People v. Holt

          CHANEY, J.

         Defendant Christopher Holt was convicted by a jury of two counts of first degree, special circumstance murder and two counts of attempted murder. The jury found true all of the special allegations pleaded in the information, including that Holt committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1).) Holt was sentenced to life without the possibility of parole plus 90 years in prison.

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

         Holt challenges the sufficiency of the evidence supporting the findings on the gang enhancements, and further contends that the admission of gang evidence was erroneous and rendered his trial fundamentally unfair. Holt also asserts that the trial court erred in denying his motion for new trial based on “newly discovered” evidence. We affirm the judgment as modified to reflect that a parole revocation restitution fine imposed under section 1202.45 is stricken.

         We reject the People’s claim that the cause must be remanded for resolution of the prior conviction and prison term allegations. The People waived this claim and, in any event, the trial court’s failure to make findings on these allegations may be treated as findings of “not true.”

         BACKGROUND

         I. EVIDENCE OF CRIMES

         In the evening on July 4, 2005, Lionel Keaton was outside his home in Compton when he saw a red Monte Carlo drive by. He recognized the car as “Rock B.’s” car. Keaton knew Rock B. – later identified as defendant Christopher Holt – as a Lueders Park Piru (Blood) gang member. Keaton had seen Rock B. over the years in the neighborhood. As the car drove by, one of the two male passengers in Rock B.’s car stuck his head out the window. Keaton became concerned that this drive-by was a precursor to a shooting. He walked across the street to share his concern about a possible drive-by shooting with his friend, Antoine Washington.

         Washington and Keaton had grown up in that neighborhood and they had known each other most of their lives. Washington lived across the street from Keaton on Butler Avenue with his brother, Anthony Johnson, cousin, Mario Gordon, and other relatives. That night, Washington was celebrating the Fourth of July holiday with friends and family, including Gordon, Corey Cartwright, Clinton Bolton, Janiqua Stubbs and a couple of other women. Keaton had been over at Washington’s house earlier in the day. The group was gathered outside the house in the yard. Keaton rejoined the group and shared his concerns. Neither Keaton nor Washington recalled seeing Johnson at the gathering that evening.

         Gordon, Cartwright, Bolton, Stubbs and Keaton decided to go to the store. They walked over to Stubbs’s car, which was parked in an alley adjacent to the house on Butler Avenue where they were celebrating. Keaton was standing on the grass near the alley. He heard a rustling noise coming from the bushes in the alley. He saw a young kid from the neighborhood, Rustin Banks, walking through the alley with “two [of his] Hispanic friends.” Keaton saw Banks and his two friends put their hands in the air, turn around and walk back through the alley the way they came.

During the investigation, Banks’s friends were identified as Ricky Cortez and Adrian Madrid.

         Keaton saw three African American men come out into the alley from the bushes. The men were holding “big guns” like “rifles, ” and they began shooting. Keaton recognized Rock B. as one of the shooters. Rock B. was wearing a white t-shirt. Keaton could not identify the other two shooters. He noticed Rock B. fire his weapon around 15 times. Keaton ran and dove into the door of the house. The shooters ran through the alley and out onto Castlegate Avenue. The shooting occurred shortly after 10:00 p.m., which was 15 to 30 minutes after Keaton saw Rock B.’s red Monte Carlo drive by.

         Washington was standing on the porch of his house when he heard the gunshots. He walked toward the alley. He saw Rock B. – later identified as defendant Christopher Holt – moving between two parked cars in the alley with a gun in his hand. Washington had seen Rock B. around the neighborhood for a couple of years. Washington knew Rock B. as a Lueders Park Piru gang member, and had seen Rock B. “wear [gang] colors.” Washington saw Rock B. aim down and fire his AK-47 weapon. Washington ran into his house. He saw Rock B. shoot at the house. Bullets struck the house and shattered a window.

