People v. Santana CA2/1 ( 2022 )

Filed 5/25/22 P. v. Santana CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309929
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA133463)
v.
HECTOR SANTANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Roger Ito, Judge. Affirmed in part, reversed in
part, and remanded with directions.
Jason Szydlik, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
As Antonio V. put up Christmas decorations in front of his
home with his two children, Hector Santana, a man Antonio did
not know, approached him to ask for money for college. After
Antonio gave Santana $5 from his pocket, Santana asked for a
glass of water. As Antonio emerged from his home with the
water, Santana held a gun. Fearful for his children, Antonio
attempted to tackle Santana, and Santana shot Antonio. Antonio
fell, and while he remained on the ground, kneeling, Santana
shot at him again.
A jury convicted Santana of attempted murder (Pen. Code,1
§§ 187, subd. (a), 664), found true the allegation that the
attempted murder was willful, deliberate, and premeditated
(§ 664, subd. (a)), and found true three firearm enhancement
allegations that Santana used a firearm, discharged a firearm,
and discharged a firearm causing great bodily injury (§ 12022.53,
subds. (b), (c), (d)). The trial court sentenced Santana to seven
years to life for attempted premeditated and deliberate murder
and a consecutive term of 25 years to life for discharging a
firearm, causing great bodily injury.
On appeal, Santana argues the evidence was insufficient to
support the jury’s finding of premeditation and deliberation. He
contends he acted rashly in an effort to extricate himself from a
struggle with Antonio. Under the deferential standard of review,
however, we conclude sufficient evidence existed from which the
jury could infer premeditation and deliberation, including
planning activity and the manner of the attempted killing.
Santana brought a loaded firearm to Antonio’s home, engaged in
the pretense of wanting a glass of water, and notwithstanding the
1 All unspecified statutory references are to the Penal Code.
2
presence of Antonio’s children, brandished a handgun. Although
there may have been a brief struggle, even after Antonio was on
the ground and Santana had the opportunity to run away, he
chose instead to shoot at Antonio again.
Santana also argues the matter must be remanded for
resentencing because the trial court was unaware of its discretion
to impose a lesser firearm sentence enhancement under section
12022.53, subdivision (h). We agree, remand for resentencing,
and otherwise affirm the judgment.
BACKGROUND
A. Factual Summary
On December 3, 2009, at approximately 5:00 p.m., Antonio,
his son, Jose, and his three-year-old daughter, were in the front
yard of their house in Norwalk. Antonio was setting up
Christmas decorations.
Santana, who wore a backpack and was holding paperwork,
approached Antonio and asked him for a donation for college.
Neither Antonio nor Jose had ever seen Santana before. Antonio
took $5 from his pocket and gave it to Santana. Santana handed
Antonio the packet of paperwork to fill out, and Antonio wrote his
name, the amount he had given, and a telephone number on the
paperwork. Antonio returned the paperwork to Santana, who
thanked him and stated that no one else had helped him yet.
Santana asked Antonio for a glass of water. Antonio went
inside the house and got a glass of water. Antonio could not
recall whether he locked the security screen door behind him.
When Antonio emerged from the house with the water, Santana
was on the porch, near the door, and Antonio saw that Santana
held a gun. Antonio went towards Santana to tackle him because
Antonio feared Santana would shoot his children. As Antonio
3
exited the house, Santana outstretched his arm in a classic,
shooting stance and shot him. Antonio tripped on some cables
and fell. He told his son to get his mother and call an ambulance
because Santana had shot him. Santana ran away. Antonio was
struck three times, in his chest, side, and stomach. The entire
encounter lasted approximately five minutes.
Jose testified that he heard loud booms, like gunshots
“before [Antonio] was—outside on the ground” and before he saw
Antonio tackle Santana. Jose also testified that after Antonio
tackled Santana, Santana got up, started to run away, and while
Antonio was still on the ground, Santana shot him. Jose heard
about four shots.
