People v. Jeronimo CA5 ( 2021 )

Filed 12/22/21 P. v. Jeronimo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078575
Plaintiff and Respondent,
(Tulare Super. Ct.
v. No. VCF333853A)
JESUS JERONIMO,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In an amended information filed September 27, 2016, the Tulare County District
Attorney charged defendant with murder (Pen. Code, § 187, subd. (a)),1 committed
during a kidnapping (§ 190.2, subd. (a)(17)), and while lying in wait (§ 190.2,
subd. (a)(15)). The information further alleged defendant personally used a firearm
causing great bodily injury and death to the victim. (§ 12022.53, subd. (d).)
Defendant was jointly tried alongside codefendants Angelita Reyes and Arturo
Hernandez Pompa (Arturo). The jury convicted defendant of murder and found the
various allegations of the information to be true.2 The court sentenced defendant to life
in prison without the possibility of parole, plus a consecutive term of 25 years to life for
the firearm enhancement. (§ 12022.53, subd. (d).)
Defendant makes several claims of prejudicial error. We order defendant’s parole
revocation fine stricken but otherwise affirm the judgment.
FACTS
Victim Abrahan Gaspar lived with his mother, Tomasa Reyes and her husband,
Melesio Ramirez, in Hanford. Gaspar became the youth pastor at Tomasa’s church in
2008, and later worked as an assistant pastor in 2012. Gaspar’s job duty was to preach on
Sundays.
Gaspar began dating codefendant Angelita Reyes. During their relationship,
Angelita3 and her two sons would sometimes sleep in Gaspar’s room. According to
Tomasa, Gaspar “couldn’t preach any more” once he began dating Angelita, because “he
felt bad about preaching.” Later, Tomasa testified that, in fact, the head pastor prohibited
Gaspar from preaching due to his relationship with Angelita.
1 All further statutory references are to the Penal Code unless otherwise stated.
2 Angelita was convicted of first degree murder. The jury acquitted Arturo.
3 Because multiple individuals involved in this case share the last name Reyes, we
will refer to Angelita by her first name.
2.
While Gaspar was dating Angelita, he was going through divorce proceedings
with his wife in Mexico. According to Tomasa, Angelita would become angry with
Gaspar because he would send money to his daughter in Mexico. Tomasa believed
Angelita was jealous that Gaspar still had contact with his estranged wife and their
daughter.
After an incident in December 2015, described more fully below, Gaspar and
Angelita stopped seeing each other. Angelita told Tomasa that if she cannot have the
person she loves, then “no one will.” Angelita denied making this statement.
After church on Sunday, April 3, 2016, Gaspar told Tomasa he would be “right
back” because he needed to change the tire on his truck. That was the last time Tomasa
saw Gaspar.
The next day, Tomasa called Angelita and asked if Gaspar was with her. Angelita
said she had spoken with Gaspar the day prior, but he was no longer with her.
On April 5, 2016, Gaspar’s body was found in an almond orchard in an isolated
part of Tulare County. There was little sign of struggle and jewelry had not been taken
off the body. Gaspar had sustained injuries consistent with a gunshot wound to the head.
There was no evidence Gaspar had been moved after falling to the ground. Based on fly
larvae and decomposition level, a detective determined Gaspar’s body had been in the
orchard for between 36 and 48 hours.
A .44-caliber Magnum casing was found less than 10 feet from Gaspar’s right
foot. Two .25-caliber shell casings were found on a roadway east of the body.
The way Gaspar’s shirt was pulled up and the location of the .44-caliber casing
indicated the shooter was holding Gaspar’s shirt, stepped off to the right side and shot
Gaspar through his right temple.
Gaspar’s vehicle was found about two miles from the crime scene.
3.
Interview of Angelita
On April 7, sheriff’s detectives Chris Gezzer and Hector Rodriguez contacted
defendant and Angelita. Detective Rodriguez told Angelita that Gaspar was dead.
Angelita said someone else had already informed her of Gaspar’s death. Angelita was
not hysterical or in shock. Indeed, both defendant and Angelita seemed calm.
Angelita said Gaspar was her ex-boyfriend and that they had broken off their
relationship roughly six months prior. Angelita said they broke up because Gaspar was a
jealous person, and his family did not “accept” her. Angelita told Detective Rodriguez
she had no problem with Gaspar sending money for his child, but she objected to him
sending money to his wife.
Angelita said she and Gaspar had planned to get married. Angelita said she and
Gaspar remained on friendly terms after the breakup and continued to communicate with
one another.
Angelita told Detective Rodriguez that Gaspar had been blackmailing her with
explicit videos or photographs that he threatened to send to family members and upload
to social media. Angelita said someone from church told her that Gaspar had done
something similar with a prior girlfriend named Mary. Angelita said defendant was
aware of the photographs Gaspar allegedly had of her.
Initially, Angelita denied having seen Gaspar on the prior Sunday. Later, Angelita
said Sunday, April 3, was the last time she spoke with Gaspar. She said the last place she
saw him was in Delano. Later, Reyes changed the location she last saw Gaspar to
Earlimart. She said defendant was with her when she met saw Gaspar in Earlimart.
Reyes claimed she and defendant were roommates and denied that they were “partners.”
Angelita later explained that she had asked Gaspar to meet her. When she told
him that she needed to get gas, Gaspar said he would meet her in Earlimart. They met
near a gas station in Earlimart. The gas station was “in the same area” where Gaspar’s
body would later be found.
4.
According to Angelita, Gaspar was supposed to return an engagement ring to her.
However, when Gaspar saw defendant had accompanied Angelita, he became upset.
They argued and Angelita eventually left. Angelita claimed that was the last she heard
from or saw Gaspar.
After initially denying any knowledge of Gaspar’s death, she eventually admitted
that defendant had killed Gaspar. She said defendant had been angry with Gaspar,
wanted to kill him, and had been looking for someone to loan him a gun. She also
admitted that she was, in fact, dating defendant.
Later still, Angelita changed her story by saying that a man named Arturo was the
one who wanted Gaspar dead. She now claimed that she went to the gas station alone,
while Arturo and defendant arrived later. Defendant hid so he could not be seen.
