Opinion
F071856
11-01-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ADAM QUEVEDO, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F13901422)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant David Adam Quevedo was charged with the murder of Omar Silva (Pen. Code, § 187, subd. (a) [count 1]) and possession of a firearm by a convicted felon (§ 29800, subd. (a)(1) [count 2]). In connection with count 1, the information alleged that defendant was an active participant in a criminal street gang and intentionally killed Omar to further its activities (§ 190.2, subd. (a)(22)); committed the crime for the benefit of, at the direction of, or in association with the gang (§ 186.22, subd. (b)(1)); and personally and intentionally discharged a firearm and proximately caused Omar's death (§ 12022.53, subd. (d)). In connection with count 2, the information alleged that he served a prior prison term (§ 667.5, subd. (b)). Defendant subsequently admitted the prior prison term allegation.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
To avoid confusion, we refer to individuals who share the same surname by their given names.
A jury trial commenced on May 15, 2015. Twelve days later, the jury found defendant guilty of first degree murder on count 1, found him guilty as charged on count 2, and found true the special circumstance and enhancement allegations. On June 24, 2015, defendant was sentenced to life without the possibility of parole on count 1, plus 25 years to life for the firearm enhancement, and a concurrent three years on count 2. The trial court stayed the punishment for the gang enhancement and struck the punishment for the prior prison term enhancement.
Defendant makes several contentions on appeal. First, an instruction on causation was ambiguous. Second, defense counsel rendered ineffective assistance by failing to object to the gang expert's testimony. Third, admission into evidence of defendant's incriminating responses to jail classification questionnaires violated Miranda. Fourth, the trial court erroneously imposed a parole revocation fine. For the reasons set forth below, we agree that the court erroneously imposed the parole revocation fine but affirm the judgment in all other respects.
Miranda v. Arizona (1966) 384 U.S. 436.
STATEMENT OF FACTS
I. Prosecution's Case-In-Chief
A. The Shooting
On February 3, 2013, Omar and his family hosted a Super Bowl watch party at their home in Fresno. Shortly after the football game ended, Omar's wife, Sandra Silva, and their 14-year-old daughter, A.S., heard their dog barking while they were in the master bedroom. Sandra looked through the window and saw defendant and Anthony Coronado attacking Omar's brother, Arnold Silva, in the middle of the street. Sandra alerted Omar and party guest, Javan Lujan. The two men ran outside and broke up the fight. Defendant, who had both a letter "B" tattoo and a scratch on his face, repeatedly said, "Bond Street" and either " 'I'll be back' " or " 'We'll be back.' "
In accordance with our Supreme Court's policy regarding protective nondisclosure, we identify the minor by her initials.
Approximately an hour and a half later, A.S. answered a knock on the front door. She encountered defendant, who asked, " 'Where is the guy that I was fighting with?' " From the master bedroom, Omar asked A.S., " 'Who are you talking to?' " A.S. replied, " 'It's that guy.' " Omar approached the door and said, " 'What's up?' " Defendant then fired multiple shots. Omar was struck three times in the abdomen. Law enforcement arrived at the Silva residence at or around 9:40 p.m. Omar, who was coherent, told officers that the assailant was a member of the Bond Street Bulldogs and gave a physical description that matched defendant.
B. Injuries and Medical Treatment
Omar was transported to Community Regional Medical Center. Prior to surgery, he informed the medical staff that he did not want a blood transfusion, likely due to his religious beliefs. Dr. Victor McCray, the trauma surgeon, performed the operation. He observed two holes in the interior vena cava, the result of a single "through-and-through" bullet. Dr. McCray could not suture these holes because of heavy bleeding in the area and had to ligate "the entire vena cava" to stop the bleeding. By the end of the procedure, Omar was acidotic, he "lost about 80 percent of his blood volume," and his hemoglobin level dropped from "10 or above" to "3." Thereafter, he died.
Omar was a Jehovah's Witness.
At trial, Dr. McCray testified that a gunshot wound in the inferior vena cava is "very severe" because the inferior vena cava "is the main vein that runs in the abdomen" and "carries the entire blood volume" "in high quantities at very high speed" "to the heart from the rest of the body." He "would have ... giv[en] blood products once [he] identified that the inferior vena cava was injured" had Omar consented. Nonetheless, citing medical literature and his experience as a surgeon, Dr. McCray noted that the mortality rate for the type of injury sustained by Omar, even with a blood transfusion, is between 40 and 60 percent. Dr. McCray opined that the gunshot wound in the inferior vena cava was a substantial factor in Omar's death and there "was no guarantee" that a blood transfusion would have prevented the fatality.
