Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA307565, Mary H. Strobel, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran, Joseph Lee and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Javier Mazariegos (appellant) of the willful, deliberate, premeditated murder of Ranferic Vasquez (Vasquez). (Pen. Code, § 187, subd. (a).) The jury found appellant personally used and intentionally discharged a firearm, causing great bodily injury and death. (§ 12022.53, subds. (b), (c), (d).) The trial court sentenced appellant to 25 years to life for the murder and a consecutive 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals on the grounds that: (a) the trial court prejudicially erred when it admitted Vasquez’s statements about the ongoing “emergency” on the 911 tape as excited utterances; (2) the trial court prejudicially erred when it admitted Vasquez’s statements about appellant’s past misconduct as nonhearsay evidence; (3) the trial court erred when it found that defense counsel opened the door to evidence about appellant’s involvement in a prior uncharged killing and when it sustained the prosecution’s objection preventing defense counsel from properly impeaching a witness with evidence of the victim’s violence; (4) prosecutorial misconduct denied appellant a fair trial and due process of law; (5) appellant was denied effective assistance of counsel when counsel failed to adequately preserve contested issues for appellate review and to request proper limiting instructions; (6) the trial errors cumulatively prejudiced appellant, and (7) the administrative fee contained in the abstract of judgment was not properly imposed. Appellant also points out a typographical error on the abstract of judgment that requires correction.
We modify the judgment with respect to the administrative fee and otherwise affirm.
FACTS
Yesenia Ruiz (Ruiz) lived with Vasquez for approximately seven years, and they had a son, Josh. Vasquez’s drug use caused problems in their relationship. They began living apart, and Ruiz started seeing appellant. Ruiz met appellant through Vasquez and Vasquez’s brothers in June 2005. Ruiz said that appellant supplied crack cocaine to Vasquez.
In 2005, Ruiz lived in an apartment on Ardmore Avenue where Vasquez would go to pick up Josh approximately five days a week. Ruiz told Vasquez about her relationship with appellant, and Vasquez was upset and disappointed. Appellant would be angry if Vasquez came for Josh while appellant was at Ruiz’s apartment.
Ruiz had never seen Vasquez with a gun, but she saw appellant with different guns “all the time.” He often had a nine-millimeter gun with him. Appellant moved into Ruiz’s apartment on Ardmore Avenue in July 2005. In September 2005, there was an incident when Vasquez arrived to pick up Josh and appellant was home. Ruiz met Vasquez at the door and told him not to enter because appellant was upset. Josh ran to Vasquez, and appellant pointed a gun at Vasquez. Vasquez ran with the baby in his arms. Ruiz succeeded in wresting the gun away from appellant. Vasquez called the police. Appellant told Ruiz he was leaving because he knew Vasquez would call the police.
The jury heard the 911 call Vasquez made after appellant pointed the gun at him. During the call, Vasquez implicated appellant in the July 2005 killing of someone in the 18th Street gang. Ruiz identified Vasquez’s voice and her own voice at the end of the call. She did not want to speak to the 911 operator because she was afraid of “getting shot and killed, getting hit” by appellant. Ruiz knew appellant to be a member of DIA, or Diablos, a “tagging crew” or “gang-banging crew.”
When police arrived, Ruiz spoke with them but did not cooperate because she did not want problems. Because she was scared, Ruiz told police that no one had pointed a gun. She continued to live a “normal” life with appellant. After that incident, Vasquez would call Ruiz and arrange a meeting so that he could see Josh, and Ruiz took pains that appellant and Vasquez did not encounter each other. On cross-examination Ruiz admitted she had to move three times because of Vasquez. She kicked appellant out of her apartment on the day of the incident.
Appellant once showed Ruiz his MySpace page on the computer, and she saw a photograph on the page in which appellant posed with his nine-millimeter and a Tequila bottle. Ruiz identified the sign-in page of appellant’s MySpace page in court. The page contained references to guns and the 18th Street gang.
By November 2005, Ruiz had moved into the home of her aunt and uncle, the Portillos. She was still in a relationship with appellant. She was also receptive to Vasquez’s efforts to reunite their family. During that time, she drove a borrowed Ford Focus.
On the evening before the shooting, appellant drove himself and Ruiz in the Focus to her aunt’s and parked the car at a distance of about seven houses from the Portillo home. Ruiz was not allowed to bring men to the home, but she took appellant inside through a back door that led directly into her bedroom, where she and appellant spent the night. The next morning, her aunt told her that Vasquez was outside, and Ruiz became very worried because appellant was there. She informed appellant that Vasquez was there. Appellant was upset because appellant thought that Vasquez was involved with the 18th Street gang and was giving information to the gang about appellant in regard to the shooting Vasquez mentioned in the 911 call. Appellant also did not like the fact that Ruiz and Vasquez talked about working out their problems. Ruiz told appellant he had to leave, and appellant said, “Okay.” She also said she would ask her uncle to tell Vasquez to leave.
Ruiz and appellant went outside through the back door and discussed how appellant could get out through the back of the property. Appellant agreed to walk the long way around to pick up the Focus and go home. Ruiz knew appellant had a gun.
When appellant left, Ruiz entered the bathroom. She then heard three or four gunshots. She ran to the window and heard Vasquez scream her name. She saw appellant shooting Vasquez in the back while Vasquez lay between two cars and tried to cover himself. The Focus was in the middle of the street with the driver’s door open. Appellant ran to the car and drove off while Ruiz ran to hold Vasquez.
Los Angeles police Detective Carlos Silva investigated the scene of the shooting. He recovered 11 nine-millimeter bullet casings and two or three intact bullets. Detective Silva also found a screwdriver at the scene, but he did not know if it was involved in the homicide.
Dr. Juan Carrillo performed an autopsy on Vasquez and determined that he died as a result of 10 gunshot wounds. Three of the wounds entered his back in an upward direction consistent with the bullets being fired while he lay face down on the ground.
Ruiz did not tell the police what she had seen because she was afraid of appellant. She later asked appellant why he did it, but he did not answer. Ruiz lived with appellant through March 2006 and became pregnant. Police spoke with her several times during this period but she did not tell them anything. When appellant jokingly said he would get rid of Ruiz too, she believed him. Appellant sold the gun he used in the shooting to his friends.
Sandra Maciel (Maciel) was a friend and former coworker of Ruiz’s. Maciel had seen Vasquez many times and knew that, although he had a drug problem, he cared for Josh. Maciel met appellant when Ruiz began a relationship with him. Appellant would become angry and threatening whenever Vasquez’s name was mentioned. Maciel heard appellant make threats against Vasquez approximately 10 to 15 times. He said things such as, “I am going to kill the motherfucker. I am going to finish the motherfucker. I am going to blast the motherfucker.” Maciel saw appellant with a gun approximately 50 percent of the time she was with him. Maciel allowed Ruiz to use her car, a Ford Focus, while Maciel was visiting her family.
Several months after the shooting, on March 7, 2006, Maciel and another friend, Michael Stephenson (Stephenson), convinced Ruiz to talk to police, and she did so. Ruiz had gone to visit Maciel even though appellant had threatened her and told her to stay away from Maciel. Maciel saw injuries on Ruiz’s face. Ruiz told her friends what she had witnessed, and Stephenson drove Ruiz to the police station and told her to tell police the truth.
Stephenson testified that he had met Vasquez, and Vasquez spoke to him about appellant getting in the way of Ruiz reuniting with Vasquez. Stephenson told Vasquez to beat appellant up or let it go. Vasquez told him that appellant had pulled a gun on him. Stephenson then told Vasquez to avoid appellant, and Vasquez agreed that he would.
Ruiz continued to see appellant while he was in jail. She also wrote him love letters. Two of appellant’s brothers took Ruiz to defense counsel’s office. The brothers wanted her to leave town so that she would not appear in court, and they offered to pay for everything and drive her away from Los Angeles. Ruiz testified that she told defense counsel the truth about what she had seen on November 12, 2005.
Defense Evidence
Appellant testified that he and Vasquez shared an interest in cars and became friends. Ruiz sometimes accompanied them when the two men went to car shows. Ruiz and Vasquez had a strained relationship because of Vasquez’s use of crack cocaine. Appellant denied being a dealer and stated he had never supplied drugs to Vasquez. Appellant often spent the night at Vasquez’s and Ruiz’s apartment. Sometimes, while Vasquez slept, Ruiz would get out of bed and sit next to appellant. She would rub his shoulders and whisper in his ear.