Angelita and Gaspar argued by the side of the road. During their argument, defendant
emerged from his hiding spot, hit Gaspar five or six times in the face, and sprayed him
with pepper spray. Angelita initially claimed she left after defendant’s assault.
However, she later said that defendant forced Gaspar into her pickup truck at
gunpoint. She also got into the pickup truck because she was scared of defendant’s
threats. Then they drove to an almond orchard. Defendant forced Gaspar out of the
vehicle, while Angelita remained behind in the vehicle. Defendant took Gaspar a few
rows into the orchard. Angelita moved into the driver’s seat of the truck. She heard
Gaspar ask if defendant was going to kill him. She also heard Gaspar tell defendant,
“God loves you.”
Angelita heard a gunshot, followed by defendant returning to the vehicle alone.
They drove to return the gun to Arturo in Earlimart. Defendant admitted to Angelita that
he had killed Gaspar.
Angelita never offered an explanation as to why her story kept changing.
5.
Angelita spoke about the December 2015 incident. Angelita said she and
defendant went to Gaspar’s parents’ house to make them aware of the images on his
tablet. Defendant waited in the car outside.
Interview of Defendant
Detective Merced Zamora interviewed defendant. Defendant said he and Angelita
were roommates.
Defendant also spoke about the incident where he and Angelita went to Gaspar’s
parents’ house. Defendant and Angelita concocted a ruse to get Gaspar away from the
house so they could retrieve the cell phone and tablet that allegedly had “sex videos.”
After retrieving the devices, defendant reset them to “factory mode,” deleting their
contents. As for the weekend of Gaspar’s death, defendant claimed that a man
approached Angelita in Earlimart and spoke with her. When the man realized defendant
was there, the man left.
Defendant later “expanded” on his version of events. Defendant said Angelita told
him Gaspar had “sex videos” of her. Gaspar had threatened that if Angelita ended their
relationship, he would send the videos to her ex-husband and children, and he would post
them to social media. Defendant said the situation made him feel “miserable” and that he
wanted to do something about it. Defendant and Angelita “fabricated” a “lie” that
Angelita was alone and that her truck was overheating necessitating that she park near
Avenue 56. In order to “set up” Gaspar, defendant told Angelita to tell Gaspar that her
vehicle was overheating.
Defendant hid in a vineyard across the street and placed a call to his friend Arturo
to obtain a gun. Defendant had to be very insistent with Arturo to obtain the gun. Arturo
arrived in his truck. Arturo tried to convince defendant he did not need a gun.
Ultimately, Arturo gave defendant a gun,4 but told him not to use it to kill Gaspar.
4Later, Detective Zamora indicated defendant said he himself retrieved the gun
from the utility bed of Arturo’s truck.
6.
Defendant ejected the magazine, saw it was loaded, and racked a round into the chamber
of the gun.
When Gaspar arrived, defendant ran across the street, punched Gaspar in the body
and head, and sprayed him with pepper spray (also accidentally spraying Angelita in the
process). Defendant then pushed Gaspar into the truck, threatening to pepper spray him
again. Angelita also entered the truck, and they drove to an almond orchard.
Defendant told Gaspar to exit the truck, and he complied. Gaspar asked if
defendant was going to kill him. Defendant said, “I need you to walk.” Gaspar asked
defendant what he was going to do, and defendant replied, “I’m not sure.” They walked
five to seven rows into the orchard, as defendant pointed a handgun at Gaspar’s right
temple. Gaspar told defendant, “God forgives you for what you’re going to do. This is
not your doing. This is the devil’s work.”
In his own mind, defendant was telling himself, “Don’t do it; if you do it[,] you’ll
get in trouble.” However, defendant “also had voices that were telling him to do it
because of all the agony that the victim was making Mrs. Reyes go through.” With the
gun “resting” on Gaspar’s temple, defendant pulled the trigger and saw Gaspar “go
backwards.”5 Defendant did not want to see Gaspar hit the ground, to avoid having
nightmares.
Defendant returned to the truck and Angelita asked, “What did you do?”
Defendant said, “Don’t worry about it.”
Defendant initially told detectives he dropped the gun “in the area.” He later said
he took the gun to Earlimart and put the gun “in the same pickup [truck] that … had
dropped it off earlier.”
5 Defendant was given the choice to speak with Detective Zamora in English or
Spanish. Defendant mostly spoke in English but used a few Spanish words. In
describing the shooting, defendant used the Spanish word “derevato.” Detective Zamora
testified the word can be used to mean “spur of the moment” or, alternatively, to mean “a
mess.”
7.
Defendant told Angelita that “sooner or later he was gonna kill” Gaspar but did
not want to do anything in front of his family. Later, “the opportunity presented itself
when they set him up on Avenue 56.”
First Interview of Arturo Hernandez
On April 9, 2016, Detective Miguel Franco contacted Arturo Hernandez at his
residence, and subsequently interviewed him in Franco’s unmarked vehicle.
Arturo said he knew defendant and Angelita as coworkers. Angelita told Arturo
she was being blackmailed. Angelita showed him the materials she was being
blackmailed with, including explicit photographs of her and Gaspar having intercourse.
Arturo wondered why Angelita would show him the photographs if she was afraid of
people seeing them. Arturo told her to go to the police.
While Arturo initially admitted speaking with defendant and Angelita on Sunday,
April 3, he did not mention anything about the crime scene on Avenue 56. Detective
Franco then confronted Arturo with information that had been provided by “the other
defendant.”6 At that point, Arturo changed his story. Arturo admitted delivering a gun to
defendant and Angelita. Arturo said Angelita was parked on the southside of Avenue 56,
and it appeared her vehicle had broken down. Arturo asked if Angelita was okay, and she
said, “[Y]es.” Another vehicle pulled up and asked Angelita if she needed help, to which
she responded, “[N]o.”
Arturo told defendant only to scare “him,” and not to kill “him.” Arturo delivered
the gun and left the area.
Defendant and Angelita returned the gun to Arturo later that day. Defendant told
Arturo he had taken “his” life.