Dr. Michael Chambliss, a pathologist employed by the Fresno County Sheriff-Coroner's Office, performed the autopsy. He concluded that Omar "died from injuries to the small and large intestine and the inferior vena cava due to a gunshot wound in the abdomen." At trial, Dr. Chambliss testified that while a blood transfusion could have potentially saved Omar, he "ha[d] seen cases" "[a]ll the time" "where there are injuries to the inferior vena cava, patients have received blood transfusions, and they died anyway."
C. Gang Testimony
Fresno Police Department Detective Manuel Romero, a qualified gang expert, testified that the Bulldogs are a criminal street gang in Fresno with thousands of members. The gang, which is loosely structured, consists of six sets: Eastside, Northside, Westside, Calwa, Parkside, and County. Each set is further divided into subsets that are classified by street names. For instance, Eastside's subsets include Bond Street, College Street, Lewis Street, and McKenzie Street. Because the Bulldogs lack a central authority, members wear red and/or Fresno State Bulldogs apparel and sport tattoos of bulldogs, dog paws, and the name of the gang, set, and/or subset and/or abbreviations thereof, e.g., "BDS" (for Bulldogs), "EFS" (for Eastside Fresno), and "B" and "BSD" (for Bond Street Dogs) to identify themselves.
Bond Street Bulldogs primarily engage in murders, robberies, assaults with a deadly weapon, and illegal possession of firearms. Between March 29, 2008, and February 24, 2012, validated subset members have been convicted of murder, robbery, possession of a firearm by a convicted felon, assault with a deadly weapon, carjacking, and active gang participation. Bond Street Bulldogs consider other Bulldogs as their allies and consider Norteños and the Sureños as their rivals.
Detective Romero opined that defendant was a Bond Street Bulldog at the time of the shooting. Defendant's body was covered with numerous tattoos, including a letter "B" on the right cheek; a dog paw on the neck; a bulldog below the word "Fresno" on the torso; a bulldog below the phrase "Bond Street" on the left shoulder; a dog paw and the initials "BSD" and EFS" on the hands; and the words "Bull" and "Dogs" on the right and left biceps, respectively. After he was arrested, in response to a jail classification questionnaire, he admitted that he was a member of the Bond Street subset. Moreover, between 2007 and 2010, in response to four other jail classification questionnaires, defendant admitted that he was a member of the Eastside set and/or the Bond Street subset. A review of relevant police reports and field interview cards also showed: (1) on November 4, 2012, defendant participated in a "gang jump-in" alongside six males who had "Bond Street" tattoos; (2) on August 27, 2012, during a traffic stop, defendant and a companion admitted that they were Bond Street Bulldogs; (3) on December 15, 2012, defendant wore gang-related clothing; (4) on February 18, 2009, during a traffic stop, defendant admitted that he was an Eastside Fresno Bulldog; wore gang-related clothing; and possessed a cell phone containing images of other gang members displaying gang signs with the captions "Bond Dogs" and "Bondsteroz"; (5) on August 29, 2006, defendant admitted that he was an Eastside Fresno Bulldog; wore gang-related clothing; and possessed a red permanent marker for graffitiing; (6) on July 12, 2006, defendant admitted that he was an Eastside Fresno Bulldog and was in the company of another gang member; (7) on October 1, 2004, defendant instigated a fight with a Norteño; (8) in January 2004, defendant was seen with a can of spray paint next to "NK" and "SK" graffiti; admitted that he was an Eastside Fresno Bulldog; and wore gang-related clothing; and (9) on March 5, 2003, defendant admitted that he was an Eastside Fresno Bulldog.
Detective Romero explained the process of "being jumped in": "[S]everal members of the gang will jump in or initiate the individual who wants to become part of that gang.... It could be ... 20 seconds to 30 seconds, or whatever they choose. So that's one way to get put onto the gang ...."
Detective Romero testified that "NK" stands for "Norteño killer" and "SK" stands for "scrap killer." "Scrap" is a derogatory term for a Sureño.
Detective Romero opined that defendant killed Omar for the benefit of the Bulldogs. When Omar broke up the fight between defendant and Arnold, he disrespected both defendant and the gang. If defendant did not retaliate against Omar, especially after saying, " 'Bond Street' " and " 'I'll be back,' " he and the gang would appear "weak and vulnerable." In addition, by committing murder, defendant "instill[ed] fear within the community," discouraging cooperation with law enforcement and facilitating the gang's activities.