Jose’s friend, nine-year-old Ashley B., was in a car with her
mother, driving to Jose’s house when she saw Antonio and
Santana struggling near the front door. Antonio chased Santana,
and while Santana was running away in a backwards or
sideways manner so he could still look at Antonio, who was
kneeling, he shot Antonio.
As she parked the car, Irma B.,2 Ashley’s mother, saw
Antonio and Santana running from the front door of Antonio’s
house. Then she saw Santana shooting a gun at Antonio, at a
very close distance to him. Both men fell as they tripped over
cables, and Antonio nearly caught Santana by his feet. Santana
kept running and fired some more shots. She saw more than
three flashes from the gun.
2 At trial, the defense pursued a theory of mistaken
identity. Both Antonio and Jose identified Santana in a police
photograph line-up and in court as the shooter. Neither Ashley
nor Irma was able to identify Santana because they did not see
his face clearly during the incident.
4
Antonio’s family called 911, and an ambulance transported
him to the hospital, where he underwent surgery. He remained
in the hospital for a month.
A sheriff’s deputy found two nine-millimeter shell casings
and the stack of papers Santana had been holding in the grass in
the front yard. Santana’s left thumb fingerprint was identified
on the paperwork. In addition to the casings, there was a bullet
hole in the window frame of Antonio’s house and a “strike” from a
bullet in the ceiling. An expended round was recovered from
outside the house; it appeared the round had traveled through
the wall of the house. A bullet fragment was found behind the
front door.
B. Conviction and Sentencing
On April 12, 2018, the jury found Santana guilty of the
attempted murder of Antonio and found true the allegations that
Santana committed the attempted murder willfully and with
premeditation and deliberation; and used a firearm, discharged a
firearm, and discharged a firearm causing great bodily injury.
The trial court scheduled the sentencing hearing for May 25,
2018.
Following approximately two years of continuances, on
January 7, 2021, the matter came for sentencing before Judge
Ito, who had not presided over the trial. The court sentenced
Santana to seven years to life for the attempted murder and an
additional 25 years to life for the discharging of a gun causing
great bodily injury enhancement.
Santana filed a timely notice of appeal.
5
DISCUSSION
A. Substantial Evidence Supported the Jury’s Finding
of Premeditation and Deliberation
Legal Principles and Standard of Review
Murder in the first degree includes, inter alia, any willful,
deliberate, and premeditated killing. (§ 189, subd. (a).) “ ‘ “ ‘In
this context, “premeditated” means “considered beforehand,” and
“deliberate” means “formed or arrived at or determined upon as a
result of careful thought and weighing of considerations for and
against the proposed course of action.” ’ ” [Citation.] “ ‘An
intentional killing is premeditated and deliberate if it occurred as
the result of preexisting thought and reflection rather than
unconsidered or rash impulse.’ ” [Citations.] “The true test is not
the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .” [Citation.]’
[Citation.]” (People v. Morales (2020) 10 Cal.5th 76, 88.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our
Supreme Court identified three categories of evidence that it “has
generally found sufficient to sustain a finding of premeditation
and deliberation: (1) planning activity, or ‘facts about how and
what defendant did prior to the actual killing which show that
the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing’; (2) motive, or
‘facts about the defendant’s prior relationship and/or conduct
with the victim from which the jury could reasonably infer a
“motive” to kill the victim’; and (3) manner of killing, or ‘facts
about the nature of the killing from which the jury could infer
that the manner of killing was so particular and exacting that the
defendant must have intentionally killed according to a
6
“preconceived design” to take his victim’s life in a particular way
for a “reason.” ’ ” (People v. Morales, supra, 10 Cal.5th at pp. 88-
89, quoting Anderson, supra, at pp 26-27.) “[T]hese factors need
not all be present, or in any special combination; nor must they
be accorded a particular weight.” (People v. Garcia (2000) 78
Cal.App.4th 1422, 1427.)
In reviewing the sufficiency of the evidence, an appellate
court does not “ ‘ “ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable doubt.”
