People v. Mariscal

Filed 3/30/20; Opinion on transfer from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B262278
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA078033)
v.
MICHAEL MARISCAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Antonio Barreto, Jr., Judge. Affirmed in part,
reversed in part and remanded with direction.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Paul M. Roadarmel, Jr. and William
N. Frank, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts B through G of the Discussion.
Defendant and appellant Michael Mariscal shot at five
men, killing two and wounding another, in a gang-motivated
shooting. He was convicted of two counts of murder (Pen. Code,
§ 187, subd. (a)), three counts of attempted murder (§§ 664 and
187, subd. (a)), street terrorism (§ 186.22, subd. (a)), and
possession of a firearm by a felon (§ 12021, subd. (a)(1)). 1 On
initial appeal from his conviction, he argued (1) the trial court
erred by instructing the jury that the element of a specific intent
to kill required for an attempted murder conviction could be
found based on a “kill zone.” He also argued (2) there was
insufficient evidence to support a finding the driver of the vehicle
in which defendant was a passenger was a member of defendant’s
gang; (3) the court erroneously admitted evidence of the
psychological impact of the attempted murder on one of the
victims; (4) the court should not have imposed a parole revocation
fine; and (5) the court should have awarded presentence custody
credits. The prosecution argued (6) the abstract of judgment
should be corrected to reflect the court’s oral pronouncements of
sentence.
In our initial opinion, we affirmed the convictions but
reversed the trial court’s imposition of a $200 parole revocation
fine, and its order denying defendant custody credit. We
remanded the matter for the trial court to amend the abstracts of
judgment (both determinate and indeterminate) consistent with
the opinion, and otherwise affirmed. (People v. Mariscal (April 1,
2016, B262278) [nonpub.opn.].)
Defendant sought review. The Supreme Court granted
1 All statutory citations are to the Penal Code unless
otherwise noted.
2
review, but deferred briefing pending resolution of the “kill zone”
issue in its then-pending case, People v. Canizales (2019)
7 Cal.5th 591 (Canizales). Upon resolution of Canizales, the
Supreme Court transferred the case back to us, with directions to
vacate our decision and reconsider in light of Canizales. We do so
now, concluding that the kill zone instruction should not have
been given, but that the error was harmless beyond a reasonable
doubt in light of the overwhelming evidence that defendant
intended to kill all five of the men at whom he shot. In all other
respects, we restate our original opinion without change.
BACKGROUND
A. Factual Background
1. Prosecution Evidence
At about 3:00 p.m. on June 22, 2011, an employee of a
property management firm located on Centinela Street, about 1.7
miles from Penmar Park in Venice, saw a Hispanic man with a
slight build park a light or silver colored Volvo station wagon in
the parking space near where she worked. About one hour later,
Allan Mateo, Salvador Diaz, Andy Santiago, Emmanuel Vasquez,
and Christian Hernandez were sitting together on bleachers at
Penmar Park in Venice. None of the young men were gang
members at that time but they knew gang members.
The bleachers consisted of nine rows of benches of
increasing elevation, facing a baseball diamond. Four of the
young men were sitting on the top row of the bleachers, with
Mateo a few rows below them.
The Volvo station wagon pulled up near the park.
Defendant exited the Volvo and approached the group holding his
hands behind his back. He approached the bleachers from the
right-hand side, near the corner where the men were
3
congregated. Defendant asked the young men where they were
“from,” effectively asking them the name of their gang. Mateo
replied they were not gang members. Defendant pulled out a
gun, said “Culver City,” and shot Mateo multiple times. Mateo
grabbed his stomach and fell; he died of his wounds. Defendant
then pointed the gun toward the four men who had been on the
top row of the bleachers.
