Opinion
E069872
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. SERGIO YGNACIO VIDRIO et al., Defendants and Appellants.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Sergio Ygnacio Vidrio. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant Oscar Lopez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1404692) OPINION APPEAL from the Superior Court of San Bernardino County. Bridgid M. McCann, Judge. Modified, conditionally reversed, and remanded. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Sergio Ygnacio Vidrio. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant Oscar Lopez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Oscar Lopez and Sergio Vidrio asked two other young Hispanic males what gang they were from, then opened fire. One of the victims was killed; the other was merely grazed. As a result, defendants were convicted of murder, attempted murder, shooting at an occupied vehicle, and unlawful possession of a firearm, along with gang enhancements and firearm enhancements.
One or both defendants contend:
1. The trial court erred by giving CALCRIM No. 315, which told the jury to consider a witness's level of certainty in evaluating an identification by that witness.
2. There was insufficient evidence to support the gang enhancements, because Lopez and Vidrio were members of different gangs.
3. The trial court violated section 654 by not staying the sentence for shooting at an occupied vehicle.
This and all further statutory citations are to the Penal Code, unless otherwise specified.
4. The trial court erred by imposing a personal firearm use enhancement on the conviction for shooting at an occupied vehicle, because firearm use is an element of that offense. The People concede the point.
5. The trial court erred by imposing both a prior serious felony enhancement (§ 667, subd. (a)) and a prior prison term enhancement (§ 667.5, subd. (b)) based on the same prior conviction. The People concede the point.
6. The trial court erred by imposing prior serious felony enhancements (§ 667, subd. (a)) based on prior convictions that had not been separately brought and tried. The People concede the point.
7. Under recently enacted legislation:
a. Defendants' prior prison term enhancements must be stricken. The People concede the point.
b. Defendants are entitled to a remand to allow the trial court to consider striking the prior serious felony conviction enhancements. The People concede the point.
c. Defendants are entitled to a remand to allow the trial court to consider striking the firearm enhancements.
8. The trial court erred by imposing fines and fees without determining whether defendants had the ability to pay them.
9. The abstract of judgment contains errors. The People concede the point.
We find no error affecting the conviction. We agree that the trial court violated section 654, and hence the sentence for shooting at an occupied vehicle must be stayed. Aside from the points that the People concede, we find no other error affecting the sentence. Thus, we will modify the sentence and remand with directions to consider striking the prior serious felony conviction enhancements and the firearm enhancements. We will leave it up to the trial court to correct the abstract of judgment on remand.
I
FACTUAL BACKGROUND
A. The Shooting.
Victims Noe Avalos and Nestor Miranda were coworkers, neighbors, and long-time friends. Avalos usually drove Miranda to and from work.
On October 28, 2014, they left work at 4:30 p.m. When they turned onto their street, Avalos saw a gray Nissan Altima coming in the opposite direction. The front windows were rolled down; Avalos could see both the driver and the passenger.
They were both male. The passenger had a bandanna up over his lower face. "[T]hey had tattoos all over their faces." The driver's tattoos included a kiss on his neck, and the passenger's included two lines tattooed across his nose. Avalos realized that they had "Pomona signs" and were "gang bangers."
As they went by, they stared at Avalos. He made a U-turn and started to park. Meanwhile, the other car also made a U-turn; it came back and pulled up "right next to" Avalos. Avalos's window was partly open.
The men in the other car asked, "Where are you from?" Avalos did not respond, because he "was not from nowhere." Miranda said something, but as he did so, both men pulled out guns and fired.
One of them had a nine-millimeter and the other had a revolver. Both guns were silver. Avalos heard nine shots. The men then "took off." A neighbor heard the shots, then saw a gray Nissan Altima speeding away.
Avalos's car was hit by some five to seven bullets. Miranda was hit in the head; as a result, he died at the scene. Avalos suffered only a graze wound to his hip.
One bullet may have fragmented, causing it to behave as if it were two bullets.
Another bullet, which entered the interior of the passenger side door, did not line up with any entry point, including the driver's side window. One possibility is that it was fired when the driver's side door was open. Another is that it was fired from inside the car.
At trial, Avalos identified the driver as Lopez and the passenger as Vidrio.
Immediately before the preliminary hearing, Avalos had identified Lopez from a photo that a prosecutor and the investigating officer showed him. They asked him, "Is this the driver?" Previously, he had been told that the police had arrested the perpetrators.
Avalos had also identified both defendants at the preliminary hearing.
B. Discrepancies in Avalos's Testimony.
There were discrepancies between Avalos's statements to the police and his trial testimony as to:
1. Whether the perpetrators were White or Mexican.
2. Whether the perpetrators were wearing gloves.
3. Whether the driver was wearing a baseball hat, a beanie, or a "hat beanie."
4. Whether the driver was wearing a bandanna, and if so, whether it was around his neck or up over his face.
5. Whether the driver was wearing a black or a dark blue sweater.
6. Whether the driver held the gun in his right or left hand.
7. Whether there were four shots or nine shots.
8. Whether Miranda said anything.
Avalos also told police that he could not remember any specific tattoos.
At trial, Avalos claimed that he identified photos of both defendants on the day after the shooting and/or in a second meeting with the police. Actually, the first time he identified a photo was immediately before the preliminary hearing, and even then he identified only Lopez.
C. The Arrest.
The day after the shooting, the police received a report that two suspects and a car, matching descriptions from the shooting, were at a Super 8 Motel in Ontario.
Shortly after officers arrived, they saw Lopez and Vidrio walk out of a room on the second floor. They ordered them to stop. Vidrio stopped, but Lopez kept walking. He disappeared down a hallway, then came back out. As he did so, one officer heard what sounded like "guns being dropped." The officers then arrested both defendants. In a nearby trash can, they found two handguns — a stainless steel Smith & Wesson nine-millimeter semiautomatic and a chrome Smith & Wesson .357-caliber revolver.