         After the shooting stopped, Washington walked to the alley. He saw his cousin, Mario Gordon, lying face-down on the ground in the place where he had seen Rock B. aim down and fire his weapon. Corey Cartwright also was lying face-down on the ground. Both men died from multiple gunshot wounds. Janiqua Stubbs, who apparently was not injured, was lying underneath Cartwright’s body. Keaton suffered minor injuries to his torso, which he believed were caused by “buckshot.” Nineteen fired cartridge cases were found at the scene, which were all fired from the same AK-47 or SKS-type rifle.

         Keaton approached a sheriff’s deputy at the scene and volunteered that one of the shooters was Rock B. Keaton provided a description of Rock B. and described the other shooters as “male blacks, adults, wearing dark clothing.” Keaton went to the station and gave a statement to another deputy about what he had witnessed, including the earlier drive-by, and the identity of one of the shooters (Rock B.). At the station, Keaton was interviewed by gang unit detectives April Tardy and Peter Hecht. Unbeknownst to Keaton, the interview was audiotaped. Keaton told the detectives that Rock B. was the “main shooter.” In response to the detectives’ questions, Keaton stated that he did not believe the shooting was “personal.” He explained that friends who “gang bang” and friends who “meet Crips” hang out at the location where the shooting occurred. There is no evidence that Keaton, Washington or the other victims of the murders and attempted murders were in a gang.

The deputy noticed an odor of alcohol when he spoke to Keaton. Keaton told the deputy that he had consumed two 24-ounce beers and two or three shots of liquor over the course of the evening. Washington testified that he had seen Keaton smoking marijuana, but not drinking alcohol.

The audiotaped interview was played for the jury and admitted into evidence. Keaton was in custody when he testified at trial because he had refused to comply with the subpoena. Evidence was presented that Keaton had told the prosecutor and the court that he was scared and did not want to return to his mother’s home on Butler Avenue because “gang bangers” were “harassing” him and asking if he was going to court. At trial, Keaton denied that he had seen or identified any of the shooters, and claimed he did not remember statements he had made to deputies and detectives.

         The detectives prepared a six-pack of photographs and Keaton selected Rock B. (defendant Holt) as the shooter. Keaton told the detectives that Rock B. had been staying with his girlfriend on Castlegate Avenue. Keaton offered to show the detectives where the house was located. He went for a ride with the detectives and pointed out the house.

         Detective Kathy Gallagher, the investigating officer on this case, interviewed Antoine Washington at the scene a few hours after the shooting occurred. Washington and Keaton did not talk to each other after the shooting. Washington told Detective Gallagher that the shooter was Rock B, a member of the Lueders Park gang. Washington described Rock B and told Detective Gallagher that Rock B. lived around the corner on Castlegate Avenue. Detective Gallagher showed Washington a six-pack of photographs and Washington selected Rock B. (defendant Holt) as the shooter.

         The day after the shooting Washington gave Detective Gallagher a videotape that he had received from Adrian Madrid. Madrid is one of the young men who walked down the alley with Rustin Banks and Ricky Cortez right before the shooting. The video was recorded as they walked down the alley next to Washington’s house. Ricky can be heard on the videotape saying, “It’s Ricky, dog.” An unidentified person says, “Go back the other way, turn around and go back the other way.” The video captured the sound of gunfire. A little more than a month after the shooting, Detective Gallagher interviewed Madrid by phone. Madrid was staying in Mexico at the time.

         Early in the morning on July 5, 2005, the Los Angeles Sheriff’s Department set up surveillance outside the house on Castlegate Avenue that Keaton had identified as Rock B.’s girlfriend’s house. A red car was parked outside. Deputies stopped and detained Rock B. (defendant Holt) after he drove away in a red Monte Carlo. The weapon used in the shooting was not recovered.

         During their investigation, the detectives discovered additional evidence which led them to believe that this was a gang-motivated shooting. They learned that the house where the shooting occurred had been identified as a “hang-out” for another gang called the Butler Block Crips. The house was located in Lueders Park Piru territory and a rivalry had developed between the two gangs. We describe the gang evidence that was admitted at trial in more detail below, in relation to Holt’s evidentiary contentions.

