Opinion
F072554
11-07-2018
THE PEOPLE, Plaintiff and Respondent, v. NICOLAS ANDRES ALCALA, Defendant and Appellant.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F12906616)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In June 2012, appellant Nicolas Andres Alcala fired multiple shots at a person outside a bar in Huron, California. Appellant's shots missed the intended victim but struck Pedro Aispuro, resulting in his death. A jury found appellant not guilty of first degree murder, but guilty of the lesser-included charge of second degree murder (Pen. Code, § 187, subd. (a); count 1). Regarding the intended victim, appellant was convicted of attempted murder (§§ 664/187, subd. (a); count 2), but the jury did not find that the attempt was willful, deliberate or premeditated. Firearm enhancements were found true in both counts (§ 12022.53, subd. (d)). In a bifurcated trial, the court found true that appellant committed these crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)). In count 1, appellant was sentenced to 15 years to life for the murder, plus a consecutive 25 years to life for the firearm enhancement. In count 2, he received seven years for the attempted murder, a consecutive 10 years for the gang enhancement, plus a consecutive 25 years to life for the firearm enhancement. The two prison sentences were imposed consecutively.
All future statutory references are to the Penal Code unless otherwise noted.
On appeal, appellant raises claims of ineffective assistance of counsel. His arguments focus on (1) his attorney's comments during opening statements; (2) the admission of certain trial testimony; and (3) the lack of an eyewitness identification expert for the defense. He also alleges cumulative error. We reject these arguments.
Our review of the record has revealed clerical errors in both the indeterminate and determinate abstracts of judgment. We will direct the trial court to correct these mistakes but we otherwise affirm.
BACKGROUND
I. Evidence From The Prosecution's Case.
A. The homicide and attempted murder.
This shooting took place on June 4, 2012, near a bar in Huron, California, just after the bar had closed around 1:45 a.m. The events began when one victim, Salvador Solis, was outside the bar. Other people were in the area. A male, who was later identified as Jaime Meza, approached Solis multiple times and asked if Solis was in a gang. Solis confirmed he was a Bulldog gang member. Shortly thereafter, Meza relayed this information to appellant, who had been in the vicinity. Appellant pulled out a revolver. Solis ran across the street and, while doing so, appellant fired multiple gunshots.
After appellant began firing, Solis's girlfriend, V.M., pushed appellant's hands or wrists, or struggled with him. Appellant and Meza fled from the area.
According to the trial court, Meza either pleaded guilty or no contest as an accessory for driving appellant away from the scene of this shooting.
Although Solis was not struck, another victim, Pedro Aispuro, fell in the street. Law enforcement was dispatched to the scene around 1:52 a.m. Aispuro was pronounced dead shortly thereafter; he died from a bullet that had entered his back.
In addition to the fatal shot, Aispuro also received a gunshot to his right knee.
B. Eyewitnesses identify appellant as the shooter.
Shortly after this shooting, law enforcement located surveillance video from a gas station that was located about 50 feet from the bar. From the video, it was later determined that appellant and Meza were inside the gas station's mini mart less than 30 minutes before this shooting.
At trial, an identification technician explained that the time stamp on this video was about 13 minutes fast. Later in this opinion, we address in greater detail how law enforcement obtained this video.
On the same day as the shooting, police separately showed eyewitnesses an image from the surveillance video and then later the video itself. Solis, V.M., E.F., and S.P. each identified appellant as the shooter. Police also showed V.M. and E.F. a photo of four people, which included appellant. Both identified appellant from this photo as the shooter.
The jury learned that these four eyewitnesses were friends.
When shown the image from the surveillance video, the witnesses were told that it "may or may not be somebody that was involved in the incident." The witnesses were told that law enforcement did not want them to misidentify somebody. The interviewing detective, however, made it clear to the witnesses that she was looking for the shooter. When shown the video, the witnesses were asked "just to watch and see if they recognized anybody" in it.
At trial, the lead homicide detective testified that none of the witnesses to this shooting ever identified anyone other than appellant as the shooter.
