejudicial error goes only to the degree of the offense for which
the defendant was convicted, the appellate court may reduce the conviction to a lesser
degree and affirm the judgment as modified, thereby obviating the necessity for a retrial.
(People v. Matian (1995) 35 Cal.App.4th 480, 487; see also Pen. Code, §§ 1181, subd. 6,
1260; People v. Reeves (2001) 91 Cal.App.4th 14, 54; People v. Harris (1968) 266
Cal.App.2d 426, 434-435; People v. Bailey (1974) 38 Cal.App.3d 693, 700.)
Aids Education Fine
       The probation officer recommended and the court imposed a $190 AIDS
education fine. Appellant contends and respondent concedes that we must strike this fine
as unauthorized.
       As relevant here, Penal Code section 1463.23 provides, "fifty dollars ($50) of each
fine imposed pursuant to Section 4338 of the Business and Professions Code; subdivision
(c) of Section 11350, subdivision (c) of Section 11377, or subdivision (d) of Section
11550 of the Health and Safety Code; or subdivision (b) of Section 264, subdivision (m)
                                             15
of Section 286, subdivision (m) of Section 288a, or Section 647.1 of [the Penal] code,
shall be deposited in a special account in the county treasury which shall be used
exclusively to pay for the reasonable costs of establishing and providing for the county,
or any city within the county, an AIDS (acquired immune deficiency syndrome)
education program under the direction of the county health department, in accordance
with Chapter 2.71 (commencing with Section 1001.10) of Title 6, and for the costs of
collecting and administering funds received for purposes of this section."
        Appellant was convicted of possession for sale of heroin. (Health & Saf. Code, §
11351.) Appellant was not convicted of any of the offenses listed in Penal Code section
1463.23. There is no statutory authority to impose an AIDS education fine for the drug
offense of which appellant was convicted.5 As such this fine was unauthorized. "The
imposition of a sentence not statutorily authorized is jurisdictional error that is subject to
correction whenever it comes to a court's attention. [Citations.]" (People v. Martinez
(1998) 65 Cal.App.4th 1511, 1519.) Accordingly, we will strike the AIDS education
fine.
Drug Program Fee
        In addition to the AIDS education fine the court imposed, appellant was ordered to
pay a drug program fee of $150. The court did not specify the basis for the fee, but we
assume that it was imposed pursuant to Health and Safety Code section 11372.7.
Counsel did not object to the imposition of the fee.
        Appellant contends that we must strike this fee because there was insufficient
evidence that he had the ability to pay the fee.



5
        Furthermore, we do not know where the probation officer came up with the
amount of the fine. We note that the AIDS education fine is not to exceed $70 under all
the statutes mentioned in Penal Code section 1463.23. (Bus. & Prof. Code, § 4338,
Health & Saf. Code, §§ 11350, subd. (c), 11377, subd. (c), 11550, subd. (d), Pen. Code,
§§ 264, subd. (b), 286, subd. (m), 288a, subd. (m) & 647.1.)
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         Health and Safety Code section 11372.7 provides, "(a) Except as otherwise
provided in subdivision (b) or (e), each person who is convicted of a violation of this
chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars
($150) for each separate offense. The court shall increase the total fine, if necessary, to
include this increment, which shall be in addition to any other penalty prescribed by law.
[¶] (b) The court shall determine whether or not the person who is convicted of a
violation of this chapter has the ability to pay a drug program fee. If the court determines
that the person has the ability to pay, the court may set the amount to be paid and order
the person to pay that sum to the county in a manner that the court believes is reasonable
and compatible with the person's financial ability. In its determination of whether a
person has the ability to pay, the court shall take into account the amount of any fine
imposed upon that person and any amount that person has been ordered to pay in
restitution. If the court determines that the person does not have the ability to pay a drug
program fee, the person shall not be required to pay a drug program fee."
         Thus, the drug program fee is mandatory, provided the trial court determines the
defendant has the ability to pay the fee. (Health & Saf. Code, § 11372.7, subd. (b).)
Appellant concedes that the court's finding that he had an ability to pay may be implied,
but argues that there was insufficient evidence to support even an implied finding of his
ability to pay.
         Absent evidence to the contrary, this court presumes that the trial court followed
the law and performed its duty under Evidence Code section 664, and that the requisite
determination of appellant's ability to pay is implicit in the trial court's order. (See,
People v. Staley (1992) 10 Cal.App.4th 782, 785.)
         In determining a defendant's ability to pay, the court is permitted to consider
various criteria, including a defendant's future discernible financial position. (People v.
Phillips (1994) 25 Cal.App.4th 62, 70; People v. Frye (1994) 21 Cal.App.4th 1483,
1487.)
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       Appellant was sentenced to six years in state prison, for purposes of the drug
program fee the court could have assumed that appellant would be able to obtain prison
employment. (See People v. Frye, supra, 21 Cal.App.4th at pp. 1486–1487.) Penal Code
section 2700 provides, in relevant part, "The Department of Corrections shall require of
every able-bodied prisoner imprisoned in any state prison as many hours of faithful labor
in each day and every day during his or her term of imprisonment as shall be prescribed
by the rules and regulations of the Director of Corrections." This section requires that
prisoners who perform assigned work be compensated. (Ibid.) In the absence of an
objection by appellant, the trial court could reasonably presume the fine would be paid
out of appellant's prison wages. If appellant was ineligible for prison work assignment, it
was incumbent upon him to alert the court to any such disability. (See People v. Staley,
supra, 10 Cal.App.4th at p. 786.)
                                        Disposition
       Appellant's conviction on count two for destroying or concealing evidence is
modified to an attempted destruction or concealment of evidence (Pen. Code, §§
664/135). Appellant's sentence on count two, is reduced to 18 days, credit for time
served. In addition, we strike the AIDS education fee of $190. As so modified the
judgment is affirmed. The clerk of the court is ordered to prepare an amended abstract of
judgment, which shall reflect such modification and forward a corrected copy to the
Department of Corrections and Rehabilitation.


                                          ELIA, J.


WE CONCUR:
       RUSHING, P. J.
       PREMO, J.


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