Opinion
G061593
01-29-2024
THE PEOPLE, Plaintiff and Respondent, v. ARTURO GONZALEZ, Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine L. Bergman and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 09CF1140, Richard M. King, Judge. Affirmed with directions.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine L. Bergman and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
In 2013, a jury convicted Arturo Gonzalez of the first degree murder of Mario Chutan (Pen. Code, § 187, subd. (a)), the attempted deliberate and premeditated murder of Mario de Rosas (§§ 187, subd. (a), 664, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found Gonzalez committed the murder and the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and a principal intentionally discharged a firearm during these offenses (§ 12022.53, subds. (c), (d), (e)(1)). Gonzalez's convictions arose from an incident in which Gonzalez and his fellow gang member Juan Castro confronted members of another gang at a party and Castro fired multiple shots, killing Chutan and injuring de Rosas and others. At Gonzalez's trial, the jury was instructed, among other theories, on the natural and probable consequences doctrine. The jury was instructed it could convict Gonzalez of first degree murder and attempted murder under the natural and probable consequences doctrine if it found Gonzalez aided and abetted Castro in an assault or disturbing the peace and found the murder and the attempted murder were the natural and probable consequences of one of these target offenses.
All further statutory references are to the Penal Code.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, § 2), which, among other things, eliminated the natural and probable consequences theory of liability as a basis for a murder conviction. (People v. Reyes (2023) 14 Cal.5th 981, 984.) Senate Bill 1437 also created a process for defendants previously convicted of murder under the natural and probable consequences theory to seek relief retroactively by filing a petition in the superior court pursuant to former section 1170.95 to have their murder convictions vacated under the new law. (Stats. 2018, ch. 1015, § 4; People v. Strong (2022) 13 Cal.5th 698, 708.) The Legislature subsequently eliminated the natural and probable consequences theory of liability as a basis for an attempted murder conviction with the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775). (Stats. 2021, ch. 551, § 1.)
Gonzalez petitioned for resentencing under former section 1170.95, which was later renumbered as section 1172.6. After issuing an order to show cause and conducting an evidentiary hearing, the trial court concluded beyond a reasonable doubt Gonzalez was guilty of murder and attempted murder as a direct aider and abettor, a viable theory after the change in the law, and the court denied the petition. Gonzalez contends the court's order denying his petition as to his attempted murder conviction must be reversed because it was not supported by substantial evidence. (He does not challenge the court's conclusion as to his murder conviction.) Gonzalez asserts the evidence was insufficient to prove he harbored the intent to kill de Rosas, a requisite element for his attempted murder conviction. We disagree and affirm the court's postjudgment order denying Gonzalez's petition.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6 without substantive change in the text. (Stats. 2022, ch. 58, § 10.)
Gonzalez also identifies an error in the amended abstract of judgment for his indeterminate prison commitment and requests we order the trial court to correct it. While Gonzalez's first degree murder conviction was reduced to second degree murder following his direct appeal, the amended abstract of judgment filed in November 2015 still describes Gonzalez's conviction in count 1 as first degree murder. The Attorney General agrees the abstract of judgment is inaccurate and should be corrected. We may correct clerical errors in the abstract of judgment at any time (People v. Mitchell (2001) 26 Cal.4th 181, 185) and do so here. We direct the trial court to prepare a new amended abstract of judgment reflecting Gonzalez was convicted of second degree murder in count 1 and to forward the new amended abstract of judgment to the Department of Corrections and Rehabilitation.
FACTUAL AND PROCEDURAL BACKGROUND
I. THE FACTS UNDERLYING GONZALEZ'S CONVICTIONS
The following facts are taken from the factual and procedural background set forth in the opinion by another panel of this court in Gonzalez's direct appeal.
"On the evening of May 1, 2009, [A.C.], her 18-year-old boyfriend Mario Chutan, and his friends, Omar Martinez and Mario de Rosas, attended a children's birthday party on Walnut Street in Santa Ana. Chutan and his friends belonged to Orange County Criminals (OCC), a gang operating in Santa Ana. [A.C.] belonged to the Sullivan Street gang. Members of another Santa Ana street gang, the Lopers, also attended the party. Members of these gangs peacefully attended the party because the Lopers got along with OCC.
"The location of the party, however, posed the potential for a violent confrontation because it took place on Walnut Street, an area the Walnut Street gang claimed. The Sullivan gang was an occasional rival, and the Lopers hostile antagonists, of Walnut Street. The presence of the Lopers at a party on Walnut Street was an affront to Walnut Street gang members Gonzalez and Juan Castro, who received a telephone call alerting them about the party.