         II. VERDICTS AND SENTENCING

         Holt was convicted of two counts of first degree, special circumstance murder (§§ 187, sub. (a), 190.2, subd. (a)(3) [multiple murders]; counts 1 & 2), and two counts of attempted murder (§§ 187, subd. (a), 664; counts 3 & 4). The jury found true the allegations that in the commission of these offenses Holt “personally and intentionally discharged a firearm” (§ 12022.53, subd. (d) on counts 1 & 2; § 12022.43, subd. (c) on all counts), “a principal personally and intentionally discharge[d] a firearm” (§ 12022.53, subds. (d) & (e)(1) on counts 1 & 2; § 12022.53, subds. (c) & (e)(1) on all counts), Holt “personally use[d] a firearm” (§ 12022.53, subd. (b)) and “a principal personally used a firearm” (§ 12022.53, subds. (b) & (e)(1)). The jury also found true the gang allegations under section 186.22, subdivision (b)(1)(A).

         Holt waived jury trial on the prior conviction and prison term allegations. The information alleged that Holt had one prior conviction for a serious felony (§ 667, subd. (a)(1)), had served one prior prison term (§ 667.5, subd. (b)) and had suffered one prior conviction of a serious or violent felony within the meaning of the Three Strikes Law (§§ 667, 1170.12). The trial court stated that it would conduct the trial on the priors on the same day as the sentencing hearing.

         More than two years after the verdicts, Holt was sentenced. On count 1 for first degree murder, the court sentenced Holt to life without the possibility of parole and imposed a 25-year firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). On count 2 for first degree murder, the court sentenced Holt to a consecutive term of life without the possibility of parole plus 25 years for the firearm enhancement under section 12022.53, subdivision (d). On each attempted murder count, the court sentenced Holt to a consecutive term of life with the possibility of parole plus 20 years for the firearm enhancement under section 12022.53, subdivision (c). The court stayed all of the other enhancements. The total sentence is life without the possibility of parole plus 90 years in prison. The People did not raise and the trial court did not resolve the prior conviction and prison term allegations. The court imposed a $200 restitution fine under section 1202.4, subdivision (b) and a $200 parole revocation restitution fine under section 1202.45.

         DISCUSSION

         I. SUFFICIENCY OF EVIDENCE ON GANG ENHANCEMENTS

         Holt contends that the findings on the gang enhancement allegations are not supported by substantial evidence. He argues there was insufficient evidence to prove (1) that he committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang, and (2) that he committed the offenses with the specific intent to promote, further or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).) We disagree.

         “In reviewing a challenge to the sufficiency of evidence, ‘the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citation.] We consider whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] To prove a gang allegation, an expert witness may testify about criminal street gangs. [Citation.]” (People v. Romero (2006) 140 Cal.App.4th 15, 18.)

         Substantial evidence must be reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Although an appellate court must draw all reasonable inferences in support of the judgment, the court may not rely on speculation as support for the judgment. (People v. Waidla (2000) 22 Cal.4th 690, 735 [“‘speculation is not evidence, less still substantial evidence’”].)

         Evidence presented at trial showed that, at the time the offenses were committed, Holt was a member of the Blood criminal street gang, Lueders Park Piru. Sergeant Tardy, who was a gang detective at the time the offenses were committed, investigated these crimes. She testified that the house on Butler Avenue where the shooting occurred was located within Lueders Park Piru territory, but was associated with the Butler Block Crip gang. Sergeant Tardy was aware of “a relatively new rivalry” over territory between Lueders Park Piru and Butler Block Crips. The Butler Block Crip gang had eight to ten members. Lueders Park Piru had about 140 members.