6It is not clear whether this testimony means Franco confronted Arturo with
information provided by defendant or by codefendant Angelita.
8.
Arturo voluntarily provided the gun to Detective Franco. Franco observed the gun
appeared to have bloodstains on it.
Second Interview of Arturo Hernandez
On May 23, 2016, Detective Hector Rodriguez took another statement from
Arturo. Arturo said he, defendant and Angelita were together Saturday night and had a
conversation about Gaspar.7 They discussed “getting the victim to a location Saturday
night.” However, Gaspar texted or called later that night cancelling his trip to
Bakersfield.8
Defendant called Arturo and said that Gaspar was coming to Bakersfield.
Defendant asked Arturo to bring a gun so he could scare Gaspar. Defendant told Arturo
where to meet up with him and Angelita. It was the same location where Gaspar’s
vehicle was later found.
Arturo usually kept three or four rounds in his magazine. However, before leaving
to bring the gun and its magazine to defendant, Arturo loaded the magazine to full
capacity with eight rounds.
Defendant told Arturo where to meet up with him and Angelita. Arturo went to
that location and saw Angelita there next to her pickup truck, which had its hood up.
Arturo did not see defendant. Angelita said defendant was near a reservoir across the
street. He went to that area and located defendant. Defendant retrieved the gun from a
toolbox in the truck Arturo was driving. The magazine was loaded into the gun, but there
was no round in the chamber. Defendant asked how to operate the gun, so Arturo
7 Arturo said that within the two weeks prior to this Saturday conversation,
defendant had said he wanted to scare Gaspar. At some point within those two weeks,
defendant also sent Arturo a message saying he wanted to kill Gaspar.
8 Arturo claimed he suggested to defendant and Angelita that they go to the police.
Arturo said something similar to Angelita’s blackmail situation had happened to him, and
the police resolved it.
9.
showed him where the safety was and how to load a round into the chamber. At some
point, Angelita saw the gun and said it was “nice” and “big.” Arturo left.
Later that day, defendant and Angelita returned the gun. Defendant said he had
killed Gaspar. The gun had seven rounds in it.
Detective Rodriguez asked Arturo why he had brought the gun to defendant, but
Arturo “had no real answer to that” other than his belief defendant was only going to
scare Gaspar. Arturo said he was not forced or coerced into giving the gun to defendant.
Text Messages
On March 11, 2016, defendant sent a text message to Arturo in Spanish. Detective
Zamora translated9 the message as follows: “I can’t sleep at ease. It’s 2:30 and I went to
bed at 11:45, dad. I do not know what to do with the thoughts of him arriving without
giving notice and for them to sleep together or for him not to bring the video. It’s killing
me slowly from the inside watching how she fakes and pretends to talk to him like if he
was the love of her life.”
On April 1, 2016, defendant sent a text message to Arturo saying, “Do you think
you could get a gun? I want it to be me who breaks that bastard son of a bitch.”
Defendant sent a follow up message, saying, “I am tired of him making my life, oh, my
f[**]king life miserable.” Arturo replied with a slang word for “yes.”
Defendant sent another message, reading: “We are off tomorrow and Saturday. It
will give me enough time to find that son of a bitch and end him. I am reaching the point
where my heart is being filled with hate and poison. I can’t carry this weight
anymore.”10
Detective Zamora did not find any “sex tape” on Gaspar’s phone.
9 Detective Zamora testified he is “certified with the county as a Spanish
translator.”
10 The trial court overruled an objection that this was improperly translated.
10.
Trial Testimony of Javier Garcia
Angelita’s estranged husband, Javier Garcia, testified at trial. Garcia and Angelita
had separated three or four years prior to his testimony (which was being given on July
18, 2018).
A man called Garcia on the phone and said he was going to send photographs
proving the caller and Angelita had “been together.” Garcia did not know who the man
was. Garcia “cut him off” and said he was not interested because he and Angelita had
been separated for over a year at that time.
Trial Testimony of Angelita Reyes
Angelita Reyes testified in her defense. Angelita worked as a “crew leader” and
was in charge of hiring people. That is how she met Gaspar.
Angelita and Gaspar were dating by December 2014. Gaspar proposed marriage
and gave Angelita an engagement ring in January 2015. However, they had broken up by
the time Angelita met defendant months later, in March or April of 2015. Angelita said
she and Gaspar broke up because his wife called him “a lot” and was asking for money.
Angelita later added that Gaspar was jealous and possessive. However, Angelita
considered getting back with Gaspar up until the time he was killed.
Gaspar sent explicit pictures and/or videos to Angelita’s phone. Angelita asked
why Gaspar had recorded her. Gaspar said he wanted something to remember her by.
Sometime before December 2015, Angelita told the pastors at Gaspar’s church about
what he had done. A pastor’s wife told Angelita she “wasn’t the first person he had done
that to.” The pastor’s wife told Angelita to “do whatever was necessary” to retrieve the
tablet.
Angelita went to Gaspar’s parents’ house, retrieved the tablet, and showed
Gaspar’s father the video. Gaspar’s father said that what Gaspar was doing was “not
right.” Gaspar’s father said he would talk with Gaspar. However, Gaspar’s father did not
11.
want Angelita to take the tablet with its “chip” inside. Angelita ran away with the tablet
and got into a car being driven by defendant.
Even after this incident, Gaspar told Angelita he still wanted to marry her.
Angelita told Gaspar she no longer trusted him. Gaspar also still had a video of Angelita
on his phone. Gaspar said if she did not come back to him, he would show pictures to her
husband and ruin her life. Eventually, Angelita told Gaspar she would get back with him
in order to get the video.
Arturo told Angelita that defendant was very upset because of the videos and
wanted to “beat up” Gaspar. According to Angelita, Gaspar had also been contacting
defendant’s female family members through social media. Angelita told defendant not to
get involved and to leave it in God’s hands.
Angelita and Gaspar agreed to meet on April 3, 2016, so Gaspar could give her the
video and the engagement ring. Angelita agreed to meet Gaspar in Delano, though the
location was later changed to Earlimart. Afterward, Angelita went with defendant to
Earlimart.