Since October 26, Lopez had been driving his girlfriend's gray Nissan Altima It was parked at the motel, and Lopez had the keys.
The police found two nine-millimeter shell casings near the victims' car. They had both been fired by the semiautomatic the police had recovered. A bullet fragment recovered from the victims' car had also been fired from the semiautomatic.
Another bullet recovered from the victims' car was too damaged to be matched to any particular gun. However, it had rifling marks that were consistent with both of the Smith & Wessons. It was "consistent with a revolver style bullet", and was most likely either a .357 Magnum or a .38 Special.
D. Gang Evidence.
Lopez and Vidrio are cousins.
Lopez was an active member of a gang called Pomona Sur Locotes (PSL). His moniker was "Goofy." He had tattoos associated with PSL, including "Pomona Sur Locotes" — one on his lower face and another across his neck — plus "PSL" on his forehead.
PSL had about 60 members. It used common signs or symbols, including Saint Louis Cardinals gear. Its primary activities included murder, attempted murder, carjacking, vehicle theft, drug sales, and illegal possession of firearms. Its rival gangs included East Side Pomona and Pomona 12th Street Sharkies (12th Street).
Vidrio was an active member of 12th Street. His moniker was "Lil Bandit." He had tattoos associated with 12th Street, including "P12" on his forehead. Across the bridge of his nose, he had two dots and two lines, representing the Mayan numeral 12.
12th Street had about 200 members. It used common signs or symbols, including San Jose Sharks gear. Its primary activities included murder, attempted murder, extortion, drug sales, and illegal possession of firearms. Its rival gangs included East Side Pomona and PSL.
Thus, Lopez and Vidrio belonged to rival gangs. Nevertheless, it was acceptable for them to hang out together, because they were cousins.
Deceased victim Miranda was an associate of Pomona Rebel Empire, a clique of East Side Pomona. His moniker was "Mayito."
According to a gang expert, "hitting someone up" — i.e., asking "Where are you from?" — when directed at a rival gang member, means "there is going to be some kind of confrontation . . . ."
The gang expert testified, in hypothetical form, that the shooting promoted each gang's reputation for violence, and thus it was committed for the benefit of a gang and with the specific intent to promote, further, or assist in criminal conduct by gang members. We will discuss this evidence in more detail in part IV, post.
E. Gang Evidence Presented to Lopez's Jury.
Lopez's jury heard that Lopez had been convicted of carrying a loaded firearm, committed in February 2013. It also heard that another member of PSL had been convicted of burglary, committed in January 2014.
F. Gang Evidence Presented to Vidrio's Jury.
Vidrio's jury heard that Vidrio had been convicted of unlawful possession of a firearm, committed in November 2010. It also heard that other members of 12th Street had been convicted of:
1. Carrying a loaded firearm, committed in December 2008.
2. Carrying a loaded firearm, committed in November 2009.
G. Phone Location Evidence.
The first 911 call reporting the shooting came in at or before 5:06 p.m.
When Lopez was arrested, he had two cell phones — a Samsung and an LG.
The Samsung belonged to Lopez. Based on cell phone tower data, on the date of the shooting, it was in Pomona at 4:00, 5:25, and 5:26, and 8:10 p.m. At 8:21 p.m., 9:35 p.m., and 3:19 a.m., it was in Ontario, near the Super 8.
Within two days after the shooting, the Samsung searched the Inland Valley Daily Bulletin website or searched for Montclair news 120 times.
The LG belonged to Lopez's girlfriend. In the two days before the shooting, however, Lopez sent and received texts on it. Based on GPS data from the LG, on the day of the shooting, at 4:48 p.m., it was 0.4 miles away from the crime scene. At 5:06 p.m., it was 0.3 of a mile away. At 8:49 p.m., it was at the Super 8.
Lopez lived, however, very close to the crime scene.
On October 28, after the shooting, the LG searched the Inland Valley Daily Bulletin website five times. It had never searched that website before.
H. Vidrio's Statements.
When the police interviewed Vidrio, he said at first that he had not done anything. On the day of the shooting, he was at his grandmother's house until 1:00 p.m., when Lopez picked him up. They "[j]ust cruis[ed] around" until 5:00 p.m., when they went to the Super 8.
The police asked if anyone had "hit [him] up." He said that, several days earlier, he was in a car with Lopez when he saw a "dude" in a parked car "mad dogging" them. Vidrio had Lopez back up; Vidrio then "hit him up." The dude said he did not "bang." Vidrio "banged his hood," then left. He added that Lopez had a chrome .357-caliber revolver.
The police told Vidrio they were investigating a shooting. They claimed to have security video from a nearby 7-Eleven and shell casings that matched a second gun that had been found with the revolver.
At that point, Vidrio told them that Lopez committed the shooting, and he (Vidrio) "just happened to be in the car." They were driving on "a little street" when two "Mexican dudes" in a parked truck "hit [Lopez] up." The "dudes" said, "'Where you guys from?'" They also "said they were from Eastside Pomona." Lopez "said his hood"; Vidrio did not say his. Lopez and Vidrio went to the 7-Eleven, where they put on bandannas and hats or beanies. They "rolled around and came back, and [Lopez] lit them up, he wasn't playing." "Then it's over for these fools."
Vidrio then admitted that two guns were fired and that he fired one of them. He and Lopez each fired three or four shots. "I did what I did because he's my cousin and he happened to have another strap." "I'm not innocent."
After the shooting, at the motel, Vidrio was in an argument with Lopez, because his mother had been flirting with Lopez; he was planning to beat Lopez up.
