People v. Garcia-Vega CA4/2

Filed 11/25/14 P. v. Garcia-Vega CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E057831

v. (Super.Ct.No. BAF1100383)

ERNESTO GARCIA-VEGA et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.

Affirmed with directions.

David M. McKinney, under appointment by the Court of Appeal, for Defendant

and Appellant Ernesto Garcia-Vega.

Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and

Appellant Maria Manuelita Ayon.

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 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Scott

C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants and appellants Ernesto Garcia-Vega and Maria Manuelita Ayon were

tried before the same jury and convicted of the first degree murder of Ayon’s husband,

Pedro Vazquez, and conspiracy to murder Vazquez. (Pen. Code, §§ 187, subd. (a), 182,

subd. (a)(1).)1 Ayon claimed she shot and killed Vazquez in self-defense; that Vega was

unaware of the problems she was having with Vazquez; and she and Vega did not

conspire to murder Vazquez. Vega was prosecuted as an aider and abettor to the murder.

Against each defendant, the jury found true a special circumstance allegation that

the murder was committed by lying in wait. (§ 190.2, subd. (a)(15).) The jury also found

Ayon personally discharged a firearm in the murder (§ 12022.53, subd. (d)) and Vega

participated in the murder knowing a principal was armed (§ 12022, subd. (a)(1)). Each

defendant was sentenced to life in prison without the possibility of parole for the murder.

Defendants appeal, and join each other’s claims. They claim (1) a prosecution

rebuttal witness, Sergeant Brian Reno, was unqualified to render an expert opinion on the

location of the gun when it was fired; (2) insufficient evidence supports the lying-in-wait

special-circumstance findings; (3) the jury was improperly instructed on the lying-in-wait

special-circumstance allegation as it applied to Vega; (4) the court had a duty to give

1 All further statutory references are to the Penal Code unless otherwise indicated.

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CALCRIM No. 702 sua sponte, on the lying-in-wait special-circumstance allegations; (5)

the court had a duty to give CALCRIM No. 522 and CALJIC Nos. 8.20, 8.30, and 8.71

sua sponte, on the murder charges; and (6) parole revocation restitution fines were

improperly imposed and must be stricken.

We agree the parole revocation restitution fines must be stricken, because the fines

are reflected in the sentencing minute orders and abstracts of judgment, though in orally

pronouncing the sentences the court said it was not imposing the fines. We reject

defendants’ other claims and affirm the judgment in all other respects.

II. FACTUAL BACKGROUND

A. Prosecution Evidence

In May 2011, 31-year-old Ayon married 49-year-old Pedro Vazquez. Ayon and

Vazquez had a “[v]ery turbulent” relationship and did not live together after they married.

After marrying Vazquez, Ayon was spending time with Vega, who, like Ayon, was in his

early 30’s. Vazquez worked as an electrician, and if he died Ayon was to receive a

$60,000 one-time payment and monthly payments of $500.90 from his pension plan.

Ayon shot and killed Vazquez in his Honda Ridgeline truck, around 11:30 p.m. on

Saturday, July 9, 2011, while the Honda was parked in a remote area on San Timoteo

Canyon Road, and Vazquez was sitting in the driver’s seat. Around 2:00 p.m. on July 9,

Vazquez told his adult daughter Tanya he was having dinner with Ayon that night, and

they were going to discuss “fixing things” in their relationship. Vazquez then went to

pick up Ayon, driving his Honda Ridgeline truck.

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 On Friday, July 8, 2011, Ayon and Vega went to a party together at the apartment

of Sebero Ortiz in Paramount. Israel Mariscal and Ortiz lived in the same apartment

complex. Mariscal was charged, together with Ayon and Vega, in the same felony

complaint with murder and conspiracy to murder Vazquez, but the charges against

Mariscal were dismissed after he testified at the preliminary hearing and the court found

insufficient evidence to support the charges against him. Both Mariscal and Ortiz

testified against Ayon and Vega at trial. The most damaging testimony was from

Mariscal.

Mariscal testified he and Vega had known each other since childhood, but they

were not close friends. Around 5:00 p.m. on July 9, Vega called Mariscal and asked him

whether he and Ortiz would pick up Vega’s truck in Downey, where Ayon lived, and

park it at their apartment complex in Paramount. Mariscal, Ortiz, and Ortiz’s son met

Vega in Downey, obtained his truck, and drove it to their apartment complex. When he

met Ortiz and Mariscal in Downey, Vega was driving Ayon’s white Nissan Maxima.

Around 9:00 p.m. on July 9, Vega drove to Mariscal’s apartment in the Nissan,

and asked Mariscal to come with him to pick up “a girl” nearby. Mariscal was not

expecting Vega, but agreed to go with him. Mariscal did not believe they would be gone

long, so he left his apartment without taking his wallet or any identification with him.

Mariscal did not know and did not ask Vega what “girl” they were going to pick up.

Vega said they were picking up the girl at a casino but he needed to ask her which

one, so he called her on his cell phone. Vega appeared to be “a little nervous” as he and

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Mariscal were driving on Interstate 105 toward Interstate 60. While talking on his cell

phone on Interstate 60, Vega saw a highway patrolman, handed his cell phone to

Mariscal, and Mariscal heard a woman say: “Dear, I’m on the Azusa Street at the

doughnut shop.” Vega drove to the donut shop, where Mariscal saw a Honda Ridgeline

truck. Vega said “the girl” was in the Honda and would be coming with them later, and

made another call.

Vega and Mariscal followed the Honda from the donut shop to a gas station,

where Ayon got out of the driver’s side of the car. Ayon and Vega went into the gas

station store and came out several minutes later. Mariscal could not see whether anyone

was in the Honda with Ayon. Vega and Mariscal followed Ayon, who was still driving

the Honda, back onto Interstate 60. Vega made another call and said Ayon would be

coming with them after she dropped off her husband at a casino. Mariscal was becoming

concerned about the length of the trip they were taking and where they were going, but

Vega told him not to worry. Vega and Mariscal exited Interstate 60 near Moreno Valley,

and followed the Honda into a dark, secluded mountainous area. According to Mariscal,

the Honda did not stop from the time it left the gas station to this point.