When defendant turned his gun toward the rest of the
young men, they tried to run. Hernandez ran down the bleachers
and toward the baseball field. As he ran, defendant shot him in
both legs. Santiago tried to run down the bleachers, but he fell
through the bleachers to the ground, and ran to hide behind some
parked cars. He was not hit. Diaz died on the ground below the
bleachers, having been shot in the chest. Vasquez’s actions are
not clear from the record, but he escaped unharmed.
In sum, defendant shot: Mateo four times, two of which
were fatal; Diaz twice in the chest, one of which was fatal; and
Hernandez twice in his legs. Neither Santiago nor Vasquez were
shot.
Nine .9-millimeter shell casings were found near the
bleachers at the park. All of the casings were fired from the
same gun.
Maritza Perez, a softball coach, heard the gunshots.
Defendant lowered the gun and ran, crossing a street in front of
Perez. The headlights of the Volvo turned on. 2 The driver of the
car looked over his left shoulder in defendant’s direction. Perez
saw the driver was a thin Hispanic man with short hair.
2 Between about 4:00 p.m. and 4:15 p.m., a construction
company employee observed a gray Volvo parked at the Centinela
Street location.
4
Defendant ran to the car, looked around, and entered the car
through the passenger door. The car drove away, but Perez was
able to write down a portion of the car’s license plate number—
“W229.” Perez called 911.
Citing People’s Exhibit 7, defendant acknowledges the
license plate of the car defendant entered was LTWY229. The
car had been stolen between June 18 and 19, 2011, and
defendant’s fingerprints were found on its passenger door.
Between approximately 4:00 p.m. and 4:15 p.m., telephone calls
were made on defendant’s cell phone using cellular towers near
where the Volvo was found and near the shooting scene.
At 4:26 p.m., on June 22, 2011, the day of the shooting,
defendant texted a female friend, “I love you, babe. If I don’t
reply, I am busted.” At 4:30 p.m., a local news website,
yovenice.com, posted a story about the shooting, stating three
people had been shot. Defendant texted someone, “Two men shot.
One in the leg. Fox11la.com. Also on yo venice.” He also texted
this person, “Watch the news, bro.”
At 4:53 p.m., a local television affiliate of the Fox News
Network, posted a story about the shooting on its website. Later
that day, defendant texted the female friend as follows: “News.
Two men shot, One in leg. Fox 11 L.A.” His friend texted back:
“Did you shoot someone?” Defendant answered: “Don’t text like
that, babe. Come on now. Just letting you know what is on and
what happened.”
The following morning, the Volvo remained parked at the
parking space for the vacant apartment complex. The driver’s
door of the car was half closed and keys were in the ignition.
Perez identified photographs of the Volvo as the same car
defendant entered after he shot the victims.
5
The police arrested defendant. After defendant arrived at
the police station, he was allowed to use his cell phone.
Defendant sent someone a text message, summarized by Los
Angeles Police Department Detective Terrance Keyzer as follows:
“[Defendant] is saying that he is going to act innocent and ask
the person he is talking to, to play along because he is scared.
Then [defendant] tells [the person] to erase all messages.”
Later at the station, defendant told his mother the police
would “never find the gun,” it was “impossible” for them to find it,
and it was “gone.” 3 Defendant’s mother told defendant the police
had taken his cousin’s cell phone. In response, defendant asked
his mother if his cousin had deleted “the messages,” and she
responded, “Yeah.”
Los Angeles City Police Officer Nicholas Coronado, the
prosecutor’s gang expert, testified a gang member earns “respect”
by “putting in work,” i.e., committing crimes. A “roll call” is a list
of gang members, usually using their gang monikers/nicknames.
The question “Where are you from?” is a threat or a challenge to
rival gang members or the public at large that often precedes a
confrontation.
Officer Coronado was assigned to the Pacific Police
Station’s gang enforcement detail and specifically assigned to
monitor the Culver City Boys gang. The Culver City Boys gang
membership was primarily Hispanic. The gang claimed portions
of Culver City and nearby areas of Los Angeles. Venice 13 or
“V13” claimed adjacent areas, including Penmar Park. The
Culver City Boys had a rivalry with V13, among other local
gangs.