During the interview, Vidrio did not appear to be under the influence. Toward the end, however, he said that, while he was in a patrol car, the police showed him "a lot of videos," including a video of his mother having sex with Lopez.
I. Vidrio's Testimony.
Vidrio took the stand and denied being present at or committing the shooting. He admitted two prior felony convictions for robbery and one for unlawful possession of a firearm. He also admitted that he was a member of 12th Street.
On October 28, Vidrio was with his grandmother "most of th[e] day." Around 7:00 p.m., Lopez picked him up and took him to the Super 8, where Vidrio's "homegirl" had booked a room. On the way there, Lopez showed him some guns and said, "[W]e just smoked those fools." Lopez said he and a "homeboy" "got into it" with two "dudes" from East Side Pomona after the "dudes hit them up."
Vidrio claimed that his statement to the police was based on what Lopez had told him, "with the exception of just making some shit up." He did not know why he told the police he had been with Lopez since 1:00 p.m.; he "was just randomly speaking." He had not slept for six days straight, because he was using methamphetamine. It caused him to have a hallucination that the police showed him a video of his mother having sex with Lopez. However, it was true that he argued with Lopez about flirting with his mother.
Vidrio's grandmother testified that he was with her from 9:00 a.m. on October 28 until 1:00 a.m. on October 29.
II
PROCEDURAL BACKGROUND
Defendants were tried jointly but by two different juries. Both defendants were found guilty of:
Count 1: Murder (§ 187, subd. (a)), with an enhancement for the discharge of a firearm by a principal in a gang-related crime causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)). Lopez was found guilty of first degree murder; Vidrio was found guilty of second degree murder.
Count 2: Attempted murder (§§ 187, subd. (a), 664), with an enhancement for personally and intentionally discharging a firearm (§ 12022.53, subd. (c)). Lopez was found guilty of willful, deliberate, and premeditated attempted murder; Vidrio was not.
Count 3: Shooting at an occupied motor vehicle (§ 246), with an enhancement for personally using a firearm (§ 12022.5, subd. (a)).
Counts 4 (Vidrio) and 5 (Lopez): Unlawful possession of a firearm (§ 29800, subd. (a)(1)).
Gang enhancements on every count (§ 186.22, subd. (b)) were also found true.
In bifurcated proceedings, after defendants waived a jury, the trial court found true:
As to Vidrio: Two strike priors (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony conviction enhancements (§ 667, subd. (a)), and four prior prison term enhancements (former § 667.5, subd. (b)).
As to Lopez: One strike prior, one prior serious felony conviction enhancement, and three prior prison term enhancements.
Lopez was sentenced to a total of 141 years to life in prison. Vidrio was sentenced to a total of 200 years to life in prison.
III
INSTRUCTION TO CONSIDER A WITNESS'S
CERTAINTY ABOUT AN IDENTIFICATION
Lopez contends that the trial court erred by giving CALCRIM No. 315, because it required the jury to consider a witness's level of certainty in evaluating an identification by the witness.
A. Additional Factual and Procedural Background.
CALCRIM No. 315, as given in Lopez's case, began: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions . . . ." One of these questions was: "How certain was the witness when he or she made an identification?" Lopez's counsel did not object to this aspect of the instruction.
B. Discussion.
Lopez argues that the quoted portion of the instruction is erroneous because the "latest scientific research . . . shows that a witness's perceived sense of certainty about his identification is not a reliable indicator of the identification accuracy."
Preliminarily, the People respond that Lopez's trial counsel forfeited this contention by failing to request a modification of the instruction. We agree. In People v. Sánchez (2016) 63 Cal.4th 411, our Supreme Court held that an identical contention (directed at CALJIC No. 2.92, the predecessor of CALCRIM No. 315) was forfeited by defense counsel's failure to request a modification. (People v. Sánchez, supra, at p. 461.)
Separately and alternatively, Sánchez also rejected the contention on the merits: "Studies concluding there is, at best, a weak correlation between witness certainty and accuracy are nothing new. We cited some of them three decades ago to support our holding that the trial court has discretion to admit expert testimony regarding the reliability of eyewitness identification. [Citation.] In People v. Wright (1988) 45 Cal.3d 1126, . . . [w]e specifically approved CALJIC No. 2.92, including its certainty factor. [Citation.] We have since reiterated the propriety of including this factor. [Citation.]" (People v. Sánchez, supra, 63 Cal.4th at p. 462.)
Admittedly, in Sánchez, there were identifications by eyewitnesses who were uncertain, as well as eyewitnesses who were certain. (People v. Sánchez, supra, 63 Cal.4th at p. 462.) The court indicated that it might reexamine its previous holdings in "a case involving only certain identifications." (Ibid.) A case that invites such a reexamination is presently pending. (People v. Rudd (G054241, Jun. 21, 2018) [nonpub. opn.], review granted Oct. 10, 2018, S250108.) But until the Supreme Court overrules its own decision in Sánchez, we must follow it. "It is not [our] function to attempt to overrule decisions of a higher court. [Citations.]" (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Finally, if only out of an excess of caution, we also note that the asserted error was harmless. Lopez claims that the asserted error violated due process, and hence we should apply the federal "beyond a reasonable doubt" standard of harmless error. In Sánchez, however, the Supreme Court applied the state "reasonable probability" standard (People v. Sánchez, supra, 63 Cal.4th at p. 463; accord, People v. Ward (2005) 36 Cal.4th 186, 214); again, we must follow Sánchez.
Avalos himself never testified that he was certain of his identification of Lopez. He admitted that, immediately after the shooting, he remembered only "a little bit of [Lopez's] face," because "it happened so fast" and he "was in shock." Thus, when he spoke to the police, he did not remember whether the driver was wearing glasses and he did not remember any specific tattoos.