The Honda stopped in a remote area on San Timoteo Canyon Road. Vega pulled

to the side of the road, ahead of the Honda, but kept the engine of the Nissan running.

Mariscal could not hear or see what was going on in the Honda behind them because

Vega was playing music and the headlights of the Honda were shining into the side

mirror of the Nissan.

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 After five or six minutes, Ayon “came over running” to the Nissan, holding a bag

and appearing “scared.” She got into the rear passenger seat, told Vega to “[g]o,” and

Vega “took off.” As they were driving away, Vega asked Ayon why she took so long,

and Ayon said she was erasing all the fingerprints from the steering wheel. Vega then

asked, “And the gun?,” and Ayon said, “I have it here.” Ayon asked Mariscal for water,

he said he did not have any water but handed her his Gatorade bottle, and she washed her

hands with the Gatorade.

A vehicle was following them, and Vega asked Ayon how he could prevent the

person in the vehicle from seeing them. Ayon said, “Go. Go,” and Vega drove faster.

Vega then said the police were following them, and Ayon told him to drive faster. After

Vega drove through a stop sign, he said they would be shot if he continued, so he pulled

over and stopped. At that point, Ayon said, “Don’t worry, Dear. I already threw it

away,” and told Vega and Mariscal to tell the police they were going to the casino.

Corporal Saban Hardesty of the Beaumont Police Department stopped the Nissan

while driving an unmarked police vehicle equipped with police lights and sirens. He and

Officer Michael Granada were conducting surveillance in the area, in separate, unmarked

vehicles, due to recent copper wire thefts. Around 11:30 p.m., Corporal Hardesty noticed

two sets of headlights, drove closer, and saw the Honda on the side of the road, 10 to 15

yards behind the Nissan. The dome light of the Honda was on, and Ayon was standing

outside the front passenger door of the Honda, facing into the cab. As he drove closer,

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Officer Hardesty saw Ayon shut the door of the Honda, walk quickly to the Nissan, and

get into its rear passenger seat. The Nissan then “drove away pretty quickly.”

As Corporal Hardesty pulled up next to the Honda, he saw Vazquez slumped over

in the driver’s seat. He activated his police lights and “went after” the Nissan, which at

that point was 150 yards ahead of him, and notified the dispatcher he was making a

traffic stop. The Nissan “seemed to slow down just slightly,” but as he came within 15 to

20 feet of it, “it sped up and ran through [a] stop sign.” He activated his police siren,

notified dispatch he had a “failure to yield,” asked for additional officers, and asked that

another officer check on the Honda. The Nissan pulled to the side of the road.

After hearing Corporal Hardesty’s dispatch, Officer Granada drove to the Honda

and found Vazquez slumped over in the driver’s seat, bleeding from his face and head.

When Officer Granada opened the left rear passenger door of the Honda, he noticed

“clouds of smoke” and “a very strong odor of gunpowder.” There appeared to be

gunpowder residue and holes in the back of Vazquez’s shirt and blood on the back of the

driver’s seat.

Corporal Hardesty detained Ayon, Vega, and Mariscal at gunpoint, after hearing

on the radio that a person in the Honda had apparently been shot. As they were being

transported to the police station, Vega asked Ayon how many times she shot Vazquez,

and Ayon said, “[a]bout five.” Mariscal asked Vega what problems he had gotten him

into, and Vega asked Mariscal to forgive him. Gunshot residue was found on Ayon’s

hands but not on Vega’s or Mariscal’s hands.

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 Vazquez died of multiple gunshot wounds. He had a total of nine gunshot

wounds, including three from bullets that entered the back, right area of his head and

three that entered the back of his right shoulder. Any one of the gunshot wounds to the

head would have been fatal. Soot and stippling around all of the gunshot wounds

indicated the shots were fired from a distance of 6 to 24 inches. The bullets that entered

the head and shoulder traveled from back to front and from right to left. Based on the

wounds and the paths of the bullets through Vazquez’s body, the forensic pathologist

who conducted the autopsy, Dr. Joanna Young, opined Vazquez was “[m]ost likely” shot

from behind and to his right.

Nine shell casings and six projectiles, including two bullet fragments, all fired

from a Taurus nine-millimeter semiautomatic handgun, were found inside the Honda.

The gun was found at the base of a hill, near where the Nissan ran the stop sign, with an

empty 12-round magazine and one live round in its chamber.

Investigator Joshua Button of the Riverside County Sheriff’s Department, Central

Homicide Unit, explained that when a semiautomatic handgun is fired, the casings

holding the bullets are ejected upward and to the right. Six bullets or bullet fragments

were found in the front area of the Honda. Eight of the nine casings were also found in

the front area of the Honda, including in the front passenger seat, the front passenger

footwell, the driver’s footwell, the center console, and the driver’s door. One casing was

in the rear passenger seat. Investigator Button testified the location of the casings was

consistent with the gun being fired from the rear passenger side of the Honda, toward the

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driver’s seat area. On cross-examination, Investigator Button indicated the locations of

the casings were also consistent with the gun being fired from the front passenger side.

In the backseat of the Nissan, Investigator Button found three cell phones

belonging to Ayon, a cell phone SIM card, Ayon’s purse, and a wallet. Inside Ayon’s

purse, Investigator Button found a pair of latex gloves and a $300 check from Vazquez to

Ayon. Inside the wallet was Vazquez’s gas card and a yellow piece of paper with a note

apparently written by Vazquez to Ayon attempting to reach an agreement about their

relationship.

Cell phone records indicated Ayon had gone to the murder location two days

earlier, because her cell phone calls pinged off a nearby cell tower. Cell phone records

also indicated Ayon and Vega were often in communication during the days preceding

the murder, and on the night of the murder. During the previous month, Ayon opened

two prepaid cell phone accounts for herself and Vega, and during the week before the

murder, 90 percent of the calls made on the prepaid cell phones were made between the

two phones.

