Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA286650, Stephen A. Marcus, Judge.
Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Jesus Meda appeals from the judgment entered following his conviction by a jury for first degree murder (Pen. Code, § 187, subd. (a)) and attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a)) with special findings he had personally and intentionally discharged a firearm proximately causing death (§ 12022.53, subd. (d)). Meda argues his trial counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel by failing to move to exclude or limit gang expert testimony. We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting at the Floresta Bar
Most of the essential facts concerning the fatal shooting of Aniceto Falcon and the attempted shooting of Jose Rodriguez (known as “Mariachi”) on March 20, 2005 at the Floresta Bar in East Los Angeles are undisputed. Meda arrived at the bar between 5:00 p.m. and 6:00 p.m. with a man known to the bartender as “Big Solo.” Big Solo’s brother, William Hernandez, known as “L’il Solo,” was at the bar when Meda and Big Solo arrived. Hernandez was a member of the Michigan Crime Force street gang. At one time, Meda was also a member of the Michigan Crime Force gang. Meda spoke with Hernandez when he arrived at the bar and conversed with him periodically throughout the evening. The Floresta Bar was in Michigan Crime Force territory; there was gang graffiti inside and outside the bar.
According to the bartender, Meda appeared to have been drinking before he arrived at the Floresta Bar. Over the course of the evening -- approximately six hours -- Meda had an additional seven or eight glasses of beer. The bartender described Meda as seeming very depressed; he spoke to her about the recent death of a friend. At one point Meda asked the bartender to take and hide his handgun for him because he did not want to carry it. She responded she could not do that and admonished Meda he should not be in the bar with a gun.
While at the bar Meda spoke at times with both Hernandez and Rodriguez. Ultimately, an argument developed between Rodriguez, on the one hand, and Meda and Hernandez, on the other hand. The bartender told Rodriguez to leave the other two men alone. However, the argument continued. Rodriguez then said something that caused Hernandez to become visibly angry. The bartender saw Hernandez take off his shirt, display his gang tattoos to Rodriguez and say something about respecting his barrio. Hernandez’s actions caused Rodriguez to become quiet. Falcon, who was sitting at the bar on the other side of Rodriguez from where Meda and Hernandez were sitting, told the bartender he would buy a round of beer for everyone and encouraged Rodriguez, Hernandez and Meda to calm down.
Rodriguez and Meda argued once again a few minutes later. Meda then got up from his chair and stepped backward toward the wall. He pulled his gun from his waistband, pointed it at Rodriguez and fired. As he was shooting, Meda moved the gun in a sweeping motion from left to right. Apparently two shots were fired. Falcon, who was sitting at the counter speaking to the bartender, was hit and fell to the ground. The bartender saw Rodriguez holding his shoulder, but Rodriguez told her he was all right. Most of the bar’s customers ran out of the bar. Meda stood still until Hernandez told him to leave. Hernandez left immediately after Meda. The bartender called the police.
2. The Dispute over Meda’s Motive and Mental State
Although there was no dispute Meda intended to shoot Rodriguez and, while attempting to do so, killed Falcon instead, the reason for the shooting and Meda’s mental state at the time were vigorously contested. The prosecutor’s theory was Meda remained a member of the Michigan Crime Force gang; during the on-going argument Rodriguez, who was not affiliated with any gang, first showed disrespect for Hernandez, also a gang member, or for the gang itself, and then somehow to Meda; and Meda retaliated by shooting at Rodriguez. Consistent with this theory, the information not only charged Meda with the first degree murder of Falcon (§ 187, subd. (a)) and the attempted willful, deliberate and premeditated murder of Rodriguez (§§ 664, 187, subd. (a)), with special allegations Meda had personally and intentionally discharged a firearm proximately causing Falcon’s death (§ 12022.53, subd. (d)), but also specially alleged pursuant to section 186.22, subd. (b)(1)(A) both offenses were committed for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.
Meda’s counsel conceded Meda had killed Falcon but asserted Meda was intoxicated at the time of the shooting and had been sufficiently provoked that he was guilty only of voluntary manslaughter and attempted voluntary manslaughter. Meda’s counsel disputed the relevance of the gang evidence and described the incident as a personal matter.
