Opinion
G043295
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. JAVIER COLON, Defendant and Appellant.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott Taylor and Meredith A. Strong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 07HF1389)
OPINION
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed with directions to correct the abstract of judgment.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott Taylor and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
Javier Colon appeals from a judgment after a jury convicted him of first degree murder. Colon argues insufficient evidence supports his murder conviction, the trial court erroneously admitted a photograph of the victim, his girlfriend, and the abstract of judgment must be corrected to reflect the amount of actual credit he received. We agree the abstract of judgment must be corrected to reflect Colon's presentence custody credits. But his other contentions have no merit, and we affirm the judgment.
FACTS
In 2006, after dating for approximately 10 years, Colon and Janelle Peralta (Janelle) had a daughter, L.C. In June 2007, Colon, Janelle, L.C., and Theresa Peralta, Janelle's mother, moved from New York to an apartment in Irvine, California. Colon and Janelle were unemployed. At the end of June, Theresa questioned Colon about his job search. Colon became angry and asked Theresa to leave. The tension in the apartment escalated over the next few days. Janelle told her mother Colon intended to evict her from the apartment.
On July 1, Theresa heard Janelle and Colon arguing. The next morning, Janelle and Theresa walked to get coffee, and Janelle told Theresa she wanted to end her relationship with Colon. Janelle said that the prior evening she told Colon of her feelings and he threatened to kill her, L.C., and himself if she left him. She was afraid that if she left, Colon would report Janelle kidnapped L.C. Theresa told her daughter they could go to the police to get help leaving Colon. Janelle feared Colon would follow them. The next day, there was a large family gathering at the beach.
Independence Day 2007, the Peraltas had breakfast but Colon refused to join them. Janelle, Theresa, and other family members went to the store to prepare for a pool-side barbeque. Colon sent Janelle a text message calling her a "bitch," and Janelle responded by text calling him an "asshole." Colon responded by text with a picture of his middle finger. At the apartment complex swimming pool, the Peraltas had a barbeque, but Colon again refused to join them. Colon refused to allow L.C. to join the family at the pool. In the early evening, a family member brought L.C. to the pool. Colon called Janelle, and she put the telephone on speaker. Theresa heard Colon say there would be "consequences," which frightened Theresa.
After the barbeque, Theresa cleaned up and in the process hid the kitchen knives. Janelle, Theresa, and L.C. took showers, and some family members left. Theresa heard loud music coming from Colon's bedroom, and she heard him shout, "Fuck you." Theresa told Janelle to get milk for L.C. and come into Theresa's room. Theresa brought the home telephone into the bedroom.
Once in the room, they moved luggage behind the door to prevent Colon from getting in the bedroom. Theresa, who told her daughter she was scared, sat on the floor next to the suitcases to provide an additional barrier. Thirty or forty minutes later, Colon turned off the music and called Janelle's cellular telephone. Colon told Janelle he wanted her and L.C. to come to their bedroom, but she refused. Colon turned the music back on, turned it off again, and called Janelle again.
Colon forced his way into Theresa's bedroom, grabbed L.C., and tore the home telephone line from the wall. Janelle and Theresa screamed for help as Colon paced with L.C. in his arms. Janelle repeatedly said, "Give me back my baby," and Colon told Janelle that she was "making it . . . a big issue" and to calm down. Theresa said Janelle wanted to end their relationship but they could make arrangements so Colon could see L.C.
Janelle told Colon she had "been living in hell for a long, long time" and she wanted to end their relationship. Theresa's attempt to call 911 failed. Colon grabbed Janelle by the collar, she kicked him, and they fell to the ground; Colon dropped L.C. Theresa picked up L.C. and ran to get help. A neighbor, who had heard the arguing and a female say, "You're crazy. You're crazy[,]" saw Theresa and L.C. in the parking lot and heard her screaming for help. When the neighbor asked what was the matter, Theresa replied she thought her daughter's boyfriend killed her daughter. The neighbor called 911.
Officer Matt Ricci and trainee Thomas Aguilar responded to the apartment. Once inside the apartment, Ricci looked down the hallway and saw a large amount of blood on one of the doors, which was the master bedroom door. Ricci heard "a moaning or gurgling sound" and tried to enter the master bedroom, but the door was locked; he kicked in the door. Ricci saw the master bathroom door covered in blood. He heard the same sounds and tried to open that door but could not because it was locked. He tried to kick open the door open but could not. With each kick, the door would open slightly and close again; Ricci saw a body and a lot of blood. Aguilar tried to kick the door in but he could not. Ricci saw two bodies in the bathroom, with Colon's feet against the door. As Ricci tried to push open the door, he saw Colon push his feet against the door to close it. Ricci eventually broke the door off its hinges.