In Ayon’s cell phone, Vega’s contact name was “A. Mariza,” which meant “great

love” when read as one word in Spanish. In Vega’s cell phone, Ayon’s contact name was

“Mis Ojaso,” which literally meant “my eyes” and could mean “Ms. Good-looking” in

Spanish.

A text message sent from Vazquez to another one of Ayon’s cell phones read:

“Could you bring my gas card, I call you but you turned off your number, don’t worry I

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wish that you are happy with him, I will keep on my path only as of today, you will

always be a lying woman, God bless you.”

B. Defense Evidence

1. Ayon’s Defense

Ayon testified and claimed she shot Vazquez in self-defense, after he took the gun

from the waistband of his pants and pointed it at her in the Honda.

Ayon testified she met and began dating Vazquez around 18 months before she

married him in May 2011, and she married him because she loved him. Their

relationship changed after they married; Vazquez was “very jealous,” was always

checking her cell phone, and “had another woman.” On July 9, Ayon met Vazquez at her

apartment, they talked for a while, and then left in the Honda to go to the casino.

After they left the gas station, Ayon was driving, but Vazquez wanted to drive so

they stopped and switched seats around 20 minutes before they reached San Timoteo

Canyon Road. Vazquez knew they were being followed because he was standing next to

Ayon when she “called for them to come get [her],” and he was angry about it. He was

telling Ayon she was going to do what he said, and Ayon did not want to argue with him.

While they were driving on San Timoteo Canyon Road, Ayon told Vazquez to

stop the Honda because she was going to get out and “go back with a young man.”

Vazquez told Ayon she “didn’t know how he was when he was angry,” then he pulled a

pistol from his belt and pointed it at her stomach. She took the pistol from Vazquez, shot

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him because she feared for her life, and kept shooting because she did not know how to

stop.

Ayon then ran to the Nissan, told Vega and Mariscal they should go, and threw the

gun out of the window without telling the men she had a gun and had just shot Vazquez.

She asked Mariscal for water, he handed her his Gatorade, and she drank it but did not

wash her hands with it. She had never seen Mariscal before. Minutes later, the police

came.

A videotape recording of Ayon’s July 10 interview with Investigator Nelson

Gomez, a detective with the Riverside County Sheriff’s Department, Central Homicide

Unit, was played for the jury. During the interview, Ayon denied being in the Honda on

the night of July 9, denied shooting Vazquez, and kept saying she “didn’t see anything”

before Corporal Hardesty stopped her, Vega, and Mariscal in the Nissan. Ayon admitted

she lied during the July 10 interview and lied again during a second interview two days

later, and claimed she lied both times because she was afraid to tell the truth. Ayon knew

Vazquez had a pension plan and that she would receive monthly payments of $580 from

his pension plan if he died.

Ayon considered Vega to be her “good friend,” but denied they had a romantic

relationship. She never told Vega what was happening between herself and Vazquez.

Earlier on July 9, she called Vega and asked him to pick her up that night at the donut

shop. He said his pickup truck would not go that far, so she suggested he take her car.

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 A witness who spoke Spanish and English testified that “A. Mariza” was a name

that had no meaning in Spanish or English. Ayon disguised Vega’s name with the

“Mariza” name on her cell phone because Vazquez would be jealous if he saw Vega’s

name. On July 7, two days before the shooting, Ayon claimed she was on her way to

Mexicali for a doctor’s appointment and stopped somewhere along Interstate 60 to get

gas.

2. Vega’s Defense

Vega did not testify. His defense was that he did not know Ayon was going to

shoot and kill Vazquez, and he attempted to discredit Mariscal’s trial testimony as given

to curry favor with the district attorney’s office and procure the dismissal of the charges

against him. Vega presented evidence that, in December 2011, before the charges against

him were dismissed following the March 2012 preliminary hearing, Mariscal signed an

agreement with the district attorney’s office agreeing to be interviewed. The agreement

required him to tell the truth and provided that nothing he said would be used against him

unless he later testified inconsistently with his interview statements.

Detective Julie Bryant, a senior investigator for the district attorney’s office,

interviewed Mariscal in December 2011, pursuant to the agreement. During that

interview, Mariscal’s attorney said to Mariscal: “[C]ontradict me . . . if I’m

misinterpreting you . . . but we want to help [the People’s] case against the two people

that did this very bad thing, okay.”

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 Vega emphasized that Mariscal’s trial testimony and December 2011 interview

statements differed in important respects from statements he gave, and did not give, when

he was first interviewed on July 10, 2011, shortly after the shooting. Vega pointed out

that during the July 10 interview (1) Mariscal did not say that either Vega or Ayon said

anything about a gun, including throwing a gun away, after Ayon got into the Nissan; (2)

Mariscal said Vega could not have been involved in the shooting; and (3) Mariscal did

not say anything about Vega asking Ayon why she took so long, did not say Ayon said

she was erasing her fingerprints from the Honda steering wheel, did not say Vega asked

Ayon how many times she shot Vazquez, or that Ayon responded “about five,” and did

not say Vega asked Marsical to “forgive [him]” for getting him into trouble after they

were arrested.

C. Prosecution Rebuttal Evidence

When sheriff’s investigators interviewed Ayon, she claimed she knew nothing

about Vazquez’s death and was not riding in the Honda that evening. Instead, she

claimed she was in her Nissan with Vega and Mariscal, and they became lost on their

way to the casino. She did not know Vazquez was on the same road, and denied shooting

him. During her first interview, she denied having a romantic relationship with Vega, but

in a second interview she admitted she “liked” Vega and said: “That doesn’t look good

for me.”

Sergeant Brian Reno of the Riverside County Sheriff’s Department, Central

Homicide Unit, examined the bullet strikes in the front area of the Honda. Based on the

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location of the bullet strikes and his training and experience, Sergeant Reno opined that

the bullets were fired from behind and to the right of the driver’s seat.