C. Appellant flees the country.
When this crime occurred, appellant was residing in Kettleman City with his stepfather. Law enforcement began to search for appellant, but he could not be located. It was later learned that appellant had relocated to Mexico within days of this crime.
At trial, a woman, D.C., testified that, a few days after this shooting, appellant asked her to go away with him. She declined because she was about seven months pregnant with his child. About four days after this shooting, officers spoke with D.C. at her residence. She denied knowing his whereabouts. About a week or two later, he contacted her and asked her to join him in Mexico.
According to D.C.'s trial testimony, she joined appellant in Mexico around November 2012. Their newborn baby accompanied her. D.C. stayed with appellant for about five months. While in Mexico, he told D.C. that he was being blamed for something he did not do, but he would not discuss this topic with her. He would tell her to drop the subject. While in Mexico, he never admitted to her that he had killed anyone on June 4, 2012, but he also never denied it. After about five months, D.C. returned to the United States with their baby. Appellant remained in Mexico. In August 2013, appellant was arrested while attempting to enter the United States.
D. Appellant's gang affiliation and the motive for this crime.
Appellant was a self-admitted Norteño gang member. According to the prosecution's gang expert, appellant and Meza were Norteño gang members when this shooting occurred, and Solis and Aispuro were Bulldog gang members. A "significant" and "bitter" rivalry exists between these gangs. Norteños have a "green light" to attack Bulldog gang members. When these gang members encounter each other, a confrontation is likely to occur.
The jury saw photographs of appellant's numerous gang-related tattoos. One such tattoo said "BFK" on his left shoulder, which stood for "Bullfrog Killer." Bullfrog is a derogatory term for a Bulldog gang member. Appellant did not have this tattoo in October 2010, about 20 months before Aispuro's murder.
E. The trial testimony identifying appellant as the shooter.
At trial, D.C. identified appellant in the gas station video. Appellant's stepfather also identified him from images taken from the video. Although some of the images were not very clear, appellant's stepfather had "no doubt" it was him.
At trial, Solis, V.M., E.F., and S.P. all identified appellant in court as the shooter. V.M., E.F. and S.P. had been outside the bar when this shooting occurred. All three testified that appellant was aiming at Solis when appellant fired multiple shots. All four witnesses were confident in their identifications.
The jury learned that the four eyewitnesses were friends, and they had talked to each other about the shooting.
The jury also learned that V.M. and S.P. had encountered appellant earlier in the evening inside the bar. Before this shooting occurred, Solis's girlfriend, V.M., who was a waitress at the bar, had directed appellant to leave the bar because he and two companions appeared young and they did not have identification. She went outside with them and chatted for about five minutes. One of the males told her they were Norteños from Kettleman City, and one of them asked her whether an ATM or a store was nearby.
Another witness to the shooting, S.P., had also encountered appellant earlier in the evening inside the bar. Appellant and a male companion walked past her sometime before this shooting occurred. One of the two males asked her whether the ATM worked, and she directed them to the nearby gas station. At trial, she denied that the lighting inside the bar made it difficult to see appellant.
During the trial, a juror sent a note to the court asking for two questions to be posed to S.P.: (1) how long had she been at the bar before she saw appellant; and (2) how long had she been friends with Solis and the other eyewitnesses. After consulting with counsel, the court elected to advise the jury with CALCRIM No. 106. Generally, this instruction advises a jury that they may submit written suggestions to the court regarding questions for a trial witness, but the question may or may not be asked.
Although this shooting took place outside when it was dark, the area had adequate lighting. According to the witnesses, only appellant displayed a gun during this incident.
During the trial, a juror sent a note to the trial court asking if any photos of the bar at nighttime existed. After consulting with counsel, the court responded that no such photos were offered into evidence and the juror's decision must be based on the evidence presented.