3 The gun used in the shooting was never found.
6
The Culver City Boys primary activities included robberies,
burglaries, assaults with deadly weapons, vandalisms, narcotics
sales, and auto thefts. The gang members used signs including
the letters “CXC” and “CC” to identify itself and communicate
status in the gang. In 2009, two Culver City Boys gang members
were convicted of separate robberies.
Defendant was an admitted Culver City Boys gang
member. He had a tattoo of “CC” on his hand and a moniker of
“Little Poste.” A Culver City Boys roll call with the name “Little
Poste” included on it was found in defendant’s apartment.
Officer Coronado opined defendant was a Culver City Boys
gang member and, based on a set of hypothetical facts matching
the facts in this case, the murders and attempted murders were
performed for the benefit of, at the direction of, or in association
with the Culver City Boys gang. The expert also opined, because
the driver of the Volvo was willing to help defendant conduct the
shootings, the driver “[was] either a fellow gang member or [was]
at the time an associate putting in work [to] show that he was
“represent[ing the] hood [] too.”
2. Defendant’s Evidence
Dr. Mitchell Eisen, defendant’s identification expert,
testified several variables could affect the accuracy of an
eyewitness’s identification, including capacity limits on attention;
stress and trauma; exposure duration and time passage.
According to Dr. Eisen, the manner in which eyewitness evidence
is collected may also affect an identification, including how the
identification procedure is set up and admonitions given to the
witness. He opined a “double-blind” line-up (such that neither
the eyewitness nor the officer conducting the line-up knows
whether a suspect is included) is the most accurate manner in
7
which to collect eyewitness evidence.
B. Procedural Background
The Los Angeles County District Attorney filed an amended
information charging defendant with the murders of Mateo and
Diaz in violation of section 187, subdivision (a) (counts 1 and 2),
the willful, deliberate, and premeditated attempted murders of
Hernandez, Santiago, and Vasquez in violation of sections 664
and 187, subdivision (a) (counts 3-5); street terrorism in violation
of section 186.22, subdivision (a) (count 6); and possession of a
firearm by a felon in violation of section 12021, subdivision (a)(1)
(count 7).
The District Attorney alleged as to counts 1 and 2:
defendant committed multiple murders, a special circumstance
pursuant to section 190.2, subdivision (a)(3); and defendant
committed the murders while he was an active participant in a
criminal street gang and did so to further that gang’s activities, a
special circumstance pursuant to section 190.2, subdivision
(a)(22). As to counts 1-3, it was alleged during the commission of
the two murders (counts 1 and 2) and the attempted murder of
Hernandez (count 3), defendant personally and intentionally
discharged a firearm, which caused great bodily injury and death
(§ 12022.53, subd. (d)). 4 As to counts 1-5, it was alleged: during
the commission of the offenses, defendant personally and
intentionally discharged a firearm (§ 12022.53, subds. (b) & (c));
and the offenses were committed by defendant for the benefit of,
at the direction of, or in association with a criminal street gang
4 Because the crime in this case took place in June 2011, all
references to section 12022.53 are to the version of that section in
effect at that time. (Stats. 2006, ch. 901, § 11.1.)
8
(§ 186.22, subd. (b)(4)). 5 As to count 7, it was alleged defendant
committed the offense within the meaning of section 186.22,
subdivision (b)(1)(A). Following a trial, the jury found defendant
guilty on all counts, determined the murders were in the first
degree, and found the alleged special circumstances and
enhancements to be true.
The trial court sentenced defendant to state prison for the
following indeterminate terms, each to run consecutively to each
other: on count 1, life without the possibility of parole, plus 25
years to life pursuant to section 12022.53, subdivision (d); on
count 2, life without the possibility of parole, plus 25 years to life
pursuant to section 12022.53, subdivision (d); on count 3, life with
the possibility of parole, plus 25 years to life pursuant to section
12022.53, subdivision (d); on count 4, life with the possibility of
parole; and on count 5, life with the possibility of parole. Under
section 654, the trial court imposed but stayed sentences on
counts 6 and 7, enhancements pursuant to section 12022.53,
subdivisions (b) and (c) for counts 1-5, and enhancements
pursuant to section 186.22 on counts 1-5, and 7.