III. DISCUSSION

A. Sergeant Reno Was Qualified to Testify the Gun Was Fired from Behind and to the

Right of the Driver’s Seat

Ayon, joined by Vega, claims Sergeant Reno was unqualified to render an expert

opinion that Vazquez was shot from behind and to the right of the driver’s seat, in

rebuttal to Ayon’s testimony that she shot Vazquez from the front passenger seat in self-

defense after he placed a gun to her stomach. (Evid. Code, § 720, subd. (a).) We

conclude the sergeant was qualified to render the opinion, and any error in admitting his

expert opinion testimony was not prejudicial.

“A person is qualified to testify as an expert if he [or she] has special knowledge,

skill, experience, training, or education sufficient to qualify him [or her] as an expert on

the subject to which his [or her] testimony relates. Against the objection of a party, such

special knowledge, skill, experience, training, or education must be shown before the

witness may testify as an expert.” (Evid. Code, § 720, subd. (a).) The witness’s

qualifications “may be shown by any otherwise admissible evidence, including his [or

her] own testimony.” (Evid. Code, § 720, subd. (b); People v. Fuiava (2012) 53 Cal.4th

622, 672.)

An expert’s qualifications must be related to the particular subject upon which he

or she is giving expert testimony, and the expert’s qualifications on related but distinct

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subjects are insufficient. (People v. Hogan (1982) 31 Cal.3d 815, 852, overruled on other

grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) “‘“We are required to uphold

the trial judge’s ruling on the question of an expert’s qualifications absent an abuse of

discretion. [Citation.] Such abuse of discretion will be found only where ‘“the evidence

shows that a witness clearly lacks qualification as an expert . . . .”’ [Citation.]”’

[Citation.]” (People v. Pearson (2013) 56 Cal.4th 393, 445.)

Sergeant Reno was sufficiently qualified to opine that the gun that made the three

bullet strikes in the driver’s door was fired from behind and to the right of the driver’s

seat where Vazquez was sitting when he was shot. The sergeant had been investigating

homicides for eight years as a detective and later as a sergeant for the Central Homicide

Unit of the Riverside County Sheriff’s Department. He supervised other homicide

detectives and forensic technicians; he was trained to look for evidence of bullet strikes

on hard surfaces; and he had previously testified in court regarding the nature of bullet

strikes in vehicles, buildings, and on other hard surfaces. Ten to 15 times during his

career, he had used “trajectory rods” to track the direction of bullet strikes “in a vehicle.”

In explaining the bases of his opinion, Sergeant Reno pointed out that “bio matter”

deposited on the windshield and driver’s side window of the Honda after Vazquez was

shot, “clearly” showed the bullets were not fired from a 90-degree angle to the driver’s

door or from the front passenger seat, but from an “acute” angle of approximately 30

degrees to the driver’s door and from behind and to the right of the driver’s seat. He

agreed his conclusions were consistent with the testimony of Dr. Young, the forensic

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pathologist who performed Vazquez’s autopsy, who opined that Vazquez was “[m]ost

likely” shot from behind and to his right, based on the paths of the bullet wounds through

his body.2

People v. Hogan, supra, 31 Cal.3d 815, upon which Ayon relies, is distinguishable

because it involved blood spatter evidence, a different type of evidence than bullet strike

evidence. In Hogan, a criminalist was unqualified to testify that bloodstains on the

defendant’s pants and shoes were “spatters” caused by blood flying through the air, rather

than by “surface-to-surface” contact with a bloody object. (Id. at pp. 851-853.) The

expert’s qualifications “boiled down to having observed many bloodstains,” but he had

2 The People claim defendants forfeited their right to challenge the sergeant’s
expert qualifications because neither defendant objected when the sergeant testified that
the third of the three bullets strikes on the driver’s door came from behind and to the
right of the driver’s seat. We disagree the claim was forfeited. Ayon objected on
foundation grounds when the prosecutor asked Sergeant Reno what the trajectory rods
that were placed in the first of three bullet strikes showed, and objected on the same
grounds when the prosecutor asked where the gun that made the first of the three bullet
strikes was fired from. The court sustained the objections, but allowed the prosecutor to
lay additional foundation by asking the sergeant about his training and experience in
examining bullet strike evidence.
Ayon’s “foundation” objections were “so stated as to make clear the specific
ground of the objection[s]” (Evid. Code, § 353), namely, that Sergeant Reno was
unqualified to render an expert opinion that the gun that made the three bullet strikes in
the driver’s door was fired from behind and to the right of the driver’s seat (People v.
Pearson, supra, 56 Cal.4th at p. 438 [specificity in objection is required to enable the
court to make an informed ruling on the objection and allow the proponent of the
evidence to cure the defect]). Any further objection on factual “foundation” or
qualification grounds would have been futile, when the sergeant later testified concerning
the second and third bullet strikes on the driver’s door, and that the gun that made those
bullet strikes was also fired from behind and to the right of the driver’s seat.

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never performed any laboratory analyses to determine whether bloodstains were spatters,

either in the past or in the present case. (Id. at pp. 852-853.)

Blood spatter evidence is complex, and cannot be equated or conflated with bullet

strike evidence, or the general trajectory of a bullet that makes a bullet strike on a hard

surface. As Ayon points out: “‘The competency of an expert is relative to the topic and

fields of knowledge about which the person is asked to make a statement. In considering

whether a person qualifies as an expert, the field of expertise must be carefully

distinguished and limited.’” (People v. Kelly (1976) 17 Cal.3d 24, 39.)

Though, as Ayon pointed out at trial, Sergeant Reno had not taken any “official

classes” to determine the trajectory of bullets that make bullets strikes on hard surfaces,

and he was unaware of any studies involving the accuracy of trajectory rods and their use

in determining the trajectory of bullets when they strike hard surfaces, the court

reasonably concluded his on-the-job training and experience qualified him to opine that

the gun that made the three bullet strikes in the driver’s side door was fired from behind

and to the right of the driver’s seat. Indeed, his qualifications were not clearly lacking

(People v. Pearson, supra, 56 Cal.4th at p. 445), and any limitations on his qualifications

went to the weight of his opinions, not their admissibility.

Further, any error in admitting Sergeant Reno’s expert testimony was harmless.