The investigating officer did testify, at one point, that when Avalos identified Lopez's photo, he said he was "sure." However, the officer said this in the midst of a cross-examination establishing that Avalos had confabulated two prior photo identifications that never actually happened. The investigating officer also admitted that Avalos's statements to him were "inconsistent" with Avalos's trial testimony and that Avalos was "confused."
In addition, as Lopez points out, Avalos's testimony was impeached in numerous respects. (See part I.B, ante.) Moreover, defense counsel ably brought out that the photo identification was suggestive. The police had already told Avalos that they had arrested the shooters. Moreover, they did not ask if he recognized the person in the photo; instead, they asked, "Is this the driver?" CALCRIM No. 315, as given in this case, also instructed the jury to consider whether there was "any unnecessarily suggestive identification process[.]"
And finally, there was other compelling evidence of Lopez's identity as a coparticipant. Indeed, Avalos's identification was the weakest evidence on this point. Phone records showed that Lopez was close to the scene of the shooting when it occurred. Lopez was Vidrio's cousin; they were together when they were arrested. Lopez did not comply with officers' orders until after officers heard a noise like guns being dropped; they then found two guns — including one demonstrably used in the shooting — in a trashcan in the area where the noise had come from. Lopez had recently been driving his girlfriend's gray Nissan Altima, identical to the one used in the shooting.
Most significantly, Vidrio himself identified Lopez as the other shooter. Admittedly, Vidrio was an accomplice, whose testimony must be viewed with caution, and he was angry with Lopez. Nevertheless, he ended up admitting that both he and Lopez committed the shooting. His statements negated the possibility that he committed the shooting with anyone else.
In closing argument, the prosecutor never cited the investigating officer's brief mention that Avalos was "sure" of his identification. To the contrary, he acknowledged that Avalos's statement to the police "was different than what it was when this came in[to] court," and argued, "even without that identification, there's so much evidence in this case as to Mr. Lopez's guilt. It's overwhelming."
Accordingly, we see no reasonable probability that the jury relied on the challenged portion of the instruction.
IV
THE SUFFICIENCY OF THE EVIDENCE
TO SUPPORT LOPEZ'S GANG ENHANCEMENTS
Lopez contends that there was insufficient evidence to support the gang enhancements as to him, because he and Vidrio were members of different — indeed, rival — gangs.
"'"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction."' [Citation.]" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.) "'" . . . [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 [enhancement true] 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 [enhancement] 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.]" (Ibid.)
A gang enhancement applies to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).)
"[A] 'crime may not be found gang related . . . based solely upon the defendant's criminal history and gang affiliations. The crime itself must have some connection with the activities of a gang.' [Citation.]" (People v. Garcia (2016) 244 Cal.App.4th 1349, 1367.)
Lopez was a member of PSL, which is a rival of East Side Pomona. As he does not dispute, there was sufficient evidence that PSL was a "criminal street gang" within the meaning of section 186.22 — it had three or more members, its primary activities included the commission of specified crimes, and its members (including Lopez) had committed two or more of the specified crimes. (§ 186.22, subds. (e), (f), (l).)
The gang expert testified, in hypothetical form, that the shooting benefited PSL because it promoted the gang's reputation for violence in the eyes of the victims' gang (East Side Pomona) and Vidrio's gang (12th Street), as well as in the eyes of the public generally. The shooting sent the message that members of PSL were "willing to do violence" and "willing to act in the moment needed." "It instills fear in their enemies, respect among their peers, and fear in the community . . . ."
"[T]hey want the other gangs to respect them because respect keeps them out of their territory. [¶] It would be a sign of disrespect to come into their territory and sell narcotics or rob people there or do any other kind of crimes." "[I]f the community fears them, they're less likely to report their crimes to us at the police department . . . ."
On the other hand, if the victims disrespected Lopez in Vidrio's presence, and Lopez "didn't do anything about it," "that just lowers their reputation. It's almost like they become a joke . . . ." "[T]hat East Side Pomona associate is going to . . . hangout with all of his East Side Pomona friends . . . , and he's going to tell them, 'Pomona sur Locotes hit me up and didn't do anything about it.'" Likewise, "th[e] 12th Streeter is going to go back to his neighborhood, and people are going to hear about that . . . ." This was particularly important because, ordinarily, PSL and 12th Street are rivals and 12th Street "is the most powerful gang in the city."
"Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1). [Citations.]" (People v. Albillar (2010) 51 Cal.4th 47, 63.)
For example, in In re Cesar V. (2011) 192 Cal.App.4th 989, minors Cesar V. and Antonio V. were seen flashing the signs of their gang, the Poor Side Chicos. They claimed they were responding to someone in a car who was making gang signs at them. (Id. at pp. 992-993.) A gang expert testified that the gang signs were a challenge to fight, which benefited the gang "because '[i]t would further the violent reputation' of the gang 'within the community.'" (Id. at p. 993.) The minors were found to have made a challenge to fight in a public place (§ 415, subd. (1)) for the benefit of a gang (§ 186.22, subd. (d)). (Cesar V., supra, at p. 991.)
The court held there was sufficient evidence of benefit as well as of the specific intent to promote the gang, "because '[it] would further the violent reputation' of the gang 'within the community.' There was no reason for Cesar and Antonio to make a gang challenge except to promote further criminal activity by Poor Side Chicos gang members. The juvenile court could have drawn the reasonable inference from this evidence that Cesar and Antonio made a gang challenge that identified them with the Poor Side Chicos gang because they wanted to enhance that gang's violent reputation and thereby further future criminal conduct by their Poor Side Chicos gang member friends." (In re Cesar V., supra, 192 Cal.App.4th at p. 1000.)