Ricci asked for the knife, and Janelle reached across her body, picked up a pair of cosmetic scissors from between her and Colon, and tossed them to Ricci. She said, "Help me, get me out of here." Ricci put gloves on and tried to pull Colon out of the bathroom but Colon moved his legs to avoid being grabbed. Once he grabbed Colon, Ricci could not get a grip because he was covered in blood and slippery.
Ricci saw Colon move first his left hand and then his right hand to Janelle's throat. Janelle said, "He is choking me." Ricci tased Colon in the lower back, and Colon screamed and let go of Janelle. As Ricci and Aguilar dragged Colon out of the bathroom, he again reached for Janelle. Officers eventually handcuffed Colon but not before he resisted arrest.
Ricci saw Janelle had two cuts to her throat, two cuts to her right bicep, one cut to her lower rib area, one cut to her right wrist, and one cut to her left forearm that was so deep Ricci could see muscle, tendon, and bone. Ricci applied pressure to
Janelle's neck wounds. Janelle made eye contact with him, asked for help, and after a few minutes lost consciousness. Paramedics arrived.
Colon had a substantial injury to the left side of his neck and an injury to his left wrist.
Janelle later died at the hospital. She died from blood loss as a result of 13 scissor wounds, one of which was a seven and one-half inch neck wound and another was a three and one-half inch neck wound. She had bruises on her neck consistent with being choked. Some of her wounds were consistent with a sawing motion, some were consistent with being slashed, and some were defensive wounds.
An information charged Colon with murder (Pen. Code, § 187, subd. (a)).Before trial, the prosecutor stated she intended to offer a photograph of Janelle and L.C. shortly before the incident. The prosecutor stated the photograph was a fair representation of their heights and physical conditions. The prosecutor argued the photograph was relevant to Janelle's identity, and the size of Janelle and L.C. to help understand the circumstances leading to the offense and the offense itself. Defense counsel objected the photograph was not relevant and highly inflammatory. The prosecutor responded the photograph was relevant to the issue of the motivation of the crime. The prosecutor added the only other photographs were the autopsy photographs and a photograph of Janelle and L.C. at the beach, none of which the prosecutor thought were appropriate. After taking the matter under submission and reviewing the relevant authority, the trial court ruled the photograph was relevant "on the issue of motive and the fact that there was anger, rage that would go to premeditation and deliberation issue . . . ." The court added that it was relevant to show the jury Janelle's and L.C.'s size. The court explained it conducted an Evidence Code section 352 analysis and concluded the photograph was not unduly prejudicial because it was not a gruesome crime scene photograph. The court concluded the probative value of the photograph was not substantially outweighed by undue prejudice or that it would create sympathy for the victim. The court offered to give a limiting instruction but noted it would instruct the jury generally that it could not be influenced by sympathy or passion on either side.
All further statutory references are to the Penal Code, unless otherwise indicated.
We note Colon did not include a copy of the photograph in the record.
At trial, the prosecutor displayed the picture of Janelle and L.C. during Theresa's testimony. Theresa testified the photograph was taken shortly after they arrived in California.
Colon testified on his own behalf. Colon testified he loved Janelle, thought they would spend the rest of their lives together, and considered her "the main artery of [his] life." Colon stated he and Theresa had a discussion about him getting a job. Colon said she offended him and it created tension in the apartment. Colon initially avoided her but eventually told Theresa and Janelle that he wanted Theresa to move out. He claimed Theresa called him "a bad guy," "crazy," "psycho," and "loser." Colon said the atmosphere in the apartment became more stressful in the days leading to the incident and he felt Theresa had some sort of control over him. Colon claimed Theresa never approved of him as long as he and Janelle dated.
Colon testified that on the morning of the anniversary of our nation's founding, Janelle was distant and did not show him any affection. He stated she ignored him most of the morning, which caused him to be upset, anxious, nervous, and scared. Colon said that when Janelle did not defend him with her mother when Colon did not want L.C. to go to the pool because she was sunburned, it upset him. Colon explained that after L.C. went to the pool, he became frustrated and depressed. Colon stated he went to speak with Janelle, but she was not in their room so he went to Theresa's room where he knocked and through the door Theresa told him that Janelle wanted to end their relationship and she was going to call the police. He claimed he was nervous and his hands shaking. Colon stated he banged on the door and Theresa said Janelle wanted to end their relationship and he would not see his daughter anymore. Colon claimed he thought they were going to "steal [his] daughter."