“The erroneous admission of expert testimony only warrants reversal if ‘it is reasonably

probable that a result more favorable to the appealing party would have been reached in

the absence of the error.’” (People v. Prieto (2003) 30 Cal.4th 226, 247, quoting People

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v. Watson (1956) 46 Cal.2d 818, 836.) There is no reasonable probability either Ayon or

Vega would have realized a more favorable result had Sergeant Reno’s testimony not

been admitted. Dr. Young testified Vazquez was “[m]ost likely” shot from behind and to

his right, based on the paths the bullets traveled through his body. Investigator Button

likewise opined, based on the location of the shell casings in the Honda, that the shooter

fired from the Honda’s rear passenger side. Further, the location of the “bio matter” on

the windshield and on the driver’s side window clearly indicated Vazquez was shot from

behind the driver’s seat and to his right, and not from a 90-degree angle to the driver’s

door or from the front passenger seat, as Ayon’s self-defense testimony indicated.

B. Substantial Evidence Supports the Lying-in-wait Special-circumstance Findings

Vega, joined by Ayon without additional argument, claims insufficient evidence

supports the lying-in-wait special-circumstance finding against him. We conclude

substantial evidence supports the lying-in-wait special-circumstance findings against each

defendant.

A punishment of life in prison without parole may be imposed on a defendant if

the jury finds that “[t]he defendant intentionally killed the victim by means of lying in

wait.” (§ 190.2, subd. (a)(15).) The jury was instructed pursuant to CALCRIM No. 728

that defendants were charged with the special circumstance of murder by means of lying-

in-wait, and to prove the special circumstance allegation true, the People had to prove:

“1. A defendant intentionally killed Pedro Vazquez; [¶] AND [¶] 2. A defendant

committed the murder by means of lying in wait. A person commits a murder by means

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of lying in wait if: [¶] 1. He or she concealed his or her purpose from the person killed;

[¶] 2. He or she waited and watched for an opportunity to act; [¶] 3. Then he or she

made a surprise attack on the person killed from a position of advantage; [¶] AND [¶]

4. He or she intended to kill the person by taking the person by surprise. [¶] The lying

in wait does not need to continue for any particular period of time, but its duration must

be substantial and must show a state of mind equivalent to deliberation and

premeditation.

“The defendant acted deliberately if he or she carefully weighed the considerations

for and against his or her choice and, knowing the consequences, decided to kill. The

defendant acted with premeditation if he or she decided to kill before committing the act

that caused death. [¶] A person can conceal his or her purpose even if the person killed

is aware of the other person’s physical presence. [¶] The concealment can be

accomplished by ambush or some other secret plan.”

The standard of review is settled. In reviewing a claim that insufficient evidence

supports a special circumstance finding, we apply the same standard of review we apply

in reviewing a challenge to the sufficiency of the evidence supporting a conviction.

(People v. Valencia (2008) 43 Cal.4th 268, 289-290.) That is, we review the entire

record in the light most favorable to the prosecution to determine whether it contains

substantial evidence—evidence that is reasonable, credible, and of solid value—from

which a rational trier of fact could find the essential elements of the allegation true

beyond a reasonable doubt. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

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 Vega argues insufficient evidence supports the jury’s finding that Ayon concealed

from Vazquez her purpose or intent to kill Vazquez. Vega argues, “we do not know what

took place immediately before the fatal attack” on Vazquez, and “there is no evidence . . .

Vazquez was unaware that Ayon was going to kill him.” Not so.

The elements of lying in wait may be inferred from the circumstances surrounding

the killing. (People v. Livingston (2012) 53 Cal.4th 1145, 1172-1173.) And here, the

evidence supports a reasonable inference that Ayon shot and killed Vazquez by firing the

gun from the rear passenger seat of the Honda, while Vazquez was looking the other way

and was unaware of her intent to kill him.

Indeed, Mariscal testified that Ayon was driving the Honda after she left the gas

station, but he did not see the Honda stop again before it stopped on San Timoteo Canyon

Road. When the Nissan pulled in front of the Honda, Mariscal could not see what was

going on behind him in the Honda because its headlights were shining into his side

mirror. Still, the evidence supports a reasonable inference that Ayon stopped the Honda

on San Timoteo Canyon Road; Vazquez got into the driver’s seat; and Ayon shot and

killed Vazquez from the rear passenger seat. Investigator Button testified the shots were

fired from the rear passenger seat—based on the location of the casings in the front area

of the Honda and because a semiautomatic firearm, such as the Taurus nine-millimeter

that was used in the shooting, ejects its shell casings upward and to the right.

20
C. The Jury Was Properly Instructed on the Lying-in-wait Special-circumstance

Allegation as to Vega

Vega claims the court prejudicially erred in failing to instruct the jury that,

because the prosecution was alleging he aided and abetted the murder and did not directly

perpetrate it, the jury had to find he intended that Vazquez would be killed in order to

find the special circumstance allegation true against him. Ayon joins this claim, but it

does not benefit her because she admitted she shot and killed Vazquez in self-defense.

Thus, Ayon could not have aided and abetted the murder.

Section 190.2, subdivision (c) allows special circumstance allegations to be made

against persons who are not the actual killer, but who, with the intent to kill, aid and abet

the killing. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1085-1086.) The jury was

instructed that it was required to consider the special circumstance allegation “separately

for each defendant.” (CALCRIM No. 700.) And as noted, the jury was instructed that a

person commits a murder by lying in wait if, among other things, “[h]e or she intended to

kill the person by taking the person by surprise.” (CALCRIM No. 728.)

Vega argues these instructions did not inform the jury that, in order to find the

special circumstance allegation true against him, it had to find he intended that Vazquez

would be killed. He argues the instructions “conveyed the thought” that if the jury found

Ayon intended to kill Vazquez, it could find the special circumstance allegation true

against him, as well as Ayon. He emphasizes the singular, disjunctive, use of the phrases

“a defendant” and “he or she” in CALCRIM No. 728, set forth above.