II. Defense's Case-In-Chief
Dr. David Posey, a certified forensic pathologist and medical examiner, reviewed Omar's medical history and the autopsy report. He agreed that the cause of death was "[g]unshot wounds and homicide." However, Dr. Posey opined that Omar would have had a "90 percent survival rate" if he had received a blood transfusion. Although the trauma surgeon successfully ligated the inferior vena cava, a transfusion was necessary to replace the large volume of blood lost, oxygenate the brain, and ward off hypovolemic shock.
DISCUSSION
I. Defendant Forfeited His Argument Concerning CALCRIM No. 620 Because Defense Counsel Did Not Object to That Instruction
A. Background
At the beginning of pretrial proceedings, the court and counsel discussed the relevance of Omar's refusal to accept a blood transfusion. The court detailed:
"Well, I'm just going to read to you from [CALCRIM No.] 520 ... which is the one that talks about causation in the context of murder.... [I]t may or may not apply to a case, based on the given circumstances[,] but, essentially, ... it says as follows: An act causes death ... if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
"It then goes on to say that there may be more than one cause of death. An act causes death only if it's a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.
"As I understand this case, ... the People's evidence is going to support the idea that ... defendant here shot [Omar] several times .... [W]hen he went to the hospital[, he] ultimately ... refused a transfusion and died of his injuries.
"So it would seem that it would be relevant to hear from the defense side about his refusal to accept the transfusion; for the jury to make a decision about ... what caused his death and whether there was more than one factor causing the death and whether it was substantial or trivial. And that instruction would allow for the jury to make that call.
"I'm not saying I'm going to exclude any other pinpoint instructions that might be more direct. But it seems to me that it answers the question about whether the idea that the victim made this choice is admissible for the jury's consideration on cause of death."
Both the prosecution and the defense requested CALCRIM Nos. 520 (First or Second Degree Murder With Malice Aforethought), 620 (Causation: Special Issues), and 3149 (Personally Used Firearm: Intentional Discharge Causing Injury or Death). The court agreed to give these instructions.
After close of evidence, the court instructed the jury, in pertinent part:
"[CALCRIM No. 520:] ... [D]efendant is charged in Count 1 with murder in violation of ... [s]ection 187. To prove that ... defendant is guilty of this crime[,] the People must prove that ... defendant committed an act that caused the death of another person .... [¶] ... [¶]
"An act causes death if the death is the direct, natural and probable consequence of the act and the death would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is natural and probable consider all the circumstances established by the evidence.
"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor[;] however[,] it does not need to be the only factor that causes the death. [¶] ... [¶]
"[CALCRIM No. 620:] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor[;] however[,] it does not need to be the only factor that causes the death. The failure of Omar ... to use reasonable care may have contributed to the death, but if ... defendant's act was a substantial factor causing death, then ... defendant is legally responsible for the death even though Omar ... may have failed to use reasonable care. If you have a reasonable doubt whether ... defendant's act caused the death, you must find him not guilty.
"[CALCRIM No. 3149:] If you find ... defendant guilty of the crime charged in Count 1 ..., you must then decide whether the People have proved the additional allegation that ... defendant personally and intentionally discharged a firearm during that crime causing death. To prove this allegation[,] the People must prove that ... defendant personally discharged a firearm during the commission of that crime ... and ... defendant's act caused a death of a person who was not an accomplice to the crime. [¶] ... [¶]
"An act causes death if the death is the direct, natural and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable consider all the circumstances established by the evidence.
"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor[;] however[,] it does not need to be the only factor that causes the death."
In his summation, the prosecutor argued:
"Just want to talk about ... the fact that [Omar] refused a blood transfusion. Somewhat of an interesting issue in this case, but please keep in mind, as the judge has instructed ..., an act causes death if the death is the direct, natural, probable consequence of the act and the death would not have happened without the act. Omar ... would not have died without ... defendant shooting him four times, one time in the inferior vena cava, he would not have died but for those gunshot wounds, transfusion or not. This is the law. There may be more than one cause of death. We will concede his chances of survival may have been greater had he taken that blood transfusion, but he didn't. He simply didn't. And even Dr. Posey said a blood transfusion was no guarantee he would not have died. No guarantee. Dr. Chambliss put his survival rate somewhere around 50 percent. Dr. McCray, the trauma surgeon, said somewhere between 40 and 60 percent had he received the blood transfusion. But the fact remains [Omar] dies. And Dr. Posey this morning agrees the manner of death was homicide, the cause of death was due to a gunshot wound, which is exactly what Dr. Chambliss concluded as well.