Two field identification cards state that Holt identified himself to law enforcement as a Lueders Park Piru gang member on February 25, and July 2, 2005. Holt also had multiple tattoos on his body which indicated his gang affiliation.

         Anthony Johnson lived at the Butler Avenue residence where the shooting occurred. About two weeks after these crimes, Sergeant Tardy learned that Anthony Johnson was a member of the Butler Block Crips. Lacey Outland, the victim in another shooting, identified Johnson as the perpetrator of that crime and told Sergeant Tardy that Johnson was a Butler Block Crip. When Sergeant Tardy interviewed Johnson in connection with the latter shooting, he told her that he was a member of the Butler Block Crips. Johnson also told Sergeant Tardy that he had had “problems” with the Lueders Park Piru gang in the past.

Washington and Keaton testified that Johnson was not in a gang.

         Detective Hecht, who investigated these crimes with Tardy, testified at trial as a gang expert. The day after the shooting at issue, gang enforcement deputies told him that there was a “Crip set” located on Butler Avenue. He learned that patrol deputies referred to the house on Butler where the shootings occurred “as the Butler Block Crips hang-out.” Detective Hecht spoke to some members from another Blood gang in the area, Lime Hood Piru. They also told him about the Butler Block Crips and where they were located.

         Notwithstanding what he had heard from his colleagues and from gang members, Detective Hecht remained unsure about whether there was actually a Crip criminal street gang called the Butler Block Crips located in an area that was claimed by Lueders Park Piru and bordered by various other Blood gangs. He had not personally heard anyone claim membership in the Butler Block Crips and the only purported member he was told about was Johnson. Regardless of his skepticism, substantial evidence presented at trial supported the following facts: (1) the house on Butler Avenue where the shooting occurred was a Butler Block Crip “hang-out”; (2) there was a rivalry over territory between Butler Block Crips and Lueders Park Piru; and (3) Holt was known in the neighborhood and to law enforcement as Rock B., a Lueders Park Piru gang member.

         This is not the only evidence that supports the findings on the gang enhancements. The manner in which the crimes were carried out indicates a gang-motivated shooting and not the settlement of a personal dispute. The evidence does not indicate that any particular person or persons were targeted. The entire residence appears to have been targeted. Shots were directed first at the people standing outside and then the house was sprayed with bullets.

         Holt highlights that none of the eyewitnesses heard him claiming his gang or saw him wearing gang colors. These facts do not rule out a gang-related shooting. The shooting occurred in Holt’s gang’s territory. People who lived in the neighborhood, including eyewitnesses Keaton and Washington, knew Holt was a Lueders Park Piru gang member. Detective Tardy explained that gang members “rarely” wear their colors when they commit these types of crimes, and non-“Hispanic” gangs, like Lueders Park Piru, rarely shout out the name of the gang prior to or after a shooting.

         Eyewitness Lionel Keaton’s statements also support the prosecutor’s theory that this was a gang-motivated shooting. In his audiotaped interview given hours after the shooting, which was played for the jury and admitted into evidence, Keaton told detectives that Holt drove by the Butler Avenue residence 15 to 30 minutes before the shooting occurred. Keaton knew Holt as Rock B., a Lueders Park Piru gang member. Keaton explained at trial that, even though he knew that Holt was staying around the corner with his girlfriend, and he often saw Holt in the neighborhood, something about this drive-by made Keaton concerned that it was the precursor to a shooting. Perhaps it was the manner in which one of Holt’s two passengers stuck his head out the car window as they drove by. Keaton went across the street to warn his friend Antoine Washington, who lived at the Butler Avenue residence and is Johnson’s brother.

         In the audiotaped interview, the detectives asked Keaton if he thought the shootings were “personal.” Keaton said he did not think so and added, “I guess they don’t really like us.” When asked if he had had problems with Holt previously, Keaton gave the following response: “Um, they always do something stupid, but they just, I guess, you know a couple of friends that come by, that meet Crips. We had a lot of friends gang bang, but not really though, you know. Sometimes you get a little knucklehead. Somebody comes in shooting like, a few months ago too.” This statement corroborates the other evidence indicating that Crips frequented the Butler Avenue residence and Lueders Park Piru had a problem with that. A logical inference from this statement is that Keaton and his friends had been made aware that if they continued to meet Crips at that location trouble would ensue.