II. Defense evidence.
The president of an audio and video production company, Jeff Hall, testified on appellant's behalf. Among other things, Hall's company does forensic work enhancing video or audio, checking the veracity of the source material, or making recreations of crime scenes. Hall enhanced images of the surveillance video that showed the alleged suspect's inner right arm. In the enhanced image, a tattoo ("Virginia") was not visible. This tattoo, however, appears on appellant's right arm.
DISCUSSION
I. Appellant Does Not Establish Ineffective Assistance Of Counsel Regarding His Counsel's Comments During Opening Statements Or In Eliciting Certain Testimony.
Appellant argues his defense counsel provided ineffective assistance in this matter based on (1) his comments during opening statements; (2) the admission of certain trial testimony; and (3) the lack of an eyewitness identification expert for the defense. We provide additional facts relevant to these arguments before we turn to the merits of each claim. In Section II, we address the failure to call an eyewitness identification expert.
A. Background.
1. The defense motion in limine.
Prior to trial, the defense sought to prohibit certain hearsay statements from two potential witnesses. According to the motion, a male, T.A., allegedly told police officers shortly after this crime that the suspect had been in the local gas station prior to this shooting. According to the defense motion, however, T.A. had not witnessed the shooting and his knowledge came from a female, L.S. The defense motion further alleged that, when officers entered the gas station, the clerk said, "I think this is what you are looking for; the two in the fight?" The motion asserted it was unknown how the clerk knew this or why officers selected appellant's image from the video.
The trial court ruled that T.A. could testify about events he personally observed. T.A., however, did not testify in this trial. Regarding the clerk's testimony, the parties did not address this issue during the hearing and it appears the court never ruled on it.
2. The relevant comments during opening statements.
During opening statements, defense counsel suggested that the identification of appellant as the shooter was based on false information. Police obtained the surveillance video from the gas station only because T.A. directed them there. T.A., however, had not witnessed the shooting but had heard from L.S. that the suspects had been in the gas station. Defense counsel informed the jury that L.S. would testify for the defense, and L.S. now denied that appellant had been the shooter.
According to defense counsel, T.A. was responsible for the witnesses identifying appellant as the shooter. The witnesses were only shown one image, and the witnesses then saw appellant in court.
3. The relevant trial evidence regarding the surveillance video.
At trial, the jury learned how law enforcement obtained the surveillance video from the local gas station. On direct examination, an officer explained that, while he was doing "crowd control" after this shooting, he overheard something that made him go to the local gas station. The officer spoke to the clerk, who directed him to a monitor. The clerk pointed to the monitor, which "was already paused on a picture." The clerk said something like, "I think this is what you want, the guys in the fight[.]" Using his cellular phone, the officer took two pictures of the image on the monitor. The photos were forwarded to other law enforcement officers involved in this investigation.
The second photo was a close-up of the same image.
On cross-examination, the officer admitted that he never asked the clerk if he saw the incident. The clerk testified at trial. He recalled rewinding surveillance video to show an officer, but he claimed he did not know why police had entered the store.
On cross-examination, defense counsel asked the officer what he had overheard from the crowd. According to the officer, someone said T.A. had seen the suspects, who had been inside the local gas station. The trial court admonished the jury that this testimony was not offered for its truth but only to show why the officer acted.
After conclusion of the officer's testimony, the trial court stated it had initially granted appellant's motion in limine to exclude T.A.'s statements. However, according to the court, defense counsel then sought leave to ask the officer about T.A., which was granted.
4. Defense counsel's statement regarding L.S.'s failure to testify.
At the end of the defense case, defense counsel informed the trial court that L.S. was not going to testify. She had not appeared at trial despite being subpoenaed. In any event, defense counsel expressed concern that L.S.'s testimony from the preliminary hearing had been "somewhat wishy-washy" regarding "what she saw" on the night in question. In addition, defense counsel was aware that the prosecution had three witnesses ready to impeach L.S. Defense counsel said he "made a tactical decision not to call her."