"Again, the instructions go a little bit further. [A]n act causes injury or death only if it is a substantial factor. It must be more than trivial or remote. Again, a gunshot wound, I think I would suggest to you that all three doctors made it very clear that a gunshot wound to the inferior vena cava is a very severe, life-threatening injury that is not a trivial or remote injury. [D]efendant's act does not need to be the only factor causing death. That's the bottom line. That's the law. Again, this is the instruction the judge has read to you. If you have any questions about that[,] refer to the instruction as the judge gave it to you.
"Again, 50 percent survival even with transfusion. [O]nly time [Dr. Chambliss] saw an injury just to the inferior vena cava that person died as well ...."
In his summation, defense counsel argued:
"[Y]ou've heard [CALCRIM No.] 620 .... [W]hat you heard, I believe it was last week with Dr. McCray, is despite all the testimony, what he ended his testimony was with yes, the refusal to do the blood transfusion, refusal to get blood products[,] the refusal to get clotting products that could have prevented the loss of blood was a substantial factor of [Omar]'s death.
"[I]f you have a reasonable doubt whether ... defendant's act caused the death, you must find him not guilty.
"Yes. The autopsy, agreed upon by Dr. Posey as well, was the gunshot wound led to his death[;] however, what's also key here, and again, that's your job, is that he died presumably because of that refusal for the medical treatment, the refusal for the blood transfusion. 40 to 60 percent by the prosecutor, ... 90 percent by Dr. Posey, in terms of survival rate. Regardless, it's still a substantial factor as to why [Omar] did pass away. So that is something for you to consider. Not the only thing for you to consider.... You need to look at that because there is evidence in this case that [Omar] ... would have survived had he undergone proper procedures."
B. Analysis
On appeal, defendant argues:
"The problem with CALCRIM No. 620, as given, is that it does not refer to a victim's refusal to accept required medical treatment as causing death and include this as a cause of death, or a substantial cause of death, which the jury could then have viewed as the only substantial cause of death."
"In a criminal case, a trial court has a duty to instruct the jury on ' " ' "the general principles of law relevant to the issues raised by the evidence" ' " ' " (People v. Estrada (1995) 11 Cal.4th 568, 574, italics added), including "all of the elements of a charged offense" (People v. Cummings (1993) 4 Cal.4th 1233, 1311, disapproved on another ground in People v. Merritt (2017) 2 Cal.5th 819, 831). "If [a] defendant believe[s] the instructions [a]re incomplete or need[] elaboration, it [i]s his obligation to request additional or clarifying instructions. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 514; accord, People v. Alvarez (1996) 14 Cal.4th 155, 222.) "His failure to do so waives the claim ...." (People v. Dennis, supra, at p. 514; accord, People v. Alvarez, supra, at p. 222.) Here, the record demonstrates that defense counsel did not object to the language of CALCRIM No. 620; in fact, he requested the standard pattern instruction. Thus, defendant forfeited the issue on appeal.
Even assuming, arguendo, that the court should have given the clarifying instruction, it is not reasonably probable that a result more favorable to defendant would have been reached because the jury had been apprised of the parties' respective positions on causation—particularly with regard to Omar's refusal to accept a blood transfusion—during closing arguments. (See People v. Corning (1983) 146 Cal.App.3d 83, 89, citing People v. Watson (1956) 46 Cal.2d 818, 836.) --------
Alternatively, defendant contends that defense counsel rendered ineffective assistance by failing to request clarification or amplification of the causation instruction.
To establish ineffective assistance of counsel, a defendant must show (1) defense counsel did not provide reasonably effective assistance in view of prevailing professional norms; and (2) defense counsel's deficient performance was prejudicial. (See People v. Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) "It is ... particularly difficult to establish ineffective assistance of counsel on direct appeal, where we are limited to evaluating the appellate record. If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation. [Citations.]" (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
The record before us " 'does not illuminate the basis for the attorney's challenged acts or omissions ....' " (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Defense counsel was never asked to explain why he did not request a clarifying or amplifying the instruction. Also, we cannot find that "there simply can be no satisfactory explanation" (People v. Scott, supra, 15 Cal.4th at p. 1212) for his refrainment. Relevant authorities have established that an instruction is improperly argumentative if it invites the jury to draw inferences favorable to one of the parties from specified items of evidence on a disputed question of fact. (See, e.g., People v. Santana (2013) 56 Cal.4th 999, 1012; People v. Homick (2012) 55 Cal.4th 816, 890; People v. Mincey (1992) 2 Cal.4th 408, 437; People v. Wright (1988) 45 Cal.3d 1126, 1135.) Defense counsel may well have believed that a request to tailor CALCRIM No. 620 in the manner prescribed by defendant would have been denied. Accordingly, we reject defendant's claim.