"Gonzalez and Castro arrived at the party to confront their rivals. [A.C.] heard someone say 'where are you from' and 'fucken lops [Lopers].' Chutan walked to the gate area and said 'what's up then' and people started 'yelling out their gangs and stuff.' Someone in Chutan's party identified his group as Orange County Criminals. [A.C.] told Chutan not to say anything because children were nearby. She urged Gonzalez and Castro to calm down because it was a child's birthday party. Gonzalez replied he did not 'give a fuck' and told [A.C.] to get out of the way. He walked past her, pulling his sweatshirt hood over his head, and Castro pulled out a gun and pointed it in [A.C.]'s face, but put the gun away and said 'don't trip we're not gonna do nothing,' explaining he had thought [A.C.]'s group was from the 'Lops.' But Chutan and Gonzalez continued to challenge one another and exchanged blows. Castro, who had been standing behind Gonzalez on the sidewalk, 'blasted at [the] floor and then he just started blasting anywhere.' Chutan was hit in the back as he walked away. Castro then fired six or seven shots, hitting Martinez and de Rosas.
"De Rosas testified he was shot in his left wrist and both legs. He told a police officer he heard gunshots and ran toward the rear of the apartment complex. He felt a pinching sensation in his legs as he fled.
"[A.V. also attended the party and told a police officer the assailants walked across the street 'throwing out Walnut' gang signs and claiming they were from Walnut Street. [One of t]he partygoers said 'we're not from around here' and identified themselves as [from] Orange County. The taller assailant wearing a black hooded sweatshirt and dark pants 'clocked' one of the male partygoers in the face. The victim began 'socking him back' and the taller assailant backed up and told his shorter companion 'hey, blast him' or 'blast 'em' or 'blast this fool.' The shooter, standing behind and to the left of the nonshooter, 'started blasting.' [A.V.] heard six or seven gunshots. Investigators collected nine, nine-millimeter cartridge casings from the scene.
A.V. was a minor when he testified at trial.
"Fifteen-year-old [A.G.] lived on Walnut Street in May 2009. She told an officer she saw Chutan fighting with another male. The male held Chutan by the shirt and punched him several times in the face. A second man, who she identified as Castro, came from across the street with a black semiautomatic handgun. He slid the slide back on the handgun and fired three to four shots. The two assailants fled together.
"Police officers arrested Castro and Gonzalez at Castro's home, a short walk from the site of the homicide, the morning after Chutan's murder. Gonzalez attempted to flee from a rear entrance. In the southeast bedroom, officers found a notebook with Castro's name and writings suggesting Walnut Street gang affiliations and .38-caliber ammunition. They found clothing, including gloves and a black beanie, in the washing machine. In the northwest bedroom, officers found Gonzalez's driver's license or identification card, a cell phone, a pair of Gonzalez's prescription eyeglasses, male clothing, and a notebook containing gang writings.
"The officers also searched Gonzalez's home. They found Walnut gang graffiti, and photos of Gonzalez with other Walnut Street gang members, including Castro, in gang poses, and .38-caliber ammunition. Officers found a gun cleaning kit in a bathroom closet.
"Efren Mercado, a former Walnut Street gang member described the contours of the gang's territory and the role of its members, including 'protect[ing] your neighborhood [and] always hav[ing a fellow gang member's] back,' even if violence was required. Walnut Street did not get along with Lopers and 'bad things' would happen if they [the Lopers] came into the neighborhood. Mercado had known Walnut gang member Gonzalez since fifth grade. He also knew gang member Castro.
"Gonzalez described the May 2009 shooting to Mercado while they were both in jail in 2010. Gonzalez explained he was at Castro's home when he received a phone call advising that Lopers were at a nearby party. He and Castro walked over and did a 'hit up,' and Gonzalez got into a fight with an OCC gang member. Castro told Gonzalez to step aside and then fired his gun at the crowd. Mercado explained a gang member who did a 'hit up' would expect violence to occur.
"Detective Julian Rodriguez, a police officer with gang expertise, also described the gang culture and explained the importance of respect and power in the gang underworld. He testified Walnut Street was an established criminal street gang, comprised of approximately 50 members who engaged in violent criminal conduct and weapons possession. Both Gonzalez and Castro identified themselves as Walnut Street gang members and were actively participating in the gang on May 1, 2009. In 2006, Gonzalez told another officer Walnut Street was at 'war' with the Lopers because they murdered a fellow gang member. In 2008, Gonzalez talked to a police officer about gang guns, and Gonzalez agreed a gang member would tell fellow gang members about the presence of a gun because 'people should know about' a weapon so it could be used if needed. Rodriguez opined the current crimes benefitted the gang.