Immediately thereafter, the prosecutor added the following information. A detective had initially interviewed L.S., who identified appellant as the shooter. At the preliminary hearing, however, L.S. said she had not been outside the bar when the shooting took place, which was corroborated by at least one other witness. Based on the transcript from the preliminary hearing, the prosecutor believed L.S. had been inside the bar when this shooting occurred.
B. Standard of review.
Under the federal and state constitutions, a criminal defendant is entitled to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
To establish prejudice, the defendant must demonstrate a "'reasonable probability'" that, absent defense counsel's alleged errors, the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Majors (1998) 18 Cal.4th 385, 403.) It is not sufficient to show that the alleged errors may have had "'some conceivable effect'" on the trial's outcome. (People v. Ledesma, supra, 43 Cal.3d at p. 217.)
C. Analysis.
Appellant argues it was unreasonable for his counsel to have promised the jury that L.S. would testify. He further contends his counsel unreasonably admitted T.A.'s and the clerk's statements into evidence, which he claims bolstered the prosecution's case. He asserts these alleged errors prejudiced him because the eyewitnesses could have been mistaken about the shooter's identity. He also claims police used suggestive tactics by initially showing the witnesses only a single photo. We find these arguments unpersuasive. Based on this record, we can dispose of these claims due to a lack of prejudice because the evidence of appellant's guilt was overwhelming. (See People v. Mendoza (2000) 24 Cal.4th 130, 164 [if the defendant fails to show prejudice, a claim of ineffective assistance of counsel may be rejected without determining the sufficiency of counsel's performance].) As such, we need not address whether appellant's trial counsel rendered ineffective assistance. (Ibid.)
1. Multiple eyewitnesses identified appellant as the shooter.
Four eyewitnesses, both before and during trial, identified appellant as the shooter. Two of those witnesses, V.M. and S.P., had encountered appellant earlier in the evening inside the bar. Although this shooting took place outside when it was dark, the area had adequate lighting. Only appellant was seen displaying a gun during this incident. At trial, the lead homicide detective confirmed that nobody ever identified anyone other than appellant as the shooter.
2. The jury found the eyewitness testimony credible.
It was the jurors' role to determine witness credibility, and the truth or falsity of the determinative facts. (§ 1127; see also People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.) During trial, defense counsel attempted to challenge the eyewitness identifications. During closing arguments, defense counsel argued mistaken identity was possible. He also suggested the person in the surveillance video could have looked like either the shooter or appellant but still be someone else. Counsel asserted law enforcement's use of a single photo was suggestive. He also contended it was natural for the witnesses to assume that appellant was the shooter because they saw him in court. Defense counsel contended that the witnesses did not all agree on how events unfolded or what they saw.
Based on the verdicts rendered, it is clear the jurors found the eyewitness identifications credible. We disagree with appellant's repeated suggestion that the eyewitness identifications were unreliable based on how law enforcement obtained the surveillance images or how police showed the images to the eyewitnesses. The witnesses were told that the image "may or may not be somebody that was involved in the incident." The witnesses were told that law enforcement did not want them to misidentify somebody. When shown the video, the witnesses were asked "just to watch and see if they recognized anybody" in it.
In making its findings, the jury rejected the arguments raised by the defense. It was the jurors' role to determine witness credibility, and the truth or falsity of the determinative facts. (§ 1127; see also People v. Letner and Tobin, supra, 50 Cal.4th at p. 162.) As such, we need not address further appellant's repeated suggestion that the eyewitness identifications were unreliable.
3. The prosecution established a motive for this crime.
Solis was a Bulldog gang member and appellant was a self-admitted Norteño. A "significant" and "bitter" rivalry exists between these gangs. When arrested, appellant had a "BFK" tattoo on his shoulder, which stood for Bullfrog Killer. This was a derogatory term used against Bulldog gang members. Appellant did not have this tattoo in October 2010, about 20 months before this murder. With CALCRIM No. 370, the jury was instructed that the People were not required to prove that appellant had a motive to commit the charged crimes. However, the jury was told it could consider whether appellant had a motive, which might be a factor tending to show guilt. Based on this record, the prosecution established a clear gang motive for this shooting.