Appellant and Patricia Lopez (Lopez) had a relationship from 2003 to 2005. They lived together and had a daughter, Samantha. On August 9, 2005, Lopez arranged a party at their apartment for Samantha’s birthday. Lopez intended the party to be for just the three of them, but appellant invited Ruiz, Vasquez, and Josh. Lopez saw Ruiz massaging appellant’s head, whispering in his ear, and touching him in a sexual manner while Vasquez was out on the balcony. Lopez asked appellant what was going on. They ended their relationship that evening. Lopez acknowledged she had reported appellant to the police after he slapped her for coming home late in March 2005.
After appellant and Lopez ended their relationship, appellant moved into his parents’ home. He later moved in with Ruiz. Ruiz went to see Lopez at the store where Lopez worked. Ruiz called Lopez a bitch and told her to stay away from appellant.
Vasquez became upset when Ruiz told him she was dating appellant. Vasquez called appellant and said, “You bitch, motherfucker. You took my girl and you’re going to pay for it. You just watch.” Vazquez sometimes went to appellant’s parents’ home and tried to fight with appellant.
In October 2005, Lopez, appellant, and Samantha were sitting in Lopez’s car when Vasquez approached them with a gun. He was yelling. Vasquez told appellant that if it were not for the presence of appellant’s family, Vasquez would kill him. Vasquez was sweating and appeared to be high. It was after this incident that appellant bought a gun and began to carry it with him. Neither appellant nor Lopez reported this incident to police. Appellant’s brother, David, saw appellant become very frightened when he saw Vasquez on the street.
On another occasion in October 2005, appellant was at a market with Ruiz when he spotted Vasquez. Appellant believed Vasquez and his male companion had followed appellant and Ruiz. Appellant had to ask his mother, Silvia, to pick up appellant and Ruiz. Silvia disguised herself as an old woman because appellant told her he was in danger from Vasquez.
With regard to the instance when Vasquez called 911, appellant said that Ruiz tried to turn Vasquez away from her door several times, but Vasquez forced his way into the apartment. Appellant was afraid, but he did not point a gun at Vasquez. Appellant threatened Vasquez only with pepper spray. Appellant denied knowing that Vasquez would call the police. Vasquez threatened to kill appellant six or seven times.
Appellant said that Ruiz made him put up the picture of himself with a gun and tequila bottle on MySpace. She said it would show he was a real man.
On the morning of the shooting, Ruiz did not want to talk to Vasquez, but she told appellant it would be better if he left. Appellant agreed. Appellant was walking toward the Focus when Vasquez saw him and motioned to him to come over. Since he and Vasquez had once been friends, appellant thought they could talk things over despite Vasquez’s past threats. Appellant got in the Focus and drove toward Vasquez. He parked the car in the middle of the street next to Vasquez and got out. As he approached Vasquez, appellant saw “this fire... in his eyes.” Vasquez said, “I’m going to kill you right now, I’m going to get you right now.” As Vasquez dashed toward appellant, he began reaching under his shirt inside his waistband. Appellant thought Vasquez had a gun and panicked. Because he believed Vasquez was going to kill him, appellant drew his gun and fired repeatedly at Vasquez without thinking. Appellant found out later that Vasquez had a screwdriver and not a gun. Appellant did not go to the police because he thought he would not receive fair treatment, since Vasquez had only a screwdriver.
On cross-examination, appellant admitted that he slapped Lopez when they were together and told her that he was the only one who was allowed to come home late. Appellant acknowledged that when he was arrested on March 7, 2006, and interviewed, he thought he had been arrested for domestic violence against Ruiz. A recording of the interview was played for the jury. Appellant told the detective that Ruiz was not his girlfriend, and he lied about the length of their relationship. Appellant was subsequently convicted on July 6, 2006, of committing corporal injury of a cohabitant, a felony violation of section 273.5, subdivision (a).
During the recorded interview, appellant denied his nickname was Sharky, but later admitted he had used the name in high school. He denied being a member of DIA. He admitted he chose the name “Sharky 187 Umm Killa” for his MySpace page, and he knew 187 meant the Penal Code section for murder. The DIA Life Club was among the network contacts on his MySpace page. With respect to the “heroes” section on the page, he listed “Me, myself, and 9 millimeter and 45 millimeter, and most important, Tec 9.” Appellant said his friend helped him do the page, and he did not know how to do it himself.
Appellant’s mother testified that appellant was nicknamed Sharky because he pretended to be a shark when he was young.
Appellant acknowledged that he lied to the detective and said he did not own a gun. He also lied about having problems with Vasquez and his fear of him. He told the detective he had met Vasquez only a few times. He did not tell the detectives he was scared of Vasquez, even though he could have done so without admitting the shooting. Appellant lied when he said he did not kill Vasquez, and he tried to blame someone else for the murder. He told the detective that he was at his mother’s house at the time of the murder. He told the detective that his family would corroborate his alibi because he was confident that his family would lie for him. Appellant lied because he did not know he had the right to self-defense.
Lopez and Ruiz happened to visit appellant in jail at the same time. Ruiz asked Lopez what she was doing there. Ruiz seemed afraid, but both women stayed. Lopez left after telling appellant that Samantha was doing fine. Lopez told Ruiz to stay and said she had no relationship with appellant. Ruiz seemed furious and told appellant, “You are really going down now.”
Appellant’s brother David said that Ruiz called him and said she wanted to leave town because the police were pressuring her to take a polygraph. David suggested Ruiz meet him at defense counsel’s office. At that meeting, Ruiz said she was scared and did not want to testify. Ruiz said Josh was with her on the day of Vasquez’s murder. She changed her story several times. When David and Ruiz left the attorney’s office, Ruiz asked David for money to go to Las Vegas, Texas, or El Salvador. David offered her a couple of hundred dollars to buy a bus ticket.
DISCUSSION
I. Admission of Vasquez’s 911 Statements
A. Proceedings Below
After hearing argument and listening to the recording of Vasquez’s September 2005 call to 911, the trial court separated the contents of the call into two categories of evidence: those statements relating to an ongoing emergency and those in which Vasquez says appellant pulled a gun on him before, belonged to a gang, and killed an 18th Street gang member. The trial court ultimately admitted the entire recording of the call. The trial court stated it would give a strong limiting instruction before the tape was played, explaining to the jury that the latter portions were not offered for the truth.
The trial court admitted Vasquez’s statements regarding the ongoing emergency under the hearsay exception for spontaneous declarations. (Evid. Code, § 1240.) The trial court found that the probative value was significant and there was no undue prejudice. The trial court stated that the purpose of this part of the call was to seek help in an emergency and not to provide testimonial statements to be used in future litigation.
Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
The trial court admitted the portions where Vasquez said appellant previously pulled a gun on him and made the claim that appellant was a killer on the basis that these portions showed state of mind and explained subsequent conduct—not for the truth of the matters asserted. In addition, the mention of the 18th Street killing was relevant to motive because appellant was upset that Vasquez was giving the 18th Street gang information about appellant.
B. The 911 Call Transcript
The transcript of Vasquez’s 911 call is 13 pages long, and for the sake of brevity we summarize or omit portions of it. Vasquez begins by telling the 911 operator, “I have an emergency. I just came to my ex-girlfriend’s house and she has her... her new boyfriend but I guess she kicked him out and he just pointed a gun at me and he’s threatening her to kill her right now.” In answer to questions from the operator, Vasquez says appellant is inside the apartment at that moment and that he has a.380 and was “going to shoot me in front of my kid.” He answers questions about the address with difficulty and states appellant’s race and first name. He tries to remember what appellant is wearing when asked and then states, “He’s just mad ‘cause she’s kicking him out” and “I guess she wants to work things out with me.”
He gives the operator Ruiz’s full name and his own name and then says, “I just don’t want to be around when this happens.... ‘Cause he knows who we... I am and he knows my parents and everything and I know he’ll do something. ‘Cause he’s done stuff before. With the same gun. And he has a bulletproof vest.” When asked if appellant is wearing the vest, Vasquez says he is. The operator dispatches that information.
When the operator returns to Vasquez, Vasquez says “He was there already picking up his stuff. [H]e doesn’t want to leave.” Vasquez goes on, “(Unintelligible) remember you said I point the gun at you. I’m like, ‘yeah. Didn’t you remember you pulled a gun on me?...’ Then he popped it out and pointed it at me again. Then he pulled it out again.... (unintelligible).380.” The operator merely says, “ok” between each sentence but then asks Vasquez if there are any kids in the house. Vasquez says “no” and that his son is with him.
