People v. King CA2/2

Filed 12/21/21 P. v. King CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B288298

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA085329)
v.

SCOTT LEWIS KING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael D. Carter, Judge. Affirmed and
remanded with directions.
Jin H. Kim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Heidi Salerno, Deputy Attorneys General,
for Plaintiff and Respondent.
 Scott Lewis King appealed the judgment entered following
a jury trial in which he was convicted of first degree murder.
(Pen. Code,1 § 187, subd. (a).) The jury also found true the gang
allegation pursuant to section 186.22, subdivision (b)(1)(C) and
three firearm allegations pursuant to section 12022.53,
subdivisions (b), (c) and (d). The trial court found appellant had
suffered a prior serious felony conviction for robbery, which
qualified as a strike under the Three Strikes law (§§ 667,
1170.12), but the court granted appellant’s Romero2 motion to
dismiss the strike.
The trial court sentenced appellant to 55 years to life in
state prison. The sentence consisted of 25 years to life for the
first degree murder conviction, plus a consecutive term of 25
years to life for the firearm enhancement under Penal Code
section 12022.53, subdivision (d),3 and an additional five-year
term pursuant to section 667, subdivision (a)(1) for the prior
serious felony conviction. The court imposed a $300 restitution
fine (Pen. Code, § 1202.4, subd. (b)), imposed and stayed a $300
parole revocation fine (Pen. Code, § 1202.45), and ordered a $30
criminal conviction assessment (Gov. Code, § 70373), and a $40
court security fee (Pen. Code, § 1465.8).

1 Undesignated statutory references are to the Penal Code.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3 The court also imposed and stayed a 10-year term under
section 12022.53, subdivision (b) and a 20-year term under
section 12022.53, subdivision (c). In addition, the court imposed
and permanently stayed a 10-year term under section 186.22,
subdivision (b)(1)(C).

2
 On April 27, 2020, we affirmed the judgment of conviction
in an unpublished opinion.4 Our Supreme Court granted review
and subsequently transferred the matter to this court with
directions to vacate the prior decision and to reconsider the cause
in light of People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). (Cal.
Rules of Court, rule 8.528(d).) In Lemcke, our Supreme Court
undertook an examination of CALCRIM No. 3155 to resolve the
following question: “ ‘Does instructing a jury with CALCRIM
No. 315, which directs the jury to consider an eyewitness’s level
of certainty when evaluating an identification, violate a
defendant’s federal and state due process rights?’ ” (Lemcke, at
pp. 653–654.) While finding no due process violation on the
record before it, Lemcke “join[ed] other jurisdictions (and the
California Commission on the Fair Administration of Justice) in
acknowledging that [inclusion of the certainty factor in
CALCRIM No. 315] has the potential to mislead jurors.”
(Lemcke, at p. 665.)
On remand, appellant contends that when considered in
the context of the entire trial record, including the instructions as
a whole, the inclusion of the certainty factor in CALCRIM
No. 315 violated his due process rights by lowering the

4 People v. King (Apr. 27, 2020, B288298) [nonpub. opn.].
5 CALCRIM No. 315 instructs in relevant part:
“You have heard eyewitness testimony identifying the
defendant. As with any other witness, you must decide whether
an eyewitness gave truthful and accurate testimony. [¶] In
evaluating identification testimony, consider the following
questions: [¶] . . . [¶] How certain was the witness when he or she
made an identification?” (CALCRIM No. 315, italics added.)