In Earlimart, defendant told her the car was overheating. Defendant opened the
hood and left it open. Defendant then went to a nearby vineyard for shade. About five or
10 minutes later, Gaspar arrived. He gave Angelita a hug and a kiss, then inspected the
truck. He said it was “hot” and that they would just wait a while before leaving. As
Gaspar and Angelita were talking, defendant ran up, hit Gaspar in the head, and sprayed
them with “tear gas.”
Defendant told Angelita and Gaspar to get into the truck and be quiet. He drove
for a short while before stopping. He opened the door and told Gaspar to get out.
Angelita asked, “What are you going to do?” Defendant removed Gaspar from the truck
and left her locked inside. Angelita stayed inside the truck and does not know what
happened next.
12.
Defendant returned to the truck and told Angelita to drive. Defendant told
Angelita he had killed Gaspar. Angelita did not believe him. The next day Angelita
called Gaspar’s phone, not believing he had been killed.
Angelita initially gave a different story to law enforcement because she was
concerned for the safety of her children.
Trial Testimony of Arturo Hernandez
Arturo testified that he worked as a supervisor of agricultural workers. Angelita
was the crew chief for one of the teams Arturo supervised. Defendant worked on
Angelita’s crew.
Arturo and defendant developed a father-son type of relationship where defendant
would tell him personal problems and Arturo would offer advice.11
Before Gaspar’s death, Arturo and Angelita met at a fast food restaurant in
Bakersfield. Angelita showed Arturo photographs of her having sex. Angelita said
Gaspar would send the photographs to her late at night to cause problems between her
and defendant. However, Angelita did not say Gaspar was blackmailing her. Arturo
suggested Angelita and defendant contact the police.
Defendant asked if Arturo knew anyone who could sell him a gun. Defendant said
he wanted to scare Gaspar so that he would “stop with the video and stop bothering”
Angelita. Arturo denied that defendant ever told him he wanted to kill anyone. Nor did
Arturo remember receiving any message from defendant saying he wanted to kill
someone.
Defendant asked Arturo if he would loan him a gun to scare Gaspar and take the
video from him. Angelita messaged Arturo asking where he was going. Arturo lied and
said he had been arrested because he did not want to go to Bakersfield to give them the
gun. Eventually, however, Arturo told Angelita he would go.
11 At the time of trial, defendant was 24 years old, and Arturo was 39 years old.
13.
Usually, Arturo’s magazine had three or four bullets inside. However, Arturo
loaded an additional four or five bullets into the magazine, for a total of eight bullets.
When asked at trial why he loaded more bullets into the magazine, Arturo testified: “I’ve
asked myself that question, like, a thousand times. And I’ve never been able to answer
that question myself.”
Arturo brought the gun and magazine and met defendant at a gas station in
Bakersfield. Defendant brought Arturo back to the residence he shared with Angelita.
Arturo put the gun and a separate magazine into a bag on a table in the residence.
Arturo slept at defendant/Angelita’s residence that night. The next morning, a
Sunday, Arturo brought the gun home. Later that day, around 3:00 p.m., defendant called
Arturo asking if he could borrow the gun. Again, defendant said he just wanted to scare
Gaspar with it. Arturo drove to where defendant had told him to meet – past the railroad
tracks off of Avenue 56. Arturo had the gun and magazine in a toolbox in his truck. The
magazine had eight bullets inside. As he was driving, Arturo saw Angelita’s truck, with
its hood up.
Arturo parked in front of the truck. He saw Angelita by the truck and defendant
near some grapevines. Defendant asked if Arturo had brought the gun so he could scare
Gaspar. Defendant retrieved the gun from Arturo’s truck. Defendant asked Arturo how
to chamber a round in the gun. Arturo told him that if he “brought the slide back, that
would chamber a round.” Arturo also told defendant that the “little lever” was the safety.
Arturo left before Gaspar arrived. About 40 minutes later, defendant called to
return the gun. Defendant told Arturo he had killed Gaspar.
14.
DISCUSSION
I. Defendant Forfeited his Contention that Testimony Concerning a 911 Call
Should Have Been Admitted; Ineffective Assistance Cannot be Established on
Present Record
A. Background
In February 2017, Arturo’s counsel moved for a continuance of trial. Defendant’s
counsel joined the motion for a continuance. Defendant’s counsel said he spoke with
defendant “yesterday.” Defendant “provided” counsel “with information that [counsel]
believes constitutes a separate ground for opening a new investigation” that would not be
completed by the beginning of trial. The court then held an in camera hearing with
defendant’s counsel. We will limit our description of that in camera hearing to that
which defendant reveals in his appellate briefing: a continuance was sought in order “to
investigate whether [defendant] had reported Gaspar’s harassment of Reyes to police.”
At a pretrial hearing on July 10, 2018, the prosecutor noted that Angelita’s counsel
had provided a witness list with four names, including Officer James King of the
Bakersfield Police Department. The prosecutor explained that Angelita and defendant
had “made a call to 911” but “never … followed through with making [a] report.”
Angelita’s counsel described the call as follows: “She’s [presumably Angelita] saying
the guy [presumably Gaspar] is stalking her, guy is pursuing her, and he’s blackmailing
her, and so she’s saying it’s fresh at the time.”12
The prosecutor argued, “It is not an emergency – she’s not being stalked that day.
She’s just finally deciding to want to report something.” As a result, the prosecutor
argued the call was “hearsay without an exception.” Angelita’s counsel responded, “I
think he was pursuing her that day. She had gotten this tablet and this phone had some of
these things and she got that out of this room, and that’s when she first saw it, and he was
pursuing her, and his father was trying to chase her in the car.” The prosecutor observed
12 Contextually, these mentions of a “guy” are clearly references to Gaspar.
15.
that “nowhere in the 911 call does it say that” the confrontation regarding Gaspar’s
electronics occurred on the day of the 911 call.
The court clarified to Angelita’s counsel, “You wanted to introduce your client’s
statement?” Angelita’s counsel responded affirmatively. The court said the 911 call
statements were “clearly” hearsay. The court ultimately ruled that it would not “allow”
the 911 call.