[Citation.] Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
[Citation.]’ ” (People v. Boatman (2013) 221 Cal.App.4th 1253,
1262, italics omitted.) If a finding of premeditation and
deliberation are based on circumstantial evidence, a reviewing
court must determine “ ‘whether the proof is such as will furnish
a reasonable foundation for an inference of premeditation and
deliberation [citation] or whether it “leaves only to conjecture and
surmise the conclusion that [the] defendant either arrived at or
carried out the intention to kill as the result of a concurrence of
deliberation and premeditation.” ’ ” (Id. at p. 1265, quoting
Anderson, supra, 70 Cal.2d at p. 25; see People v. Brooks (2017) 3
Cal.5th 1, 57 [“ ‘Substantial evidence includes circumstantial
evidence and any reasonable inferences drawn from that
evidence’ ”].)
Analysis
The evidence adduced at trial concerning Santana’s
planning activity and the manner of the attempted killing
supports the jury’s findings of premeditation and deliberation.
7
Santana brought a loaded gun to Antonio’s home, demonstrating
preparation. (See, e.g., People v. Salazar (2016) 63 Cal.4th 214,
245 [bringing loaded gun demonstrated preparation]; People v.
Koontz (2002) 27 Cal.4th 1041, 1082 [defendant arming himself
was evidence of planning].) Additionally, he engaged in a ruse of
needing a glass of water, thereby permitting himself time and
opportunity to draw the gun while Antonio was inside the house.
Although it is unclear whether, in that instant, Santana planned
to murder Antonio or pursue some other course for which he felt
he needed a gun, we defer, as we must (see People v. Massie
(2006) 142 Cal.App.4th 365, 373),3 to the jury’s reasonable
inference supporting the judgment that Santana intended to
murder Antonio, especially in light of the evidence relating to the
manner of the shooting.
3 “ ‘Although the jury is required to acquit a criminal
defendant if it finds the evidence susceptible of two reasonable
interpretations, one of which favors guilt and the other
innocence, it is the jury, not the appellate court, which must be
convinced of his guilt beyond a reasonable doubt. [Citation.] We
review the entire record in the light most favorable to the
judgment and affirm the convictions as long as a rational trier of
fact could have found guilt based on the evidence and inferences
reasonably drawn therefrom.’ ” (People v. Massie, supra, 142
Cal.App.4th at p. 373, quoting People v. Millwee (1998) 18 Cal.4th
96, 132.) “Thus, ‘ “[i]f the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’ ”
(People v. Massie, supra, at p. 373, quoting People v. Perez (1992)
2 Cal.4th 1117, 1124.)
8
Santana argues the manner of the attempted killing
suggests a hasty reaction in the midst of a struggle rather than a
premeditated and deliberate killing. However, the jurors heard
and assessed testimony from which they could have reasonably
inferred that Santana deliberated beforehand whether to shoot or
continue shooting at Santana. First, at the moment Antonio
moved toward Santana in an attempt to tackle him, Santana did
not immediately turn and run or shy away from Antonio. Rather,
holding his arm straight out, he shot at Antonio. Santana shot at
Antonio’s torso, although he may have also been able to halt or
slow Antonio from advancing if he shot at a less potentially fatal
area, such as his legs or the floor.
Even more indicative of a deliberate decision to kill Antonio
is the testimony that after Santana was in a position to escape,
Santana shot at Antonio again. Jose and Ashley testified that
Santana shot at Antonio when Antonio was on the ground or
kneeling, after the men struggled or tripped over the cables. At
that point, Santana was free of Antonio’s attempted tackle and
standing. Santana could have simply run. Yet the testimony
from Ashley is that Santana ran sideways or backwards—a
slower means of escape than running forward—and shot at
Antonio. Her mother, Irma, corroborated this testimony,
testifying that Santana shot at Antonio, then after Antonio
tripped, Santana fired more shots at Antonio as he ran. (See
People v. Lunafelix (1985) 168 Cal.App.3d 97, 101 [affirming
finding of premeditation when, inter alia, “[h]aving disabled the
victim by knocking him to the floor, and while the victim was still
in this vulnerable position merely trying to get up, [the] appellant
cocked or released his gun, pointed it at the victim and began
shooting]”]; People v. Watkins (1967) 248 Cal.App.2d 603, 609
9
[concluding jury could reasonably infer deliberation, “although
briefly held,” where the defendant “struck successive blows upon
the victim’s head with a crowbar, that after being interrupted
both defendants dragged the victim to a vacant lot, where [the
defendant] continued to strike him with the crowbar”].)