The trial court ordered defendant to pay a $200 restitution
fine under section 1202.4, subdivision (b), and a $200 parole
revocation fine under section 1202.45, to be stayed pending
successful completion of parole. The trial court declined to credit
defendant for actual time served as of date of sentencing.
Defendant filed a timely notice of appeal.
5 All references to section 186.22 are to the version of that
section in effect in June 2011. (Stats. 2010, ch. 256, § 1.)
9
DISCUSSION
A. Kill Zone Instruction
1. The Law
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’ [Citation.] When a single act is charged as an attempt
on the lives of two or more persons, the intent to kill element
must be examined independently as to each alleged attempted
murder victim; an intent to kill cannot be ‘transferred’ from one
attempted murder victim to another under the transferred intent
doctrine. [Citation.] [¶] Direct evidence of intent to kill is rare,
and ordinarily the intent to kill must be inferred from the
statements and actions of the defendant and the circumstances
surrounding the crime. [Citations.]” (People v. Canizales, supra,
7 Cal.5th at p. 602.)
California has embraced the concept “of a concurrent intent
to kill.” (Canizales, supra, 7 Cal.5th at p. 602.) In some
situations, the defendant may intend to ensure harm to the
primary victim by harming everyone in the intended victim’s
vicinity – such as by an explosive device or a hail of bullets. In
such a case, the factfinder can infer that, whether or not the
defendant was successful in killing the intended victim, the
defendant concurrently intended to kill everyone in the victim’s
immediate vicinity to ensure the primary victim’s death. When
the defendant, in the attempt to kill an intended victim, chooses
a means of killing that creates a zone of harm around the victim,
the factfinder may reasonably infer that the defendant intended
to harm everyone in that zone. (Id. at pp. 602-603.)
“In determining the defendant’s intent to create a zone of
10
fatal harm and the scope of any such zone, the jury should
consider the circumstances of the offense, such as the type of
weapon used, the number of shots fired (where a firearm is used),
the distance between the defendant and the alleged victims, and
the proximity of the alleged victims to the primary target.
Evidence that a defendant who intends to kill a primary target
acted with only conscious disregard of the risk of serious injury or
death for those around a primary target does not satisfy the kill
zone theory.” (Canizales, supra, 7 Cal.5th at p. 607.) “[T]he kill
zone theory does not apply where ‘the defendant merely subjected
persons near the primary target to lethal risk. Rather, in a kill
zone case, the defendant has a primary target and reasons [that]
he cannot miss that intended target if he kills everyone in the
area in which the target is located. In the absence of such
evidence, the kill zone instruction should not be given.’ ” (Ibid.)
In Canizales, our Supreme Court cautioned that “there will
be relatively few cases” in which the kill zone theory will be
applicable and a kill zone instruction appropriate. (Canizales,
supra, 7 Cal.5th at p. 608.) Such an instruction is only
appropriate when there is evidence that: “(1) the circumstances
of the defendant’s attack on a primary target, including the type
and extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a
zone of fatal harm — that is, an area in which the defendant
intended to kill everyone present to ensure the primary target’s
death — around the primary target; and (2) the alleged
attempted murder victim who was not the primary target was
located within that zone of harm.” (Id. at pp. 596-597.)
Cases following Canizales have held that kill zone theory
applies when the defendants sprayed a house with an assault
11
rifle, from the outside, in the hopes of killing the primary target
inside the house (People v. Cerda (2020) 45 Cal.App.5th 1, 11-13,
pet. for review filed) or when defendants, intending to kill one
man, shot at him while another man was standing next to the
target and partially shielding the target from the shooters (People
v. Windfield (2019) 44 Cal.App.5th 196, 204-205, pet. for review
filed).