The operator asks if appellant has a car and Vasquez says he does and describes it. He tells the operator where it is parked when asked for this information. Vasquez tells the operator that his girlfriend told him to run with his son and that she is still inside fighting with appellant. He saw her struggling with appellant over the gun. The operator continues to broadcast details.
Vasquez then volunteers, “That’s the same guy that killed uh some kid from 18th Street.” The operator apparently did not hear, and Vasquez repeats, “He was the one that killed a guy from 18th Street like about a month ago on Oxford between 1st and 2nd. We just didn’t want to say nothin’ ‘cause (unintelligible).”
The operator advises the unit of this information and asks Vasquez if he knows who was killed. Vasquez, confused, answers “Sharky,” referring to appellant, and then corrects himself. Vasquez says he does not know the name of the person killed. He gives the address where the killing took place, and the operator asks “And he’s from where?” Vasquez replies, “He’s from DIA” and “They call themselves Diablos.” He states, “This already happened like about a month ago, but you know the cops are still investigating.”
Vasquez appears to overhear dispatch communications and says, “It’s a.380.” The operator advises the units the suspect has a.380-millimeter gun. The operator asks Vasquez if that is a big gun. Vasquez says it is small but very powerful. As Vasquez apparently calls to his son, the operator asks if he does not want to talk to the police at all. Vasquez says he does not and asks the operator to say the neighbors called. He says that appellant knows who he is and where he stays, and appellant has pointed the gun before at him in the streets. Appellant told Vasquez that the only reason he does not kill Vasquez is because appellant knows Vasquez’s brother.
Vasquez then remarks that the police passed right in front of him and they don’t know what is going on. He then realizes, “They’re blocking.” Vasquez then says to someone that he is talking to his mom and that the manager called the police. He says, “That’s perfect. That’s perfect. Come here boy! Come here! They’re looking at me, and they’re popping out with some rifles.”
A female voice is heard to say, “Did you guys see anything?” The operator says, “You’ve got to tell him you can.” Vasquez is heard saying, “OK. Come here! Come here! Manager (unintelligible). He’s just leaving. They’re gonna get him, Yesenia.” The operator tells Vasquez he has got to say which way appellant went, and Yesenia gets on the telephone and says “Hello?” a couple of times. Vasquez tells Yesenia, “talk to (unintelligible) fucking do that to me and Josh.”
Vasquez tells the operator the direction in which appellant is headed. Vasquez is heard to repeatedly yell at Yesenia to come back. The operator asks Vasquez why he did not tell the operator that he saw appellant leaving. The operator describes the suspect’s vehicle and direction to the air unit. Vasquez appears to address Ruiz, saying, “You saw what he did to me (unintelligible). You can’t let him do that to me again.” The operator asks “where is [s]he at?” and Vasquez says, “She’s right here with me.” The operator states, “Send her over there.” Vasquez replies, “Ok.” The call ends with the operator broadcasting, “Units responding, female’s en route to meet... from a payphone at Ardmore park.”
C. Statements Regarding Emergency
1. Appellant’s Argument
Appellant first contends the trial court prejudicially erred by admitting the 911 call statements relating to an alleged emergency. According to appellant, the statements were not excited utterances because the confrontation between him and Vasquez was not so startling as to render Vasquez’s statements spontaneous and unreflecting. Moreover, Vasquez’s statements were untrustworthy because they contained numerous lies and were fashioned to trigger an armed response from police. The statements were also more prejudicial than probative under Evidence Code section 352, and they violated appellant’s right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Appellant adds that if this court should find this issue has been forfeited, his counsel was ineffective.
2. Relevant Authority
Inadmissible hearsay evidence is “evidence of a statement that was made other than by a witness while testifying at the hearing... that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) Subject to certain recognized exceptions, hearsay evidence is inadmissible at trial. (Ibid.) Pursuant to Evidence Code section 1240, evidence of a statement is not inadmissible hearsay if the statement purports to narrate, describe or explain a situation witnessed by the declarant, and the statement was made spontaneously while the declarant was under the stress of excitement caused by such perception.
To be admissible under this exception to the hearsay rule, “‘(1) there must be some occurrence startling enough to produce... nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’” (People v. Poggi (1988) 45 Cal.3d 306, 318, quoting from Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 468.) “Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the [declarant’s] reflective powers were still in abeyance.” (People v. Washington (1969) 71 Cal.2d 1170, 1176.)
The decision to admit evidence under Evidence Code section 1240 is reviewed for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236; People v. Poggi, supra, 45 Cal.3d at pp. 318-319; People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.) A trial court’s finding that a statement satisfies the requirements of the spontaneous declaration exception will not be disturbed unless the facts on which the trial court relied are not supported by a preponderance of the evidence. “The discretion of the trial court is at its broadest when it determines whether the nervous excitement still dominated and the reflective powers were still in abeyance.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590-591, citing People v. Poggi, supra, at pp. 319-320.)
The confrontation clause of the Sixth Amendment of the United States Constitution provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” (Crawford, supra, 541 U.S. at p. 42.) The confrontation clause has traditionally barred “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53-54.)
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 (Davis).) “The [Confrontation] Clause... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, at pp. 59-60, fn. 9; see also People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
3. Statements Regarding Emergency Properly Admitted
We agree with the trial court’s reasoning and conclude that the admission of Vasquez’s initial statements on the 911 call violated neither the hearsay rules nor the confrontation clause. As noted previously, whether the requirements of Evidence Code section 1240 are met is a question of fact largely within the discretion of the trial court, and “‘each fact pattern must be considered on its own merits....’” (People v. Riva (2003) 112 Cal.App.4th 981, 995; People v. Phillips, supra, 22 Cal.4th at p. 236; People v. Poggi, supra, 45 Cal.3d at pp. 318-319.) The “foundation, or preliminary fact [required to admit a spontaneous declaration], require[s] only proof by a preponderance of the evidence. [Citation.]” (People v. Anthony O. (1992) 5 Cal.App.4th 428, 433-434; People v. Gutierrez (2000) 78 Cal.App.4th 170, 177-178.)
By admitting the evidence, the trial court determined that Vasquez was in an excited state and called the 911 operator because of what he believed to be an emergency. Although appellant asserts Vasquez did not sound excited, there is a perceptible agitation in his voice. In any event, calmness does not necessarily indicate that a declarant is not operating under the stress of a perceived emergency. (People v. Jones (1984) 155 Cal.App.3d 653, 662.) Unlike appellant, we do not believe it is necessary to determine whether the source of the emergency for Vasquez was appellant’s act of pulling a gun on him or the fact that Ruiz was struggling with appellant. Both events occurred almost simultaneously and the entire scenario was sufficient stimulus for making a 911 call. Although Vasquez may have been “street-wise” it still would have been shocking to Vasquez to have appellant point a gun at him while he was holding his son in the doorway. (See People v. Riva, supra, 112 Cal.App.4th at p. 996 [“being shot at is an ‘occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting.’”].) It was clear that Vasquez ran when appellant pulled the gun on him and his son, and he therefore cannot have deliberately exaggerated the fight between appellant and Ruiz, as appellant asserts. He could only describe what he saw happening before he ran away—Ruiz wrestling with appellant over the gun. Vasquez could only believe the struggle to be ongoing.
As for Vasquez’s statements being untrustworthy, although Vasquez may have lied about Ruiz kicking appellant out, he may also have believed this was the case. Ruiz testified that she and Vasquez were trying to work things out and that she loved him. Vasquez also may have lied about appellant wearing a bulletproof vest in that particular encounter, but he apparently believed appellant wore such a vest and may have misunderstood the question. In any event, the relative trustworthiness of his statements goes to the weight they are accorded rather than to their admissibility. (People v. Riva, supra, 112 Cal.App.4th at p. 996.) Moreover, the fact that Vasquez did not wish to be known as the person who called 911 does not diminish the inference that he telephoned 911 because of what he perceived as an ongoing emergency. His fear for himself and his family was an extension of the fear he felt when threatened by appellant with a gun at Ruiz’s apartment.
In addition, Vasquez’s statements were clearly spontaneous and not made in response to questions by the 911 operator. “‘When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.]’” (People v. Brown (2003) 31 Cal.4th 518, 541; People v. Raley (1992) 2 Cal.4th 870, 892-893.) Under these circumstances, the evidence supported the trial court’s finding that the statements were made before the victim had a chance to reflect or contrive.