No recording or transcript of the 911 call are found in the record. However,
defendant argues that Angelita’s counsel’s offer of proof, described above, “was
sufficient to establish the admissibility of this evidence.”
Defendant never attempted to move the 911 call into evidence. (See People v.
Espinoza (2002) 95 Cal.App.4th 1287, 1302–1304.)
B. Forfeiture
Defendant argues statements he and Angelita made on the 911 call were
admissible as spontaneous statements (Evid. Code, § 1240) or statements bearing on the
declarant’s state of mind (id., § 1250). However, a defendant may not assert on appeal
grounds for admissibility of evidence that he did not advance in the trial court. (See
People v. Jones (2017) 3 Cal.5th 583, 603.) While there was an offer of proof as to the
substance of the 911 call, defendant did not assert the specific grounds for admissibility
he advances on appeal (i.e., spontaneous statement, state of mind)
In contrast, Angelita’s counsel did argue the 911 call statements were “fresh” and
therefore admissible. Defendant argues the issue is preserved for appeal because “the
parties” discussed how Officer King’s anticipated testimony would be admissible, and
“the defense” made the substance, purpose and relevance of the evidence known to the
court. However, even if Angelita’s counsel’s argument in the trial court preserved the
issue on behalf of his own client – an issue we do not resolve here – it would not preserve
the issue on behalf of codefendants such as appellant. (See People v. Santos (1994) 30
Cal.App.4th 169, 180, fn. 8, disapproved on other grounds by People v. Dalton (2019) 7
16.
Cal.5th 166, 214; see also People v. Miranda (1987) 44 Cal.3d 57, 77–78, overruled on
other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
Defendant also points out his counsel obtained a trial continuance to “investigate”
the evidence he reported Gaspar to the authorities. But the issue of whether to continue
the trial to permit a defense investigation of certain evidence is a different issue than
whether said evidence is admissible and on what grounds. Requesting a continuance to
investigate an evidentiary issue does not preserve issues relating to the eventual
admissibility of the investigated evidence.
C. Defendant Cannot Establish Ineffective Assistance of Counsel on Direct
Appeal
Defendant argues that if this issue is forfeited, then counsel was constitutionally
ineffective.
“A criminal defendant’s federal and state constitutional rights to counsel (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance.
When challenging a conviction on grounds of ineffective assistance, the defendant must
demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
17.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
When a defendant’s claim of ineffective assistance of counsel requires
investigation of evidence outside the record, it can only be addressed in a habeas corpus
proceeding. (See People v. Williams (2013) 56 Cal.4th 630, 691.) Here, defendant’s
claim of ineffective assistance requires investigation of evidence outside the record: the
911 call itself. While the record contains a broad description of the topic of the 911 call,
there is no transcript or recording. Such evidence is necessary to determine whether there
could be any satisfactory tactical explanation for defense counsel’s failure to seek its
admission. It remains entirely possible that the 911 call included some statements that
were helpful to the defense, while also including some statements detrimental to the
defense. And under Evidence Code section 356, admission of the favorable statements
made on the 911 call might have necessitated admission of any other, unfavorable
statements. If that were the case, counsel could have made a reasonable tactical decision
not to seek admission of the favorable statements made on the 911 call to avoid
admission of unfavorable statements. Because the present record permits a conceivable
tactical basis for counsel’s alleged failure to act, reversal on direct appeal is not
permitted.
D. Prosecutor’s Improper Comments During Closing Argument Did Not
Require Mistrial nor do They Warrant Reversal on Appeal
1. Background
During her opening statement, the prosecutor said:
“Vigilante justice is not allowed in this country. You all swore to follow
the law. And the law says you’re supposed to go to the police when you
have a problem. You don’t get to take the law into your own hands, even if
what they claim is true.”
After the presentation of evidence and before counsels’ closing arguments, the
court gave various jury instructions, including the following:
18.
“Nothing the attorneys say is evidence. In their opening statements and
closing arguments the attorneys discuss the case, but their remarks are not
evidence….”
During closing argument, the prosecutor said:
“[Defendant and Angelita] didn’t go to the police. They didn’t use the
justice system. They took the law into their own hands and that, two, they
had the intent to kill because, like I just said, their other ways didn’t work.
But they didn’t use legal means any which way that they did this case
[sic].”
The court and counsel then held an unreported sidebar. Afterwards, the prosecutor
then continued with her argument. Near the conclusion of her argument, the prosecutor
said:
“Look, we live in America. This is not the old Wild West. You
don’t get to take the law into your own hands. You don’t get to scare
someone with a gun over a sex tape. You don’t get to kill someone for
allegedly blackmailing you or someone you care about.
“You’re required to go to the authorities and let the criminal justice
system do what it’s designed to do. This is what separates our country
from the rest of the world. We do not allow vigilante justice.
“You agreed to follow the law when you all swore in to be jurors.
The law does not recognize vigilante justice.”
After the prosecutor finished her closing argument, a discussion occurred outside
the presence of the jury. Angelita’s counsel argued it was improper for the prosecutor to
say that Angelita had not gone to the cops, and that the matter “should have been taken to
the police.” Angelita’s counsel pointed out that the prosecutor knew “from the
beginning” of her involvement with the case that “this” was reported to the Bakersfield
Police. Thus, the prosecutor had “put in front of a jury [something] she knows was not
true.”
Defendant’s counsel joined in the objection to the prosecutor’s argument. He
argued that records obtained from the police department pursuant to a subpoena issued
19.
March 28, 2017, “specifically indicate[d] that Angelita Reyes did contact the Bakersfield
Police Department about this issue, about an issue relating to extortion.”
The prosecutor argued: “I was very specific in my closing argument. I did not
state that they called 911 [sic]. I stated they did not make a report. Calling 911 is not
making a report.”13
The court observed that the prosecutor had actually said, in essence, that they did
not go to the police. The court said the prosecutor’s argument was a “half-truth” and that
she was “parsing words” between a report and a 911 call. The court said, “if it happens
again in this Court, it will be the last time it happens in this Court.”