Santana also maintains that the evidence of a motive to kill
is “nonexistent.” We agree that the Attorney General’s theory
that Santana shot Antonio because he was disappointed with
receiving a $5 donation is speculative. However, there need not
be evidence of all three Anderson factors for an appellate court to
affirm a jury’s finding of premeditation and deliberation. (See
People v. Garcia, supra, 78 Cal.App.4th at p. 1427.) Accordingly,
we conclude the evidence of planning and the manner of the
attempted killing provide a sufficient basis upon which a rational
trier of fact could find the attempted murder was premeditated
and deliberate.
B. Sentencing
Santana argues we should remand the matter to provide
the trial court an opportunity to exercise its discretion in deciding
whether to impose a lesser sentence relating to the firearm
enhancements under section 12022.53. We agree.
Factual Summary
In an April 17, 2018 sentencing memorandum, the
prosecution indicated that Santana (1) had been convicted of
attempted murder, which the jury found to be willful, deliberate,
and premeditated, and for which the sentence under section 664,
subdivision (a) was life with the possibility of parole; and (2) had
been found to have discharged a firearm, causing great bodily
injury, for which the sentence under section 12022.53,
subdivision (d) was 25 years to life. The memorandum did not
10
state that the jury had also found true two other, lesser firearm
enhancements for use and discharge of a weapon under section
12022.53, subdivisions (b) and (c) or that the court had discretion
to impose a sentence for a lesser enhancement.
During the May 25, 2018 sentencing hearing, defense
counsel informed the court that Santana was 19 years old at the
time he shot Antonio, and asked for a continuance to allow for a
Franklin hearing.4 The trial court granted the request. The
matter was continued several more times.
On October 28, 2020, the parties appeared before the judge
for sentencing. The trial court observed that “Santana was
convicted of one count of [attempted murder under sections] 664[
and] 187 . . . [s]o that’s a life sentence for [c]ount number [one].
And then he was—there was an allegation pursuant to [section]
12022.53[,] subdivision (d) . . . [w]hich is an additional 25 years to
life. . . . There’s not a great deal of discretion in this case.”
Defense counsel agreed: “[T]here’s not a great deal of discretion
for the court.” Still, defense counsel requested additional time to
gather information relevant to a Franklin hearing, including
Santana’s records from the Department of Children and Family
Services (DCFS). The court continued the sentencing hearing to
January 7, 2021.
On January 7, 2021, the judge stated he had read the
People’s two-to-three-year-old sentencing memorandum, and
observed, “[t]his is pretty much a stated nondiscretionary
4 People v. Franklin (2016) 63 Cal.4th 261 held that an
eligible youth offender must have an opportunity to “make a
record of information relevant to his eventual youth offender
parole hearing.” (Id. at p. 284.)
11
sentence given the nature of the conviction and the enhancement
that was found true by the jury.” It sentenced Santana as
follows: “Count number 1 probation is denied. Typically[,] I
would be listing off the determinate terms first, but there is no
true determinate term on this case. He has two life counts. In
the case of count number 1 it is a term of seven to life. I think it’s
actually a life term with the possibility of parole. . . . It’s a
straight life term. . . . In addition and consecutive thereto the
court will impose 25 years to life on the enhancement pursuant to
[section] 12022[, subdivisions (b)(d)] [sic]. This is a discharge of a
firearm and that discharge causing great bodily injury.”
