Opinion
E071464
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CIENFUEGOS VALADEZ, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1407905) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed with directions. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Anthony Cienfuegos Valadez guilty of first degree murder. (Pen. Code, § 187, subd. (a).) The jury found true the allegations that: (1) the murder was committed to benefit a criminal street gang (§ 186.22, subd. (b)); (2) at the time of the murder, defendant was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)); (3) the murder was deliberate and premeditated; (4) the victim was murdered due to the victim's race, color, religion, or country of origin (§ 190.2, subd. (a)(16)); and (5) defendant was a principle in the killing, and one of the principles personally discharged a firearm during the murder (§ 12022.53, subds. (d)&(e)(1)). The abstract of judgment reflects the trial court sentenced defendant to prison for a determinate term of 15 years plus a consecutive term of life without the possibility of parole.
All subsequent statutory references will be to the Penal Code unless otherwise indicated. --------
Defendant raises five issues on appeal. First, defendant contends his conviction must be changed from first degree murder to second degree murder because the jury did not find the murder was willful or first degree murder. Second, defendant asserts the trial court erred by excluding an accomplice's hearsay statement because the statement fell within the exception for a declaration against the declarant's penal interest. Third, defendant contends the exclusion of the accomplice's hearsay statement violated defendant's right of due process and right to present a defense. Fourth, defendant asserts the abstract of judgment incorrectly indicates that a 15-year determinate sentence was imposed. Fifth, defendant contends the parole revocation fine is unauthorized. We strike the fine but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Dana Parker (the victim) was an associate of the 1200 Blocc Crips, which is an African-American street gang located in Riverside. The victim's mother and grandmother lived in an apartment on Cranford Avenue, in Riverside. The victim argued with his mother and grandmother, and they "kicked him out. So he went to live in his car." The victim parked his car near his family's apartment and lived in his car for approximately two months.
Defendant and his stepbrother, Michael Barbarin (Brother), were members of the Eastside Riva, which is a Hispanic street gang located in Riverside. The Eastside Riva and 1200 Blocc Crips are rival gangs with "dozens of homicides against each other."
On May 31, 2014, at 3:37 p.m., defendant and Brother drove to Cranford Avenue in a green Ford Explorer. Defendant and Brother were in the driver and front passenger seats of the Explorer. The victim was sleeping or "rollin' a blunt" in his car. The Explorer stopped in the middle of the street, next to the victim's car, for a matter of seconds. The passenger in the Explorer exited the vehicle and shot the victim four times, killing him. The Explorer then "took off fast."
DISCUSSION
A. FIRST DEGREE FINDING
1. PROCEDURAL HISTORY
a. Jury Instruction
The trial court instructed the jury with CALCRIM No. 521 as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"The requirements for second degree murder based on express or implied malice are explained in CALCRIM No. 520, First or Second Degree Murder with Malice Aforethought.
"The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder."
b. Finding
The jury's finding reads, "As to [defendant], as charged under count 1 of the information, we, the jury in the above-entitled action, find that the murder was deliberate and premeditated."
2. ANALYSIS
Defendant contends his murder conviction must be modified from first degree to second degree because the jury did not find the killing was willful and did not find the killing was first degree murder.
"Whenever a defendant is convicted of a crime . . . which is distinguished into degrees, the jury . . . must find the degree of the crime . . . of which he is guilty. Upon the failure of the jury . . . to so determine, the degree of the crime . . . of which the defendant is guilty, [the conviction] shall be deemed to be of the lesser degree." (§ 1157.) "Section 1157's requirement that the degree be specified 'may be satisfied in two ways: (1) by a finding that specifically refers to the degree of the crime by its statutory numerical designation; and (2) by findings that encompass the statutory factual predicates of the degree of the crime.' " (People v. Jones (2014) 230 Cal.App.4th 373, 377.) In other words, it is sufficient for a first degree murder finding if the jury finds the killing was willful, deliberate, and premeditated—the jury need not return a finding that expressly states "first degree." (People v. San Nicolas (2004) 34 Cal.4th 614, 635.)
First degree murder includes killings that are "willful, deliberate, and premeditated." (§ 189, subd. (a).) " 'Willful' means intentional." (People v. Delgado (2017) 2 Cal.5th 544, 571.) For the sake of judicial efficiency, we will assume there was an error due to the failure to expressly include the word "willful" in the jury's finding related to deliberation and premeditation.