We also conclude the trial court properly admitted Vasquez’s statements under Evidence Code section 352. A trial court has broad discretion to weigh the probative value of evidence against its potential prejudicial impact. A trial court’s decision that the probative value of the evidence outweighs its prejudicial impact will not be disturbed on appeal unless the trial court exercised its discretion in “‘an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The evidence of appellant’s actions and Vasquez’s fear in the 911 call was highly probative on the issues of whether the murder was committed with premeditation and whether appellant’s claim of self-defense was credible. Contrasted with its high relevance, the evidence of the call was not unduly prejudicial. “It is important to keep in mind what the concept of ‘undue prejudice’ means in the context of section 352. ‘“Prejudice” as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice.... “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.] [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
In this case, where appellant admittedly shot and killed Vasquez, it cannot be said that the evidence that he previously brandished a firearm evoked an emotional bias against appellant, and it clearly was relevant to the issues at trial. Furthermore, appellant had the opportunity to counter the statements made during the call in cross-examination of Ruiz and through his own testimony.
Having determined that the statements regarding the ongoing emergency properly fell under the hearsay exception for spontaneous statements, we also conclude that there was no Crawford violation. As stated previously, “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S. at p. 822.)
“A 911 call,... and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” (Davis, supra, 547 U.S. at p. 827.) In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court derived several basic principles from Davis: “First,... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Cage, supra, at p. 984.)
Applying these principles to the instant case, it is clear that the statements at issue were nontestimonial and their introduction did not violate appellant’s right to confront witnesses. Vasquez made the call immediately after running from Ruiz’s apartment with his son. Viewed objectively, the circumstances of the 911 call show that, although Vasquez may not have been in a dangerous situation any longer, he had just been accosted with a gun and believed Ruiz might be in danger. Therefore, the primary purpose in making the call was to summon police assistance. It would be cynical indeed to assert that Vasquez was at that moment feigning his belief that he had been in danger and that Ruiz might still be at risk.
The 911 operator asked Vasquez questions, but the questions were merely intended to gather necessary information for the responders, i.e., if appellant was inside or outside, if he had a gun, the address where the incident occurred, and a description of appellant. The operator also asked Ruiz’s name and the caller’s name. Objectively viewed, these questions had the sole purpose of determining if police assistance was called for, who needed the assistance, and where the help was needed. There was none of the “formality and solemnity” characteristic of testimony given at trial. We believe the statements here were not given for a testimonial purpose, and it would be an overly broad application of the concept of testimonial statements to classify them as such. (See Cage, supra, 40 Cal.4th at p. 984, fn. 14 [“the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial,” but on whether statements were “made with some formality” and “for the primary purpose of establishing or proving facts for possible use in a criminal trial”].)
D. Statements Regarding Appellant’s Past Conduct
1. Appellant’s Argument
Appellant contends the trial court prejudicially erred in ruling that Vasquez’s statements about appellant’s past conduct, gang ties, and the alleged killing of a gang member were admissible as nonhearsay, state-of-mind evidence that was relevant to the issue of self-defense, to explain Vasquez’s subsequent conduct, and to show appellant’s motive. The trial court also erred when it ruled that Stephenson’s testimony regarding Vasquez’s statements was admissible to show Vasquez’s state of mind. Appellant contends these statements were also testimonial in violation of his right to confrontation as set out in Crawford. He asserts that “[t]he circumstances objectively indicate that the primary purpose for the volunteered statements about appellant’s alleged criminal activities was to establish or prove past events potentially relevant to later criminal prosecution.” Finally, he contends admission of the statements violated his right to due process and a fair trial.
2. Relevant Authority
We review the trial court’s hearsay ruling under the deferential abuse of discretion standard. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.)
A prerequisite to the exception to the hearsay rule contained in Evidence Code section 1250 is that the declarant’s mental state or conduct be factually relevant. (People v. Hernandez (2003) 30 Cal.4th 835, 872.) A victim’s out-of-court statements expressing fear of the defendant are admissible under Evidence Code section 1250 only when the victim’s conduct in conformity with that fear is in dispute. (People v. Ruiz (1988) 44 Cal.3d 589, 608.) It is not admissible to explain the defendant’s conduct or to prove guilt. (Id. at p. 609.)
Evidence Code section 1250 establishes an exception to the prohibition against hearsay evidence for the declarant’s state of mind, as follows: “(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” Evidence Code section 1252 provides that such evidence is nevertheless inadmissible if the statement was made under circumstances that indicate it is untrustworthy.
The comment by the Assembly Committee on the Judiciary to Evidence Code section 1250 states in part: “In light of the definition of ‘hearsay evidence’ in Section 1200, a distinction should be noted between the use of a declarant’s statements of his then existing mental state to prove such mental state and the use of a declarant’s statements of other facts as circumstantial evidence of his mental state. Under the Evidence Code, no hearsay problem is involved if the declarant’s statements are not being used to prove the truth of their contents but are being used as circumstantial evidence of the declarant’s mental state.” (Assem. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1250, p. 281.)
3. The Second Group of Statements At Issue
As noted, the trial court ruled that Vasquez’s remarks about appellant pulling a gun on him before and appellant killing an 18th Street gang member were relevant and admissible to show Vasquez’s state of mind on the morning he was killed and of appellant’s motive. In addition, Vasquez stated that appellant was a member of DIA, a tagger gang.
In his discussions, appellant adds to these grievances the fact that Ruiz’s friend Stephenson was allowed to testify that Vasquez told him that he and appellant were “getting into it.” Stephenson said that when he advised Vasquez to “beat him up or let it go” Vasquez backed away and said, “He pulled a gun on me.” Vasquez said his main concern was his son and he was going to stay away from appellant.
4. Statements Properly Admitted
We conclude that Vasquez’s statements regarding appellant’s prior conduct, his membership in DIA, and his alleged shooting of an 18th Street gang member were admissible and were not hearsay. These statements were not introduced to establish that appellant committed these acts, but rather to prove circumstantially that, because Vasquez feared for his life, he would not have lain in wait for appellant and aggressively confronted him with a screwdriver, causing appellant to shoot in self-defense. A statement that does not declare a mental state but is merely circumstantial evidence of that state of mind is not hearsay, since it is not received for the truth of the matter stated. Rather, whether the statement is true or not, the fact that the statement was made is relevant to determination of the declarant’s state of mind when such state of mind is at issue, as it was in this case. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) Such evidence does not run afoul of the hearsay rule, for “‘“no assertive or testimonial use is sought to be made of it.”’” (People v. Duran (1976) 16 Cal.3d 282, 295.)
The audiotape of Vasquez’s 911 call showed that Vasquez feared appellant because he knew appellant carried a gun and would not hesitate to pull it on him. Statements by a victim that indicate that victim’s fear of the defendant are admissible to prove the victim would not be the likely aggressor in a confrontation with the defendant. (See People v. Garcia (1986) 178 Cal.App.3d 814, 822.) Vasquez was shown to be trying to avoid appellant and would not have stalked him or lain in wait for him where Ruiz lived. Therefore, these portions of the recording clearly served the purpose of demonstrating Vasquez’s state of mind—they were relevant and were not hearsay.
In addition, the statements regarding DIA and the 18th Street incident showed that appellant had a motive for shooting Vasquez in addition to his jealousy over Ruiz. As Ruiz herself testified, appellant was angry at Vasquez for giving the 18th Street gang information about appellant and “snitching” on him. Therefore, the statements were not introduced for the truth of the matter asserted.
In any event, given the circumstances of this case, appellant suffered no undue prejudice from admission of the statements under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Ruiz also testified about appellant’s gang membership, her fear of getting shot, killed or hit by appellant, and appellant’s past misconduct, as did Ruiz’s friend, Maciel. Ruiz believed appellant when he joked that he was going to get rid of her if she cooperated with police. Thus, the statements were cumulative of other direct, admissible evidence concerning these matters. (People v. Anderson (1987) 43 Cal.3d 1104, 1129 [“if the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless”].) Although appellant asserts several times that this was a close case on the issue of intent, we believe the totality of the circumstances—appellant’s acts of driving up to Vasquez instead of avoiding him and then shooting him many times after he was lying on the ground—indicate otherwise. In sum, admission of the challenged statements was not unduly prejudicial, and the trial court also did not err in finding them more probative than prejudicial.