The court said it would tell the jury “that there’s no evidence one way or the other
whether they went to the police or not.” Angelita’s counsel responded that that would be
a half-truth as well since there is evidence that they went to the police. The court
responded, “Well, there’s no evidence before the Court.” Angelita’s counsel asked if the
court could “tell the jury to delete it?” The court responded affirmatively.
Defendant’s counsel then said he did not have any choice but to ask for a mistrial.
The court denied the request for a mistrial, saying, “It hasn’t reached that point.”
When the jury was brought back in, the court said: “Okay, ladies and gentlemen,
you’re going to hear the next argument. Before I do that, there was a statement made by
the prosecutor regarding that no contact was made with police following this incident by
the defendants. You’re to disregard that portion of the argument.”
2. Analysis
“ ‘A prosecutor’s conduct violates a defendant’s constitutional rights when the
behavior comprises a pattern of conduct so egregious that it infects “ ‘the trial with
unfairness as to make the resulting conviction a denial of due process.’ [Citation.]”
13The prosecutor also contended that the 911 call was “contrived” because they
thought they were going to get caught for stealing from Gaspar’s parents’ house.
20.
[Citation.] The focus of the inquiry is on the effect of the prosecutor’s action on the
defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does
not render a trial fundamentally unfair is error under state law only when it involves
“ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court
or the jury.” ’ [Citation.]” ’ [Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863,
920, italics added.)
For the reasons explained below, we conclude the prosecutor’s improper
statements were not “ ‘so egregious’ ” that they “ ‘infect[ed] “ ‘the trial with unfairness as
to make the resulting conviction a denial of due process.’ [Citation.]” ’ ” (People v.
Hamilton, supra, 45 Cal.4th at p. 920.) As a result, they did not violate the federal
constitution.
However, the prosecutor did convey inaccurate information to the jury in an
attempt to persuade. As explained below, we conclude the prosecutor erred under state
law, but that the error was not prejudicial.
We must begin with the fact that the prosecutor’s statement that defendants “didn’t
go to the police” was plainly misleading. While the prosecutor had successfully argued
pretrial that evidence of defendants’ 911 call should be excluded, that ruling did not
change the reality that defendants did in fact call 911 according to the undisputed offer of
proof. Arguably, the prosecutor’s statement that defendants did not “use the justice
system” is misleading for the same reason. Regardless of the prosecutor’s intent, her
statements were an “ ‘ “ ‘ “attempt to persuade … the jury[]” ’ ” ’ ” in a
“ ‘ “ ‘ “deceptive” ’ ” ’ ” manner. (People v. Hamilton, supra, 45 Cal.4th at p. 920.)
Therefore, the prosecutor erred under state law and the trial court was correct to
admonishing her.14
14It is important to note that many of the prosecutor’s comments on this topic
were not improper. That defendants did not go to the police is a specific falsehood that
should not have been conveyed to the jury. But it was entirely permissible to argue more
21.
We must next evaluate prejudice. Because the prosecutor erred under state law,
the question “is whether it is ‘reasonably probable that a result more favorable to the
defendant would have occurred had the district attorney refrained from the comment
attacked by the defendant. [Citations.]’ [Citation.]” (See People v. Bolton (1979) 23
Cal.3d 208, 214.) We conclude it is not reasonably probable defendant would have
obtained a more favorable result absent the prosecutorial error.
First, before the jurors heard the prosecutor’s objectionable statements in closing
argument, the court instructed them to decide the facts “based only on the evidence that
was presented to you in this trial.” The court further instructed the jury that nothing the
attorneys say is evidence. The instructions then specifically identified closing argument
as an example of “remarks” that are “not evidence.” We presume jurors follow
instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746.)
Moreover, after the prosecutor made the objectionable remarks, the court told the
jury to “disregard” the prosecutor’s statement that “no contact was made with police
following this incident by the defendants.” Defendant argues that this phrasing was
“vague” and that the jury could have interpreted “this incident” to be the shooting of
Gaspar. In that case, “the jurors could have understood this admonition as requiring the
jury to disregard any argument to the effect that the defendants didn’t contact police after
Gaspar was shot.”
While the phrase “this incident” is somewhat vague, we doubt the jurors would
have understood the instruction in the way suggested by defendant. Given the context of
the prosecutor’s statement, it seems far more likely the jury would have understood “this
incident” to refer to the incident where, according to the prosecutor, Angelita “stole”
Gaspar’s “electronics” from his parents’ house. In context, the prosecutor said:
broadly that defendant should not have killed Gaspar and, instead, should have allowed
the justice system to handle any alleged extortion.
22.
“Now, motive also goes to that theft that happened at the victim’s parents’
home when they stole those electronics. You can use that evidence to show
they had the movie to ultimately kill.
“But guess what? According to them, stealing it wasn’t enough.
They didn’t go to the police. They didn’t use the justice system. They took
the law into their own hands and that, two, they had the intent to kill
because, like I just said, their other ways didn’t work.”
In any event, even if it could be argued that the court’s after-the-fact instruction to
“disregard” the prosecutor’s statement was ineffective, it would not negate the impact of
the court’s broader instruction that closing arguments are not evidence.
Second, the evidence against defendant was quite overwhelming. Defendant
admitted shooting Gaspar. According to defendant himself, he led Gaspar into an
orchard, thought about the “agony” Gaspar was causing, and shot Gaspar in the head.
Several witnesses said defendant told them afterward he had killed Gaspar. This
evidence would have been before the jury even if the prosecutor had not made the
objectionable statements in closing argument. In light of this evidence, we cannot
conclude that the improper suggestion defendant did not call 911 about Gaspar’s alleged
extortion affected the outcome of the case.
In sum, because the prosecutor’s remarks were not so egregious as to infect the
trial with fundamental unfairness, defendant’s federal due process rights were not
violated. And while the misleading argument to jurors was error under state law, it was
not prejudicial.15
E. Prosecutor’s Comments Regarding Premeditation and Deliberation do
not Require Reversal
Defendant next claims the prosecutor prejudicially misstated the law of
premeditation and deliberation during closing argument.
15“For the same reasons, [i.e., lack of incurable prejudice] we reject defendant’s
claim that the trial court erred by denying his motion for mistrial ….” (People v. Montes
(2014) 58 Cal.4th 809, 888.)