The direct evidence on this critical issue -- the nature of the argument between Meda and Rodriguez that precipitated the shooting -- was limited. The bartender, the principal witness at trial and the only person who acknowledged seeing the shooting itself, testified she could not hear what was said in the arguments between Rodriguez, on the one hand, and Meda and Hernandez, on the other hand, but could tell the participants were angry by their tone of voice. The bartender described the men’s voices as loud but not screaming.
Rodriguez testified he had had so much to drink that evening he blacked out and only recalled leaving the bar after hearing gunshots. Rodriguez acknowledged he can become belligerent when he drinks to excess, but insisted he did not remember arguing with anyone at the bar that evening; in fact, he did not remember anything that happened between his arrival at the bar and hearing the gunshots while sitting at the bar.
Efigenia Cornejo, Hernandez’s girlfriend, was at the bar for approximately one hour that evening. She confirmed that Hernandez was affiliated with the Michigan Crime Force gang and testified both she and Hernandez were very intoxicated that evening. According to Cornejo, the shooting was preceded by a discussion, rather than an argument; Hernandez was not involved in the discussion. (Cornejo said she and Hernandez were arguing with each other, and no one else was really talking to them.) However, Cornejo also testified on cross-examination there was some sort of an argument shortly before the shooting and the bartender had directed Hernandez’s attention to it as if she expected him to intervene.
Meda did not testify or offer any other evidence, other than through cross-examination of the People’s witnesses, in his own defense.
3. The Gang Evidence and the Instruction Limiting Its Use
a. The preliminary hearing
At the preliminary hearing the bartender and the People’s gang expert, Los Angeles Police Officer Mario Morales, were the only two witnesses. The bartender testified the Floresta Bar is located in Michigan Crime Force gang territory; gang members received free beer and acted as they wished inside the bar by threatening the bar’s owner. The bartender identified Hernandez (L’il Solo) as a Michigan Crime Force member and his brother, Big Solo, as a gang member, as well. Big Solo brought Meda into the bar and left shortly thereafter. Meda and Hernandez spent the afternoon together. She described the confrontation between Hernandez and Rodriguez (Mariachi) that preceded the shooting, including Hernandez’s removal of his shirt to display his gang tattoos with the admonition to Rodriguez to “have a little bit of respect in his barrio.”
Officer Morales confirmed Hernandez was a current Michigan Crime Force gang member. Morales opined Meda was also a current Michigan Crime Force gang member, although he conceded Meda had no gang tattoos. Morales testified Meda “has been a documented gang member since 1994. He’s admitted to several officers who worked the Hollenbeck C.R.A.S.H., as well as the Hollenbeck gang unit. He’s been documented in department resources and photographed and kept with department resources.” Morales had verified Meda’s gang membership through Los Angeles Police Department gang identification cards (“I-cards”); there were three I-cards pertaining to Meda, showing a total of 15 to 20 law enforcement contacts. Although testifying Meda’s contacts occurred “from February 1994 to the present,” Morales did not recall the date of any contact after February 1994, nor did he recall the number of times or the last time Meda had admitted his gang membership. Morales also explained Meda’s association with Hernandez and his presence at the Floresta Bar in Michigan Crime Force territory contributed to his opinion Meda was a current Michigan Crime Force gang member.
Given a hypothetical scenario that incorporated the undisputed facts concerning the fatal shooting of Falcon, as well as the Morales’s own conclusions about Meda’s gang membership, Morales opined the crime -- shooting at Rodriguez -- was committed for the benefit of the Michigan Crime Force street gang because one of the gang members, if not both -- that is, Hernandez and Meda -- had been disrespected by Rodriguez in a location they considered under their control. In a sense, Morales stated, they were defending their territory.
At the conclusion of the preliminary hearing Meda’s appointed counsel moved to dismiss the gang allegation for insufficiency of the evidence, arguing the dispute between Rodriguez and Meda was personal. The magistrate denied the motion, explaining, “This is an incident which took place in a location which is basically claimed by this particular gang as their own bar through intimidation of the owner. [Meda] has admitted membership in that gang. He is there with other admitted members of that gang. They have their gang graffiti all over the interior of the location. It’s clearly a situation where they intend to intimidate and to control the entire environment . . . .”