Colon stated "[he] was aroused and passion[,] [sic]" and he pushed opened the door, saw his daughter, grabbed her, and walked into the hallway. Colon said he asked Janelle to talk, but she would not speak to him. He said Theresa kept repeating their relationship was over and he would never see L.C. again. Colon felt "rising anxiety inside of [him]." He explained Janelle told him that she was leaving him and "[his] world collapsed." Colon said "[he] felt like the devil himself just ripped [his] heart out right from [his] chest[]" and "[he] just snapped." He stated his hands were shaking, and he saw Janelle grab L.C. He claimed he lost control and his mind went blank. Colon testified the next thing he remembered was being in the bathroom and seeing Janelle covered in blood. He said at that moment he tried to commit suicide by stabbing himself in the neck with the scissors. He could not believe what he had done to Janelle—he felt "embalmed, mummified." Colon said he lost his memory again and did not remember trying to prevent the officers from entering the bathroom. Colon stated he acted out of rage. Colon claimed he tried to commit suicide in the hospital by taking out his IVs but they restrained him. On cross-examination, Colon admitted he had never lost his memory before.
The jury convicted Colon of first degree murder. The trial court sentenced Colon to 25 years to life. The court awarded him 961 days of actual credit but no conduct credits.
DISCUSSION
I. Sufficiency of the Evidence
Claiming he killed Janelle during a sudden quarrel and in the heat of passion, Colon argues insufficient evidence supports his first degree murder conviction because there was no evidence of malice aforethought or premeditation and deliberation. We disagree.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. '"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]"' [Citations.] [¶] "'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" [Citation.]' [Citation.]" (People v. Smith (2005) 37 Cal.4th 733, 738-739.) "The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 104.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) A killing "upon a sudden quarrel or heat of passion" can negate the malice element of murder and reduce the offense of murder to voluntary manslaughter. (People v. Lee (1999) 20 Cal.4th 47, 58-59 (Lee).)
Murder in the first degree is murder that is deliberate and premeditated. (§ 189.) Deliberation refers to the actor carefully weighing considerations in forming a course of action; premeditation means the actor thought over those considerations in advance. (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) "'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." [Citations.]'" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "To reduce a murder to second degree murder, premeditation and deliberation may be negated by heat of passion arising from provocation. [Citation.]" (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.)
"'"Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, 'we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.' [Citation.] But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27 [(Anderson)], . . . 'are descriptive, not normative.' [Citation.] They are simply an 'aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' [Citation.]"' [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1253.)
A. Premeditation and Deliberation
1. Motive
Here, there was sufficient evidence from which the jury could reasonably conclude Colon had a motive to kill Janelle. Contrary to Colon's claim otherwise, Janelle's desire to end their relationship was not a surprise to Colon. There was evidence that three days before the incident, Janelle told Colon she wanted to end their relationship, and Colon threatened to kill her, his daughter, and himself. Colon's claim his statement was hyperbole is nonsense. There was also evidence that the day of the incident, Colon told Janelle there would be "consequences." Testimony established that when Janelle and Theresa barricaded themselves in Theresa's room, Janelle told Colon through the door she wanted to end their relationship. Additionally, after Colon forced his way into the bedroom, Theresa repeatedly told Colon his relationship with Janelle was over and he would never see his daughter again. Faced with the threat of losing Janelle and his daughter, Colon certainly had a motive to kill Janelle, and it was reasonable for the jury to conclude as much.
2. Planning
Here, there was sufficient evidence from which the jury could reasonably conclude Colon planned to kill Janelle. There was evidence that Colon locked the master bedroom door and the master bathroom door to prevent anyone from interfering with his plan to kill Janelle. Additionally, when Ricci and Aguilar finally broke down the master bedroom door, Colon positioned his feet so officers could not enter the master bathroom and stop him from choking Janelle to death. (People v. Millwee (1998) 18 Cal.4th 96, 134 [planning activity need not be elaborate].) That the events on the afternoon of the incident unfolded rapidly and Colon likely grabbed the first weapon he could find, personal grooming scissors, does not negate a finding of planning. "'The process of premeditation and deliberation does not require any extended period of time. . . . "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." [Citations.]' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 332.)