23.
1. Background
During closing argument, the prosecutor said:
“So the test in this case is whether – it’s the extent of the reflection,
not the length of time. In other words, you took it – the moment you had
this in your head, you made a decision.
“Let’s use baseball as an analogy again. When you’re a batter at the
plate – it doesn’t matter if you’re a left-handed or a right-handed batter –
you’re standing at 9 feet away of the pitcher. So you have the time it takes
from that ball leaving that pitcher’s hand to arriving somewhere in front of
you, hopefully – if they’re not trying to hit you or through a random shot –
to decide do I swing; do I not swing?”
That whole amount of time do I or don’t I? Is it in the sweet spot I
want? Is it going to go where I want? And, yet, all that happens in a
couple of seconds. And that is a careful, deliberate, premeditated decision
to swing the bat.
Defendant offered no objection to this argument.
2. Analysis
a. Defendant Forfeited this Argument
By failing to object to this aspect of the prosecutor’s argument, defendant forfeited
the issue for appeal. (See People v. Williams (2016) 1 Cal.5th 1166, 1188, citing People
v. Watkins (2012) 55 Cal.4th 999, 1032.)
F. Defendant has Failed to Establish the Elements of a Claim of Ineffective
Assistance of Counsel
Defendant argues his counsel was ineffective for failing to object to the
prosecutor’s argument concerning premeditation and deliberation.
1. Ineffective Assistance of Counsel
“The burden of proving a claim of inadequate trial assistance is on the appellant.
[Citation.] He must show that counsel’s representation fell below an objective standard
of reasonableness under prevailing professional norms. Additionally, he must establish
prejudice, i.e., a reasonable probability that absent counsel’s unprofessional errors the
24.
result would have been different, before he can obtain relief. [Citations.] Because of the
difficulties inherent in making the evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. [Citations.]” (People v. Felix
(1994) 23 Cal.App.4th 1385, 1394.) “Failure to raise a meritless objection is not
ineffective assistance of counsel. [Citation.]” (People v. Bradley (2012) 208
Cal.App.4th 64, 90.)
2. Premeditation and Deliberation
“First degree murder ‘has the additional elements of willfulness, premeditation,
and deliberation which trigger a heightened penalty.’ [Citation.] These elements require
‘more than a showing of intent to kill; the killer must act deliberately, carefully weighing
the considerations for and against a choice to kill before he or she completes the acts that
caused the death.’ [Citation.] ‘ “ ‘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.]” (People v. Gomez
(2018) 6 Cal.5th 243, 282.) “ ‘ “Premeditation and deliberation can occur in a brief
interval. ‘The test is not time, but reflection.’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th
792, 812; see also People v. Brito (1991) 232 Cal.App.3d 316, 324.)
3. Analysis
Defendant argues the prosecutor “misstate[d] the law.” Specifically, he contends
the prosecutor incorrectly indicated that “premeditation and deliberation can be formed in
[the] quarter of a second in which a batter makes the decision of whether to swing at a
pitch in baseball….”
25.
However, the prosecutor actually said that the decision of whether to swing
happens within “a couple of seconds” (not a quarter of a second).16 It is accurate that
premeditation and deliberation can occur in a “ ‘ “brief interval.” ’ ” (People v. Solomon,
supra, 49 Cal.4th at p. 812; see also People v. Brito, supra, 232 Cal.App.3d at p. 324;
People v. Jones (1963) 215 Cal.App.2d 341, 346; People v. Donnelly (1922) 190 Cal. 57,
58–59.)
However, more importantly, the prosecutor made clear at the outset of the analogy
that “the test in this case is … the extent of the reflection, not the length of time.” Thus,
the prosecutor’s analogy, when considered in context, was not likely to be interpreted by
the jury in a manner inconsistent with the law.
Moreover, there was little reason to believe that the jury’s decision turned on the
length of time required to formulate premeditation and deliberation. The evidence
showed that earlier on the day of the shooting, defendant obtained a gun, and racked a
round into its chamber. Defendant attacked the victim with pepper spray, had the victim
brought to an orchard, exited the vehicle, and led the victim into the orchard. Defendant
thought about “all the agony that the victim was making [Angelita] go through,” pointed
the gun at the victim’s temple, and pulled the trigger. Even if the prosecutor had
incorrectly led the jury to believe premeditation and deliberation could be formed in a
“quarter of a second,” there is little reason to believe that would have made a difference
on the facts of this case.
16 Defendant argues the prosecutor was factually incorrect on this point because,
in the major leagues, the pitcher’s mound is 60 feet, 6 inches from home plate. Thus,
defendant argues that a major league batter facing a 90 mile per hour pitch only has a
quarter of a second to make the decision of whether to swing.
First, defendant’s claim relies on matters outside the record. Second, what matters
here is the analogy the prosecutor actually made, because that is what the jury heard. The
prosecutor’s actual analogy involved a batter that has a “couple of seconds” to make a
decision.
26.
Defendant disagrees, pointing to his statement to police where he claimed he was
having a conversation in his head while in the orchard with Gaspar. On the one hand, his
mind was telling him “don’t do it, if you do it you’ll get in trouble.” On the other hand,
he also had internal voices telling him to “do it because of all the agony that the victim
was making [Angelita] go through.” This, defendant suggests, shows he “only made
[the] decision” to shoot Gaspar “at the very last second.” However, the fact that
defendant considered not murdering Gaspar actually supports deliberation.
“ ‘Deliberation’ refers to careful weighing of considerations in forming a course of
action; …” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) And under defendant’s
own version of events, he was weighing considerations (for and against) in forming a
course of action.17 His ultimate course of action, after such deliberation, was to pull the
trigger.
For these reasons, we conclude defendant has failed to show a reasonable
probability that, absent counsel’s alleged error, the result would have been different.
G. Evidence did not Support Sua Sponte Instruction on Heat of Passion
Defendant next argues that the court erred in failing to instruct the jury, sua
sponte, on the lesser included offense of voluntary manslaughter based on heat of
passion. (See CALCRIM No. 570.)