21
 We disagree the instructions allowed the jury to find the special circumstance

allegation true against Vega without finding he intended Vazquez would be killed.

Indeed, on the murder charge, the jury was given CALCRIM No. 401 on aiding and

abetting intended crimes, which told the jury it had to find Vega knew Ayon intended to

kill Vazquez and that Vega intended to aid and abet Ayon in murdering Vasquez in order

find Vega guilty of the first degree murder of Vasquez as an aider and abettor. Thus,

before the jury considered the special circumstance allegation against Vega, it had to

have found he intended Vazquez would be killed and to aid and abet his killing.

Additionally, the jury was instructed pursuant to CALCRIM No. 700 that it had to

consider the special circumstance allegation “separately for each defendant.” Thus,

together, CALCRIM Nos. 700 and 728 told the jury it could not find the special

circumstance allegation true against Vega unless it found “he” intended to kill Vazquez

by taking him by surprise. In sum, the jury was properly instructed it had to find Vega

had to have intended that Vazquez would be killed, in order to find the special

circumstance allegation true against Vega.

D. The Trial Court Had No Duty to Give CALCRIM No. 702 Sua Sponte

Vega claims the trial court prejudicially erred in failing to give CALCRIM No.

702 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—

Other Than Felony Murder (Pen. Code, § 190.2(c))) sua sponte.3 As the Bench Notes to

3 The pattern instruction, CALCRIM No. 702, states: “If you decide that (the/a)
defendant is guilty of first degree murder but was not the actual killer, then, when you
consider the special circumstance[s] of _____________ , you must also
decide whether the defendant acted with the intent to kill. [¶] In order to prove
(this/these) special circumstance[s] for a defendant who is not the actual killer but who is
guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the
People must prove that the defendant acted with the intent to kill. [¶] [The People do not
have to prove that the actual killer acted with the intent to kill in order for (this/these)
special circumstance[s] to be true. [If you decide that the defendant is guilty of first
degree murder, but you cannot agree whether the defendant was the actual killer, then, in
order to find (this/these) special circumstance[s] true, you must find that the defendant
acted with the intent to kill.]] [¶] If the defendant was not the actual killer, then the
People have the burden of proving beyond a reasonable doubt that (he/she) acted with the
intent to kill for the special circumstance[s] ______________ to be true. If the
People have not met this burden, you must find (this/these) special circumstance[s]
(has/have) not been proved true [for that defendant].

23
added.) As discussed, the jury was given CALCRIM No. 728; thus, the court did not

have a duty to give CALCRIM No. 702 sua sponte. Indeed, and as discussed, CALCRIM

Nos. 700 and 728 together instructed the jury that, to find the special circumstance

allegation true against Vega, it had to find “he” intended to kill Vazquez.

The same argument Vega raises here was rejected in People v. Bonilla (2007) 41

Cal.4th 313, where the court considered CALJIC No. 8.81.5, the predecessor instruction

to CALCRIM No. 728, which defined the elements of the lying-in-wait special-

circumstance allegation. As the court explained, CALJIC No. 8.81.5 correctly stated the

law by not requiring the jury to find that the defendant, Bonilla, who allegedly aided and

abetted the murder, personally killed the victim or personally lay in wait for the victim.

(People v. Bonilla, supra, at pp. 330-332.) Instead, the instruction properly allowed the

jury to find the allegation true against Bonilla based on evidence that he, with the intent

to kill, aided and abetted the actual killer, who lay in wait for and killed the victim.

(Ibid.) Together, CALCRIM Nos. 700 and 728, given here, required the jury to find that

Vega, as an alleged aider and abettor to a murder, did so with intent to kill.

E. The Jury Was Adequately Instructed on “Provocation-based” Second Degree Murder

In four separate arguments, defendants claim the court inadequately instructed the

jury on “provocation-based” second degree murder. On first and second degree murder,

the court gave CALCRIM Nos. 520 (First or Second Degree Murder with Malice

Aforethought) and 521 (First Degree Murder), but did not give CALCRIM No. 522

(Provocation: Effect on Degree of Murder). The court instructed on voluntary

24
manslaughter by giving CALCRIM Nos. 570 (Voluntary Manslaughter: Heat of Passion)

and 571 (Voluntary Manslaughter: Imperfect Self Defense).

Though neither defendant requested them, Vega argues the trial court had a duty to

give CALCRIM No. 522 (Provocation: Effect on Degree of Murder), as well as CALJIC

Nos. 8.20 (Deliberate and Premeditated Murder) and 8.30 (Unpremeditated Murder of the

Second Degree) sua sponte. Ayon joins these claims, and, joined by Vega, claims the

court also had a sua sponte duty to give CALJIC No. 8.71 (Doubt Whether First or

Second Degree Murder), which was also not requested. In light of the instructions given,

we conclude the court did not have a duty to give CALCRIM No. 522 or CALJIC Nos.

8.20, 8.30, or 8.71, sua sponte.

A trial court has a duty to instruct sua sponte on the general principles of law

relevant to the issues raised by the evidence. (People v. Rogers (2006) 39 Cal.4th 826,

866 (Rogers).) This sua sponte obligation includes instructing on lesser included

offenses when substantial evidence shows the defendant may be guilty of the lesser

offense but not the greater offense. (People v. Breverman (1998) 19 Cal.4th 142, 162 [“a

trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense

which find substantial support in the evidence.”].)

We independently review the correctness and adequacy of the trial court’s

instructions, examining whether the court “‘fully and fairly instructed on the applicable

law.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We consider

the instructions as a whole and presume the jurors are capable of understanding and

25
correlating the instructions. (Ibid.) While a trial court has a duty to adequately instruct

on the law, it has no duty to give clarifying or amplifying instructions, absent a request.

(People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.) Pinpoint instructions—

instructions that relate particular facts to a legal issue in the case—are required to be

given on request if there is evidence to support the theory, but are not required to be

given sua sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)

With these principles in mind, we turn to the four instructions defendants claim the

court had a duty to give sua sponte.

