Filed 12/30/13 P. v. Gold CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Sutter)



THE PEOPLE,                                                                                  C070611

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF101157)

         v.

MICHAEL SHAINE DWAYNE GOLD,

                   Defendant and Appellant.




         A jury found defendant Michael Shaine Dwayne Gold guilty of the first degree
murder of his stepfather Elmer Eugene McDonald (Pen. Code, § 187, subd. (a))1 and
found true the special circumstance allegation that he perpetrated the murder by means of
lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to life in prison
without the possibility of parole and imposed a $7,000 restitution fine.




1   Further undesignated statutory references are to the Penal Code.

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       Defendant appeals, contending “[t]he special circumstance should be set aside
because it is not clear that the jury made a true finding.” He also asserts “[t]he restitution
fine should be reduced to $200 because of the absence of jury findings.”
       We shall conclude defendant forfeited both contentions by failing to raise them
below, and in any event, the contentions lack merit. Accordingly, we shall affirm the
judgment.
                               FACTUAL BACKGROUND
       A detailed recitation of the facts is not required in light of the issues raised on
appeal and our resolution of the same. Suffice it to say that substantial evidence was
presented at trial that in November 2009, defendant slit his stepfather’s throat,
dismembered his stepfather’s body, and attempted to dispose of the body parts in and
around the Feather River.
                                       DISCUSSION
                                           I
            The Jury Found the Lying in Wait Special Circumstance to Be True
       Defendant contends that because the term “special circumstance” was not used in
the verdict form, “on its face this verdict does not reflect that the jury found true the
alleged special circumstance of lying in wait.” He further asserts that the defect in the
verdict form was not cured by the jury instructions and was exacerbated by the
prosecutor’s argument. We disagree.
       The verdict form signed by the jury foreman reads in pertinent part:
       “We, the jury, . . . find the Defendant GUILTY of . . . murder in the first degree,
in that the killing was willful, deliberate, and premeditated or perpetrated by means of
lying in wait, as charged in Count One of the information.
       “We, the jury, do further unanimously find that the murder was perpetrated by
means of lying in wait.”




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       As a preliminary matter, defendant forfeited this contention by agreeing that the
verdict form was adequate and failing to object when the jury’s verdict and finding were
announced. (People v. Jones (2003) 29 Cal.4th 1229, 1259 (Jones).) In any event, the
contention fails on the merits.
       “ ‘ “[T]echnical defects in a verdict may be disregarded if the jury’s intent to
convict of a specified offense within the charges is unmistakably clear, and the accused’s
substantial rights suffered no prejudice. [Citations.]” ’ ” (Jones, supra, 29 Cal.4th at
p. 1259.) Here, we need not decide whether the verdict form is technically deficient
because the jury’s intent to find true the lying in wait special circumstance is
unmistakably clear when considered in the context of the court’s instructions and the
prosecutor’s argument.
       The jury was instructed in the language of CALCRIM No. 521 in pertinent part as
follows: “The defendant has been prosecuted for first degree murder under two theories.
One, the murder was willful, deliberate and premeditated; and, two, the murder was
committed by lying in wait. . . . [¶] You may not find the defendant guilty of first degree
murder unless all of you agree that the People have proved that the defendant committed
murder, but all of you do not need to agree on the same theory.” The jury further was
instructed in the language of CALCRIM No. 700 in pertinent part as follows: “If you find
the defendant guilty of first degree murder, you must also decide whether the People have
proved that the special circumstance is true. . . . In order for you to return a finding that
a special circumstance is or is not true, all 12 of you must agree.” (Italics added.)
       In his closing argument, the prosecutor reiterated that “[t]here are two separate
theories in this case as to why it’s first degree murder rather than second degree murder.”
After going through each of the theories, the prosecutor explained that “when you are
deciding whether it’s first or second degree murder you do not have to all agree on the
theory that makes it first degree murder. Okay? This is the only place where you do not
have to be unanimous in your agreement. . . . [T]hree of you can say ‘Well, I think it was