Here, similarly, the shooting was precipitated by proclamations of gang allegiance amounting to a challenge to fight, and there was expert testimony that a violent follow-up would benefit the gang by enhancing its reputation. Moreover, as in Cesar V. and as in People v. Olguin (1994) 31 Cal.App.4th 1355, "[t]he record reflects no prior relationship between the [defendants] and their victim, and no reason for animosity other than gang-related insults." (Id. at pp. 1382-1383.)
Lopez cites People v. Franklin (2016) 248 Cal.App.4th 938 for the proposition that the "commission of the crime with members of a gang other than Pomona Sur Locotes would be insufficient to show that Lopez intended to promote criminal conduct by gang members." Franklin, however, held that the commission of a crime with members of a different gang is insufficient to show commission in association with a gang. (Id. at pp. 951-952.) It may nevertheless show commission to benefit one's gang. That is particularly true here, where the gang expert testified that PSL would benefit from the crime because it enhanced the gang's reputation in the eyes of 12th Street, which is not only a rival gang but the most powerful gang in Pomona.
Lopez suggests that the gang expert's opinion was not supported by sufficient evidentiary facts: "[T]here is no evidence that anyone in the community (or the victims here), knew that Lopez was a member of Pomona Sur Locotes or was committing a crime to benefit that gang. [Citation.] The crimes were not promoted as Pomona Sur Locotes-affiliated crimes through gang signs or slogans, on social media, or through gang insignia on the block where it occurred. [Citation.] There is no evidence it was used to intimidate any member of the community from cooperating with law enforcement."
Actually, there was evidence that Lopez could reasonably believe that the victims knew he was a member of PSL. Vidrio told police that Lopez announced that he was a member of PSL before he fired — he "said his hood." Moreover, Lopez had "Pomona Sur Locotes" tattooed once on his neck and again on his lower face; he also had "PSL" tattooed on his forehead. Avalos specifically testified that he saw the tattoo on Lopez's neck. Avalos also testified that he realized that defendants were affiliated with a Pomona gang.
In any event, the expert testified that word will get out — "[T]hat will be known on the street, that members of that gang committed that specific crime . . . ." "[P]eople talk . . . if you're going to kill somebody in a gang, you're not going to keep it quiet to yourself." Thus, while there was no evidence that any specific member of the community was successfully intimidated, it was reasonable to conclude the shooting was intended to intimidate members of the community generally.
At a minimum, Vidrio — a member of 12th Street — knew that Lopez was a member of PSL. Once again, the gang expert testified that the shooting would benefit PSL in part by enhancing the gang's reputation in the eyes of 12th Street.
Finally, Lopez asserts, "[N]o evidence was presented that the crime was committed with intent to promote or further any criminal conduct other than the charged crimes." The gang expert, however, testified that the primary activities of PSL include murder, carjacking, and narcotics sales. He also testified that, when other gangs respect your gang, they stay out of your territory, ceding your gang a monopoly on the commission of crimes in that area. And again, he testified that fear in the community dissuades victims and witnesses from reporting crimes to the police. Obviously, then, enhancing respect and instilling fear can be expected to promote criminal conduct by the gang. It was fairly inferable that Lopez acted, at least in part, with this intent.
V
SECTION 654Both defendants contend that the trial court erred by failing to stay the sentence for shooting at an occupied vehicle (count 3), in violation of section 654.
A. Additional Factual and Procedural Background.
On count 3, the trial court sentenced Lopez to 30 years to life, plus 10 years on the firearm enhancement, to be served consecutively. Lopez's counsel did not object.
It sentenced Vidrio to 45 years to life, to be served consecutively; it stayed the firearm enhancement. Vidrio's counsel argued that count 3 "f[a]ll[s] under 654." The prosecutor responded, "[T]he People believe that the sentence should be consecutive."
The trial court declined to apply section 654. It explained: "Count 3 requires elements not required in Counts 1 or 2. As well as while it may be somewhat consistent with what happened in Counts 1 and 2, it is not required that Counts 1 or 2 be completed in order for Count 3 to be completed."
B. Discussion.
Section 654, section (a), as relevant here, provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) "'"'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may [not] be punished . . . for more than one.'"' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 354.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"'"'A trial court's . . . finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' [Citation.]" [Citation.]' [Citations.]" (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
Ordinarily, we would presume the trial court found that the two crimes were committed with separate intents and objectives, and we would ask only whether the evidence supports that implied finding. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)
The trial court, however, expressly applied the wrong legal standard. It looked at whether count 3 had elements in addition to counts 1 and 2. That is not the test. Whether the elements of one crime are subsumed in the elements of the other is the test for whether multiple conviction is prohibited, not whether multiple punishment is prohibited. (People v. Medina (2007) 41 Cal.4th 685, 701.) The "applicability [of section 654] in a particular case [does not] depend[] on abstract definitions of the elements of the respective crimes or on the precise moment when, as a matter of law, one crime was completed." (People v. Flint (1975) 51 Cal.App.3d 333, 336, fn. omitted; see, e.g., People v. Wiley (1994) 25 Cal.App.4th 159, 162-163 [section 654 barred punishment for both extortion and kidnaping for robbery].) Thus, the record demonstrates that the trial court erroneously failed to make any finding as to whether the crimes were committed with the same intent and objective. Unless the evidence leaves no room for disagreement on this point, we must remand for the necessary finding.
On this record, however, the crimes were committed with the same intent and objective, as a matter of law. Defendants had no reason to shoot at the car other than to kill Avalos and Miranda. There is no basis for a factual finding that they fired one bullet with the intent to kill Miranda and a second bullet with the intent merely to shoot at the vehicle. After all, they could hardly have known which bullet would hit what.
Most cases that have approved of multiple punishment in similar instances of shooting at an occupied vehicle have found it necessary to invoke the multiple victim exception to section 654. Under this exception, "section 654 does not apply to crimes of violence against multiple victims. [Citation.] The reason is that '"[a] defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person."' [Citation.]" (People v. Correa (2012) 54 Cal.4th 331, 341, fn. omitted.)