1. CALCRIM No. 522

CALCRIM No. 522 provides: “Provocation may reduce a murder from first

degree to second degree [and may reduce a murder to manslaughter]. The weight and

significance of the provocation, if any, are for you to decide. [¶] If you conclude that the

defendant committed murder but was provoked, consider the provocation in deciding

whether the crime was first or second degree murder. [Also, consider the provocation in

deciding whether the defendant committed murder or manslaughter.] . . . .”

CALCRIM No. 522 is the successor to CALJIC No. 8.73 (Evidence of

Provocation May be Considered in Determining Degree of Murder), which in its latest

edition, published in 2005, provided: “If the evidence establishes that there was

provocation which played a part in inducing an unlawful killing of a human being, but the

provocation was not sufficient to reduce the homicide to manslaughter, you should

26
consider the provocation for the bearing it may have on whether the defendant killed with

or without deliberation and premeditation.”

CALJIC No. 8.73 is a pinpoint instruction. (Rogers, supra, 39 Cal.4th at pp. 878-

879 [“Because CALJIC No. 8.73 relates the evidence of provocation to the specific legal

issue of premeditation and deliberation, it is a ‘pinpoint instruction’ as that term was

defined in People v. Saille, supra, 54 Cal.3d at pages 1119-1120 . . . .”].) As indicated,

“[pinpoint] instructions relate particular facts to a legal issue in the case or ‘pinpoint’ the

crux of a defendant’s case . . . . [Citation.] They are required to be given upon request

when there is evidence supportive of the theory, but they are not required to be given sua

sponte.” (People v. Saille, supra, 54 Cal.3d at p. 1119 [instruction relating evidence of

intoxication premeditation and deliberation does not involve a general principle of law as

that term is used in case imposing a sua sponte duty to instruct].)

Based on the reasoning of Rogers, CALCRIM No. 522, like CALJIC No. 8.73, is a

pinpoint instruction. As the Rogers court explained: “[U]nder the principles expressed in

CALJIC No. 8.73, provocation is relevant only to the extent it ‘bears on the question’

whether defendant premeditated and deliberated. [Citation.] Because CALJIC No. 8.73

relates the evidence of provocation to the specific legal issue of premeditation and

deliberation, it is a ‘pinpoint instruction’ . . . and need not be given on the court’s own

motion.” (Rogers, supra, 39 Cal.4th at pp. 878-879.)

Like CALCRIM No. 8.73, CALCRIM No. 522 would have instructed that

provocation may reduce a murder from first degree to second degree, or to manslaughter,

27
depending on the degree or sufficiency of the provocation. But because CALCRIM No.

522 is a pinpoint instruction, the court did not have a sua sponte duty to give it. (See

Rogers, supra, 39 Cal.4th at pp. 878-879; People v. Hernandez, supra, 183 Cal.App.4th

1327, 133-1334 [“As reflected in Rogers, the fact that a trial court is not required to

instruct on provocation for second degree murder at all supports that it is not misleading

to instruct on provocation without explicitly stating that provocation can negate

premeditation and deliberation.”].)

Further, the mental state required for first and second degree murder was covered

by CALCRIM No. 520 (Murder: First and Second Degree), and the mental state required

for first degree murder based on premeditation and deliberation, was covered by

CALCRIM No. 521. CALCRIM No. 521 instructed, in part: “A decision to kill made

rashly, impulsively, or without careful consideration is not deliberate and premeditated.”

Neither Vega nor Ayon asked the court to additionally instruct the jury that “subjective”

or unreasonable provocation may reduce what would otherwise be a first degree murder

to second degree murder, but not manslaughter. And because they failed to request such

a pinpoint instruction in the trial court, they have forfeited their claim on appeal. (People

v. Jones (2014) 223 Cal.App.4th 995, 1001 [failure to request “pinpoint” instruction that

subjective provocation would reduce murder from first to second degree forfeited on

appeal because not raised in trial court].)

28
 2. CALJIC No. 8.20

Defendants claim the trial court had a sua sponte duty to give CALJIC No. 8.20

(Deliberate and Premeditated Murder), because it states: “If you find that the killing was

preceded and accompanied by a clear, deliberate intent on the part of the defendant to

kill, which was the result of deliberation and premeditation, so that it must have been

formed upon pre-existing reflection and not under a sudden heat of passion or other

condition precluding the idea of deliberation, it is murder of the first degree.” (Italics

added.) Defendants argue the italicized language would have “expressly told the jury it

should consider subjective heat of passion in deciding whether the prosecution had

proved the deliberation and premeditation elements . . . .”

CALCRIM No. 521, the successor instruction to CALJIC No. 8.21, covered the

same point made in CALJIC No. 8.21 by instructing that: “A decision to kill made

rashly, impulsively, or without careful consideration is not deliberate and premeditated.”

If defendants wanted an additional instruction on “subjective heat of passion” or how

“subjective heat of passion” could negate the elements of premeditation and deliberation,

and reduce what would otherwise be a first degree murder to second degree murder, they

should have requested it, but they did not. (People v. Hart (1999) 20 Cal.4th 546, 622

[failure to request clarifying instruction at trial forfeits claim on appeal]; see also People

v. Lang (1989) 49 Cal.3d 991, 1024 [“A party may not complain on appeal that an

instruction correct in law and responsive to the evidence was too general or incomplete

unless the party has requested appropriate clarifying or amplifying language.”].)

29
 3. CALJIC No. 8.30

In its latest edition published in 2005, CALJIC No. 8.30 provided: “Murder of the

second degree is [also] the unlawful killing of a human being with malice aforethought

when the perpetrator intended unlawfully to kill a human being but the evidence is

insufficient to prove deliberation and premeditation.”

In Rogers, it was error not to give CALJIC No. 8.30 sua sponte. (Rogers, supra,

39 Cal.4th at p. 866.) The court observed that “the trial court erred by omitting an

instruction that second degree murder includes an intentional but unpremeditated

murder,” namely, CALJIC No. 8.30. (Rogers, supra, at p. 866.) More specifically, the

trial court erred because “it failed to explain that a murder committed with express malice

could constitute second degree murder,” and “[t]he omission of CALJIC No. 8.30 created

an obvious gap in the instructions that was not filled by any of the other [given]

instructions . . . .” (Id. at p. 867.)