Meda replaced his appointed counsel with private counsel following the preliminary hearing. His new defense counsel did not thereafter move to dismiss the information’s gang allegations pursuant to section 995. On appeal Meda identifies that omission as one instance of his counsel’s ineffective assistance.
b. The gang expert’s trial testimony
At trial Officer Morales described gang culture, explaining what gangs do and what they care about; he stated Michigan Crime Force was a known street gang that had existed since the 1980s. According to Morales, at the time of trial the gang had approximately 100 documented members. The Floresta Bar is within the gang’s territory.
Morales repeated the opinion he had offered at the preliminary hearing that Meda was a current member of Michigan Crime Force, based on his review of police contact records dating from 1994. During some of Meda’s contacts with law enforcement he had admitted his membership in the Michigan Crime Force gang. On cross-examination Morales conceded he had never had a field contact with Meda and acknowledged he was unaware Meda had moved out of the gang’s territory and had lived in Compton since 1996. Morales again opined, based on a hypothetical scenario patterned after the evidence introduced at trial, Meda’s act of shooting at Rodriguez following the arguments in the bar was in association with, or for the benefit of, the Michigan Crime Force gang.
On appeal Meda argues his trial counsel provided ineffective assistance because he failed to object to the inadequate factual foundation for Officer Morales’s testimony concerning his current gang membership and, alternatively, because he failed to move to bifurcate trial of the gang enhancement allegations from the trial of the murder and attempted murder charges.
c. The court’s limiting instruction
The trial court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1403, without objection, on the limited purposes for which the jury could consider the evidence of gang activity and cautioned against considering the evidence as indicating Meda was a person of bad character or had a disposition to commit the crimes charged: “You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements/ OR [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit the crime.”
Meda asserts his counsel’s failure to object to the portions of the approved jury instruction identifying motive and “witness credibility” as permissible bases for considering the gang evidence was an additional instance of ineffective assistance.
4. The Verdict and Sentencing
After deliberating for two days and hearing a read-back of the testimony of the bartender, the jury convicted Meda of first degree murder and attempted willful, deliberate and premeditated murder and found true the related gun-use enhancements. However, the jury found not true the special allegations the two offenses had been committed for the benefit of a criminal street gang.
The trial court sentenced Meda to an aggregate state prison term of 90 years to life: 25 years to life for first degree murder, plus 25 years to life for the gun-use enhancement under section 12022.53, subdivision (d), and a consecutive term of 15 years to life for attempted willful, deliberate and premeditated murder, plus 25 years to life for the gun-use enhancement on that count.
DISCUSSION
1. The Record Does Not Support a Claim of Ineffective Assistance of Counsel
a. Governing law
A defendant claiming ineffective assistance of counsel in violation of his or her Sixth Amendment right to counsel must show not only that defense counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms but also that it is reasonably probable, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Jones (1996) 13 Cal.4th 552, 561.) “‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might be considered sound trial strategy’” under the circumstances. (Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [“[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected’” (second set of brackets in original)].)
In considering a claim of ineffective assistance of counsel, it is not necessary to determine “‘whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a “reasonable probability” that absent the errors the result would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
b. Defense counsel may have made a reasonable tactical decision not to challenge the gang expert testimony
Meda argues his retained counsel’s performance was constitutionally deficient because he failed to object to the use of gang expert testimony at trial: Specifically, he did not challenge the sufficiency of the preliminary hearing evidence under section 995, object to the expert’s testimony for lack of an adequate factual foundation or move to bifurcate trial of the gang enhancement allegations. (Counsel did object to Rodriguez’s testimony that Hernandez had on an earlier occasion identified himself to Rodriguez as a member of the Michigan Crime Force gang as irrelevant. The court overruled the objection on the ground, “clearly L’il Solo’s position in all this is very critical.”)
Although recognizing the general presumption on direct appeal that the decision not to challenge certain evidence must be considered part of defense counsel’s trial strategy, Meda argues in this case there could be no valid tactical reason for counsel to have allowed the damaging gang evidence to be admitted at trial. Without suggesting the proffered evidence was, in fact, objectionable, we have no difficulty positing a reasonable basis for defense counsel’s decision to preserve his attack for cross-examination of Officer Morales, rather than seek to exclude the expert testimony entirely.