2. The Instruction
In this case, the jury was instructed, without objection, on
kill zone with a modified version of CALCIM No. 600, as follows:
“Defendant is charged in Counts 3,[ 6] 4, and 5 with attempted
murder. To prove the defendant guilty of attempted murder the
People must prove that the defendant took one direct but
ineffective step towards killing another person; [¶] and, two, that
the defendant intended to kill that person. [¶] . . . [¶] A person
may intend to kill a specific victim or victims, and at the same
time intend to kill everyone in a particular zone of harm or . . .
kill zone. [¶] In order to convict the defendant of the attempted
murder in counts 3, 4, and/or 5 the People must prove that the
defendant not only intended to kill . . . [Allan] Mateo and/or
Salvador Diaz, but also either intended to kill the victim in
counts 3, 4 or 5 or intended to kill everyone within the kill zone.
[¶] If you have a reasonable doubt whether the defendant
6 Defendant does not contend the trial court erred by
instructing the jury on the “kill zone” theory for count 3 (the
attempted murder of Hernandez). We assume that this
concession is not out of any belief that Hernandez, who was shot
while running away, was in a kill zone, but rather because the
evidence clearly demonstrated a direct intent to kill Hernandez,
rendering any instructional error harmless.
12
intended to kill the victim in counts 3, 4, and /or 5, or intended to
kill [Allan] Mateo and/or Salvador Diaz by killing everyone in the
kill zone, then you must find the defendant not guilty of the
attempted murder of the victim in counts 3, 4, and/or 5.”
3. The Instruction Was Not Supported by the
Evidence
Defendant contends giving the instruction was error; we
agree. As explained in Canizales, the kill zone theory only
applies when there is an intended victim, whom the defendant
chooses to kill by means of killing everyone in the immediate
zone of harm – such as by an explosive device or hail of bullets.
That is not this case. Defendant had no prior interaction with
the young men on the bleachers; he did not know them or have
any reason to attack any one of them more than any of the
others. When Mateo answered defendant’s gang challenge,
defendant shot and killed him. Once Mateo fell, defendant
turned his gun toward the other men, who were on one of the
higher steps, and therefore to the shooter’s left. Even if we
assume Mateo was defendant’s intended target, it is
unreasonable to believe defendant chose to accomplish his attack
on that primary target by turning away from Mateo once he fell
and then shooting his friends. Defendant had already
accomplished what he supposedly set out to do – kill the intended
target, the now-mortally wounded Mateo – and defendant would
have left the scene. 7
7 The prosecution suggests that a jury could reasonably infer
that defendant intended to ensure the deaths of both Mateo and
Diaz by creating a kill zone in the corner of the bleachers and
shooting everyone in that zone. The facts do not support this
theory. First, there is nothing in the evidence which
13
4. The Error Was Harmless Beyond A Reasonable
Doubt
When an erroneous instruction is given, the standard of
review turns on whether the instruction was merely factually
unsupported or instead legally erroneous. If the jury was
instructed on a factually unsupported theory along with a
factually supported one, the error is reviewed under People v.
Watson (1956) 46 Cal.2d 818, 836, and the error is harmless if it
is not reasonably probable that a result more favorable to the
defendant would have been reached in the absence of the error.
(Canizales, supra, 7 Cal.5th at pp. 612-613.) However, when a
jury is instructed on two legal theories, one of which is legally
erroneous, we review the error under the harmless beyond a
reasonable doubt standard of review of Chapman v. California
(1967) 386 U.S. 18, 24. (People v. Aledamat (2019) 8 Cal.5th 1, 3.)
It is unnecessary to determine which standard of review
applies, because the error was harmless even under the stricter,
Chapman standard. Here, with respect to attempted murder, the
jury was instructed on both direct intent to kill and kill zone.