"Following a trial in October 2013, the jury convicted Gonzalez as noted above. In December 2013, the trial court imposed a term of 25 years to life for first degree murder plus a consecutive term of 25 years to life for the associated firearm enhancement. The court imposed a consecutive term of life with possibility of parole for attempted premeditated murder, plus a consecutive 20-year term for the associated firearm enhancement. The court imposed and stayed (§ 654) a two-year midterm for active gang participation." (People v. Gonzalez (Aug. 14, 2015, G049382) [nonpub. opn.] pp. 2-5.)
In Gonzalez's direct appeal from the judgment, a panel of this court reversed his first degree murder conviction based on the California Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu). The prosecution was given the option of accepting a reduction of the conviction to second degree murder or retrying the first degree murder charge under a direct aiding and abetting theory. (People v. Gonzalez, supra, [nonpub. opn.] pp. 9-10, 13.) The panel rejected Gonzalez's argument the evidence was insufficient to support his attempted murder conviction (id. at pp. 1112), concluding, based on the evidence at trial, the jury could reasonably find "Gonzalez shared Castro's intent to empty the gun's magazine into the Lopers and OCC groups and take down as many rivals as they could" (id. at p. 12). After issuance of the remittitur, the prosecution elected not to retry the first degree murder charge. The court reduced Gonzalez's murder conviction to second degree murder and imposed a sentence of 15 years to life with a consecutive term of 25 years to life for the firearm enhancement. Gonzalez's sentence on the attempted murder conviction and its firearm enhancement were unchanged. Thus, Gonzalez's total prison sentence was 40 years to life plus a consecutive life term and a consecutive 20-year term.
In Chiu, the California Supreme Court held an aider and abettor's liability for first degree premeditated murder cannot be predicated on a natural and probable consequences theory. (Chiu, supra, 59 Cal.4th at pp. 158-159.) In Gonzalez's direct appeal, a panel of this court was unable to conclude the jury based its first degree murder verdict on a valid theory and reversed in conformance with Chiu. (People v. Gonzalez, supra, [nonpub. opn.] pp. 9-10.) Senate Bill 1437 superseded the portion of Chiu that "upheld aider and abettor liability for second degree murder under the natural and probable consequences theory." (People v. Lewis (2021) 11 Cal.5th 952, 959, fn. 3.)
II. GONZALEZ'S RESENTENCING PETITIONS
In February 2019, Gonzalez filed a petition to vacate his murder conviction and for resentencing under former section 1170.95. The trial court concluded former section 1170.95 was unconstitutional and denied the petition.
Gonzalez filed a new petition to vacate his murder conviction and for resentencing in July 2021. The court appointed counsel for Gonzalez. The prosecution conceded Gonzalez made a prima facie showing for relief, and the court issued an order to show cause in September 2021. After Senate Bill 775 was signed by the Governor in October 2021 (Stats. 2021, ch. 551), the order to show cause hearing was continued until after January 1, 2022, the effective date of the new legislation. After Senate Bill 775 took effect and prior to the order to show cause hearing, the prosecution filed a brief in the trial court arguing the petition should be denied as to Gonzalez's murder and attempted murder convictions because he "shared the shooter's intent [to] kill both of the victims."
Gonzalez did not seek vacatur of his attempted murder conviction at the time because the Legislature had not yet passed Senate Bill 775, which allowed defendants convicted of attempted murder under the natural and probable consequences doctrine to petition for relief under former section 1170.95. (Stats. 2021, ch. 551, §§ 1, 2.)
A. Evidentiary Hearing on the Order to Show Cause
The court held an evidentiary hearing on Gonzalez's petition to determine whether to vacate the murder and attempted murder convictions. The prosecution relied on the transcripts from Gonzalez's original trial and did not present any new evidence. Gonzalez presented new evidence through his own testimony, as summarized below.
1. Gonzalez's Testimony at the Evidentiary Hearing
At the evidentiary hearing, Gonzalez testified he was a member of the Walnut Street gang at the time of the shooting (May 1, 2009). The day of the shooting, Gonzalez was at Castro's house when he received a phone call from his brother, alerting him there were members of Lopers, a rival gang, in the neighborhood and warning Gonzalez "to be careful." Because Lopers were present, there was a chance of violence. Gonzalez explained in his testimony that when a Walnut Street gang member saw a rival, they would fight.