Thereafter, defense counsel indicated Santana wanted to
make a statement to the court. The trial court encouraged
Santana to submit it as part of his parole packet. In response to
defense counsel’s question whether the court was indicating that
the statement would have no impact, the court responded, “It’s a
nondiscretionary. It’s seven to life and the gun is 25 to life in
addition to that.” The court permitted Santana to make a
statement, and when Santana indicated he would have more
information to submit to the court, the court responded, “You can
submit it to the parole board, Mr. Santana. This is a
nondiscretionary sentence as far as I’m concerned. I’m denying
[the prosecution’s] motion to strike any enhancements. If they
were going to make one—I suspect they are for the record.” The
prosecutor responded in the affirmative. The court denied the
motion and stated, “I’m sentencing you and your entire packet
will be made part of your parole packet.”
Analysis
For certain enumerated crimes including attempted
murder, section 12022.53 requires a sentencing court to impose
12
an additional and consecutive sentence of 10 years for use of a
firearm; an additional and consecutive sentence of 20 years for
the discharge of a firearm; and an additional and consecutive
sentence of 25 years to life for the discharge of a firearm causing
great bodily injury. (§ 12022.53, subds. (b)-(d).) Prior to
January 1, 2018, a sentencing court had no discretion to strike
any of the firearm enhancement allegations under subdivisions
(b) to (d), and, if more than one enhancement were found true,
required the court to impose the enhancement that provided the
longest term. (Fmr. § 12022.53, subds. (f), (h) [effective Jan. 1,
2012 to Dec. 31, 2017].)
Effective January 1, 2018, Senate Bill No. 620 (2017-2018
Reg. Sess.) amended section 12022.53 to provide “[t]he court may,
in the interest of justice pursuant to [s]ection 1385[5] and at the
time of sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section. . . .” (§ 12022.53, subd.
(h), as amended by Stats. 2017, ch. 682, § 2; see People v. Tirado
(2022) 12 Cal.5th 688, 700 [holding § 12022.53, subd. (h) allows a
sentencing court to impose a lesser, uncharged enhancement].)
The Attorney General does not dispute the trial court
believed it lacked discretion to impose a lesser sentence. Rather,
relying on People v. Scott (1994) 9 Cal.4th 331, the Attorney
5 Section 1385, subdivision (c) requires a court to “dismiss
an enhancement if it is in the furtherance of justice to do so,
except if dismissal of that enhancement is prohibited by any
initiative statute.” “In exercising its discretion under this
subdivision, the court shall consider and afford great weight to
evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are
present. . . .”
13
General argues that Santana forfeited this issue on appeal by
failing to object during sentencing. Scott held forfeiture “should
apply to claims involving the trial court’s failure to properly make
or articulate its discretionary sentencing choices.” (Id. at p. 353;
see also People v. Trujillo (2015) 60 Cal.4th 850, 856-857
[“[C]laims of error in the trial court’s exercise of its sentencing
discretion are . . . forfeited if not raised at the sentencing hearing.
Such errors are essentially factual, and thus distinct from ‘ “clear
and correctable” ’ legal errors that appellate courts can redress on
appeal ‘independent of any factual issues presented by the record
at sentencing’ ”].)
The matter before us is distinguishable. Whereas People v.
Scott concerned “complaints about the manner in which the trial
court exercises its sentencing discretion” (9 Cal.4th at p. 356,
italics added), Santana asserts that the court erroneously
believed it had no discretion, and the Attorney General does not
contest this. “[W]hen [the trial court’s] misapprehension is
affirmatively demonstrated by the record,” the court may exercise
its discretion to review the decision. (People v. Leon (2016) 243
Cal.App.4th 1003, 1023, 1026; see In re Sean W. (2005) 127
Cal.App.4th 1177, 1181-1182 [no forfeiture where the court
misapprehended its discretion].) Additionally, we may exercise
our discretion to consider an issue on the merits where, as here,
it involves “ ‘a pure question of law which is presented by
undisputed facts.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1061;
see People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6 [“An
appellate court is generally not prohibited from reaching a
question that has not been preserved for review by a party. . . .