Even if the gang enhancement allegations had been dismissed before trial, at least some of the gang-related evidence would have been admissible on the issues of motive and intent. (See, e.g., People v. Williams, supra, 16 Cal.4th at p. 193 [“[g]ang evidence in this case was relevant to both motive and identity”]; People v. Albarran (2007) 149 Cal.App.4th 214, 223 [“gang evidence may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect”].) The trial court’s overruling of the objection to Rodriguez’s testimony that Hernandez had identified himself as a member of the Michigan Crime Force gang on an earlier occasion illustrates the relevance of the gang evidence not only to the gang enhancement allegations but also to proof of the underlying charges.
The prosecutor’s first degree murder theory was Meda shot at Rodriguez, not in an emotional reaction to a personal insult, but as a premeditated response to Rodriguez’s disrespectful conduct toward the Michigan Crime Force gang and its members. Defense counsel, in contrast, asserted the argument in the bar and resulting shooting was a private matter between the two men -- Meda was provoked by something Rodriguez had said and reacted under the influence of intense emotion (and alcohol) that obscured his judgment. If the jury considered only these two alternatives -- a deliberate, calculated, gang-related shooting or the rash firing of a gun during a bar fight -- Meda’s counsel could have reasonably believed that by discrediting the gang expert’s testimony during trial -- which he plainly did, as evidenced by the jury’s failure to find the gang enhancement allegations true -- he would also effectively undermine the prosecution’s explanation for the shooting, leading the jury to find Meda guilty only on the manslaughter and attempted manslaughter charges. At the very least, absent any information in the record suggesting this was not defense counsel’s purpose in electing to allow the gang expert to testify, we necessarily reject Meda’s claims of ineffective assistance as to these points. (See People v. Lucas, supra, 12 Cal.4th at p. 442; People v. Mitcham, supra, 1 Cal.4th at p. 1058; see generally People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [“claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding”].)
With respect to the trial court’s use of Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1403 concerning the limited purposes for which the gang evidence could be used, because the court’s instruction was entirely proper, Meda has failed to establish his counsel’s acquiescence constituted ineffective assistance -- that is, that reasonably competent counsel would have objected to the instruction and the objection would have been sustained. (See People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make meritless objection does not constitute ineffective assistance of counsel]; People v. Felix (1994) 23 Cal.App.4th 1385-, 1394-1395 [same]; see also People v. Grant (1988) 45 Cal.3d 829, 864-865 [counsel’s failure to move for severance not ineffective assistance if motion would not have been successful].)
Meda focuses on only two portions of CALCRIM No. 1403, conceding the jury was properly instructed the evidence could be used to determine the truth of the gang-enhancement allegations themselves. First, he argues permitting use of the gang evidence purportedly to show motive in this case was, in reality, an improper attempt to establish Meda’s predisposition to engage in acts of violence. As Meda concedes, however, evidence of a defendant’s gang affiliation and related gang evidence are admissible when relevant to prove motive. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Here, the prosecution’s theory was Meda intentionally and with deliberation shot at Rodriguez because Rodriguez had somehow disrespected the Michigan Crime Force street gang to which Meda belonged. Indeed, in closing argument the prosecutor argued, “[W]hat we have here is a gang member, in front of his gang member friends, in a gang hang-out, basically being disrespected by a drunken bar patron and he did not like that . . . . [¶] . . . [¶] So this can’t be allowed . . ., and [Meda] knew that, and that’s what he was thinking about when he’s sitting there, ‘This can’t happen. Not in our bar.’ [¶] . . . [¶] We have this motive here. It’s not just an instance of anger.” It is difficult to imagine a more straightforward use of gang evidence to establish motive. There is simply no support in the record for Meda’s suggestion the prosecutor’s references to the gang evidence to establish the motive for the shooting or the trial court’s instruction permitting the evidence to be used for that specific purpose could be understood by the jury as allowing it to consider Meda’s bad character in determining whether he was guilty of the charged offenses. To the contrary, the court expressly instructed the jury it could not be used for that purpose. (See People v. Yeoman (2003) 31 Cal.4th 93, 139 [jury presumed to follow court’s limiting instructions].) Accordingly, an objection to the instruction on that basis would not have been successful.
Although questioning its effectiveness, Meda does not challenge the final sentence of the instruction warning the jury not to conclude from the gang evidence “that the defendant is a person of bad character or that he has a disposition to commit the crime.” The jury was also instructed, pursuant to CALCRIM No. 200, “Do not let bias, sympathy, prejudice, or public opinion influence your decision.”