In People v. Masters (1987) 195 Cal.App.3d 1124, the defendant fired four or five shots at a vehicle occupied by three people; he hit one of the occupants. (Id. at p. 1127.) The appellate court held that section 654 did not bar multiple punishment for both aggravated assault and shooting at an occupied vehicle. (People v. Masters, supra, at pp. 1127-1130.) It acknowledged that the shots were all fired "in the same course of conduct" (id. at p. 1128), but it relied on the multiple victim exception: "[The wounded occupant] was the unfortunate victim of Masters' assault with a deadly weapon and all three occupants of the Mustang were victims of his discharge of the firearm at the vehicle. As Masters' violent actions were performed in a manner likely to cause harm to all three individuals in the vehicle, and in fact did seriously injure one person, the section 654 proscription against multiple punishment for violations arising from an indivisible course of conduct is inapplicable." (Ibid.)
In People v. Anderson (1990) 221 Cal.App.3d 331, the defendants fired multiple shots into a house occupied by four people. (Id. at p. 335.) They then broke in, struck victims Nelson and Rivera, and struck as well as robbed victim Argostino. (Id. at p. 336.) The appellate court held that "[t]he offense of shooting at an inhabited dwelling and the assaults upon Nelson and Rivera simply were means of accomplishing the burglary and robbery and were incident to the single objective of forcibly entering the residence in order to rob the occupants of money and drugs. [Citation.]" (Id. at p. 338.) Nevertheless, it upheld multiple punishment under the multiple victim exception: "Argostino was the victim of the robbery. Nelson and Rivera were the victims of the assaults. The victims of the shooting into an inhabited dwelling were the occupants of the residence: Argostino, Nelson, Rivera, and Pitzer. This offense, therefore, involved one victim (Pitzer) different from the victims involved in the other violent offenses. Because each violent offense involved at least one different victim, multiple punishment was not precluded. [Citation.]" (Id. at pp. 338-339.)
This court followed the same approach in People v. Garcia (1995) 32 Cal.App.4th 1756. In Garcia, the defendant fired four or five shots at a car occupied by four people. (Id. at pp. 1762-1763.) We upheld multiple punishment for shooting at an occupied motor vehicle for assault with a firearm on the driver, based on the multiple victim exception. (Id. at pp. 1780-1785.) After citing and discussing Masters, Anderson, and similar cases (People v. Garcia, supra, at pp. 1781-1782), we said: "The multiple victim exception . . . permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent. Where one person is the victim of both a shooting at an occupied motor vehicle and a simultaneous assault, the trial court can impose an unstayed sentence for one or the other, but not for both. [Citations.]" (Id. at p. 1784.)
Here, there were only two victims. This is why multiple punishment is permitted for both murder and attempted murder. However, there is no "leftover victim" who can support additional punishment for shooting at an occupied vehicle.
The People argue otherwise, citing People v. Trotter (1992) 7 Cal.App.4th 363. There, during a car chase, the defendant fired three shots at the pursuing police officer — two a minute apart, and the third a few seconds later. He claimed that he was shooting at the car to disable it, rather than shooting at the officer. (Id. at p. 366.) He was convicted on three counts of assault on the officer. (Id. at p. 365.)
The appellate court held that section 654 did not bar separate punishment for the first two assaults. (People v. Trotter, supra, 7 Cal.App.4th at pp. 366-368.) It explained that they were separate acts: "All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible." (Id. at p. 368.) It also explained that "under the long recognized 'intent and objective' test, each shot evinced a separate intent to do violence . . . ." (Ibid.) It relied on People v. Harrison, supra, 48 Cal.3d at pp. 334-338, in which the Supreme Court held that each separate penetration during a continuous sexual assault could be punished separately. (People v. Trotter, supra, at p. 368.)
In a footnote, the court added: "[I]f a defendant slashed his victim with a knife causing him to fall down, then paused, took out a gun and fired a fatal shot, no one could seriously dispute the fact each could be punished separately. If we change these facts, however, so that defendant, after pausing, plunges the knife into his victim, logic dictates the result should be the same. . . .
"Of course, the intent and objective test is controlling, and if defendant intended to kill with each assault it could be argued multiple punishment would be precluded. But even so, when defendant pauses and, having the option to land another blow or to break off the attack, chooses the former course of action, his culpability increases and his intent, though the same in kind, can be considered separate and distinct under Harrison. This, we think, is the more sensible approach and comports with the intent and meaning of section 654." (People v. Trotter, supra, 7 Cal.App.4th at p. 368, fn. 4, italics added.)
Unlike the hypothetical in the Trotter footnote, here defendants intended to kill with each shot fired. Once again, they could not know if they would hit anyone, or if so, whom. There was no significant pause between the shots. In contrast to the deliberately spaced shots in Trotter, here there was a single fusillade, fired pursuant to a single intent.
The People also cite People v. Phung (2018) 25 Cal.App.5th 741. In Phung, the court upheld separate punishment for murder, attempted murder, and shooting at an occupied vehicle, all committed during a car-to-car gang shooting. (Id. at pp. 759-761.) After discussing Trotter, it stated:
Phung was decided by the same court as Trotter.
"[T]he record shows that (1) the rival gang-occupied SUV contained eight people, (2) around five bullets were shot at the SUV, which was later found to have three bullet holes in it, and (4) [sic] officers found five expended bullet casings and one bullet at the scene. The crime of shooting at an occupied vehicle 'is not limited to shooting directly at [the] occupied target.' [Citation.] Rather, the applicable statute 'proscribes shooting either directly at or in close proximity to an . . . occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it.' [Citation.]