3
prosecution’s burden of proof. We disagree. Reconsidering the
matter in light of Lemcke, supra, 11 Cal.5th 644, we vacate our
prior opinion and affirm the judgment of conviction.6
FACTUAL BACKGROUND
1. Marvin Laguan’s murder
On the evening of August 22, 2011, appellant was at his
cousin’s house on Mar Vista Avenue in Pasadena with Steven
Fleming, Maurice Scudder, and Ricky Vaughns. After leaving
the cousin’s house, the four men walked south on Mar Vista
together, but when they reached Villa Street, Fleming told
Scudder, “ ‘Just go to Brandy’s [sic] house. We going to come over
there. I’ll meet you over there. We’re about to go do something.’ ”
Appellant and Fleming continued walking down Mar Vista
toward Maple, but feeling something was “fishy” and “weird,”

6 Appellant has also contended: (1) The trial court
prejudicially erred in denying appellant’s request for a voluntary
manslaughter instruction based on imperfect self-defense; (2) The
trial court abused its discretion in refusing to strike the firearm
enhancement; and (3) Appellant is entitled to remand for a
determination of his ability to pay the restitution and parole
revocation fines, the court securities fee, and the criminal
conviction assessment. We continue to reject these contentions
and affirm. We remand the matter to permit the trial court to
exercise its discretion pursuant to Senate Bill No. 1393 (Stats.
2018, ch. 1013, § 2) to impose or strike the serious felony
enhancement imposed under section 667, subdivision (a)(1). The
trial court is further directed to correct the minutes of the
February 21, 2018 probation and sentencing hearing and the
abstract of judgment to accurately reflect the court’s oral
pronouncements.

4
Scudder waited at the corner of Villa and Mar Vista and watched
to see where they were going and if they were going to return.
In the meantime, around 9:00 p.m. Cynthia Carrier drove
to Mar Vista to pick up her boyfriend, Marvin Laguan, at his
friend’s apartment located on the east side of the street between
Villa and Maple. With her three-year-old son in the backseat,
Carrier parked on the west side of the street and remained in the
car as she waited for Laguan. Laguan came outside and leaned
into the driver’s side window to speak with her. As they chatted,
Carrier saw Laguan look over his shoulder and look at appellant,
who was slowly walking down the east side of Mar Vista toward
Maple. Appellant was wearing a dark shirt and a dark unzipped
hoodie sweatshirt with the hood pulled up over his head.
Appellant stopped and stood in the driveway of the apartment
from which Laguan had just come. As the two men eyed each
other, Laguan said, “ ‘What’s up?’ ” to appellant. Carrier could
not hear appellant’s response. Appellant continued to stare at
Laguan, making him uncomfortable and irritated, which
prompted Carrier to urge Laguan to hurry up and say goodbye to
his friends so they could leave.
Laguan turned and started to walk across the street toward
his friend’s apartment. His hands were at his sides and he was
wearing a short-sleeved T-shirt. He did not have any weapon,
and he made no threatening or aggressive gestures toward
appellant. As he drew closer to appellant, Laguan said, “ ‘Where
you from?’ ” in a nonthreatening manner. Suddenly appellant
pulled a revolver from the pocket of his sweatshirt and opened
fire, shooting Laguan multiple times. Laguan turned around and
tried to walk back to Carrier’s car. He went to his knees as
appellant continued to shoot him. When he had stopped firing,

5
appellant ran down Mar Vista toward Maple. Carrier managed
to get Laguan into the backseat of her car and call 911.
Cynthia Dale and her boyfriend Oliver Debats were sitting
on their elevated porch facing Mar Vista at the corner of Maple
when they heard gunshots. Debats first saw appellant near
Carrier’s car. After the shooting Dale and Debats saw appellant
and another man run south on Mar Vista past their porch and
turn west on Maple. The hood of appellant’s sweatshirt had come
off his head, and he was running awkwardly with his hands in
his pockets. As appellant ran past, Dale made eye contact with
him and saw him “dead on.” 7 At trial, both Dale and Debats
identified appellant as the man wearing the hoodie. Dale
testified she was “very confident” in her identification.
When Scudder heard the gunshots he ran west on Villa to
Brandi’s apartment, which was on Wilson one block west of Mar
Vista between Villa and Maple. After the shooting, surveillance
footage from a residence on Wilson showed two figures run from
Villa into the rear of an apartment building on Wilson. Three to
five minutes after Scudder arrived at Brandi’s apartment,
appellant and Fleming rushed in, nervous and out of breath.
They ran to the back of the apartment, and dashed back and
forth in and out of the bathroom. Scudder saw that appellant
and Fleming had taken a revolver apart and were putting the
parts in a towel. Appellant passed the cylinder to Fleming.