II. Defendant's Claim That Defense Counsel Rendered Ineffective Assistance by Failing to Object to Detective Romero's Gang Testimony Must be Rejected Because the Appellate Record Does Not Shed Light on Why Defense Counsel Did Not Object
In his brief, defendant specifies that "the gang allegations should be reversed because defense counsel rendered ineffective assistance by not objecting to the testimony of the gang expert, which was based upon and relayed tes[t]imonial hearsay, in violation of [defendant]'s Sixth and Fourteenth Amendment right of confrontation." (Some capitalization omitted.) In view of the applicable legal standard (see ante, at pp. 12-13), we reject this claim. The record before us " 'does not illuminate the basis for the attorney's challenged acts or omissions ....' " (People v. Silvey, supra, 58 Cal.App.4th at p. 1329.) Defense counsel was never asked to explain why he did not object. Also, we cannot find that "there simply can be no satisfactory explanation" (People v. Scott, supra, 15 Cal.4th at p. 1212) for his refrainment. At the time of trial, pertinent case law permitted expert testimony based on material that is not admitted into evidence, e.g., inadmissible hearsay, so long as that material is of a type that is reasonably relied upon by experts in the same field. (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 608; People v. Gardeley (1996) 14 Cal.4th 605, 618-619; People v. Montiel (1993) 5 Cal.4th 877, 918; People v. Ainsworth (1988) 45 Cal.3d 984, 1012.) While our Supreme Court overruled these cases a full year later (see People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13), "[a]s a matter of common sense, an attorney is not required to raise an argument based on an as-yet-to-be-filed opinion. [Citation.]" (In re Richardson (2011) 196 Cal.App.4th 647, 661; see also In re Valdez (2010) 49 Cal.4th 715, 729-730 [" 'A fair assessment of attorney performance requires that every effort be made ... to evaluate the [challenged] conduct from counsel's perspective at the time.' "].)
III. Admission into Evidence of Defendant's Incriminating Responses to a Jail Classification Questionnaire Did Not Amount to Prejudicial Error
Next, defendant argues that his non-Mirandized responses to jail classification questionnaires were inadmissible in view of People v. Elizalde (2015) 61 Cal.4th 523. Assuming, arguendo, that these responses were inadmissible, "[t]he erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. [Citations.]" (People v. Avitia (2005) 127 Cal.App.4th 185, 194, citing Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878.) Even without defendant's incriminating custodial booking statements, the evidence overwhelmingly established that defendant was a member of the Bond Street Bulldogs at the time of the shooting. (See People v. Elizalde, supra, at p. 542 ["The erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18...."].) On the night of February 3, 2013, after Omar and Lujan broke up the fight between Arnold and defendant/Coronado, defendant conspicuously uttered, "Bond Street." Police reports and field interview cards showed that defendant had admitted his membership in the Bond Street subset and Eastside Fresno set; associated with other Bond Street Bulldogs; participated in a "gang jump-in"; donned gang-related clothing; possessed images of other gang members displaying gang signs with the captions "Bond Dogs" and "Bondsteroz"; instigated an altercation with a rival Norteño; and painted anti-Norteño and anti-Sureño graffiti. Furthermore, his body was covered with tattoos of bulldogs below the word "Fresno" or the phrase "Bond Street"; the words "Bull" and "Dogs"; dog paws; the letter "B" and the acronym "BSD," both of which stand for Bond Street Dogs; and the acronym "EFS," which stands for Eastside Fresno. (See ante, at pp. 5-7.)
IV. The Trial Court Erroneously Imposed a Parole Revocation Fine
"In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of [s]ection 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of [s]ection 1202.4." (§ 1202.45, subd. (a).)
Here, the court ordered defendant to pay a $10,000 restitution fine and a $10,000 parole revocation fine. Because defendant's sentence did not include a period of parole, however, we find—and the Attorney General concedes—that the parole revocation fine was unauthorized. (People v. McWhorter (2009) 47 Cal.4th 318, 380; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.)
DISPOSITION
The trial court shall prepare an amended abstract of judgment striking the parole revocation fine and transmit certified copies thereof to the appropriate authorities. In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.