We now examine if the error was harmless. (Washington v. Recuenco (2006) 548 U.S. 212, 222 ["Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error"].) We examine whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The jury twice found that defendant intentionally killed the victim. First, the jury found, "[Defendant] did intentionally kill [the victim] while the defendant was an active participant in a criminal street gang." Second, the jury found, "[Defendant] did intentionally kill the victim . . . because of his race, color, religion, nationality or country of origin." Because the jury twice found that defendant intentionally killed the victim, and "willful" means intentional, we conclude the failure to include the word "willful" in the deliberation and premeditation instruction was harmless beyond a reasonable doubt.
Defendant, relying on People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72-73 (Marks), asserts this court cannot use the special circumstance findings to infer a first degree murder finding. In Marks, the jury "failed to specify whether it found defendant guilty of first or second degree murder." (Ibid.) "Indeed, the trial court inexplicably denied defendant's requested instruction, CALJIC No. 8.70, that the jury must specify the degree of murder." (People v. Marks (1988) 45 Cal.3d 1335, 1344.) The Supreme Court explained, "Despite the jury's special circumstance finding in this case, we may not imply a verdict of first degree murder in the absence of an express indication to that effect." (Marks, at p. 73.)
In the instant case, we have an "express indication" that the jury found defendant guilty of first degree murder. This is not a case in which the jury failed to indicate its conclusions concerning first degree murder. In the instant case, the jury was expressly instructed, "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation." The jury expressly found "the murder was deliberate and premeditated." Thus, there is an express indication in the record that the jury concluded defendant committed first degree murder. Because there is an express indication in the record, we are not persuaded that it is impermissible to rely upon the special circumstance findings to find the "willful" error harmless.
B. HEARSAY
1. PROCEDURAL HISTORY
a. Interview
On January 27, 2015, detectives interviewed Brother. Detective Brandt said to Brother, "[Defendant] eluded to the fact that you were actually in the car with him when this [murder] happened. He didn't get much more into it. He said, 'I—I'm the driver.' Um, and he eluded to the fact that you were in the car with him." Brother said, "I'm always with him." Brother explained that the only other person defendant spent time with was defendant's girlfriend. As the interview continued, the following exchange occurred:
"[Detective Brandt]: So if you know he didn't do it, I want you to tell me what you know.
"[Brother]: He didn't do it.
"[Detective] Brandt: 'Kay, and tell me why you know that.
"[Brother]: I did.
"[Detective] Brandt: You did it?
"[Brother]: Yeah.
"[Detective] Brandt: Tell me what happened.
"[Brother]: (Unintelligible). He didn't know I had a gun.
"[Detective] Brandt: Okay.
"[Brother]: . . . I told him, 'Hey drop me off at my girlfriend's house.' 'No, I don't know where she lives.' I went over there first (unintelligible)."
Brother explained that he and defendant drove by the victim, and Brother saw him "rollin' a blunt" in his vehicle. Defendant and Brother then drove by the victim a second time. Brandt asked, "[Defendant]—do you still think [defendant] thought—can you drop me off at a girl[']s house?" Brother replied, "Yeah, 'cause he didn't know I had a gun."
Brother said he told defendant to stop, and defendant stopped the Explorer in the middle of the street. Brother exited the Explorer, "walked up to [the victim], did not say anything, and shot the victim." Brother explained that he "never went over" to the area of Cranford Avenue area because Brother's "mom used to live over there." So, Brother did not know that the victim parked his car near the apartment building. The following exchange occurred:
"[Detective] Simon: So why did you—if you didn't have a girlfriend there, why did you guys go over there?
"[Brother]: He didn't know that. I (unintelligible).
"[Detective] Simon: I—I understand that. You—you—you wanted to—you told him to go over there, (unintelligible) that you were gonna go see your girlfriend. I understand that, but why did you go over there? Why did you wanna go over there? Were you, like, lookin' for a black dude?
"[Brother]: Yeah.
"[Detective] Simon: So you were actually huntin'?
"[Brother]: Yeah.
"[Detective] Brandt: So, at what point, did you decide you were gonna get out and kill this dude?
"[Brother]: Soon as I seen him.
"[Detective] Brandt: Soon as you saw him?
"[Brother]: (Unintelligible).
"[Detective] Brandt: Did you relay that to [defendant] at all?
"[Brother]: Yeah."