Here, however, CALCRIM No. 521 replaced CALJIC No. 8.30 and filled the gap

in the instructions left in Rogers. CALCRIM Nos. 520 and 521 instructed, by clear and

necessary implication, that second degree murder includes an unpremeditated, intentional

murder, and that a murder committed willfully or with express malice (i.e., with intent to

kill), but without premeditation or deliberation, is second degree murder.

Indeed, CALCRIM No. 520 instructed that a defendant acted with express malice

if he or she unlawfully intended to kill, and CALCRIM No. 521 instructed that a

defendant acts “willfully” if he or she intended to kill. CALCRIM No. 521 further

30
instructed that each defendant was guilty of first degree murder “if the People have

proved he or she acted willfully, deliberately, and with premeditation” (italics added),

and explained that intent to kill alone is insufficient to prove deliberation and

premeditation: “A defendant acted willfully if he or she intended to kill. A defendant

acted deliberately if he or she carefully weighed the considerations for and against his or

her choice and, knowing the consequences, decided to kill. A defendant acted with

premeditation if he or she decided to kill before completing the acts that caused death.”

CALCRIM No. 521 concluded: “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.” CALCRIM No. 520 further instructed: “If you decide that a defendant

committed murder, you must then decide whether it is murder of the first or second

degree.”

Based on CALCRIM Nos. 520 and 521, the jury must have understood that each

defendant was guilty of second degree murder, not first degree murder, if it found that

defendant acted willfully or with express malice—that is, with intent to kill—but did not

act with deliberation or premeditation.

4. CALJIC No. 8.71

Ayon, joined by Vega without additional argument, complains the instructions

“were also deficient in that they did not include the general principle of law contained in

CALJIC No. 8.71, which reads: “If you are convinced beyond a reasonable doubt and

31
unanimously agree that the crime of murder has been committed by a defendant, but you

unanimously agree that you have a reasonable doubt whether the murder was of the first

or of the second degree, you must give defendant the benefit of that doubt and return a

verdict fixing the murder as of the second degree [as well as a verdict of not guilty of

murder in the first degree].”

CALJIC No. 8.71 is based on “the Dewberry principle” which, in keeping with

section 1097, requires the court to instruct the jury that when the evidence is sufficient to

support a finding that the defendant committed both the offense charged and a lesser

included offense, the jury must find the defendant guilty only of the lesser offense.

(People v. Dewberry (1959) 51 Cal.2d 548, 555-557.)4

CALCRIM No. 640, given here, is likewise based on section 1097 and the

Dewberry principle. It instructed, in part: “If all of you agree that a defendant is not

guilty of first degree murder but also agree that a defendant is guilty of second degree

murder, complete and sign the form for not guilty of first degree murder and the form for

guilty of second degree murder. Do not complete or sign any other verdict forms for that

defendant for that count.”

Neither Ayon nor Vega has explained why CALCRIM No. 640 was an inadequate

substitute for CALJIC No. 8.71, or that CALCRIM No. 640 did not adequately instruct

4 Section 1097 states: “When it appears that the defendant has committed a
public offense . . . and there is reasonable ground of doubt in which of two or more
degrees of the crime . . . he is guilty, he can be convicted of the lowest of such degrees
only.”

32
the jury in accordance with section 1097 and the Dewberry principle. Nor did either

defendant object to CALCRIM No. 640 in the trial court, on any ground. Thus,

defendants have forfeited any claim on appeal that CALCRIM No. 640 was deficient, or

failed to adequately express the Dewberry principle. (People v. Hart, supra, 20 Cal.4th

at p. 622 [failure to request clarifying instruction at trial forfeits claim on appeal].)

F. The Parole Revocation Restitution Fines (§ 1202.45) Are Stricken

Lastly, Vega, joined by Ayon without additional argument, claims the trial court

erroneously imposed a $10,000 parole revocation restitution fine (§ 1202.45) on each of

them, but suspended the fines pending their successful completion of parole. They claim

the fines must be stricken because they were each sentenced to life without the possibility

of parole; they are therefore ineligible for parole; and the fines constitute unauthorized

sentences.

The People agree the fines must be stricken because defendants are ineligible for

parole. (People v. Battle (2011) 198 Cal.App.4th 50, 63 [parole revocation restitution

fines improperly imposed where sentence included life without the possibility of parole

and no determine terms].)

We agree the fines must be stricken, but not because they were unauthorized by

law and erroneously imposed. To the contrary, the fines were not imposed, and must be

stricken because they were not imposed. In orally pronouncing sentence, the court said it

was imposing a $10,000 restitution fine on each defendant (§ 1202.4) but was not

imposing the related and concomitant parole revocation restitution fines on either

33
defendant (§ 1202.45). Still, the sentencing minute orders and abstracts of judgment for

each defendant erroneously state that a $10,000 suspended parole revocation restitution

fine (§ 1202.45) was imposed on each defendant.

It has long been settled that the oral pronouncement of judgment controls over any

errors in the court’s minute orders and abstracts of judgment. (People v. Mesa (1975) 14

Cal.3d 466, 471.) Additionally, this court has inherent authority to correct clerical errors

in court records. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore strike

the parole revocation fines from defendants’ sentences, and remand the matter with

directions to prepare supplemental sentencing orders and amended abstracts of judgment

for each defendant reflecting these corrections.

IV. DISPOSITION

The matter is remanded with directions to prepare supplemental sentencing minute

orders showing that no parole revocation restitution fines (§ 1202.45) were imposed on

defendant Ernesto Garcia-Vega or defendant Maria Manuelita Ayon, and to prepare

amended abstracts of judgment, also showing that no parole revocation restitution fines

were imposed. Copies of the amended abstracts are to be forwarded to the Department of

Corrections and Rehabilitation. The judgments are affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING
J.

We concur:
34
RAMIREZ
P. J.

RICHLI
J.

35