The error in giving kill zone was harmless beyond a reasonable
doubt, because the undisputed evidence is that defendant
intended to kill all five young men.
We review the salient facts. Defendant did not know the
distinguishes Diaz from any of the other young men, such that
defendant would consider Diaz another primary target and the
others simply collateral. Second, defendant turned and shot
Hernandez while he was running away. If defendant’s primary
targets were Mateo and Diaz, he would have limited his attack to
the corner where Mateo and Diaz remained and again would
have presumably left the park.
14
five men before encountering them in an area claimed by a rival
gang. He presented them with a gang challenge. Mateo
responded. Defendant stated his own gang’s name and shot
Mateo multiple times. Mateo went down. Defendant then turned
his gun on the four men who had been sitting with Mateo. He
shot and killed one, Diaz, where he sat. The others scattered. As
one, Hernandez, ran toward the baseball field, defendant turned
and shot him. It is apparent that defendant’s goal was not to kill
a primary target by killing everyone around that target, but to
shoot and kill all of the young men who dared sit in rival gang
territory. The evidence is overwhelming that there was no
primary target and that, instead, defendant intended to kill all of
the men on the bleachers, or as many as he could.
B. Substantial Evidence
Defendant contends the judgment of conviction on count 6
must be reversed because there was insufficient evidence the
driver of the Volvo was a member of defendant’s gang. We
disagree.
1. Standard of Review
“ ‘ “[W]e review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.] We
determine “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.] In so doing, a reviewing court “presumes in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” [Citation.]’ ” (People v.
15
Williams (2015) 61 Cal.4th 1244, 1281; People v. Combs (2004)
34 Cal.4th 821, 849 [“An appellate court must accept logical
inferences that the jury might have drawn from the evidence
even if the court would have concluded otherwise”].) The same
standard of review applies where the prosecution relies on
circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764,
792.)
2. Applicable Law
Section 186.22, subdivision (a), defines the crime of street
terrorism and provides in relevant part: “Any person who
actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of
criminal gang activity, and who willfully promotes, furthers, or
assists in any felonious criminal conduct by members of that
gang, shall be punished. . . .” “The plain meaning of section
186.22(a) requires that felonious criminal conduct be committed
by at least two gang members, one of whom can include the
defendant if he is a gang member. [Citation.]” (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1132, 1140 (Rodriguez); People
v. Vega (2015) 236 Cal.App.4th 484, 503.) The court in
Rodriguez, in responding to a hypothetical in which an active
participant provides a gang member (a gang leader) with a gun to
use in shooting rival gang members, said: “If the active
participant is not a gang member, he would be no more guilty of
violating section 186.22(a) than the gang leader because only one
member of the gang—the gang leader—committed the shootings.”
(Rodriguez, supra, 55 Cal.4th at p. 1138.)
3. Analysis
The jury was instructed with a CALCRIM No. 1400, which
provides: “At least two gang members of that same gang must
16
have participated in committing the felony offense,” and “[t]he
defendant may count as one of those members if you find that the
defendant was a member of the gang.” “[T]he jury is presumed to
follow the trial court’s instructions.” (People v. Fuiava (2012)
53 Cal.4th 622, 669.)
Substantial evidence permitted the jury to conclude the
driver of the Volvo was a member of defendant’s gang. Officer
Coronado, the prosecutor’s gang expert, opined defendant was a
member of the Culver City Boys gang and testified the Culver
City Boys members were primarily Hispanic and the gang’s
primary activities included assaults with deadly weapons and
auto theft. There was evidence the Volvo had been stolen, and
the driver of that stolen car was a Hispanic male. There was also
evidence the driver worked closely with defendant, a comrade
who was a Culver City Boys gang member, to carry out the
shootings. He drove defendant to the location of the crimes;
waited for defendant to return to the car; started the car and
turned on the headlights after seeing defendant running to the
car from the scene of the shootings; and facilitated defendant’s
escape by fleeing the scene after defendant entered the car.