Meda also argues the court improperly instructed the jury it could consider the gang evidence in evaluating witness credibility. Once again, however, had his counsel objected to the approved jury instruction on that basis, the objection would have been rejected. (See People v. Alvarez (2001) 88 Cal.App.4th 1110, 1112 [“trial court did not abuse its discretion in allowing the gang evidence because it is relevant to motive and witness credibility”].) Rodriguez initially told police he had not been at the Floresta Bar on the night Falcon was shot and expressed reluctance to provide information about the incident; he also expressed unease about testifying in court because of fear of retaliation. Such testimony a witness fears gang retaliation is properly considered in evaluating his or her credibility. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) Meda cannot base an ineffective-assistance-of-counsel claim on the failure to make a meritless objection. (See People v. Thomas, supra, 2 Cal.4th at p. 531.)
c. Meda has not established his counsel’s failure to challenge the gang expert testimony was prejudicial
Meda’s ineffective-assistance-of-counsel claim also fails because, on this record, Meda cannot demonstrate a reasonable probability he would have achieved a more favorable result at trial had his counsel successfully challenged the gang expert testimony. (See People v. Williams, supra, 16 Cal.4th at p. 215; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Notwithstanding the gang expert’s testimony, the jury rejected the gang enhancement allegations, declining to find Meda shot at Rodriguez (and killed Falcon) to benefit or assist the Michigan Gang Force street gang. The jury’s willingness to find those allegations not true belies Meda’s argument the People’s evidence of his gang affiliation, and thus, purportedly, of his bad character, improperly contributed to the jury’s conclusion he had not acted in the heat of passion upon sufficient provocation when he fired his handgun at Rodriguez. Moreover, as discussed, the jury was expressly instructed not to conclude from the gang evidence “that the defendant is a person of bad character or that he has a disposition to commit the crime.” (CALCRIM No. 1403.) We, of course, must presume the jury understood and followed the court’s limiting instruction. (People v. Yeoman, supra, 31 Cal.4th at p. 139 [“we and others have described the presumption that jurors understand and follow instructions as ‘[t]he crucial assumption underlying our constitutional system of trial by jury’”].)
2. The Documents Reflecting Imposition of Meda’s Restitution Fines and Direct Victim Restitution Must Be Corrected
In addition to sentencing Meda to serve an aggregate state prison term of 90 years to life, at the sentencing hearing the trial court ordered Meda to pay a restitution fine of $8,800 pursuant to section 1202.4, subdivision (b), of which $5,000 was directed to go to the California Victim Compensation and Government Claims Board (VCGCB) for burial benefits advanced to the murder victim’s family; a parole revocation restitution fine of $8,800 pursuant to section 1202.45, which was stayed; and direct victim restitution of $6,795.97 pursuant to section 1202.4, subdivision (f). (The murder victim’s family incurred burial and related expenses of $11,795.97; the VCGCB advanced $5,000 of that sum.)
Meda argues on appeal -- and the Attorney General concedes -- the trial court should have added the $5,000 reimbursement to the VCGCB to the amount of direct restitution ordered pursuant to section 1202.4, subdivision (f), not to the restitution fine imposed under section 1202.4, subdivision (b). That is, the section 1202.4, subdivision (b), fine was properly set at $3,800, and subdivision (f) direct restitution at $11,795.97. As a consequence, the section 1202.45 parole revocation restitution fine, which must be in the same amount as the section 1202.4, subdivision (b), fine, should also be set at $3,800, not $8,800.
Although the court’s oral pronouncement of sentence was incorrect, the minute order entered following the sentencing hearing specifies the correct amounts under section 1202.4, subdivisions (b) and (f); however, it omits any mention of the parole revocation restitution fine. Similarly, the abstract of judgment includes the correct amounts for the restitution fine and direct victim restitution, including reimbursement of $5,000 to the VCGCB pursuant to section 1202.4, subdivision (f), but also fails to reflect imposition of the mandatory parole revocation restitution fine. Accordingly, we order the abstract of judgment corrected to include imposition and suspension pursuant to section 1202.45 of a $3,800 parole revocation restitution fine. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment that does not accurately reflect judgment of sentencing court is clerical error that may be corrected by appellate court on its own motion or upon application of parties].)
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered corrected to reflect imposition and suspension of a $3,800 parole revocation restitution fine pursuant to section 1202.45. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: WOODS, J., ZELON, J.