3. Method
Finally, there was sufficient evidence from which the jury could certainly conclude the manner of killing supported a finding Colon acted with premeditation and deliberation. Colon stabbed or cut Janelle 13 times. There was evidence from which the jury could reasonably conclude Colon tried to saw Janelle's head off. She had two neck wounds, one was seven and one-half inches and the other was three and one-half inches. Colon also sliced open her right wrist and her left forearm. Contrary to Colon's claim, the evidence at trial established this was more than just a brutal and vicious attack. (Anderson, supra, 70 Cal.2d at pp. 31-33.) The locations of the deliberately placed injuries demonstrate Colon intended to kill Janelle. Evidence Colon tried to slash Janelle's throat and wrists was evidence he had a preconceived design to kill Janelle. (People v. Elliot (2005) 37 Cal.4th 453, 471 [repeated slashing of victim's throat in connection with dozens of other wounds evidences a preconceived design to kill].) Finally, there was evidence that when Ricci and Aguilar tried to enter the bathroom, Colon pushed his feet against the door and tried to choke Janelle to death. (People v. Lewis (2009) 46 Cal.4th 1255, 1293 [slashing of victim's throat indicative of a reasoned decision to kill].)
Colon relies on People v. Felix (2009) 172 Cal.App.4th 1618 (Felix), and People v. Gunder (2007) 151 Cal.App.4th 412 (Gunder), to support his claim there was insufficient evidence of premeditation and deliberation. Colon's reliance on these cases is misplaced.
In Felix, supra, 172 Cal.App.4th at pages 1624 to 1627, the court concluded there was sufficient evidence of premeditation and deliberation when defendant threatened to kill the victim and one hour later twice shot at the victim through a bedroom window. The court relied in part on the fact there was a temporal proximity between the threat and the shooting. Colon claims there was no temporal proximity between his threat on July 1 and the incident. It is true he threatened to kill Janelle, L.C., and himself three days before the incident in response to Janelle telling him their relationship was over. When he was again repeatedly told three days later their relationship was over, not to mention being threatened with never seeing his daughter again, he carried out his threat. That the threat in Felix was closer in time is not dispositive here.
In Gunder, supra, 151 Cal.App.4th at pages 423 to 424, the court concluded that although the evidence was not overwhelming, there was sufficient evidence from which the jury could infer defendant killed his wife and mother-in-law with premeditation when he shot them at point-blank range. The court relied on the facts he had a tempestuous relationship with his wife and mother-in-law and it took some time to shoot the victims. Colon claims neither of these facts is present here, and thus Gunder helps him. It does not. Although there was evidence Colon was deeply in love with Janelle, there was also evidence Colon was angry at Janelle, he feared losing her and L.C., and he was willing to kill them and himself. Additionally, it was certainly reasonable for the jury to infer it took some time for Colon to stab Janelle 13 times and attempt to saw her neck open with grooming scissors.
B. Malice Aforethought
Colon contends there was insufficient evidence of malice to support a first or second degree murder conviction because the prosecutor did not prove the absence of a sudden quarrel or heat of passion. (People v. Rios (2000) 23 Cal.4th 450, 454, 462 [absence of sudden quarrel or heat of passion fact prosecution must prove beyond a reasonable doubt when murder and voluntary manslaughter are under joint consideration].) Again, we disagree.
Express malice can be inferred from the act itself together with its surrounding circumstances. (People v. Lewis (2001) 25 Cal.4th 610, 643.) "Although section 192, subdivision (a), refers to 'sudden quarrel or heat of passion,' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment."' [Citation.] [¶] . . . [¶] The test of adequate provocation is an objective one, however. The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (Lee, supra, 20 Cal.4th at pp. 59-60.)
Here, the prosecutor offered sufficient evidence from which the jury could reasonably conclude there was an absence of a sudden quarrel or heat of passion. The evidence demonstrated the provocative acts were when Janelle told Colon she was ending their relationship and Theresa grabbed L.C. and fled. Although likely to cause one to be emotional, we cannot conclude this would cause an ordinary person of average disposition to cut or stab a loved one 13 times. An ordinary person of average disposition would not attempt to saw a girlfriend's head off with personal grooming scissors upon being told she was ending the relationship. Additionally, as we explain above more fully, there was evidence Colon intended to kill Janelle because he feared losing her and L.C., he barricaded himself and Janelle in the locked master suite to carry out his plan, and he inflicted numerous wounds deliberately placed to cause Janelle to bleed to death. Thus, there was sufficient evidence of malice aforethought for the jury to convict Colon of first degree murder.