Officer Coronado opined the driver, by helping the shooter,
showed he not only knew the shooter and was “associating” with
him, but the fact that the car was stolen additionally meant the
driver was either a fellow gang member or an associate putting in
work with the shooter and representing the gang.
Although the evidence could have been reconciled with a
finding that the driver of the Volvo was not a Culver City Boys
gang member, a rational trier of fact could have also determined
the evidence was sufficient to find the driver was a gang
member. Nothing more is required to affirm the judgment on
17
count 6. (Center for Biological Diversity v. Department of Fish &
Wildlife (2015) 62 Cal.4th 204, 215; City of Glendale v. Marcus
Cable Associates, LLC (2014) 231 Cal.App.4th 1359, 1385.)
C. Admission of Psychological Impact Evidence
Defendant contends the trial court violated his federal
rights of due process and fair trial by erroneously admitting
irrelevant evidence concerning the psychological impact of the
attempted murder on Santiago. We disagree.
1. Standard of Review
We review a trial court’s ruling on the admissibility of
evidence for an abuse of discretion. (People v. Alvarez (1996)
14 Cal.4th 155, 203.) “A trial court abuses its discretion when its
ruling ‘fall[s] “outside the bounds of reason.” ’ [Citations.]”
(People v. Waidla (2000) 22 Cal.4th 690, 714.) If the erroneous
admission “implicates defendant’s federal constitutional rights to
due process and concerns the fundamental fairness of his trial,
we will apply the de novo standard of review.” (People v.
Albarran (2007) 149 Cal.App.4th 214, 225, fn. 7.)
2. Applicable Law
The admission of evidence regarding the psychological
impact of a gunshot victim is irrelevant at trial in a non-capital
case. (People v. Redd (2010) 48 Cal.4th 691, 731- 732.) The
admission of evidence violates a defendant’s federal due process
rights if it makes the trial fundamentally unfair. (People v.
Partida (2005) 37 Cal.4th 428, 439.)
3. Relevant Proceedings
During Santiago’s testimony, the following exchange
occurred: [The Prosecutor]: Now, Mr. Santiago, after this
shooting happened in 2011, what trajectory did your life take?
[¶] [Defense Counsel]: Objection. Relevance. [¶] The Court:
18
Overruled. Do you understand the question? [¶] [Santiago]:
Yeah. [¶] The Court: Did this shooting in any way change the
way you were living. [¶] [Santiago]: Yeah. It did. [¶] [The
Prosecutor]: How was that? [¶] [Santiago]: I was trying to
forget. I started using drugs trying to forget. Everything that
happened.”
4. Analysis
Defendant contends the admission of the challenged
evidence, inter alia, violated his federal rights to due process
and a fair trial. Defendant forfeited the federal portion of his
claim of error by failing to object at trial on any ground other
than relevance. (People Martinez (2010) 47 Cal.4th 911, 961
[defendant forfeited his federal claims, including his claims for
violation of his due process and fair trial rights, “because defense
counsel objected to [the] evidence only on Evidence Code section
352 grounds”].).
Even if the trial court erred in admitting evidence of the
psychological impact of the shooting on Santiago, any error was
harmless under the standard of either People v. Watson (1956)
46 Cal.2d 818, 836-837 [more favorable outcome for defendant
reasonably probable absent error], or Chapman v. California
(1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]. As
discussed above, the evidence of defendant’s attempted murder
of Santiago was overwhelming.
D. Cumulative Impact
Defendant contends even if the trial court errors in
instructing the jury on the “kill zone” theory for counts 4 and 5,
and in admitting evidence of the psychological impact on
Santiago, did not warrant reversal of the convictions on counts 4
and 5, the cumulative impact of those errors does. Both errors
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are harmless, due to the overwhelming evidence that defendant
intended to kill all five men. The combination of the errors does
not change our conclusion.