         Substantial evidence supports the findings that Holt committed these offenses for the benefit of Lueders Park Piru and with the specific intent to promote, further or assist in criminal conduct by gang members. Substantial evidence indicates that Holt targeted the house on Butler Avenue because it was a Butler Block Crip “hang-out.” Holt’s gang, Lueders Park Piru, claimed the territory where the Butler residence was located. There was a rivalry between the two gangs. A reasonable conclusion to be drawn from the evidence is that Holt fired at the house, and everyone outside the house, to show that Butler Block Crips were not welcome in Lueders Park Piru territory.

The fact that the identity of the other two shooters is unknown does not detract from this conclusion.

         This court is not tasked with reweighing the evidence or deciding which side made the best case or argument on the issue. Our review is limited to determining whether substantial evidence supports the findings, presuming the existence of every fact the jury could reasonably deduce from the evidence in support of the findings. For these reasons, we affirm the gang enhancements.

Holt focuses on Detective Hecht’s opinion that the shooting was retaliation for a shooting that Johnson perpetrated on Lueders Park Piru. Holt argues there is no evidence that this prior shooting occurred, and there is no basis for Hecht’s opinion. Because other substantial evidence supports the findings on the gang enhancements, we are not concerned with any discrepancy between the testimony of Detective Hecht and Sergeant Tardy regarding a prior shooting. We do, however, discuss this evidentiary issue in detail below in relation to Holt’s contention that Detective Hecht’s testimony should have been excluded.

         II. ADMISSION OF GANG EVIDENCE

         Holt contends that the admission of gang evidence was erroneous. He focuses on an apparent inconsistency between Sergeant Tardy’s and Detective Hecht’s testimony at trial.

         Holt’s counsel asked Detective Tardy: “Do you know anything about an incident in Lueders Park where Anthony Johnson was accused of shooting in Lueders Park?” Based on previous questions, it appears that Holt’s counsel was inquiring about an event that would have occurred before the July 4 shooting at issue. Detective Tardy responded: “No, I don’t.” She did, however, testify about a shooting she investigated, which occurred a couple of weeks after the July 4 shooting. Johnson was a suspect in the attempted murder of Lacey Outland in mid-July 2005. Johnson told Sergeant Tardy that Outland “ordered” Lueders Park Piru to shoot him. Johnson was shot on Easter Sunday 2005, a few months before the July 4 shooting. Outland told Sergeant Tardy that Johnson shot her in mid-July because he believed she was involved in the July 4 shooting of his cousin, Mario Gordon, as the “driver of the suspect vehicle.” According to Detective Tardy, Outland was not a Lueders Park Piru gang member.

         Detective Hecht testified that he was aware of a shooting that occurred before July 4 that involved Johnson as a suspect and someone from Lueders Park as a victim. He stated that his partner, Tardy, investigated the case and told him about it. Detective Hecht did not know any further details about the earlier shooting. He formed the opinion that the July 4 murders and attempted murders were committed for the benefit of a criminal street gang in that they were committed in retaliation for the earlier shooting. Holt objected to Hecht’s testimony and preserved the issue for appeal.

         In reviewing the testimony of these two witnesses, it appears that Detective Hecht was mistaken when he testified that there was a shooting which occurred before the July 4 shooting, in which Anthony Johnson was a suspect and someone from Lueders Park was a victim. The record, however, is not completely clear. Holt’s counsel did not recall Sergeant Tardy to the stand to clarify the issue and the record.