4. Appellant's flight showed his consciousness of guilt.
Appellant fled to Mexico shortly after this crime while D.C. was about seven months pregnant with his child. D.C. did not join him until after their baby was born. While in Mexico, he told D.C. that he was being blamed for something he did not do, but he would not discuss this topic with her. He would tell her to drop the subject. While in Mexico, he never admitted to her that he had killed anyone on June 4, 2012, but he also never denied it. With CALCRIM No. 372, the jurors were instructed that appellant's flight "may show that he was aware of his guilt." The evidence strongly suggests that appellant fled with knowledge of his guilt.
Based on this record, appellant cannot establish a "'reasonable probability'" that, absent the alleged errors of his counsel, the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) The evidence of appellant's guilt was overwhelming and confidence in the outcome of this trial is not undermined. (See People v. Majors, supra, 18 Cal.4th at p. 403.) Accordingly, appellant does not meet his burden of proof to establish ineffective assistance of counsel and we reject this claim.
II. Appellant's Claim Fails On Direct Appeal Regarding The Failure To Call An Eyewitness Identification Expert.
Appellant argues his trial counsel unreasonably failed to call an eyewitness identification expert to testify. He contends an expert could have educated the jury about why the identifications were unreliable. He asserts it was highly suggestive for law enforcement to show the witnesses a single photograph. He claims the jurors likely overestimated the accuracy of the eyewitness identifications. He relies primarily on People v. McDonald (1984) 37 Cal.3d 351 (McDonald) overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 912-914. We find appellant's arguments and his reliance on McDonald unpersuasive. This claim fails on direct appeal.
A claim of ineffective assistance of counsel is normally raised in a writ of habeas corpus. (People v. Snow (2003) 30 Cal.4th 43, 111.) In such a writ, relevant facts and circumstances can be explored which are not reflected in the record on appeal, such as why counsel did not pursue a particular strategy. (Ibid.) Our Supreme Court recommends for appellate counsel to join a verified petition for writ of habeas corpus when an ineffective assistance claim is raised on direct appeal and the record contains no explanation regarding defense counsel's actions. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) An appellate court should not "set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed ...." (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
Our Supreme Court has repeatedly stated that if the appellate record sheds no light on why defense counsel acted or failed to act in the challenged manner, an ineffective assistance claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there can be no satisfactory explanation. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266; People v. Kelly (1992) 1 Cal.4th 495, 520.) An appellate court will reverse the conviction "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
We cannot determine from this record why appellant's defense counsel did not call an eyewitness identification expert. However, we cannot say no satisfactory explanation exists to justify defense counsel's action. Defense counsel could have believed the jury appeared unsophisticated so that scientific testimony would have been more confusing than helpful. Counsel could have determined that focusing on the facts, and the common sense reasons why the identifications were suspect, was more effective. Counsel could have been concerned that presenting an expert witness for the defense would have triggered rebuttal evidence from the People, which could have strengthened the case against appellant. Although we can hypothesize a tactical basis for defense counsel's conduct, that does not prove that counsel had a reasonable tactical basis for his inaction. (People v. Jones (2003) 30 Cal.4th 1084, 1122.) However, appellant must prove that his trial counsel had no such reasonable tactical purpose. (Ibid.)
Appellant does not cite, and we have not found, any legal authorities which suggest defense counsel in a criminal case must present an eyewitness identification expert when identification is crucial to the prosecution's case. To the contrary, the decision "whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess." (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) "Whether to call certain witnesses is also a matter of trial tactics, unless the decision results from unreasonable failure to investigate. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 334.)
The United States Supreme Court notes that some criminal cases may require consultation with experts or introduction of expert evidence to provide a reasonable defense. (Harrington v. Richter (2011) 562 U.S. 86, 106.) "There are, however, 'countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.' [Citation.] Rare are the situations in which the 'wide latitude counsel must have in making tactical decisions' will be limited to any one technique or approach. [Citation.] It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it." (Ibid.) "A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. [Citation.] The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' [Citation.]" (Harrington v. Richter, supra, 562 U.S. at p. 104.)
