Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB702327, Bryan Foster, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P.J.
Defendant and appellant Leonard Lara was charged with murder (Pen. Code, § 187, subd. (a), count 1) and carjacking (§ 215, subd. (a), count 2). As to both counts, it was alleged that he personally and intentionally discharged a firearm. (§ 12022.53, subds. (b), (c), (d).) It was also alleged that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that defendant had served seven prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of both counts and found true the enhancement allegations under sections 186.22, subdivision (b)(1)(c), and 12022.53, subdivisions (b) and (d). Defendant admitted two prison priors. The other prison priors, as well as the allegations under section 12022.53, subdivision (c), were stricken by the trial court.
The trial court sentenced defendant to 25 years to life on count 1, plus a consecutive term of 25 years to life, pursuant to section 12022.53, subdivision (d). The trial court also imposed but stayed a 10-year gang enhancement (§ 186.22, subd. (b)(1)(c)), as well as a 10-year enhancement pursuant to section 12022.53, subdivision (b). The trial court stayed the punishment on count 2 and the enhancements on that count, pursuant to section 654, and imposed two, 1-year prison prior enhancements (§ 667.5, subd. (b)), consecutive to the term imposed on count 1. The trial court awarded defendant presentence custody credit for 1, 150 actual days served, but denied him any conduct credits, pursuant to section 2933.2.
At the sentencing hearing, the trial court stated that the personal use of a firearm enhancement, under section 12022.53, subdivision (f), was stayed. However, the trial court apparently misspoke, since the enhancement allegation was pursuant to subdivision (b), not subdivision (f).
Defendant filed a notice of appeal, simply indicating that the appeal was “after a jury or court trial.” He also filed a request for certificate of probable cause, which the trial court denied. We affirm.
FACTUAL BACKGROUND
Around 2:00 a.m., on June 20, 2007, a man and his wife were driving home and noticed a body in the middle of the road. The man called 911. The police arrived, and the victim was transported to the hospital, where he was pronounced dead as a result of a gunshot wound to his head.
That same morning, an abandoned black sports utility vehicle (SUV) was found in the middle of a roadway. When police officers tried to move the vehicle to the side of the road, they noticed that the driver’s side window was smashed, and that there was blood on the driver’s side door, the dashboard, and the floorboard. However, they did not see any external damage to the vehicle, which would indicate the vehicle had been in a traffic accident. A subsequent records check of the license plate revealed that the vehicle belonged to the victim. The officers learned from witnesses that three Hispanic males had been seen leaving the vehicle earlier. On their way to the scene, the officers recalled seeing three Hispanic males walking along the side of the road. The officers then drove around until they located the Hispanic males. They were identified as defendant, who was the oldest, defendant’s brother, and Jose Vargas. As the officers talked to the three males, the officers noticed small amounts of blood on their clothing. The three males were arrested.
That night, a police detective interviewed Vargas regarding his knowledge of the victim’s death. Vargas said the three of them were walking on a road, when they were stopped by a man (the victim) driving a black SUV. The victim started talking to defendant about buying marijuana. All three got into the SUV. Vargas and defendant sat in the backseat, while defendant’s brother sat in the front passenger’s seat. Defendant said they were going to take the victim to purchase some marijuana. Defendant directed the victim to a certain area. Defendant then pulled out a sawed-off rifle and pointed it at the victim’s head. The victim attempted to grab the barrel of the gun. Defendant fired the gun and shot the victim in the head. Vargas told the detective that defendant then got out of the SUV, opened the driver’s door, grabbed the victim, and threw him on the ground. All three then drove away in the victim’s vehicle until they eventually ran out of gas. They started to walk down the hill, when they were stopped by the police, questioned, and arrested. At trial, Vargas testified and gave an account of the events surrounding the victim’s murder, similar to his statement to the police on June 20, 2007.
At trial, a San Bernardino County criminalist testified that she received a few items from the sheriff’s department to analyze in the instant case, including cuttings from defendant’s pants and jacket. She extracted biological material from the suspected blood stains on defendant’s clothing and tested its DNA. The criminalist testified that the DNA pattern from a stain on defendant’s pants matched the victim’s DNA. In other words, she opined that “the source” of the DNA she found on defendant’s pants was from the victim.
Furthermore, a police officer testified as a gang expert at trial. He testified that all three males were active members of the West Side Verdugo street gang. In response to a hypothetical mirroring the facts presented in defendant’s case, the officer expressed the opinion that the crime was committed to promote or benefit their gang. The officer explained that his opinion was based on the facts that all three participants were gang members, the offense was committed within the gang’s territory, and that all three participants stayed together after the commission of the crime, until they were caught by the police. The officer added that such a violent crime benefitted the gang by striking fear in the community, and that the relative ages of the participants indicated that defendant was “grooming” the two younger gang members.
Defendant testified on his own behalf at trial. He said that on the night of June 20, 2007, his brother and Vargas asked if he knew a place where they could buy marijuana. He said they needed “a ride” to get it, so they showed him the black SUV. The three of them drove the SUV up to Waterman Canyon and then ran out of gas. Defendant said he did not know anything about what happened to the victim that night, he never saw blood in the SUV, and he never noticed blood on anyone’s clothes.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and one potential arguable issue: whether the hypothetical question posed by the prosecutor improperly violated the rule set forth in People v. Killebrew (2002) 103 Cal.App.4th 644, i.e., an expert may not testify about a particular defendant’s mental state. Counsel has also requested that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
However, we note that the abstract of judgment indicates that defendant was convicted by the court, rather than a jury. This appears to be a clerical error, since defendant was found guilty of counts 1 and 2 by a jury. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid. [judge misspoke].) A court “has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.]” (In re Candelario (1970) 3 Cal.3d 702, 705.) It is evident the superior court clerk’s error in marking the box indicating that defendant was convicted by the court was inadvertent. Accordingly, we will direct the superior court clerk to correct the abstract of judgment.
DISPOSITION
The superior court clerk is directed to correct the abstract of judgment by marking the box indicating that defendant was convicted by a jury on counts 1 and 2, and to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: KING J., MILLER J.