         Holt argues that Detective Hecht’s opinion was based on unreliable hearsay and constituted improper evidence of motive. What Holt’s claims really boil down to is his assertion that Detective Hecht got it wrong when he testified about an earlier shooting investigated by his partner. Ultimately, it was for the jury to decide the facts and to resolve any conflicts in the testimony. Holt’s counsel highlighted the inconsistency for the jury. The jury was instructed regarding discrepancies in witnesses’ testimony (CALJIC No. 2.21.1) and in determining the value of an expert opinion where a fact has not been proved or has been disproved (CALJIC No. 2.80).

         In any event, Holt cannot demonstrate that he was prejudiced by the admission of this evidence, even assuming the trial court should have excluded it on the ground that its probative value was substantially outweighed by the probability that its admission would “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “The erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded.” (People v. Avitia (2005) 127 Cal.App.4th 185, 194; People v. Jordan (2003) 108 Cal.App.4th 349, 366; People v. Watson (1956) 46 Cal.2d 818, 836.)

         Given the eyewitness identifications made by Keaton and Washington, Holt cannot demonstrate it is reasonably probable that he would not have been convicted of the crimes in the absence of Detective Hecht’s testimony. Keaton and Washington knew Holt as Rock B. and had seen him in the neighborhood often over the years. They identified him to sheriff’s deputies and detectives immediately after the shooting occurred. Detective Hecht’s testimony bore no relationship to, and could not have confused, any issues regarding these eyewitness identifications.

         Nor is it reasonably probable that the jury would have returned “not true” findings on the gang allegations in the absence of this particular testimony. As described above, other substantial evidence supports the true findings: evidence of a gang rivalry between Lueders Park Piru and Butler Block Crips over territory; the identification of the house where the shooting occurred as a “Butler Block Crips hang-out, ” located within Lueders Piru territory; Keaton’s statements indicating that Lueders Park Piru members did not like him and his friends because they met Crips at the Butler Avenue house; and the manner in which the shooting occurred.

         After focusing much attention on this portion of Detective Hecht’s testimony, Holt then contends the trial court erred in admitting any and all gang evidence. He argues that the gang evidence had no probative value, was unduly prejudicial and rendered his trial fundamentally unfair. We review a trial court’s admission of gang evidence for abuse of discretion. (People v. Jordan, supra, 108 Cal.App.4th at p. 366.)

The People argue that Holt has waived this contention. In connection with his motion to bifurcate the gang enhancement allegations, Holt argued that the gang evidence was “more prejudicial than probative” and would infringe on his right to a fair trial “under the federal and state constitutions.” Thus, we find that Holt has preserved this issue for appeal.

         Gang evidence was relevant to Holt’s identification as Rock B. from Lueders Park Piru. The prosecution’s theory was that this was a gang-motivated shooting. Holt’s membership in the gang was central to the prosecution’s case. “[I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193.) Here the evidence of identity and motive was not particularly inflammatory.

         The prosecutor also introduced evidence for purposes of proving the gang enhancement allegations: evidence of the gang’s activities, convictions of two of its members for kidnapping/robbery and grand theft, Holt’s tattoos, and cards and photos from Holt’s home demonstrating his association with Lueders Park Piru. As described above, the true findings on the gang allegations are supported by substantial evidence.

Holt’s reliance on People v. Albarran (2007) 149 Cal.App.4th 214 is misplaced. There the prosecution did not present sufficient evidence to prove the gang enhancement allegations or to prove the crimes were gang-motivated. The Court of Appeal concluded that the evidence was not relevant to the underlying charges and was “extremely prejudicial.” (Id. at p. 217.) The court explained: “Evidence of threats to kill police officers, descriptions of the [wide variety of] criminal activities of other gang members, and reference to the Mexican Mafia had little or no bearing on any other material issue relating to Albarran’s guilt on the charged crimes and approached being classified as overkill.” (Id. at p. 228.) The evidence admitted in this case cannot be placed in that same category. For example, Detective Hecht’s testimony about the greeting cards found in Holt’s bedroom and the use of the initials CK to represent “Crip Killer” was relevant to demonstrate the rivalry between Holt’s gang and Crip gangs.