Detective Simon asked Brother, "You telling us the truth right now? You're not trying to take one for your brother, just to take one for your brother? (Unintelligible)." Brother replied, "I don't know."
b. Motion
Prior to opening statements, defendant moved to introduce portions of Brother's interview as declarations against Brother's penal interest. (Evid. Code, § 1230.) Specifically, defendant wanted to introduce the portions of the interview wherein Brother confessed he was the shooter and that defendant "had no knowledge that he had a gun. Basically had no knowledge of the shooting." Defendant contended Brother was unavailable due to his Fifth Amendment privilege. Defendant asserted Brother's statements were reliable because they were based upon Brother's personal knowledge due to him being present at the murder.
The prosecutor responded, "The portion attempting to exonerate [defendant] is not against [Brother's] penal interest. It's in the interest of [defendant]." The trial court explained it had concerns about the reliability of Brother's statements concerning defendant's lack of knowledge due to Brother and defendant having a close relationship.
The trial court said, "The portion that is directly against penal interest, I am the shooter, I'll rule right now. That's in. The rest of it, the issue is trustworthiness, reliability. That is, if I'm going to take the responsibility for being the shooter, the next logical step is not against my penal interest, I'm going to try to extricate my stepbrother, i.e., we're in a special relationship. The words beyond 'I am the shooter,' are they trustworthy enough to allow in?"
The trial court permitted defendant to introduce the portion of Brother's statement in which Brother admitted shooting the victim. The trial court found the portions of Brother's statement in which he asserted defendant lacked foreknowledge of the shooting to be "untrustworthy, unreliable," and excluded those portions.
2. ANALYSIS
Defendant contends the trial court erred by not admitting the hearsay statement of an accomplice under the exception for statements against penal interest. (Evid. Code, § 1230.)
"Although hearsay statements are generally inadmissible under California law [citation], the rule has a number of exceptions. One such exception permits the admission of any statement that 'when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.' [Citation.] As applied to statements against the declarant's penal interest, in particular, the rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements. [Citation.]
"To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.] 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.]
"We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion." (People v. Grimes (2016) 1 Cal.5th 698, 710-712 (Grimes).)
The trial court could reasonably conclude that Brother's statements denying that defendant had knowledge of the gun prior to the killing were not statements against Brother's penal interest because those statements did not implicate Brother in a crime. The statements did not implicate Brother in a crime because they were not about Brother—they were about defendant. Accordingly, the trial court acted reasonably in excluding the statements because they were not statements against Brother's penal interest.
Defendant relies on the following portion of Grimes: "[T]he United States Court of Appeals for the Ninth Circuit has considered how the [declaration against penal interest] rule applies to a statement in which the declarant both inculpates himself and exculpates another . . . . [Citation.] In Paguio, the [Ninth Circuit] court reversed the defendant's conviction on the ground that the trial court abused its discretion by admitting his father's confession that he had falsified certain tax forms, but excluding the portion of the statement that represented that the son ' "had nothing to do with it." ' [Citation.] Writing for the court, Judge Kleinfeld explained that, in context, the latter statement both disserved the father's interests, insofar as 'leading others into wrongdoing has always been seen as especially bad,' and was 'not practically separable' from the remainder of the confession. [Citation.] The court rejected the government's argument that the rule announced in Williamson 'mean[s] that the trial judge must always parse the statement and let in only the inculpatory part.' [Citation.] Rather, '[i]t means that the statement must be examined in context, to see whether as a matter of common sense the portion at issue was against interest and would not have been made by a reasonable person unless he believed it to be true.' [Citation.] 'As a matter of common sense,' the court explained, this is less likely to be true when the statement takes the form ' "I did it, but X is guiltier than I am," ' than when the statement is " 'I did it alone, not with X." That is because the part of the statement touching on X's participation is an attempt to avoid responsibility or curry favor in the former, but to accept undiluted responsibility in the latter.' " (Grimes, supra, 1 Cal.5th at pp. 714-715.)
We will examine Brother's statement in context. Brother made the statements while being interviewed by two detectives. Brother said he had spoken to defendant in the dayroom at jail. One could infer from that information that Brother and defendant coordinated their statements so as to present defendant as less culpable, which, in turn, makes Brother's statement appear less reliable. Brother then backtracked and said he had not spoken to defendant because defendant was angry with Brother. Brother's contradictory statement could reasonably be viewed as attempting to cover-up the conversation with defendant so as to detract from the possibility that he and defendant coordinated their stories.