Furthermore, the trial court read an admonition to the jury prior to playing the audiotape of the 911 call, stating: “You are about to hear a recording of a 911 call in which the caller claims [appellant] had just pulled a gun on him. In addition, the caller accuses [appellant] of killing someone a month earlier. This evidence regarding a killing is not offered for the truth that such a crime occurred. It is offered only for the fact that the caller accused [appellant] of that crime. You cannot consider the accusation for the truth of what is alleged or as evidence that the defendant had a propensity to commit such a crime. The accusation by the caller may be false. In fact, [appellant] has not been charged with any crime relating to an earlier killing, if such killing occurred. The evidence can be considered by you only as it may relate to [appellant’s] motive in this case or as it may relate to the caller’s state of mind.”
“A clear limiting instruction can, in large part, dispel prejudicial misuse of [state of mind] evidence.” (People v. Ortiz, supra, 38 Cal.App.4th at p. 390.) The jury was also instructed that “certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” (CALCRIM No. 303.) These instructions detracted from any prejudice that admission of the statements may have caused, and they created an even greater imbalance between prejudice and probative value. We reject appellant’s claim that the instructions were inadequate.
Appellant also contends that this second category of statements made during the 911 call violated his right of confrontation under Crawford, and that if this court deems the issue forfeited, his counsel was ineffective. Counsel was not ineffective, since any statement admitted for some purpose “other than establishing the truth of the matter asserted” is admissible under the Sixth Amendment. (Crawford, supra, 541 U.S. at pp. 59–60, fn. 9; Tennessee v. Street (1985) 471 U.S. 409, 414.) The 911 call portions to which appellant objects were introduced for a nonhearsay purpose, which reinforces their nontestimonial nature.
Appellant additionally argues that the “forfeiture by wrongdoing” theory mentioned by the trial court is not an exception to the Sixth Amendment’s confrontation requirement without a showing that the defendant intended to prevent the witness from testifying. (Citing Giles v. California (2008) ___ U.S. ___ [128 S.Ct. 2678] [the theory of forfeiture by wrongdoing accepted by the California Supreme Court is not a founding-era exception to the confrontation right].) Having concluded that the statements were admitted for a nonhearsay purpose, we need not address the issue of forfeiture by wrongdoing.
Appellant also maintains that the admission of Vasquez’s statements denied appellant his right to due process and a fair trial because it created an undue risk that the jury would render a decision based on criminal propensity. Having determined that the evidence was more probative than prejudicial and that it had no tendency to evoke an emotional bias against appellant, we reject this claim.
Lastly, appellant argues that this was a close case. He asserts that the evidence supporting imperfect self-defense or a heat of passion killing was strong, while the evidence of premeditated murder was weak and dependent on the credibility of Ruiz, who was inconsistent and contradictory. He contends that, because Ruiz’s testimony and Vasquez’s statements bolstered each other, even if the jury found Ruiz’s credibility wanting, Vasquez’s statements portraying appellant as a cold-blooded killer made up for the shortfall. We disagree with appellant’s portrayal of the evidence. Ruiz was not inconsistent on the critical issues of the relationship between Vasquez and appellant or the relationship between herself and each of the two men. Nor was she inconsistent when describing appellant’s or Vasquez’s conduct, such as the fact that Vasquez never carried a gun and appellant always did. As we noted previously, we do not believe the evidence supporting imperfect self-defense or heat of passion was strong, given the circumstances of the shooting.
With respect to Stephenson’s testimony, we believe it was properly admitted under Evidence Code section 1250. The statements were relevant to the victim’s state of mind, showing that his intent was to avoid all contact with appellant. As the prosecutor noted, the defense attempted to insinuate that Vasquez was trying to intimidate appellant and was stalking appellant and Ruiz. In allowing the testimony, the trial court stated that the victim’s state of mind was clearly at issue based on the defense of self-defense that appellant was presenting. The statements conform to the requirements of Evidence Code section 1250, quoted ante, and were more probative than prejudicial. Vasquez’s statement to Stephenson about appellant’s past misconduct was not more inflammatory than appellant’s act of shooting Vasquez numerous times as he lay on the ground.
The trial court did not abuse its discretion, and appellant’s arguments are without merit.
II. Evidentiary Rulings Against Defense
A. Proceedings Below Regarding Admission of Stipulation and MySpace Page
Vasquez’s 911 call was played for the jury during Ruiz’s direct testimony. When defense counsel brought up the 911 call on cross-examination, he asked Ruiz if she was aware that Vasquez claimed appellant had killed someone from the 18th Street gang before she heard the recording of the call during trial. He asked her if the 18th Street gang was one of the most violent gangs in Los Angeles and how long did she think appellant would have lived if he had killed someone from that gang. The trial court sustained the prosecutor’s objection to the question as argumentative. Defense counsel asked Ruiz why Vasquez would make a claim like that, and if he intended to get rid of appellant by setting him up for being murdered by the 18th Street gang. Ruiz said he did not. Defense counsel asked Ruiz if Vasquez told her that he would do anything to get appellant away from her. When Ruiz had difficulty answering, defense counsel began asking questions about her manipulating both men.
After a recess, defense counsel asked Ruiz, “What do you think the effect of telling a false allegation to an 18th Street gang that [appellant] was somehow involved in the shooting of one of their members would be? What do you think the 18th Street gang would do to him?” The trial court sustained the prosecutor’s objection that the question assumed a fact not in evidence (that the allegation was false).
On redirect, the prosecutor asked Ruiz, “Now, also on cross-examination, the defense attorney asked you about the claim about the 18th Street killing. You were aware about the 18th Street killing in July of 2005, weren’t you?” Ruiz replied, “Yes.” The prosecutor continued, “And in fact, you knew this defendant had participated in it, didn’t you?” Defense counsel objected and the trial court sustained the objection. Defense counsel stated, “No facts in evidence and blatantly false and she knows it,” which prompted an admonishment to defense counsel from the trial court.
The prosecutor requested a sidebar, during which defense counsel repeated that the prosecutor was trying to put blatantly false information before the jury. The prosecutor argued that counsel had continually insinuated that the 18th Street killing claim was a false claim. The trial court said they would take it up later.
Before the sidebar on that issue, the prosecutor began asking Ruiz questions about appellant’s MySpace page, specifically the line stating appellant would like to meet “more fake teens so I could send them six feet.” Defense counsel objected and asked for a sidebar where he said his objection was based on relevance grounds. The trial court asked the prosecutor to state the relevance, and the prosecutor explained that “fake teen” was a rival gang member’s way of referring to members of the 18th Street gang. The prosecutor informed the trial court that she also wished to ask Ruiz about the line on the MySpace page that said, “How to kill 18’s by Sharky.” These lines were relevant because defense counsel repeatedly implied that Vasquez’s accusation was a false claim. The prosecutor believed she had to show it was not a false claim. The lines were circumstantial evidence of appellant’s motive, since counsel had implied Vasquez was affiliated with the 18th Street gang.
The trial court asked the prosecutor to be specific about what she believed had opened the door for the questions she was asking about the 18th Street gang killing. The prosecutor stated that it was defense counsel’s attempt to show that Vasquez set up appellant and that the accusation about the gang killing was totally fabricated by Vasquez for that purpose. The prosecutor wished to respond to the characterization of fabrication, since a shooting actually did take place, and it was circumstantial evidence of appellant’s motive. The prosecutor wanted to ask Ruiz if she knew if appellant was involved, and the prosecutor believed Ruiz knew. The trial court postponed its ruling until questioning of Ruiz was completed.
The trial court recessed to read the transcript of defense counsel’s cross-examination of Ruiz concerning the 18th Street shooting. Afterward, the trial court found that Ruiz’s knowledge of the shooting and whether Vasquez’s claim was false had been put in issue and the door had been opened. The trial court cited counsel’s questions about how long Ruiz thought appellant would be alive and whether Vasquez was setting up appellant and making a false claim to get him out of the way. The prosecutor would be permitted to ask if Vasquez’s claim about the 18th Street killing was false and if it was made in order to set up appellant. The prosecutor stated her questions would be limited to asking if the killing occurred and whether Ruiz knew if appellant was involved.
After a recess, the prosecutor told the trial court that she believed Ruiz did not wish to talk about her knowledge of the shooting, and it appeared Ruiz was afraid of incriminating herself. The prosecutor proposed a stipulation that there was an 18th Street killing and that Ruiz had knowledge that appellant was involved, which defense counsel refused. The prosecutor later proposed calling a gang expert who investigated the shooting to testify that a shooting took place between members of 18th Street and DIA and that one of the suspects was named Sharky.