14
Indeed, it has the authority to do so. . . . Whether or not it should
do so is entrusted to its discretion”].)6
The court’s repeated statements that the sentence was
nondiscretionary affirmatively demonstrate it was unaware of its
discretion under section 12022.53, subdivision (h) to strike one or
more firearm enhancement, and the Attorney General does not
argue any differently. Accordingly, we exercise our discretion to
consider the issue.
“When being sentenced, a defendant is entitled to decisions
made by a court exercising informed discretion. [Citation.] A
court acting while unaware of the scope of its discretion is
understood to have abused it. [Citation.]” (People v. Tirado,
supra, 12 Cal.5th at p. 694.) “In such circumstances, . . . the
appropriate remedy is to remand for resentencing unless the
record ‘clearly indicate[s]’ that the trial court would have reached
the same conclusion ‘even if it had been aware that it had such
discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.)
Notwithstanding misunderstanding the court’s discretion,
Santana and his counsel referred to certain factors that may have
been relevant to his sentence, in the interests of justice, including
Santana’s age at the time of the crime (19 years old) and a
possible history with DCFS. The court did not give full
consideration to defense counsel’s arguments or Santana’s
6 We may also exercise our discretion to review the issue to
forestall a claim of ineffective assistance of counsel. (People v.
Leon, supra, 243 Cal.App.4th at p. 1023; People v. Yarbrough
(2008) 169 Cal.App.4th 303, 310.) Here, neither Santana’s
counsel nor the prosecutor clearly informed the court of its
sentencing choices under section 12022.53.
15
presentation relating to these factors. Instead, it urged Santana
to present the information to the parole board. Thus, it is not
clear that if the court had known of its discretion and heard the
mitigating information, it would have imposed the same
sentence.
The Attorney General contends Santana cannot
demonstrate that the trial court would have imposed a different
sentence if it had known of its discretion. According to the
Attorney General, the trial court’s denial of the prosecutor’s
motion to strike firearm enhancement allegation indicates that,
even if it knew it had discretion to impose a lesser enhancement
term, it would not have done so. But the trial court could have
been reluctant to strike the enhancement because it was unaware
that it could impose a lesser enhancement in its place. The
judge, who did not have the benefit of presiding over the trial,
relied on the sentencing memorandum to inform him of the jury’s
findings. However, the sentencing memorandum did not analyze
the jury’s findings pursuant to subdivisions (b) and (c).7 That the
court was unaware of the lesser enhancements is further
demonstrated by the fact that the court failed to sentence
Santana pursuant to those enhancements and stay those
sentences as it normally would and should have. (See People v.
Gonzalez (2008) 43 Cal.4th 1118, 1129-1130 [concluding the
proper procedure is for the trial court to impose then stay
additional firearm enhancements under § 12022.53].) Indeed, the
7 The Supreme Court’s holding that courts may impose an
uncharged, lesser firearm enhancement under section 12022.53
came more than a year after Santana’s sentencing hearing. (See
People v. Tirado, supra, 12 Cal.5th 688.)
16
Attorney General concedes we should order the sentencing court
to impose and stay the enhancements under section 12022.53,
subdivisions (b) and (c) to the extent they are not stricken.
Accordingly, we remand the matter for resentencing in
order to provide the court an opportunity to exercise its discretion
under section 12022.53, subdivision (h).
C. Abstract of Judgment
The Attorney General argues, and Santana does not
dispute, that the abstract of judgment should be amended to
correct a clerical error: the attempted murder occurred in 2009
and not 2018, as currently listed on the abstract of judgment. We
agree that this is appropriate. (See People v. Wilson (2010) 186
Cal.App.4th 789, 823; see also People v. Mitchell (2001) 26
Cal.4th 181, 185 [“Courts may correct clerical errors at any time,
and appellate courts (including this one) that have properly
assumed jurisdiction of cases have ordered correction of abstracts
of judgment that did not accurately reflect the oral judgments of
sentencing courts”].)
17
DISPOSITION
We reverse and remand the matter for resentencing and
order the trial court to correct the abstract of judgment to reflect
that the attempted murder occurred in 2009. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED
MORI, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
18