Further, during Brother's interview, the following exchange occurred:
Detective Brandt: "I'[ve] been doin' this for 12 years—Detective Simon, even longer, um something' had to—something' had to—something' had to be up for him to do just roll up and do this broad daylight, or whatever. (Unintelligible) fucking cried, and it—that's just, like, not normal. That's not normal—that's, like, somethin'—somethin's up, so I don't believe he shot and I don't wanna see him go to jail for, like, life in prison, like, without parole, probably, um, for something that he was just drivin' . . .
"[Brother]: Mm-hm.
"[Detective] Brandt: . . . and didn't even know shit—didn't do shit.
"[Brother]: (Unintelligible).
"[Detective] Brandt: (Unintelligible) the law is, you can 'cause that's what happened. He was rollin' and—and somebody got shot.
"[Brother]: Mm.
"[Detective] Brandt: We found the gun in his car. We found the car—everything. Told us he was driving, um, but I think it's fucked up that he go away forever.
"[Brother]: (Unintelligible).
"[Detective] Brandt: Especially, if he's really not into that kinda of stuff. He's tryin' to tell me, like, one time he fucked up and it's gonna cost him his life."
Detective Brandt told Brother that defendant already admitted driving the vehicle, so it would be unfortunate for defendant to receive a sentence of life in prison without parole if he "didn't even know shit." One could reasonably infer from the foregoing statement that Brother decided to tell the detectives that defendant was unaware of the gun because a lack of knowledge would possibly cause defendant to receive a lesser sentence.
As the interview continued, the following exchange occurred:
"[Detective] Brandt: Not gonna be good, I mean, he's gonna lose the family respect. He's gonna lose your respect. He's gonna lose respect anywhere. So I don't know if he wants to do that. I think it's probably a pretty hard decision he's gonna have to make at some point. And I don't know if it's being encouraged by his attorney, or if he's trying to do it, or whatever, but, they'll come to the DA's office, and at this point, ah, I'm gonna say, okay, yeah, let's—let's talk to him—see what he has to say. Which, means, what? Means he's gonna be a snitch.
"[Brother]: (Unintelligible).
"[Detective] Brandt: Right, so whether it's on you, or whether it's on one of his pretty boy friends, or whatever, (unintelligible) gonna pick on somebody. I'm telling (unintelligible). So if you know he didn't do it, I want you to tell me what you know.
"[Brother]: He didn't do it.
"[Detective] Brandt: 'Kay, and tell me why you know that.
"[Brother]: I did.
"[Detective] Brandt: You did it?
"[Brother]: Yeah.
"[Detective] Brandt: Tell me what happened.
"[Brother]: (Unintelligible). He didn't know I had a gun."
When asked what happened during the killing, Brother's first intelligible remark was that defendant lacked knowledge of the gun. Brother's immediate statement exculpating defendant could reasonably be viewed with suspicion because it appeared to be a calculated response to relieve defendant from responsibility, rather than an honest response to the question about what occurred during the killing.
Further, Brother stated that he and defendant had a close relationship. Specifically, Brother said, "I'm always with him." The familial relationship gives Brother a reason to want to exculpate defendant.
Additionally, our Supreme Court has explained, "[S]ometimes a declarant who makes an inculpatory statement may have a substantial incentive to exculpate others. A member of a criminal street gang, for example, may choose to take the fall for fellow gang members by making a confession that exculpates them. A trial court in that situation may reasonably conclude that the declarant's incentive to protect his friends renders the exculpatory portions of the statement inadmissible." (Grimes, supra, 1 Cal.5th at p. 716.)
The jury found (1) the murder was committed to benefit a criminal street gang (§ 186.22, subd. (b)); and (2) at the time of the murder, defendant was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). During the interview, Detective Brandt said to Brother, "I know you and your family have been with ESR for a long time." Detective Brandt also said, "Because you're hangin' around with ESR. That's why you killed [t]his man. That's what you told us." Brother responded, "Yeah." In sum, it also appears that defendant and Brother were gang members. Thus, in addition to the familial relationship, there was a gang relationship between the two.
In sum, because (1) defendant and Brother spoke to one another in jail; (2) Brother was informed that defendant's lack of knowledge could help defendant; (3) Brother's statement about defendant's lack of knowledge could be viewed as an odd response to a question about what happened during the killing; and (4) Brother and defendant had a close relationship as family and gang members, the trial court could reasonably conclude that Brother's statement, "even if not independently inculpatory of the declarant, [was not] against the declarant's interest, such that 'a reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true.' " (Grimes, supra, 1 Cal.5th at p. 716.) In other words, the trial court did not err.