         Holt cannot establish that the gang evidence rendered his trial fundamentally unfair. The trial court properly instructed the jury with a limiting instruction regarding proper use of gang evidence. (CALJIC NO. 17.24.3.) Moreover, Holt cannot prevail on a claim that he was convicted of these crimes simply because the jury heard evidence that he was a gang member. The prosecutor introduced overwhelming evidence of Holt’s guilt which was not related to the evidence about which he now complains. The only way to reach a conclusion in Holt’s favor would be to ignore the eyewitness identifications of Keaton and Washington. Holt’s claim is without merit.

         III. MOTION FOR NEW TRIAL

         Holt moved for new trial based on several grounds, including newly discovered evidence. On appeal, Holt contends the trial court erred in denying his motion because statements from five witnesses demonstrated that a different result on retrial was probable. The statements were given more than a year after trial (and more than two and a half years after the crimes). We reject Holt’s contention because the witnesses were not newly discovered, Holt does not explain what efforts the defense made to produce them at trial, and their belated statements do not necessarily contradict the eyewitness identifications of Lionel Keaton and Antoine Washington.

Holt filed two motions for new trial. The motion at issue on appeal is the second motion, which was filed by attorney Robin Yanes on September 23, 2008.

The motion references seven witnesses and their post-trial statements. On appeal, Holt only addresses the statements from five of these witnesses: Lannette Catchings, Michelle Johnson, Rustin Banks, Ricky Cortez and Adrian Madrid.

         A defendant is entitled to a new trial based on newly discovered evidence where he can show: “‘“1. That the evidence, and not merely its materiality be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’” (People v. Martinez (1984) 36 Cal.3d 816, 821, quoting People v. Sutton (1887) 73 Cal. 243, 247-248.) We review the denial of a motion for new trial based on newly discovered evidence for abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328.)

         Holt cannot establish that the evidence was “newly discovered.” Holt does not deny that all five of these witnesses were known to the defense before trial. Nor can Holt establish that he could not have produced this evidence at trial, even in the exercise of reasonable diligence. Holt does not describe what efforts the defense made to bring these witnesses to trial. Thus, Holt cannot meet the requisite showing for a motion for new trial based on newly discovered evidence.

         This is not the end of our review, however. We recognize that defense counsel’s lack of diligence is not necessarily a sufficient basis for denial of a motion for new trial where “the newly discovered evidence would probably lead to a different result on retrial.” (People v. Martinez, supra, 36 Cal.3d at p. 825.) “Numerous cases hold that a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant.” (Id. at p. 823.)

         Here it is not probable that testimony from these five witnesses would have changed the outcome. None of the post-trial statements demonstrates conclusively that Holt was not one of the shooters. None of these witnesses saw the shooting occur. They described things that they saw in the alley shortly before any shots were fired. Ricky Cortez stated that he saw one man with a gun. Lannette Catchings, Michelle Johnson and Rustin Banks all stated that they saw two men with guns. Catchings and Banks stated that Holt was not one of the men they saw. On their face, the statements from these witnesses are not inconsistent with Lionel Keaton’s trial testimony. Keaton told detectives immediately after the shooting, and he also testified at trial, that he saw three men with guns, and he saw them begin shooting. Immediately before the shooting, the men were hiding in the bushes. The fact that these witnesses saw one or two other gunmen does not mean that a third gunman – Holt – was not hidden out of sight before the shooting began.

When he was interviewed more than three years earlier, on the day after the shooting, Banks told detectives that he saw one man crouched down in the alley.