The trial court then proposed a limited stipulation, and the parties wrangled over the language at length. When the jurors returned, the court read the agreed-upon stipulation and admonishment as follows: “The parties have stipulated that a shooting of an 18th Street gang member did occur on July 15, 2005. The issue of whether the defendant was involved is not an issue for you to decide. You may—the evidence of Mr. Vasquez’s allegation can be considered by you only as it may relate to defendant’s motive in this case or as it may reflect on Mr. Vasquez’s state of mind.”
B. Appellant’s Argument—Statements Regarding 18th Street Gang Member Killing
Appellant contends the trial court prejudicially erred in finding that defense counsel opened the door to the prosecution asking Ruiz questions about appellant’s actual involvement in the 18th Street gang killing. Appellant asserts that rebuttal evidence of this type must be specific and responsive to the evidence presented by the defense, and defense counsel had not elicited evidence as to whether Vasquez’s allegation was false or not. The trial court sustained the prosecutor’s objection to defense counsel’s question, and Ruiz did not answer. Although the prosecutor ultimately decided not to ask Ruiz about the incident because of Ruiz’s reluctance, appellant claims the trial court erred by eliciting a stipulation from the parties regarding the incident, which it read to the jury along with an admonishment.
1. Relevant Authority
The determination whether one party’s introduction of evidence “‘opened the door’” to rebuttal evidence is reviewed for an abuse of discretion and will not be disturbed on appeal in the absence of “‘palpable abuse.’” (People v. Hart (1999) 20 Cal.4th 546, 653.) A reviewing court does not reverse a judgment for error in the admission of evidence unless the evidence should have been excluded on the ground stated below, and the error resulted in a miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)
2. Stipulation Properly Admitted; No Crawford Violation
It is true that the implication that Vasquez lied when he spoke of a shooting of an 18th Street gang member was contained in a defense question to which an objection was sustained. The question was clearly argumentative, however, and the implication that there had been no shooting introduced a fact not in evidence. In a similar situation, a prosecutor was found to have committed misconduct by asking a question that assumed a fact not in evidence, even though defense counsel immediately objected to the question and a sidebar was held. (People v. Heldenburg (1990) 219 Cal.App.3d 468, 471-472.) The appellate court deemed the question prejudicial. (Id. at p. 472.) Given the relevance of Vasquez’s knowledge of the 18th Street shooting to appellant’s motive and Vasquez’s state of mind, we do not believe the trial court’s ruling constituted a palpable abuse of discretion. The trial court has discretion, both inherent and statutory, to control the trial proceedings in order to achieve the efficacious administration of justice. (People v. Gonzalez (2006) 38 Cal.4th 932, 951.)
In any event, the stipulation that was eventually accepted simply stated that a shooting took place. There is no bar to admitting evidence of other acts when they are relevant to prove some fact other than a disposition to commit such acts. (See People v. Thomas (1992) 2 Cal.4th 489, 519-520.) Here, there was no mention of appellant’s involvement, and the jury was cautioned not to consider or decide whether he was involved. Therefore, appellant suffered no undue prejudice from the reading of the stipulation.
No violation of appellant’s right to confront witnesses occurred by reading the stipulation either. Defense counsel agreed to the stipulation in lieu of having the prosecutor call an expert witness, whom he could have cross-examined, to testify that the shooting occurred. The stipulation contained no language stating or implying that defendant was involved in the 18th Street gang shooting or had been a suspect. Therefore, any error in allowing the stipulation was harmless under any standard.
C. Appellant’s Argument—MySpace Page
People’s exhibit 20, a printout of appellant’s MySpace page, contained references to putting 18th Street members six feet under and other references to killing “fake teens,” a code name for 18th Street gang members. Appellant contends these lines from the page were relevant only to prove the truth of Vasquez’s statement in the 911 call that appellant killed the 18th Street gang member and should have been inadmissible for this purpose, since Vasquez’s statement was offered as nonhearsay. Also, the entries were more prejudicial than probative, and no limiting instruction was given.
1. Questions Posed to Ruiz and Appellant Regarding The MySpace Page
After the sidebar discussed previously, the prosecutor asked Ruiz if the contents of People’s exhibit 20—the references to “Sharky 187 umKilla’s” interests and “how to kill fake teens” by Sharky Loks—were as they appeared when appellant showed her his page. Ruiz said they were. The prosecutor elicited that Sharky was a nickname of appellant’s. When asked if appellant filled in the entries himself, Ruiz said he did. No further questions were asked of Ruiz about the page.
The prosecutor asked appellant about the MySpace page during her cross-examination. When confronted with some of the entries about DIA and guns he admired, appellant said that a friend helped him build the page, and he did not know how to change it.
2. MySpace Page Properly Admitted
We believe the prosecutor’s questions to Ruiz were properly allowed, and the questions posed to appellant were proper cross-examination. Ruiz’s testimony was foundational and established that the contents of the MySpace page in the exhibit were the same as the page appellant had shown her. In other words, they had not been subsequently altered. The relevance of the page was impeachment of appellant’s testimony and prior statements that he was not a member of DIA and that he did not have a weapon. Appellant himself acknowledged he used the name Sharky. In any event, appellant acknowledged that the page and thus the nickname were his.
The evidence of the page was therefore highly probative on the issue of appellant’s credibility. The questions asked of Ruiz were merely foundational in effect. There was no undue prejudice from the introduction of the page, since appellant’s statements to police were impeached by himself when he acknowledged he did not tell the truth to police.
D. Prohibition of Impeachment Evidence Regarding Victim’s Prior Acts of Violence
1. Proceedings Below
Defense counsel asked Ruiz if crack cocaine affected Vasquez’s behavior. When she said, “no,” defense counsel asked if Vasquez stole from her, and she admitted that he did. Defense counsel remarked that this was a behavioral change. Defense counsel then asked if Vasquez became violent at times in his confrontations with her, and Ruiz said “not that I recall.” Defense counsel repeated the question with different phrasing, asking, “Did he ever use violence against you?” The prosecutor objected and requested a sidebar. At sidebar, defense counsel told the trial court that the prosecutor had acknowledged to him that Vasquez was once arrested on a domestic violence charge. The trial court told defense counsel that if he wanted to ask about violence of the victim and argue self-defense, it would allow inquiry about appellant’s violence toward Ruiz also. Defense counsel argued that his question was designed to elicit why Vasquez’s drug usage interfered with their relationship. He knew from experience that violence was “classically involved with drug addiction.”
The trial court reiterated that if the defense asked about Vasquez’s violence, the prosecution would be permitted to ask about appellant’s violence toward Ruiz. Because of this ruling, defense counsel did not ask about Vasquez’s violence.
2. Appellant’s Argument
Appellant argues that the trial court’s ruling resulted in Maciel’s testimony about Vasquez’s lack of violence being unimpeached. In addition, the prosecutor was later permitted to impeach Lopez’s testimony that her problems with appellant were financial by asking about a domestic violence incident between Lopez and appellant, over defense objection.
3. Ruling Correct
Given defense counsel’s stated reasons for the inquiry, the trial court ruled correctly when defense counsel attempted to ask Ruiz about a domestic violence incident with Vasquez. The question was not relevant to defense counsel’s stated purpose. As the trial court noted, if its true relevance was the self-defense theory, the prosecutor would be entitled to discuss appellant’s violence toward Ruiz as well.
Mention of the domestic violence incident between Lopez and appellant arose under different circumstances at trial. The trial court properly allowed impeachment of Lopez when she testified on appellant’s behalf and claimed she and appellant separated due to financial problems only. The trial court has broad discretion to admit or exclude impeachment evidence. (See People v. Gurule (2002) 28 Cal.4th 557, 619.) Its discretion will not be disturbed, unless there is a “showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The evidence in question had a “tendency in reason to prove or disprove the truthfulness of [her] testimony at the hearing,” by establishing the “nonexistence of [a] fact testified to by [her]” (that her problems with appellant were purely financial), which is always relevant. (Evid. Code,§ 780, subd, (i); People v. Rodriguez, supra, at p. 9.) The trial court did not abuse its discretion.
With respect to Maciel’s testimony, the record shows the prosecutor asked Maciel her opinion regarding the nature of Ruiz’s problems with appellant. Maciel volunteered a comparison of Vasquez and appellant and stated that Vasquez might argue with Ruiz but would not hurt her. Appellant, on the other hand, looked as if he might be capable of killing somebody. The prosecutor next asked if the problem between appellant and Ruiz was “of a more physically threatening nature,” and defense counsel objected on the grounds that it called for a conclusion and hearsay. The trial court overruled the objection and told Maciel that she could answer yes or no. Maciel said, “Yes.” Given the fact that Ruiz herself testified that she was afraid of appellant and his associates and that he threatened her, Maciel’s testimony about her opinion of appellant was merely cumulative and not unduly prejudicial.