Defendant asserts, "Furthermore, [Brother] was in a position to say [defendant] instigated or helped plan the shooting, if he had, provided him the gun, if he had, acted on his animus against black gang members, if he had, or heard about [Brother's] plan to kill beforehand, if he had. [Brother] said none of these things that he was in a position to know."
During the detectives' interview with Brother, the following exchanged occurred:
"[Detective] Brandt: So you were actually huntin'?
"[Brother]: Yeah.
"[Detective] Brandt: So, at what point, did you decide you were gonna get out and kill this dude?
"[Brother]: Soon as I seen him.
"[Detective] Brandt: Soon as you saw him?
"[Brother]: (Unintelligible).
"[Detective] Brandt: Did you relay that to [defendant] at all?
"[Brother]: Yeah."
One could reasonably infer from the foregoing portion of the interview that Brother told defendant that he intended to kill the victim. Accordingly, we are not persuaded by defendant's assertion that Brother did not implicate defendant in having knowledge of Brother's plan to kill the victim. In sum, we conclude the trial court did not abuse its discretion by excluding a portion of Brother's hearsay statement.
C. DUE PROCESS
Defendant contends the exclusion of Brother's hearsay statement violated his federal right of due process and right to present a defense.
"Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." (Chambers v. Mississippi (1973) 410 U.S. 284, 302.)
As explained ante, there are multiple reasons one could conclude that Brother's statement was untrustworthy: (1) defendant and Brother spoke to one another in jail, which could indicate coordination in their stories; (2) Brother was informed that defendant's lack of knowledge could help defendant; (3) Brother's statement about defendant's lack of knowledge could be viewed as an odd response to a question about what happened during the killing; and (4) Brother and defendant had a close relationship as family and gang members. Because there are multiple reasons to view Brother's statement as untrustworthy, it does not appear that the hearsay rule was mechanistically applied so as to defeat defendant's constitutional rights. In sum, we conclude the trial court did not err.
D. 15-YEAR SENTENCE
Defendant contends the abstract of judgment is incorrect because it reflects the trial court imposed a separate 15-year determinate prison sentence for the gang enhancement. (§ 186.22, subd. (b).) The People concede defendant is correct and that the minute order from the sentencing hearing must also be corrected.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The gang enhancement statute provides, "[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5).)
When sentencing defendant, the trial court said, "Life without the possibility of parole. . . . With regard to the additional enhancement, the gang allegation, pursuant to the case of People versus Lopez, a minimum parole period of 15 years. And my comments, I think, are well taken. It's going to be ineffective in light of the nature of the life without the possibility of parole sentence."
The minute order from the sentencing hearing reads, "Sentenced to State Prison for a determinate sentence of 15 years 0 mos plus indeterminate sentence of LIFE without the possibility of parole." The trial court also issued a determinate abstract of judgment reflecting defendant was sentenced to a 15-year determinate prison term for the gang enhancement. We will direct the trial court to (1) correct its minute order (see Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1009 [clerical errors may be corrected nunc pro tunc]; and (2) correct the abstract of judgment to reflect the trial court did not impose a 15-year determinate prison term.
E. FINE
Defendant contends the trial court erred by imposing a $300 parole revocation fine. The People concede defendant is correct.
"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 . . . assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).)
In sentencing defendant, the trial court discussed restitution and said, "$300 it is. Thank you, [prosecutor]. [¶] The additional parole revocation restitution fine, equal amount, $300." The trial court sentenced defendant to life without the possibility of parole. Therefore, defendant's sentence does not "include[] a period of parole." (§ 1202.45, subd. (a).) Because defendant's sentence does not include a period of parole, we conclude the trial court erred by imposing a parole revocation fine. We will strike the fine.
DISPOSITION
The trial court is directed to strike the $300 parole revocation fine (§ 1202.45, subd. (a)). The trial court is directed to issue (1) a corrected minute order for October 5, 2018, and (2) a corrected abstract of judgment, which should both reflect the trial court did not impose a 15-year determinate prison term, rather, the trial court imposed a 15-year minimum for parole eligibility (§ 186.22, subd. (b)(5)) on defendant's life without parole sentence. The trial court is directed to prepare an amended abstract of judgment and to forward it to the appropriate prison authorities. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.