"Two persons in the SUV were struck by bullets. Those two persons were the named murder (count 1) and attempted murder (count 2) victims. Each of the five gunshots involved a consecutive (albeit similar) intent and objective. As in Trotter . . . , 'each shot fired at the SUV was a separate trigger pull, accompanied by a separate intent and objective, and constituted a separate risk to its passengers . . . .'" (People v. Phung, supra, 25 Cal.App.5th at p. 761, fn. omitted.)
Phung appears to overextend Trotter beyond the situation to which Trotter explicitly limited itself — when a defendant pauses meaningfully between shots. Only in that situation is it possible to conclude that (as in Harrison) the defendant has formed a new intention to commit a new and distinct crime.
In a footnote, the Phung court said it was not relying on the multiple victim exception. (People v. Phung, supra, 25 Cal.App.5th at p. 761, fn. 11.) Its reasoning, however, sounds a lot like it. Otherwise, why mention how many people were in the vehicle? All that would matter is how many bullets were fired. Similarly, Phung relied on the defendant's additional culpability — the "separate risk" of each "separate trigger pull." We have no problem with the end result in Phung, but we would have gotten there by way of the multiple victim exception.
For these reasons, we decline to apply Phung on our facts. Instead, we follow the lead of our own decision in Garcia, along with the cases that we cited in Garcia. Here, because there were only two occupants in the car, and because defendants were punished once for shooting at each of them, section 654 prohibits punishing them a third time for shooting at the car.
Accordingly, we will stay the sentence on count 3.
VI
PERSONAL FIREARM USE ENHANCEMENT TO COUNT 3
Defendants contend that the trial court erred by imposing a personal firearm use enhancement (§ 12022.5, subd. (a)) on count 3 (shooting at an occupied motor vehicle), because firearm use is an element of that offense.
In Vidrio's case, the trial court stayed the enhancement.
The People concede the error. We agree. Section 12022.5, subdivision (a), as relevant here, provides: "[A]ny person who personally uses a firearm in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." (Italics added.) This "precludes its application to the crime of discharging a firearm at an occupied vehicle." (People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2.)
Accordingly, we will modify the judgments by striking the personal firearm use enhancements to count 3.
VII
PRIOR PRISON TERM ENHANCEMENT AND PRIOR SERIOUS FELONY
ENHANCEMENT BASED ON THE SAME CONVICTION
Defendants contend that the trial court erred by imposing both a prior serious felony enhancement (§ 667, subd. (a)) and a prior prison term enhancement (§ 667.5, subd. (b)) based on the same prior conviction.
A. Additional Factual and Procedural Background.
In Lopez's case, the trial court imposed both a prior serious felony enhancement and a prior prison term enhancement based on the same 2013 conviction for unlawful possession of a firearm. (§ 29800, subd. (a).)
In Vidrio's case, the trial court imposed a prior serious felony enhancement and a prior prison term enhancement based on each of his two 2006 convictions for robbery. (§ 211.)
B. Discussion.
The People concede the error. We agree. Under People v. Jones (1993) 5 Cal.4th 1142, a single prior conviction cannot be the basis of both a prior serious felony conviction enhancement and a prior prison term enhancement. (Id. at pp. 1144-1145, 1150, 1153.)
The error is moot, however, because we must strike all of the prior prison term enhancements for other reasons. (See part IX, post.)
VIII
SEPARATE PRIOR SEROUS FELONY CONVICTION ENHANCEMENTS
ON PRIOR CONVICTIONS NOT SEPARATELY BROUGHT AND TRIED
Vidrio contends that the trial court erred by imposing two prior serious felony enhancements (§ 667, subd. (a)) based on two prior convictions that were not separately brought and tried.
The People concede the error. We agree. Section 667, subdivision (a), as relevant here, provides: "Any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive . . . a five-year enhancement for each such prior conviction on charges brought and tried separately." (Italics added.)
Here, the trial court imposed two prior serious felony enhancements based on Vidrio's two 2006 convictions for robbery. The record shows, however, that these were brought and tried in the same case. Accordingly, we will strike one of these enhancements.
IX
THE EFFECT OF SENATE BILL NO. 136 ON THE
PRIOR PRISON TERM ENHANCEMENTS
In supplemental briefing, defendants contend that, under Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136), their prior prison term enhancements must be stricken. The People concede the point. We agree.
SB 136 was enacted on October 8, 2019; it went into effect on January 1, 2020. It amended section 667.5, subdivision (b), so as to eliminate the one-year prior prison term enhancement, except when the prior prison term was for a sexually violent offense.
SB 136 applies to all judgments that were not yet final when it went into effect. (People v. Lopez (2019) 42 Cal.App.5th 337, 342-343; see generally People v. Brown (2012) 54 Cal.4th 314, 323 [absent contrary evidence, we assume the Legislature intended an ameliorative amendment to apply to judgments not yet final on the amendment's operative date].)
Hence, we will strike the prior prison term enhancements.
X
THE EFFECT OF SENATE BILL NO. 1393 ON
THE PRIOR SERIOUS FELONY CONVICTION ENHANCEMENTS
Defendants contend that, under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393), they are entitled to a remand to allow the trial court to consider striking the prior serious felony conviction enhancements. The People concede the point. We agree.
In 2018, when defendants were sentenced, the trial court had no power to strike a prior serious felony conviction enhancement. (See former § 1385, subds. (b), (c)(2), Stats. 2014, ch. 137, § 1.) On January 1, 2019, however, while this appeal was pending, SB 1393 went into effect. (Stats. 2018, ch. 1013.) It gives a trial court discretion to strike a prior serious felony conviction enhancement. (Ibid.)
SB 1393 applies to all judgments that were not yet final when it went into effect. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; see generally People v. Brown, supra, 54 Cal.4th at p. 323.)