7 At the preliminary hearing of King and his codefendant,
Steven Fleming, as well as at Fleming’s trial in September 2014,
Dale identified Fleming as the man with whom she made eye
contact.

6
 Laguan died due to multiple gunshot injuries. He suffered
10 gunshot wounds, two of which were fatal. Five projectiles,
consistent with the .22 long rifle caliber ammunition used in 10-
round revolvers, were recovered from Laguan’s body. No bullets
or casings were found at the scene, and police never recovered a
gun.
2. Jail phone calls and visits
While appellant was in custody following his arrest, several
of his telephone calls and conversations with visitors were
recorded. In one call, appellant fretted over the number of
witnesses against him and the police discovery of the gun used in
the shooting. In recorded conversations with visitors, appellant
solicited help contacting witnesses, including Fleming, who was
the only person he thought could identify him. Appellant also
constructed an alibi and instructed his visitor to get Vaughns to
corroborate the story.
3. Gang evidence
Corporal Carlo Montiglio of the Pasadena Police
Department testified as the prosecution’s gang expert. The
expert explained that the “Pasadena Denver Lanes Bloods” is a
Bloods gang based in Pasadena known by its initials “PDL.” As a
Bloods gang, PDL associates with the color red, and its members
commonly call each other “Blood.” The chief rival of any Bloods
gang is a Crips gang, and Bloods gang members often change the
“C” in words to a “B” as a sign of disrespect to the Crips. Thus, in
written or oral speech, Bloods gang members commonly say
words like “bool” for “cool,” or “bristol meth” for “crystal meth.”
In Bloods gang graffiti and tattoos a “K” may be placed after a
“C” in a word to signify “Crip Killer.”

7
 Among PDL’s rivals in Pasadena are the “Squiggly Lane
Gangster Bloods” and the “Villa Boys Pasadena Trece” gang
(Villa Boys). In 2011, PDL and the Villa Boys were engaged in a
violent conflict which involved several shootings and murders.
Montiglio testified that although the area around Mar Vista and
Villa was Villa Boys gang territory, PDL controlled a small
section of that area on Mar Vista just north of Villa.
Montiglio identified several of appellant’s tattoos as
probable PDL gang tattoos. On November 6, 2008, appellant
admitted to writing PDL gang graffiti and his moniker “Do
Wrong” on a Pasadena bus. Appellant also admitted to a police
officer that he was a gang member.
Based on the gang graffiti, appellant’s gang tattoos, his
gang admission, his regular association with PDL gang members,
and his frequent use of gang vernacular in his recorded jail
conversations as well as his Facebook messages and postings,
Montiglio opined appellant was a member of the Pasadena
Denver Lanes Bloods. When presented with a hypothetical
scenario based on the facts of the Laguan murder, Montiglio
further opined that the murder was committed for the benefit of,
at the direction of, or in association with the PDL gang.
DISCUSSION
I. CALCRIM No. 315
On remand appellant contends the trial court’s instruction
pursuant to CALCRIM No. 315 that a witness’s level of certainty
is a factor to consider in evaluating the accuracy of identification
testimony violated his due process rights by lowering the
prosecution’s burden of proof. In so arguing, appellant relies on
Lemcke’s determination that inclusion of the certainty factor “has
the potential to mislead jurors” (Lemcke, supra, 11 Cal.5th at