In sum, we find no abuse of discretion and no prejudice under any standard from admission of the evidence to which appellant objects. Admission of this evidence did not deny appellant due process or a fair trial.
III. Prosecutorial Misconduct
A. Appellant’s Argument
Appellant contends the prosecution committed prejudicial misconduct by making disparaging personal attacks on defense witness Lopez and by badgering her. Appellant also asserts that the prosecutor disparaged defense counsel and did so in a manner that was tantamount to vouching for Ruiz’s credibility.
B. Relevant Authority
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “[W]e ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
The general rule requiring assignment of misconduct and a request for jury admonishment does not apply if a defendant’s objection or request for admonition would have been futile or would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) It also does not apply when the trial court promptly overrules an objection, resulting in the defendant having no opportunity to request an admonition. (Ibid.) Even if a defendant shows that prosecutorial misconduct occurred, reversal is not required unless the defendant can demonstrate that a result more favorable to him would have occurred absent the misconduct or with a curative admonition. (People v. Arias (1996) 13 Cal.4th 92, 161.)
C. Alleged Personal Attacks on Lopez
Appellant first complains about the wording of a prosecutorial objection during Lopez’s direct examination by defense counsel. Lopez was recounting the incident where she caught Ruiz touching appellant in a sexual manner while Ruiz was visiting Lopez’s and appellant’s home with Vasquez. Defense counsel asked if Ruiz had brought her child that night. He then asked if there was anything about the child that attracted Lopez’s attention. Lopez replied, “Yeah. The kid was filthy, his diaper.” The prosecutor objected, stating, “Oh, come on. Excuse me, your honor. Objection, relevance.” The trial court sustained the objection.
Defense counsel made no objection on the ground of prosecutorial misconduct with respect to the prosecutor’s remark. Even if this issue were not forfeited, however, we believe the prosecutor rightly objected to this attempt to denigrate Ruiz as a mother, since it was clearly not relevant. The comment of “Oh, come on,” may have been unnecessary, but it did not form part of an egregious pattern of conduct and it did not render the trial fundamentally unfair. Nor was it a reprehensible method employed to deceive the jury.
Appellant also complains that the prosecutor began Lopez’s cross-examination by verifying Lopez’s cell phone number. Next, the prosecutor read an address and asked what it was. Lopez herself objected to “say[ing] that out loud.” Lopez said she feared for her safety. In a sidebar, defense counsel said that Lopez was fearful of Vasquez’s family and acquaintances and had asked for a guard to escort her from the courthouse. The prosecutor explained that she asked the question because her investigator tried to contact Lopez many times by leaving messages on her cell phone and cards at her address and she never responded. Lopez denied receiving the cards. The trial court told the prosecutor to begin by asking about the cards left at Lopez’s home.
During the ensuing questioning about the investigator’s attempts to contact Lopez and the efforts he made, the prosecutor asked Lopez to listen to the question and answer only the question despite Lopez’s desire to volunteer information. When Lopez added superfluous comments to her answers despite the admonition, the prosecutor twice thanked her for volunteering information. Defense counsel objected that the prosecutor was badgering the witness. Lopez continued to stray from answering the questions, and when asked about her domestic violence complaint against appellant, Lopez continually injected information sympathetic to appellant. For example, when the prosecutor asked Lopez if she drove directly to the Rampart police station from her home to report the incident, Lopez replied, “Not directly. I drove around. I felt saddened because of his accident. He felt crippled and disabled for life.” The prosecutor said, “Your Honor, the things she keeps adding is ridiculous. I ask she be admonished to answer the questions.” The trial court stated to Lopez, “That wasn’t responsive. If the question asks for yes or no answer, just answer yes or no.”
We believe the prosecutor was entitled to feel some exasperation at Lopez’s continual refusal to merely answer the question. Lopez persisted in injecting self-serving information about herself and her government job in order to excuse her failure to respond to the prosecutor’s investigator. She also took every opportunity to supply sympathetic information about appellant that had no relation to the question. The trial court of its own volition twice asked Lopez to simply answer the questions that were asked of her. In response to defense counsel’s claims of badgering, the trial court stated it had not seen any badgering. Although the prosecutor’s language contained a hint of irony at times, there was no egregious pattern of misconduct, and it hardly rendered appellant’s trial fundamentally unfair.
D. Alleged Attacks on Defense Counsel
Appellant complains that the prosecutor disparaged defense counsel when she questioned Ruiz and David, appellant’s brother, about Ruiz’s prior conversations with defense counsel. The prosecutor sought permission for this line of questioning after defense counsel criticized Ruiz on the stand about her long pauses before answering questions.
The prosecutor told the trial court that, during the recess, she had asked Ruiz about her pauses and discovered that Ruiz did not understand why defense counsel was “accusing her or making it sound like she was lying when she had come to his office and told him herself what she had seen.” The trial court ruled that Ruiz would be allowed to say she told the defense attorney what happened.
The prosecutor proceeded to ask Ruiz if she paused before answering defense counsel’s questions because she felt that she had already told defense counsel the truth, and Ruiz replied, “Yes.” The prosecutor then asked, “And in his questions, when he insinuates that you are not telling the truth, do you feel in any way duped by him?” The trial court sustained defense counsel’s objection on the ground it was argumentative and leading. The prosecutor then asked Ruiz, “Given the fact that you told [defense counsel] what you saw and he is nonetheless cross-examining you here in court, how does that make you feel?” After the trial court overruled the defense relevancy objection, Ruiz said, “It makes me feel like he knows already what I told him, that’s what really happened, so it makes me feel uncomfortable.”
We do not agree with appellant that the only purpose of the prosecutor’s questions was to suggest defense counsel had tried to deceive the jury or that the questions were tantamount to vouching for Ruiz’s credibility. The questions were meant only to attempt to explain Ruiz’s demeanor on the stand, which defense counsel had criticized in front of the jury. It is not likely the jury members believed defense counsel had tried to deceive them in some way. The prosecutor did not state or imply that counsel had “duped” the jury. Nor did the prosecutor attempt to bolster Ruiz’s credibility by referring to evidence outside the record or by “offering the impression that she has taken steps to assure a witness’s truthfulness at trial.” (People v. Frye, supra, 18 Cal.4th at p. 971.) Even if Ruiz said she told defense counsel the truth and that it matched what she said on the stand, it does not follow that the jury was required to believe Ruiz spoke the truth on either occasion. Moreover, the trial court sustained counsel’s objection to the “duped” language, and the jury was instructed that, if the trial court sustained an objection, the jury was to ignore the question. (CALCRIM No. 104.) We presume the jury followed these cautionary instructions. (People v. Smithey (1999) 20 Cal.4th 936, 961.) Viewing the record as a whole, we see no prejudice to appellant from these questions.
David testified that he was at the meeting with Ruiz in defense counsel’s office. David said Ruiz changed her story a couple of times at that meeting and then said she changed it a lot of times—so many times that he did not know what to believe. In order to impeach this assertion, the prosecutor asked David if defense counsel was paying close attention to what Ruiz said at the meeting. The prosecutor then asked “And so certainly if Maggie told a lot of different stories during that conversation, then you would presume that an experienced attorney like [defense counsel] would have kind of nailed her on all these different versions?” After David interrupted the prosecutor, she repeated the question and the trial court sustained a defense objection. At a sidebar, the trial court told the prosecutor that defense counsel’s tactics and the witness’s ideas about them were not relevant. The prosecutor said she understood.
First, as stated previously, because the trial court sustained an objection, asking the question did not prejudice defense counsel and appellant. Furthermore, the jury would most likely have interpreted the questions as an impeachment of David’s testimony that Ruiz told many versions of her story rather than as a disparagement of defense counsel’s tactics.
We conclude that none of the instances of which appellant complains rises to the level of prosecutorial misconduct. The incidents did not constitute an egregious pattern of conduct that rendered the trial fundamentally unfair in denial of appellant’s federal constitutional right to due process of law. (See People v. Samayoa, supra, 15 Cal.4th at p. 841.) Nor did the prosecutor’s conduct constitute a deceptive or reprehensible method to persuade the jury, in violation of state law. (Ibid.)