The People do not argue that it would be an abuse of discretion to strike the prior serious felony conviction enhancements. Accordingly, we will remand with directions to consider whether to strike these enhancements. We express no opinion on how the trial court should exercise its discretion.
XI
THE EFFECT OF SENATE BILL NO. 620 ON THE
FIREARM ENHANCEMENTS
Lopez contends that, under Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), he is entitled to a remand to allow the trial court to consider striking the firearm enhancements.
This contention is moot. We are remanding in any event so the trial court can consider striking the prior serious felony conviction enhancements. (See part X., ante.) On remand, Lopez can ask the trial court to also strike the firearm enhancements. Again, we express no opinion on how the trial court should exercise its discretion.
XII
FAILURE TO HOLD AN ABILITY-TO-PAY HEARING
Defendants contend that the trial court erred by imposing fines and fees without determining whether they had the ability to pay them.
A. Additional Factual and Procedural Background.
The trial court ordered Lopez to pay a $600 restitution fine (§ 1202.4, subd. (b)), a $160 court security fee (§ 1465.8), and a $120 criminal conviction assessment fee (Gov. Code, § 70373), for a total of $880.
It ordered Vidrio to pay a $300 restitution fine, a court security fee of $160, and a criminal conviction assessment fee of $120, for a total of $580.
The trial court also imposed parole revocation restitution fines, in the same amounts as the restitution fines, then suspended them. (§ 1202.45.) They will remain suspended unless (1) defendants are released on parole and (2) their parole is revoked. (Id., subd. (c).) Defendants were sentenced to minimum terms that are longer than their natural lives; this remains true even after certain components of their sentences are stricken or stayed. (See parts V, VI, VIII, IX, & X, ante.) Thus, there is no realistic possibility that they will ever actually have to pay a parole revocation restitution fine. Accordingly, in our discussion, we disregard the parole revocation restitution fines.
B. Discussion.
Defendants rely on People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that due process prohibits the imposition of a criminal fine or fee in the absence of a hearing on the defendant's ability to pay. (Id. at pp. 1160, 1164-1172.)
Preliminarily, we question whether Dueñas is good law. In People v. Jones (2019) 36 Cal.App.5th 1028, we did not consider this issue, because the People did not argue that Dueñas was wrongly decided. (Jones at p. 1030.) This issue is currently pending before our Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) We will assume, without deciding, that we should follow Dueñas.
We also question whether Dueñas applies to persons who, like defendants, have been sentenced to minimum terms that exceed their natural life. In Dueñas, the defendant had been placed on probation. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1162.) The court was concerned, as a matter of due process, with the "potentially devastating" civil and criminal consequences of failure to pay. (People v. Dueñas, supra, at pp. 1167-1168; but see People v. Aviles (2019) 39 Cal.App.5th 1055, 1069-1072 [ability to pay issue should be analyzed under the excessive fines clause, not the due process clause].) In this respect, a prisoner incarcerated for life is not similarly situated to a probationer released back into society. Nevertheless, we will assume, without deciding, that Dueñas applies here.
Finally, we consider this contention solely with respect to the fines and fees listed above. The trial court also ordered both defendants, jointly and severally, to pay $9,906 in direct victim restitution. (§ 1202.4, subds. (a)(3)(B), (f).) It has been held, however, that Dueñas does not apply to direct victim restitution. (People v. Evans (2019) 39 Cal.App.5th 771, 775-778.)
The People argue that defense counsel forfeited defendants' present contention by failing to object.
Recently, this court held that, in cases where the defendant was sentenced before Dueñas was decided, failure to object does not result in forfeiture, because an objection would have been futile. (People v. Jones, supra, 36 Cal.App.5th at pp. 1031-1034.)
Even more recently, however, we held that forfeiture can apply to alleged Dueñas error with respect to a restitution fine, because even before Dueñas, a court could consider a defendant's inability to pay these fines. (People v. Taylor (2019) 43 Cal.App.5th 390, 399-401.)
We conclude, then, that defendants forfeited their contention with respect to the restitution fine, but not with respect to court security fee or the criminal conviction assessment fee.
In Jones, we held that a Dueñas error may be held harmless if the record demonstrates that the defendant could not have shown inability to pay. (People v. Jones, supra, 36 Cal.App.5th at p. 1035.) There, the defendant had been sentenced to more than five years in prison. (Ibid.) The trial court imposed $370 in fines and fees. (Ibid.) We assumed that the defendant could make the minimum prison wages of $12 a month — i.e., $720 over the five years. (Ibid.) We concluded that this was more than enough to cover the $370 in fines and fees. (Ibid.)
Here, defendants are relatively young — at sentencing, Lopez was 29, and Vidrio was 28. Assuming wages of $12 a month, Lopez could pay the full $880 in six years two months, and Vidrio could pay the full $580 in just four years one month. We therefore conclude that the asserted error was harmless beyond a reasonable doubt.
XIII
DISPOSITION
The judgment is modified as follows:
1. The sentence on count 3 (shooting at an occupied vehicle) is stayed, said stay to become final as to each defendant when he has served the remainder of his sentence. (See part V, ante.)
2. The personal firearm use enhancements to count 3 (shooting at an occupied vehicle) are stricken. (See part VI, ante.)
3. Vidrio's second prior serious felony enhancement based on his 2006 conviction for robbery is stricken. (See part VIII, ante.)
4. The prior prison term enhancements are stricken. (See part IX, ante.)
The judgment as thus modified is conditionally reversed. On remand, the trial court shall consider whether to strike any of the prior serious felony conviction enhancements or any of the firearm enhancements. If it does so as to either defendant, it must resentence that defendant. Otherwise, it must reinstate the modified judgment.
In either event, the superior court clerk is directed to prepare amended abstracts of judgment and to forward certified copies of the amended abstracts to the Director of the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. FIELDS
J.