8
p. 665), while distinguishing Lemcke for its finding that the
certainty instruction in that case did not render the defendant’s
trial fundamentally unfair or otherwise violate the defendant’s
due process rights (id. at p. 661). Here, while acknowledging the
jury received the same instructions that the trial court gave in
the Lemcke case, appellant argues that the absence of expert
witness testimony to dispel the misconception endorsed by the
certainty instruction that the accuracy of an identification is
commensurate with the witness’s level of certainty rendered
appellant’s trial fundamentally unfair. We disagree.
Lemcke does not support appellant’s claim. The lack of
expert identification testimony did not make the trial
fundamentally unfair because defense counsel at appellant’s trial
successfully cast doubt on the accuracy of the three eyewitness
identifications through vigorous cross-examination establishing
that none of the witnesses could accurately identify the shooter at
the scene. Indeed, the defense established that all three
witnesses identified appellant in a photo lineup only through a
process of elimination because he looked “familiar.” And Dale
twice identified Fleming⎯at the preliminary hearing and at
Fleming’s trial⎯as the man wearing the hoodie with whom she
had made eye contact. Moreover, aside from the eyewitness
identifications, the prosecution in this case presented convincing
evidence of appellant’s identity as the shooter.
A. The Lemcke decision
In Lemcke, our Supreme Court acknowledged that
“[c]ontrary to widespread lay belief, there is now near unanimity
in the empirical research that ‘eyewitness confidence is generally
an unreliable indicator of accuracy.’ ” (Lemcke, supra, 11 Cal.5th
at p. 647.) However, the research also shows that “ ‘jurors . . .

9
tend to overvalue the effect of . . . certainty . . . in determining the
accuracy of eyewitness identifications.’ ” (Id. at p. 665.) The
court noted that as currently worded, CALCRIM No. 315 does
nothing to correct the common misconception that a witness’s
high degree of certainty in an identification correlates to
accuracy. (Id. at pp. 647, 666.) Rather, by “merely directing the
jury to consider a witness’s level of certainty, without any further
caveats, [the instruction] effectively operates to reinforce that
misconception.” (Id. at p. 666.) “This is especially problematic
because many studies have also shown eyewitness confidence is
the single most influential factor in juror determinations
regarding the accuracy of an identification.” (Id. at p. 647.) And,
as the court acknowledged, the danger of misleading jurors
increases where the prosecution’s case relies almost entirely on
the testimony of a single witness who expresses a high degree of
certainty in the identification. (Id. at p. 666.)
The Supreme Court also warned that “[t]he risk of juror
confusion is heightened by the structure of CALCRIM No. 315,
which lists witness certainty among numerous other factors the
jury should consider when assessing the eyewitness testimony.
As written, the instruction implies that each of these factors have
a direct, linear bearing on accuracy. For instance, ‘How well
could the witness see the perpetrator’ implicitly prompts the jury
to believe that if the witness could see the perpetrator well, the
identification should be given more weight, and vice versa; ‘How
closely was the witness paying attention,’ ‘Was the witness under
stress when he or she made the observation,’ ‘Did the witness
ever fail to identify the defendants,’ all do the same. Hearing the
certainty instruction in this context increases the risk that the
jury will infer certainty operates the same way—as having some

10
direct relationship with the accuracy of the identification.”
(Lemcke, supra, 11 Cal.5th at p. 666.)
Despite the risks of allowing a jury to consider the level of
an eyewitness’s confidence to determine the accuracy of an
identification, Lemcke noted that inclusion of the certainty factor
in CALCRIM No. 315 does not, by itself, violate due process.
(Lemcke, supra, 11 Cal.5th at pp. 646–647, 661.) A due process
violation occurs only if the jury instruction⎯“ ‘ “in the context of
the instructions as a whole and the trial record” ’ ”⎯ renders the
defendant’s trial fundamentally unfair, most often by lowering
the prosecution’s burden of proof. (Id. at pp. 647, 655, 661,
quoting People v. Foster (2010) 50 Cal.4th 1301, 1335.) Our
Supreme Court has long held that CALCRIM No. 315 (and its
predecessor, CALJIC No. 2.92) does not violate due process
because it “does not direct the jury that ‘certainty equals
accuracy.’ ” (Lemcke, at pp. 647, 655–657; see People v. Sánchez
(2016) 63 Cal.4th 411, 462.) Rather, “[t]he instruction leaves the
jury to decide whether the witness expressed a credible claim of
certainty and what weight, if any, should be placed on that
certainty in relation to the numerous other factors listed in
CALCRIM No. 315.” (Lemcke, at p. 657.)
The Lemcke court’s examination of the record before it also
revealed sufficient safeguards to prevent the jury from
improperly inferring that a witness’s certainty in making an
identification ensures its accuracy. Our Supreme Court
concluded, “when considered ‘ “in the context of the instructions
as a whole and the trial record” ’ [citation], . . . listing the
witness’s level of certainty as one of 15 factors the jury should
consider when evaluating an eyewitness identification did not
render [defendant’s] trial fundamentally unfair or otherwise