Gonzalez relayed the information he received from his brother to Castro, and the two men left to "confront" the Lopers. Gonzalez did not know Castro had a gun with him. Gonzalez anticipated confronting members from the Lopers gang but did not know how many individuals they were going to confront.
Gonzalez and Castro found a party taking place about a block away from Castro's house. Gonzalez approached Chutan, who identified himself as a member of the OCC, which was not a rival of the Walnut Street gang. Gonzalez informed Chutan the neighborhood belonged to the Walnut Street gang and not to disrespect them. Chutan came at Gonzalez "aggressively." Gonzalez felt disrespected and the two got into a fistfight. While Gonzalez was fighting Chutan, shots rang out. Gonzalez ran because he did not know from where the shots were coming. Gonzalez denied saying or hearing anyone yell, "'Blast them.'" He testified he was surprised Castro shot people and did not want Castro to shoot. Gonzalez and Castro ran back to Castro's house. There, Castro pulled out a gun and said, "'Hey, I blasted these fools.'" Gonzalez stayed at Castro's house that night and when the police searched the house the next day, Gonzalez fled out of a window.
When interviewed by the police after the murder, Gonzalez admitted being a Walnut Street gang member but lied to them about his involvement in the shooting, telling the police he was at home when the shooting occurred. At the evidentiary hearing, Gonzalez explained he lied to the police because he was afraid of getting into trouble and at the time of his police interview, he was still an active gang member and had to stick to a certain code.
Gonzalez admitted telling Mercado, who testified at trial, what happened, while the two were in custody together.
In discussing gang culture with police officers prior to the shooting, Gonzalez agreed with the officers a gang member would tell fellow gang members about the presence of a gun, but Gonzalez testified, "[t]hat courtesy [was] not always given."
2. Arguments and the Trial Court's Ruling
The prosecution argued the trial transcripts showed Gonzalez possessed express malice regarding both victims and therefore supported the denial of the petition. The court indicated it found the evidence presented at trial that Gonzalez said "'blast him'" to be "crucial." The defense argued there was circumstantial evidence contradicting this statement attributed to Gonzalez and that Gonzalez did not encourage Castro to shoot. The prosecutor asserted the court should believe the evidence Gonzalez said "'blast him'" and the statement was sufficient to prove an intent to kill.
The court denied the petition as to both the murder and attempted murder convictions. Explaining its ruling, the court stated: "The main fact in this case is whether the defendant was the declarant who said, 'Blast him,' or, 'Blast them,' moments before the shooting. The Court has concluded, by proof beyond a reasonable doubt, that the defendant was the declarant and those words were said." The court found Gonzalez's denial of making those statements and his testimony denying knowledge Castro had a gun not credible. The court explained it found Gonzalez's testimony on these points not credible based on evidence Gonzalez gave "a false alibi to the police and other factors surrounding, circumstantially, his presence there and his involvement."
Addressing the murder charge, the court stated: "The Court has concluded that with respect to murder, the People have sustained the burden of both express malice, an intent to kill, by the inference of 'blast him' or 'blast them.' The Court has also concluded that the People have sustained their burden under implied malice." As to the attempted murder charge, the court found there was an intent to kill.
Gonzalez timely appealed from the denial of his petition.
DISCUSSION
The court's denial of Gonzalez's petition indicates the court found, beyond a reasonable doubt, Gonzalez was guilty of attempted murder under a direct aiding and abetting theory. Gonzalez contends the court erred in denying his petition because there was not substantial evidence he shared Castro's specific intent to kill de Rosas, a required element for aiding and abetting the attempted murder. We conclude the court's decision was supported by substantial evidence.
He does not challenge the sufficiency of the evidence supporting the other elements.
I. APPLICABLE LEGAL PRINCIPLES
"Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence. [Citation.] Under this standard, we review the record '"'in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"'" (People v. Reyes, supra, 14 Cal.5th at p. 988.)
"Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (People v. Clements (2022) 75 Cal.App.5th 276, 298.) "'"If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding."' [Citation.] It is well settled that '"[a] reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the [trier of fact's finding]."'" (People v. Sifuentes (2022) 83 Cal.App.5th 217, 233.)
"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.'" (People v. Canizales (2019) 7 Cal.5th 591, 602.) "To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim." (People v. Mumin (2023) 15 Cal.5th 176, 191.)