E. Parole Revocation Restitution Fine
Defendant contends, and the Attorney General agrees, the
trial court erred in imposing a parole revocation fine. We accept
the Attorney General’s concession.
The trial court imposed but stayed all of the determinate
sentences (counts 6 and 7) and imposed a $200 parole revocation
restitution fine pursuant to section 1202.45. 8 A parole revocation
restitution fine may not be imposed when all determinate
sentences have been stayed under section 654. (People v. Pearson
(1986) 42 Cal.3d 351, 361, rejected on other grounds by People v.
Vidana (2016) 1 Cal.5th 632, 650-651; People v. Cruz (2012)
207 Cal.App.4th 664, 672-673, fn. 8.)
We reverse the trial court’s imposition of the $200 parole
revocation restitution fine. The indeterminate abstract of
judgment should be amended to delete any reference to a $200
parole revocation fine.
F. Custody Credit
Defendant contends, and the Attorney General concedes,
the trial court erred in failing to credit defendant for the actual
days he served prior to sentencing. We agree.
A person convicted of murder is entitled to credit for actual
time spent in custody prior to sentencing. (§ 2900.5, subd. (a);
People v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) Defendant
was arrested on June 28, 2011 and sentenced on February 11,
8 Although the trial court stayed all of the determinate
sentences, the parole revocation fine is reflected on the
indeterminate abstract of judgment.
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2015; a total of 1,325 days. The trial court declined to credit
defendant for the actual days he served prior to sentencing. As
noted, however, defendant was entitled to actual presentence
custody credits.
We reverse the trial court’s refusal to award defendant
custody credit. Both the indeterminate abstract of judgment and
the determinate abstract of judgment should be amended to
reflect defendant is entitled to 1,325 actual days of credit.
G. Correction of the Indeterminate Abstract of Judgment
to Reflect Oral Pronouncements
The Attorney General argues, and defendant agrees, the
indeterminate abstract of judgment should be corrected to reflect
the trial court’s oral pronouncements that defendant was
sentenced to serve his terms on counts 1 - 5 consecutively, and
was to serve the term of life with a possibility of parole on counts
3 - 5. The abstract of judgment must be so amended.
The indeterminate abstract of judgment fails to reflect the
trial court sentenced defendant to serve his indeterminate terms
for counts 1 - 5 consecutively. It also reflects the trial court
sentenced defendant to three terms of 15 years to life on counts 3
- 5, but on counts 3 - 5 the trial court sentenced defendant to
terms of life with the possibility of parole. (§§ 186.22,
subd. (b)(5), 664, subd. (a).)
An abstract of judgment must fully and accurately reflect a
defendant’s sentence. (People v. Mitchell (2001) 26 Cal.4th 181,
185-186 (Mitchell).) “[A] trial court’s oral sentence governs if it is
different from what appears in a minute order or an abstract of
judgment [citations] . . . .” (People v. Wynn (2010)
184 Cal.App.4th 1210, 1221; Mitchell, supra, 26 Cal.4th at p. 185;
People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.)
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Accordingly, the indeterminate abstract of judgment should be
amended to reflect the trial court sentenced defendant to serve
his indeterminate terms on counts 1 - 5 consecutively, and to
serve the term of life with a possibility of parole on counts 3 - 5.
DISPOSITION
We reverse the trial court’s imposition on defendant of a
$200 parole revocation restitution fine, and its refusal to award
defendant custody credit. The matter is remanded for the trial
court to amend the indeterminate abstract of judgment to delete
any reference to a $200 parole revocation fine; reflect defendant
is to serve his indeterminate terms on counts 1 - 5 consecutively;
and to indicate the term on counts 3 - 5 life with a possibility of
parole. The trial court shall also amend both the indeterminate
abstract of judgment and the determinate abstract of judgment to
reflect defendant is entitled to 1,325 actual days of custody credit.
The trial court is to deliver the amended abstracts of judgment to
the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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