11
amount to a due process violation.” (Lemcke, supra, 11 Cal.5th at
p. 661.)
Despite the absence of a due process violation in the case
before it, Lemcke nevertheless determined “there is a risk that
the current version of the instruction will prompt jurors to infer
that an eyewitness’s certainty in an identification is generally a
reliable indicator of accuracy.” (Lemcke, supra, 11 Cal.5th at
p. 669.) To avoid the risk that the current version of the
instruction poses, the Supreme Court exercised its supervisory
powers to direct California trial courts to omit the certainty
factor from CALCRIM No. 315 until the language might be
revised to minimize possible juror misdirection on this point.
(Ibid.)
B. Inclusion of the certainty factor did not violate
appellant’s due process rights
Lemcke’s rejection of the defendant’s due process claim was
based on the presence of several safeguards that the court found
effectively prevented the jury from improperly inferring the
accuracy of an identification from a witness’s certainty. These
included: (1) The defendant in Lemcke presented expert witness
testimony to rebut the misconception that certainty equals
accuracy by casting grave doubt on the utility of confidence to
assess accuracy, and labeling in-trial identification testimony as
“particularly meaningless” (Lemcke, supra, 11 Cal.5th at p. 658);
(2) other jury instructions given countered the possibility that
CALCRIM No. 315 lowered the prosecution’s burden of proof
(ibid.); and (3) defense counsel had ample opportunity to cross-
examine witnesses regarding details and inconsistencies in the
identifications which affected accuracy (id. at p. 660).

12
 However, nothing in Lemcke suggests these elements are
prerequisites to a fair trial in which identification is at issue, nor
does the absence of any of these safeguards inevitably result in a
due process violation. The defense did not present an eyewitness
identification expert in this case, even though it could have.
Nevertheless, appellant had a full and fair opportunity to test the
reliability and accuracy of the three eyewitness identifications
through cross-examination, and defense counsel took full
advantage of this opportunity.
In the cross-examination of the victim’s girlfriend, Carrier,
defense counsel elicited testimony that Laguan saw the shooter
before she did, but Laguan was blocking her view and she only
saw the man in her peripheral vision. Carrier further admitted
she was not paying attention to the shooter, and Laguan
continued to block her view as he crossed the street and walked
toward the man. Although she could describe the shooter’s
clothing and build, Carrier conceded she could see only his eyes,
not his whole face. Carrier also told the police she did not get a
good look at the shooter, and could not give a good description
because everything had happened so fast. Carrier testified on
cross-examination that when she identified appellant from a six-
pack photo lineup, she told the officer that she knew none of the
other five men was the shooter, but appellant looked most like
the person who shot her boyfriend.
On cross-examination Dale admitted that she never
actually saw the shooting but had looked up after hearing gunfire
to see two men running southbound on Mar Vista. She also
conceded she had been unable to identify anyone at the field
show-up. Dale testified that she saw one of the men wearing a
hoodie and running, but she could not recall what the other