Gonzalez was not the direct perpetrator of the attempted murder of de Rosas, thus direct aiding and abetting principles are relevant. "A direct aider and abettor's 'guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.'" (People v. Williams (2022) 86 Cal.App.5th 1244, 1252.) "'"When the offense charged is a specific intent crime, the accomplice must 'share the specific intent of the perpetrator'; this occurs when the accomplice 'knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.'"'" (In re Lopez (2023) 14 Cal.5th 562, 585.) When the charge is attempted murder, "'the aider and abettor must know and share the murderous intent of the actual perpetrator.'" (Ibid.) An intent to kill therefore is a required element of an attempted murder charge on a direct aiding and abetting theory. (People v. Lee (2003) 31 Cal.4th 613, 624.)
We agree with the parties the jury at Gonzalez's trial was not instructed on the "kill zone" theory and the trial court did not find Gonzalez was guilty of attempted murder under this theory when it denied his petition. While the parties discuss this theory in their briefing, it is not at issue here.
II.
THE TRIAL COURT'S DECISION IS SUPPORTED BY SUBSTANTIAL EVIDENCE
"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." (People v. Canizales, supra, 7 Cal.5th at p. 602.) Here, there was rare direct evidence of Gonzalez's intent to kill Chutan as there was evidence Gonzalez instructed Castro to "blast" Chutan. Gonzalez focuses on this evidence and argues it "disproves he aided and abetted the attempted murder" of de Rosas. He asserts his instruction to Castro to shoot Chutan demonstrates he only intended to kill Chutan and he did not intend to kill anyone else at the party. We disagree. Gonzalez's expression of his intent to kill Chutan does not ipso facto mean he lacked an intent to kill de Rosas. Circumstantial evidence supports the trial court's finding Gonzalez shared Castro's intent to kill de Rosas.
"The pertinent inquiry is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found . . . beyond a reasonable doubt'" (People v. Romero (2008) 44 Cal.4th 386, 399) that Gonzalez shared Castro's intent to kill de Rosas. The evidence concerning the circumstances surrounding the shooting support the trial court's finding he did.
At the evidentiary hearing, Gonzalez admitted he was a member of the Walnut Street gang at the time of the shooting and revealed he and Castro left Castro's house to "confront" rival gang members who were in Walnut Street's territory. Gonzalez believed they were going to confront members of the Lopers gang, with whom his gang had a deadly history. He anticipated fighting rivals of his gang and knew there was a potential for violence.
Chutan, de Rosas, and Martinez, members of the OCC gang, were at the party in Walnut Street's territory. While OCC was not a direct rival of Walnut Street, OCC was aligned with the Lopers gang. As Gonzalez and Castro walked across the street and approached the party, they "hit up" the partygoers, asking where they were from, expecting to find and confront Lopers. Chutan and others identified as being from OCC, while Gonzalez and Castro said they were "Walnut." Some of the partygoers went outside the gate and exchanged words with Gonzalez and Castro. At the evidentiary hearing, Gonzalez testified Chutan came at him "aggressively," causing Gonzalez to feel disrespected. Gonzalez punched Chutan and Chutan responded in kind.
After the two exchanged blows, one witness heard Gonzalez say, "blast him" or "blast this fool." Although Gonzalez denied saying "blast them" and denied knowing Castro had a gun, the trial court found this portion of Gonzalez's testimony not credible, a finding we accept. (See People v. Harris (2013) 57 Cal.4th 804, 849 ["'"it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends"'"].) After making this statement, Gonzalez stepped back to allow Castro to shoot.
In his statement to the police after the shooting, de Rosas placed himself by the gate where the shooting occurred; however, he denied involvement in any altercation before the shooting. De Rosas's testimony at trial was contradictory as to whether he was an OCC member at the time of the shooting. But a reasonable factfinder could conclude he was an OCC member who was with his fellow OCC members during the confrontation with Gonzalez and Castro.
Castro shot three OCC gang members - Chutan, Martinez, and de Rosas. Drawing all reasonable inferences in support of the trial court's order, based on the totality of the evidence, there is sufficient evidence to support a finding Gonzalez knew Castro intended to kill their perceived gang rivals and upon determining these three OCC members were more foes than friends, Gonzalez shared Castro's murderous intent. The existence of Gonzalez's intent to kill Chutan does not establish he lacked the intent to also kill de Rosas, a member of the same gang as Chutan.
We therefore conclude Gonzalez has failed to prove the court erred in finding he was guilty beyond a reasonable doubt of attempted murder on a direct aiding and abetting theory.
DISPOSITION
The trial court's postjudgment order denying Gonzalez's petition for resentencing is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect Gonzalez's conviction of second degree murder in count 1. The trial court is further directed to forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: O'LEARY, P. J. GOODING, J.