Finally, McDonald, supra, 37 Cal.3d 351, does not assist appellant. In McDonald, the trial court abused its discretion when it prevented a defense expert from opining about the psychological factors that may affect the accuracy of eyewitness identification. (Id. at pp. 361, 376.) The trial court's ruling was in error because it undercut the main defense, i.e., the accuracy of the eyewitness identifications. (Id. at p. 376.) McDonald, however, did not address ineffective assistance of counsel. Cases are not authority for propositions not considered or decided. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134.) Moreover, the Courts of Appeal have held that McDonald "provides no support for the claim that expert testimony must be presented by a defense attorney in every case where an eyewitness identification is uncorroborated." (People v. Datt (2010) 185 Cal.App.4th 942, 952.)
In this matter, we apply a strong presumption that defense counsel's representation was within the wide range of reasonable professional assistance. Appellant has failed to show that his counsel made errors so serious that he did not receive the protections afforded him under the Sixth Amendment. (See Harrington v. Richter, supra, 562 U.S. at p. 104.) Defense counsel was not asked for an explanation regarding his failure to call an eyewitness identification expert. This record does not affirmatively disclose that defense counsel had no rational tactical reason for his failure to present an expert witness. Accordingly, this claim fails on direct appeal. (See People v. Mitcham, supra, 1 Cal.4th at p. 1059 [rejecting ineffective assistance claim because record did not reveal why defense counsel failed to present a defense].)
III. Appellant Does Not Establish Ineffective Assistance Of Counsel Based On Alleged Cumulative Error.
Appellant contends that, considered together, the allegations of ineffective assistance of counsel require reversal of the judgment. We disagree. We have rejected all of appellant's claims of ineffective assistance of counsel. We are also not persuaded by his claim of cumulative prejudice. (See People v. Ochoa (1998) 19 Cal.4th 353, 470 [rejecting claim of cumulative prejudice from ineffective assistance of counsel because all individual claims were meritless.].) The rejection of each of appellant's individual claims cannot support a cumulative error argument. (In re Reno (2012) 55 Cal.4th 428, 483.) As such, this claim is without merit.
IV. Both Abstracts Of Judgment Contain Clerical Errors.
An appellate court may correct clerical errors appearing in abstracts of judgment either on its own motion or upon application of the parties. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.]" (Ibid.)
Both abstracts of judgment in this matter contain clerical errors. In count 2, the jury found appellant not guilty of attempted murder that was willful, deliberate or premeditated. Instead, appellant was convicted of attempted murder (§§ 664/187, subd. (a); count 2). The determinate abstract of judgment, however, incorrectly describes count 2 as attempted willful, deliberate and premeditated murder. The trial court shall correct this mistake.
At sentencing, the trial court properly imposed a $30 criminal conviction assessment in each count pursuant to Government Code section 70373. The total assessment imposed was $60. The indeterminate abstract of judgment, however, erroneously lists this assessment as $40.00. The trial court shall correct this mistake.
The trial court misspoke and stated that this section was under the Penal Code. --------
Finally, in count 1, appellant was found guilty of second degree murder (§ 187, subd. (a)). The indeterminate abstract of judgment, however, incorrectly lists this conviction, in part, under section 664, which applies to attempt. The trial court shall correct this error.
DISPOSITION
We direct the trial court to correct the abstracts of judgment as follows: In the determinate abstract, the court shall strike the words "Willful Deliberate Premeditated" and list the conviction in count 2 as an attempted murder. In the indeterminate abstract, the court shall (1) strike reference to section 664 for the conviction of murder in count 1 and (2) amend the amount of the criminal conviction assessment imposed under Government Code section 70373 to reflect the court's oral pronouncement of $60 at sentencing. The court shall forward corrected abstracts of judgment to the appropriate authorities. The judgment is otherwise affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
SMITH, J.