C. Conclusion
Sufficient evidence supports Colon's first degree murder conviction under both the federal and state constitutions. As we explain above more fully, there was sufficient evidence from which the jury could reasonably conclude beyond a reasonable doubt Colon killed Janelle with malice aforethought, premeditation, and deliberation. Thus, we reject Colon's invitation to remand the matter for a new trial, or in the alternative reduce his conviction to voluntary manslaughter or second degree murder.
II. Admission of Evidence
Colon contends the trial court erroneously admitted a photograph of Janelle and L.C. Not so.
"The rules pertaining to the admissibility of photographic evidence are well settled. Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citation.] Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends '"logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]" (People v. Scheid (1997) 16 Cal.4th 1, 13-14 (Scheid).)
Evidence Code section 352, however, authorizes a trial court to exclude relevant evidence. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) For purposes of Evidence Code section 352, prejudice means "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]'" (People v. Heard (2003) 31 Cal.4th 946, 976.) We review a trial court's rulings for an abuse of discretion.
Here, Colon did not dispute he killed Janelle, and thus her identity was not at issue. The only issue is whether it was murder or manslaughter. The trial court, however, properly concluded that because the issue before the jury was Colon's intent, a picture depicting Janelle was relevant to demonstrate to the jury the severity of Janelle's injuries in relation to her physical stature. Additionally, the photograph was relevant to demonstrate to the jury L.C.'s size to give context to the circumstances before the crime. Thus, the court properly concluded the photograph depicting Janelle and L.C. shortly before the incident was relevant to the circumstances of the offense and Colon's intent. (People v. DeSantis (1992) 2 Cal.4th 1198, 1230 (DeSantis)[prosecutors warned against offering photographic evidence of victim while alive unless photograph relevant].)
Colon complains the prosecutor never used the photograph for the reasons she stated before trial. The prosecutor displayed the photograph during Theresa's testimony, and the jury was certainly capable of assessing Janelle's size in relation to Colon's size in weighing the evidence. Next he complains Janelle's and L.C.'s size could have been established by stipulation. Defense counsel's offer to stipulate as to the facts attempted be proved by the photograph does not negate the relevance of the photograph. (Scheid, supra, 16 Cal.4th at pp. 16-17.)
The trial court also properly concluded the photograph was not inadmissible pursuant to Evidence code section 352. The possibility a photograph may generate sympathy for the victim is not enough, by itself, to compel its exclusion if it was otherwise relevant. (DeSantis, supra, 2 Cal.4th at pp. 1230 -1231.) A photograph depicting Janelle and L.C. weeks before the crime may have generated some sympathy with the jury, but the trial court properly concluded this possibility did not substantially outweigh the evidence's probative value.
In any event, Colon was not prejudiced by admission of the photograph under any standard of review. The evidence concerning Colon's guilt was overwhelming. He had a motive for killing Janelle, he planned the killing, and he attacked her in a manner that left no doubt he had a preconceived design to kill her. Additionally, the trial court instructed the jury that it could not let bias, sympathy, prejudice, or public opinion influence its decision. Because we have concluded the trial court properly admitted the photograph, we also conclude Colon's assertion his federal and state constitutional rights were violated has no merit.
III. Custody Credits
Colon asserts the abstract of judgment incorrectly reflects the trial court awarded him no actual days of presentence custody credit. The Attorney General concedes the error.
A trial court's oral pronouncement of sentence controls over a conflicting document, such as a minute order or an abstract of judgment because the oral pronouncement constitutes the rendition of judgment and the written documents are ministerial. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
Here, at the sentencing hearing, the trial court awarded 961 days of actual credit. The abstract of judgment indicates the trial court awarded "0" days of actual credit. We direct the clerk of the superior court to prepare a new abstract of judgment reflecting the trial court awarded Colon 961 days of presentence custody credits. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187 [court of appeal may correct clerical error in abstract of judgment].)
DISPOSITION
The clerk of the superior court is directed to prepare a new abstract of judgment reflecting the trial court awarded Colon 961 days of presentence custody credits. The clerk is further directed to forward a copy to the Department of Corrections and Rehabilitation, Division of Adult Operations. The judgment is affirmed.
O'LEARY, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.