         The fifth “new” witness, Adrian Madrid, stated that he saw three men in the alley. The investigator stated the following regarding Madrid’s description of the men: “I asked him if he knew ‘Rockbee, ’ and he asked if he was a ‘light-skinned dude’ and I told him yes. I then asked if that night, did he see any light-skinned blacks and he stated he only recalls three very dark-skinned blacks and would not recognize them today....” We are not persuaded that Madrid’s recollection, conveyed three years after the shooting, would have resulted in a different outcome on retrial. Lionel Keaton and Antoine Washington, eyewitnesses to the shooting, identified Rock B. as the shooter. They did not identify him based on the color of his complexion. They identified him because they had known him for years from the neighborhood and they saw him often.

         More than two and a half years after the shooting, Michelle Johnson and Lannette Catchings implicated Michelle’s ex-boyfriend, “Roscoe, ” in these murders and attempted murders. A lengthy discussion about their statements is not warranted for two reasons. First, they each claim to have seen two gunmen, Roscoe and an associate. The fact Catchings states that Holt was not one of the two men she saw does not necessarily mean that Holt was not present and involved in the shooting, as discussed above.

We refer to her by her first name to avoid confusion with Anthony Johnson.

         Second, there are credibility problems with these belated statements. When Catchings was interviewed by another defense investigator a year and a half earlier, she did not identify either of the two shooters she saw. She described them as “Hispanics in their late 20s.”

         When Michelle was interviewed by a sergeant from the Los Angeles Sheriff’s Department the day after the shooting, she did not say that Roscoe was a shooter. More than two and a half years later, she had reason to implicate him. She told a sergeant that Roscoe beat her on multiple occasions and she was afraid he was going to kill her. He was incarcerated at the time she came forward with the new information. According to the sergeant’s report, she “wanted to tell the truth in hopes that he would never get out of jail.”

Michelle’s statements, if believed, are helpful to the prosecution. According to the sergeant, Michelle stated that she overheard Roscoe on the phone telling someone to go by and check if there were any Butler Block Crips hanging out. Someone called back and “from the conversation she surmised that there were about 5 or 6 ‘Butler Block Crips’ present on Butler Avenue.” Roscoe left, and when he returned, he told Michelle that he had shot some Butler Block Crips. Michelle identified Roscoe as a Piru gang member, but from a different set than Holt. Given the prosecution’s theory that the shooting was motivated by a Blood versus Crip rivalry, it is not probable that Michelle’s statements would have helped Holt’s cause on retrial.

         The trial court did not err in denying Holt’s motion for new trial based on newly discovered evidence. These witnesses were known to the defense before trial and it is not probable that their post-trial statements would have resulted in a different outcome on retrial.

         IV. PAROLE REVOCATION RESTITUTION FINE

         Holt contends the trial court improperly imposed a $200 parole revocation restitution fine under section 1202.45. We agree.

         Section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4....” (§ 1202.45.) The fine is suspended unless parole is revoked. (Ibid.)

         The fine applies only where the sentence includes a determinate prison term. (See People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1185.) Holt was sentenced to life without the possibility of parole for the murders and indeterminate life sentences for the attempted murders. Accordingly, the fine was improperly imposed and must be stricken.

         V. PRIOR CONVICTION AND PRISON TERM ALLEGATIONS

         In the respondent’s brief, the People argue that the matter should be remanded for resolution of the prior conviction and prison term allegations. At the sentencing hearing, the prosecutor did not ask the trial court to make findings on these allegations. The People may not raise that issue for the first time in this court. (See People v. Tillman (2000) 22 Cal.4th 300, 303.)

         Even if the issue were properly before this court, the People’s claim would fail. Where a trial court fails to make a finding on a prior conviction allegation, “the effect is the same as a finding of ‘not true.’” (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440; In re Candelario (1970) 3 Cal.3d 702, 706; People v. Garcia (1970) 4 Cal.App.3d 904, 907, fn. 2.)

         DISPOSITION

         The judgment is modified to reflect that the $200 Penal Code section 1202.45 parole revocation restitution fine is stricken. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare a modified abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

          We concur: ROTHSCHILD, Acting P. J.JOHNSON, J.