IV. Defense Counsel’s Performance
A. Appellant’s Argument
Appellant contends that trial counsel was ineffective if this court deems any of his issues were forfeited for failure to object or to properly raise them below. He also argues that his counsel failed to request proper limiting instructions for numerous kinds of highly prejudicial evidence. Counsel also failed to object to prejudicial hearsay by Ruiz that appellant caused Vasquez to become addicted to drugs. Because this was a close case, trial counsel’s ineffective assistance prejudiced appellant and requires reversal under any standard.
B. Relevant Authority
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland).) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694.) “In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny.” (People v. Ledesma (1987) 43 Cal.3d 171, 216.)
C. No Ineffective Assistance Shown
Because we have addressed all of appellant’s issues, he cannot complain of ineffective assistance due to forfeiture of issues. Appellant also argues, however, that counsel was ineffective for failing to request limiting instructions on evidence that showed “appellant was a gang member, a drug dealer, that he committed prior acts of criminal misconduct against Vasquez by threatening him with a gun, slapped his ex-girlfriend when she came home late, glorified murder, and called his firearms his ‘heroes.’” Appellant complains that the jury was allowed to consider all of this evidence as proof of appellant’s bad character and criminal propensity.
The record shows that defense counsel vociferously objected to the trial court about admission of all of the evidence appellant cites. Each time there was lengthy argument, and the trial court gave a considered ruling about what it would and would not allow. In some cases the trial court deemed a limiting instruction was necessary and in others it did not. A limiting instruction cannot be given for every item of evidence that has a tendency to prove an issue in the case and that the defense considers damaging. Since appellant admitted the shooting, the principal issue was self-defense versus intentional murder. Direct evidence of intent is rare, and intent is most often shown by circumstantial evidence of all the facts and circumstances surrounding the crime. (People v. Lewis (2001) 25 Cal.4th 610, 643; People v. Lashley (1991) 1 Cal.App.4th 938, 946.) Much of the evidence of which appellant complains falls in this category, and we have concluded that each item of evidence was properly admitted under the Evidence Code and, where applicable, Crawford.
Appellant also argues that counsel failed to object to one sentence in Ruiz’s testimony regarding how she discovered that Vasquez was obtaining drugs from appellant. Ruiz stated, “When [Vasquez] actually came to me and told me what really happened because I asked him how he ended up falling against the steps, and he told me [appellant] was parading it before me.” Assuming trial counsel should have objected on hearsay grounds, the evidence that appellant was selling or giving drugs to Vasquez was mentioned several times in Ruiz’s testimony. Therefore, this additional answer that included Vasquez’s alleged words was not prejudicial, and counsel was not ineffective for failing to object.
V. Cumulative Error
Appellant contends the cumulative effect of the errors he alleges was an increase in the level of prejudice. He asserts that reversal is required even if this court finds that the errors committed by the trial court were not individually sufficient to establish the required prejudice for reversal.
We find no merit in appellant’s cumulative error argument. Our review of the record assures us that appellant received due process and a fair trial. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006.) Whether considered individually or for their cumulative effect, none of the errors alleged affected the trial process, deprived appellant of his constitutional rights, or otherwise accrued to his detriment. (Ibid.; People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo (1993) 6 Cal.4th 585, 637.) There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. As the California Supreme Court has stated, “A defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.)
VI. Administration Fee
Appellant contends that the trial court erred when it tacked on a 10 percent administration fee to the restitution order under section 1203.1, subdivision (l), and the fee must be stricken. In addition, the fee does not reflect the oral pronouncement of judgment.
The trial court ordered appellant to make restitution in the amount of $4,999.77 to the State Victim Compensation Board, plus interest of 10 percent from the date of sentencing. The trial court also ordered a restitution fine of $200 and a parole revocation restitution fine of $200. The trial court imposed a court security fee of $20.
The minute order states that the trial court ordered appellant to make restitution pursuant to section 1202.4, subdivision (f) in the sum of $4,999.77, plus 10 percent interest, plus an administrative fee at 10 percent of the restitution owed pursuant to section 1203.1, subdivision (l)payable to the State Victim Compensation Board to reimburse payments made to the victim from the restitution fund. The abstract of judgment also includes an “administrative fee at 10 percent of the restitution owed” pursuant to section 1203.1, subdivision (l) payable to the State Victim Compensation Board to reimburse payments to the victim from the restitution fund.
These documents cite the wrong section for imposition of the administrative fee. Section 1203.1 provides for the suspension of the imposition or execution of sentences and the granting of probation. (§ 1203.1, subd. (a).) It also regulates restitution in probationary sentences. (§ 1203.1, subd. (b).) Since appellant did not receive a probationary sentence, this section does not apply.
Section 1202.4 provides for victim restitution and for an administration fee in conjunction with that restitution. (§ 1202.4, subd. (f).) The statute provides that, when the victim has received assistance from the Victim Compensation Program pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code, the restitution amount is to be deposited to the Restitution Fund. (§ 1202.4, subd. (f)(2).) The record shows that Vasquez’s family was compensated for his funeral expenses, and the restitution order of $4,999.77 was intended to reimburse the Victim Compensation Fund.
Section 2085.5 governs the deduction of administrative fees from a prisoner’s wages and trust account for restitution fines and orders. Section 2085.5, subdivision (b) provides that whenever “a prisoner owes a restitution order imposed pursuant to... subdivision (f) of Section 1202.4,” the Department of Corrections and Rehabilitation must deduct up to a maximum of 50 percent from the prisoner’s wages and trust account. The payment shall be made to the Restitution Fund to the extent the victim has received assistance from the program. In the next subsection, the statute provides that “the secretary shall deduct and retain... an administrative fee that totals 10 percent of any amount” sent to the California Victim Compensation Board pursuant to subdivision (b). (§ 2085.5, subd. (c).) (Italics added.) The administrative fee money is to be deposited in an account for reimbursing administrative and support costs of the restitution program of the Department of Corrections and Rehabilitation. (§ 2085.5, subd. (c).)
Section 3097, subdivision (g) of the California Code of Regulations, provides that the restitution order must be satisfied before any restitution fines. (Cal. Code Regs., tit. 15, § 3097.) Section 3097, subdivision (c) of the California Code of Regulations provides: “Effective January 1, 2007 and thereafter, when an inmate owes any obligation pursuant to a direct order of restitution imposed by a court, the department shall deduct 50 percent or the balance owing, whichever is less, from the inmate’s wages and trust account deposits regardless of the source of such income, subject to the exemptions enumerated in subsection (j). In addition, an administrative fee of 10 percent of the deduction shall be deducted to reimburse the department for its administrative costs, for a maximum deduction of 55 percent.” (Cal. Code Regs., tit. 15, § 3097, subd. (c).)
Thus, there is statutory authority for collecting the administrative fee that must accompany appellant’s restitution order. (§§ 1202.4, subd. (c), 2085.5, subd. (c), Cal. Code Regs., tit. 15, § 3097, subd. (c).) The trial court, however, failed to mention the administrative fee when rendering judgment, and it is the oral pronouncement of judgment that controls. (People v. Mesa (1975) 14 Cal.3d 466, 471.) In this case, however, the administrative fee is a mandatory fee. The trial court’s failure to impose it results in an unauthorized sentence that may be corrected on appeal, since the error may be corrected without reference to factual issues or the need to make further findings. (See People v. Smith (2001) 24 Cal.4th 849, 852-853.)
We conclude the judgment must be modified to add the administrative fee. In this case, the fee, despite not being part of the oral pronouncement of judgment, is presumably being collected. The error that requires correction amounts to a clerical error in that the incorrect statute for collecting the fee was cited on the abstract of judgment and the minute order. We will therefore correct the abstract of judgment and minute order, but no further action need be taken.
VII. Typographical Error in Abstract of Judgment and Minute Order
Appellant points out that the minute order of December 27, 2007, and the abstract of judgment contain the same typographical error. The gun enhancement is recorded as a violation of section “12022.56” instead of “12022.53.” We shall order correction of the error.
DISPOSITION
The judgment is modified to impose a 10 percent administrative fee on appellant’s restitution order pursuant to sections 1202.4 and 2085.5 of the Penal Code. In all other respects the judgment is affirmed. The superior court is ordered to amend the abstract of judgment and minute order of December 27, 2007, to reflect that the firearm enhancement was imposed pursuant to section 12022.53, subdivision (d) of the Penal Code rather than section 12022.56. The same minute order and abstract of judgment are to be corrected to reflect that an administrative fee at 10 percent of the restitution owed is imposed pursuant to section 1202.4 and section 2085.5 of the Penal Code.
We concur: BOREN, P. J., DOI TODD, J.