“ ‘A trial court has a sua sponte duty to “instruct on a lesser offense necessarily
included in the charged offense if there is substantial evidence the defendant is guilty
only of the lesser.” [Citation.]’ ” (People v. Chestra (2017) 9 Cal.App.5th 1116, 1121.)
Substantial evidence does not mean any evidence. (Ibid.) It must rise to the level of
17 Cases like People v. Boatman (2013) 221 Cal.App.4th 1253, make clear that
pulling back a gun’s hammer, aiming and firing “without more” is insufficient to prove
premeditation and deliberation. (Id. at p. 1274, fn. 4.) Here, however, there was more
evidence, including defendant’s procurement of a loaded gun and racking a round into the
chamber earlier in the day of the shooting, and defendant’s own statements about his
deliberative process immediately before the shooting.
27.
evidence “ ‘ “ ‘from which a jury composed of reasonable [persons] could …
conclude[]’ ” that the lesser offense, but not the greater, was committed. [Citations.]’
[Citation.]” (Ibid.)
“For heat of passion voluntary manslaughter to apply, the defendant must be under
the actual influence of a strong passion that obscures reason at the time of the homicide.
[Citations.]” (People v. Chestra, supra, 9 Cal.App.5th at pp. 1121–1122.) “Heat of
passion … is a state of mind caused by legally sufficient provocation that causes a person
to act, not out of rational thought but out of unconsidered reaction to the provocation.”
(People v. Beltran (2013) 56 Cal.4th 935, 942.) A person who acts “without reflection”
in response to adequate provocation does not act with malice. (Ibid.)
The evidence does not support heat of passion. By defendant’s own account, he
did not engage in “unconsidered reaction,” nor did he act “without reflection.” Instead,
he reflected, considered, and weighed killing Gaspar. Internally, defendant considered
the possibility of getting “in trouble.” Yet, defendant “also had voices that were telling
him to do it because of all the agony that the victim was making [Angelita] go through.”
Defendant then shot Gaspar in the head.
Defendant points out that several heat-of-passion cases involve romantic
“dispute[s]” and that the present case also involves a romantic dispute. (See, e.g., People
v. Bridgehouse (1956) 47 Cal.2d 406, abrogated on another point by People v. Lasko
(2000) 23 Cal.4th 101, 110.) It is true that certain romantic disputes can rise to the level
of adequate provocation. However, sufficient provocation is only one aspect of heat of
passion. Even assuming that defendant was subjected to legally adequate provocation,
the evidence must also show that his reason was “ ‘actually obscured’ ” at the time of the
killing. (See People v. Thomas (2012) 53 Cal.4th 771, 813.) And, as explained above, the
evidence showed that defendant did not actually act out of unconsidered reaction, without
reflection. The evidence does not support the contrary inference.
28.
Therefore, we conclude the trial court was not required to instruct, sua sponte, on
heat-of-passion manslaughter.
H. Trial Court did not Err in Refusing to Instruct Jury with CALCRIM
No. 522
Defendant next contends the court erred in refusing a defense request to instruct
the jury with CALCRIM No. 522.
CALCRIM No. 522 provides:
“Provocation may reduce a murder from first degree to second
degree [and may reduce a murder to manslaughter]. The weight and
significance of the provocation, if any, are for you to decide.
“If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime was first
or second degree murder. [Also, consider the provocation in deciding
whether the defendant committed murder or manslaughter.]
“[Provocation does not apply to a prosecution under a theory of
felony murder.]” (CALCRIM No. 522.)
This is a “pinpoint instruction to which a defendant is entitled only upon request
where the evidence supports the theory. [Citation.]” (People v. Rivera (2019) 7 Cal.5th
306, 328, italics added.) For the reasons explained in our discussion above concerning
heat-of-passion manslaughter, the evidence does not support this theory and the trial
court was not required to give it.
I. No Cumulative Prejudice Has Been Shown
Defendant argues the alleged errors discussed above were cumulatively
prejudicial. However, the only error identified was the prosecutor’s error in saying to the
jury that defendants did not go to the police.
J. Defendant has not Established Trial Court was Unaware of its Discretion
in Sentencing
“Senate Bill No. 620 (2017–2018 Reg. Sess.) amended section 12022.53,
subdivision (h) to give trial courts discretion to ‘strike or dismiss’ enhancements imposed
29.
under this section ‘in the interest of justice pursuant to [s]ection 1385.’ ” (People v.
Tirado (2019) 38 Cal.App.5th 637, 642, rev. granted Nov. 13, 2019, S257658.) Here, the
trial court did not exercise this discretion to strike or dismiss the enhancement in this
case, and sentenced defendant to a consecutive term of 25 years to life for the gun
enhancement under section 12022.53, subdivision (d).
Defendant contends that, “even presuming the trial court was aware of its
discretion to strike the firearm use enhancement under newly-enacted section 12022.53,
subdivision (h) … the trial court would not have been aware that this discretion included
the option of imposing sentence on a lesser included firearm use enhancement instead.”
But this court has squarely held that the trial court does not have this latter type of
discretion to impose a lesser included enhancement.18 (People v. Tirado, supra, 38
Cal.App.5th at pp. 641–644.) It is not error for the trial court to be “unaware” of
discretion it does not have.
K. Parole Revocation Fine Shall be Stricken
Defendant argues the court erred in imposing a stayed parole revocation fine
because he was sentenced to life without the possibility of parole. The Attorney General
agrees the parole revocation fine should be stricken. We accept the concession. (See
People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183–1186.)
DISPOSITION
Defendant’s parole revocation fine is stricken, and the trial court is directed to
cause an amended abstract of judgment to be prepared and transmitted to appropriate
parties and entities. In all other respects, the judgment is affirmed.
18Defendant notes the opposite conclusion was reached in People v. Morrison
(2019) 34 Cal.App.5th 217 and urges us to follow that case. However, as this court stated
in Tirado, “[w]e do not find the reasoning in Morrison persuasive and respectfully
disagree with it.” (People v. Tirado, supra, 38 Cal.App.5th at p. 644.)
30.
POOCHIGIAN, ACTING P. J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
31.