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willful, deliberate and premeditated but I’m not convinced that it was lying in wait.’ The
other nine can say ‘It’s lying in wait, but I don’t know about this willful, deliberate and
premeditated stuff.’ If that were to happen, you can still return a verdict of first degree
murder as long as you were all convinced beyond a reasonable doubt, all unanimous that
there was murder and all of you believe at least one theory that supported first degree
murder. It just doesn’t have to be the same one. That could be kind of confusing and I
hope I explained that to you.” Immediately thereafter, the prosecutor turned to the issue
of the special circumstance, stating, “[I]f you are all unanimous that it was lying in wait
but not willful, deliberate and premeditated, not worrying about that one, just lying in
wait, if you are all convinced, all 12 of you agree that that theory applies in this case, we
need to know that and there’s a place on the verdict form for you to indicate that you
unanimously agreed on that.” The prosecutor concluded shortly thereafter, telling the
jury, “The evidence in this case compels a verdict of guilty to the charge of first degree
murder and a true finding of the special circumstance that the murder was committed by
lying in wait.”
       On this record, there is no doubt that the jury intended to find true the lying in wait
special circumstance allegation. Based on the court’s instructions and the prosecutor’s
argument, the jury would have understood that the lying in wait special circumstance was
distinct from the lying in wait theory of murder. Specifically, the jury would have
understood that it first had to decide whether defendant was guilty of first degree murder
as charged in count one and did not have to agree on the theory of murder, and if it found
defendant guilty of first degree murder, it was then required to make a separate finding on
lying in wait special circumstance. The two paragraphs in the verdict form reflected this
two-part analysis. Accordingly, there is no indication that defendant suffered any
prejudice as a result of the alleged flaw in the verdict form. (Jones, supra, 29 Cal.4th at
p. 1259.)



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                                            II
            The Trial Court Did Not Err in Imposing a $7,000 Restitution Fine
       The probation report recommended a restitution fine in the amount of $10,000
pursuant to section 1202.4. At sentencing, defendant requested the trial court order
restitution in an amount less than $10,000 based on hardship. In response to defendant’s
request, the trial court imposed a $7,000 restitution fine.
       Defendant contends the trial court could not impose more than the statutory
minimum fine of $200, in the absence of jury findings authorizing a higher fine. In
support of this contention, he relies on Apprendi v. New Jersey (2000) 530 U.S. 466 [147
L.Ed.2d 435] (Apprendi) and Southern Union Co. v. United States (2012) 567 U.S. ___
[183 L.Ed.2d 318] (Southern Union).
       At sentencing, defense counsel “ask[ed] the Court to order a fine less than [the
recommended $10,000] restitution fine based upon hardship . . . .” He did not, however,
claim that the minimum fine was compelled. Accordingly, the point now raised is
forfeited for lack of objection in the trial court. (See People v. Gamache (2010) 48
Cal.4th 347, 409.)
       Moreover, People v. Kramis (2012) 209 Cal.App.4th 346 (Kramis), rejected the
claim that Apprendi and Southern Union had any effect on a trial court’s discretion to
select an appropriate fine between $200 and $10,000, because those cases “do not apply
when, as here, the trial court exercises its discretion within a statutory range.” (Kramis,
supra, 209 Cal.App.4th at p. 351.) We agree. (See also People v. Urbano (2005) 128
Cal.App.4th 396, 405-406 [defendant presumptively able to pay fine out of future
earnings; Apprendi does not require jury findings on amount of fine]; People v. Frye
(1994) 21 Cal.App.4th 1483, 1487 [absent objection “the trial court could presume the
fine would be paid out of defendant’s prison wages”].) In Kramis, the trial court imposed
a $10,000 fine. Here, the court imposed a “mitigate[d]” fine of $7,000.
       The trial court did not err in imposing a $7,000 restitution fine.


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                                    DISPOSITION
     The judgment is affirmed.



                                           BLEASE   , J.


We concur:


        RAYE                     , P. J.


        BUTZ                     , J.




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