13
person was wearing. When she identified appellant in the photo
lineup, she said he looked like the person she saw in the hoodie,
but at the preliminary hearing for appellant and codefendant
Fleming, Dale admitted to being confused about who was who,
and at Fleming’s trial she identified Fleming as the person in the
hoodie.
Similarly, Debats admitted on cross-examination that he
did not actually witness the shooting, but ducked as soon as he
heard the noise. When he stood up, he saw two males quickly
moving southbound on Mar Vista. One of the men was wearing a
hooded sweatshirt and was running with his hands in the
pockets. The hood had partially slipped off his head, and Debats
could see the right side of his face, but he failed to identify
anyone in the field show-up that night. When Debats identified
appellant in the photo lineup, he did so stating that he looked
“familiar.”
The witness certainty factor in CALCRIM No. 315 clearly
did not impede the defense’s ability to confront these witnesses
and challenge their identification testimony. Indeed, by drawing
the jury’s attention to the witnesses’ level of certainty in
identifying the perpetrator, the instruction served to highlight
the deficiencies in these eyewitness identifications that were
revealed in cross-examination.
Moreover, as Lemcke emphasized, “the instruction merely
lists the witness’s level of certainty at the time of identification as
one of 15 different factors that the jury should consider when
evaluating the credibility and accuracy of eyewitness testimony.”
(Lemcke, supra, 11 Cal.5th at p. 657.) Here, some of those factors
tended to undermine the accuracy of the witnesses’
identifications, as defense counsel forcefully argued to the jury.

14
In addition, the certainty factor itself allowed the defense to
highlight the notable lack of certainty in the witnesses’
identifications in the photo lineup and Dale’s identification of
Fleming as the man in the hoodie with whom she made eye
contact.
Our Supreme Court in Lemcke found that other
instructions given in that case undermined defendant’s argument
that the certainty language lowered the prosecution’s burden of
proof and violated his due process rights by denying him a
meaningful opportunity to present a complete defense. (Lemcke,
supra, 11 Cal.5th at pp. 658, 660.) These included a general
instruction on witness testimony that “ ‘[p]eople sometimes
honestly . . . make mistakes about what they remember’ and that
the jurors were responsible for ‘judg[ing] the credibility or
believability of the witnesses,’ ” the instruction that the
defendant is presumed innocent, and that the prosecution had
the burden of proving all elements of the crime including the
identity of the perpetrator beyond a reasonable doubt. (Id. at
p. 658.) These general instructions were given in this case, too,
thus fully apprising the jury of its duties regarding assessment of
a witness’s credibility and the prosecutor’s burden to prove guilt
beyond a reasonable doubt. (Lemcke, supra, 11 Cal.5th at p. 658.)
Moreover, CALCRIM No. 315 itself made this burden clear,
instructing jurors that “[t]he People have the burden of proving
beyond a reasonable doubt that it was the defendant who
committed the crime. If the People have not met this burden, you
must find the defendant not guilty.”
Jurors are presumed to have understood and correctly
applied the trial court’s instructions unless there is evidence of
confusion or the jury requested further guidance on the issue at

15
hand. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) Moreover,
in addition to CALCRIM No. 315, the trial court read CALCRIM
No. 226, which, like CALCRIM No. 315, lists numerous factors
(12) the jury may consider in evaluating the accuracy of witness
testimony. The trial court also read CALCRIM No. 316, which
informs the jury how evidence of a witness’s prior felony
conviction, crime or other misconduct may be considered in
evaluating the witness’s credibility. And in closing argument, the
prosecutor urged the jury to consider all of the facts and
circumstances surrounding the witnesses’ identifications of
appellant in assessing their accuracy and credibility. We find no
indication in the record that these instructions confused or misled
the jury, and the instructions taken as a whole do not support the
conclusion that the jury was encouraged to give any more weight
to the certainty factor than to any of the other 26 factors the jury
was told to weigh.
The record as a whole shows that the inclusion of the
certainty factor as one of 27 factors to be considered by the jury
did not render the trial fundamentally unfair. Not only did all
three eyewitnesses independently identify appellant from photo
lineups, the evidence convincingly pointed to appellant as the
shooter. Immediately before the shooting, appellant and Fleming
told their friends to go to Brandi’s because “ ‘We’re about to go do
something.’ ” Appellant and Fleming then continued walking
down Mar Vista toward Maple. About three minutes after the
shooting, appellant and Fleming rushed into Brandi’s apartment,
nervous and out of breath. Appellant had a revolver, the type of
gun used in the shooting. As they dashed in and out of the
bathroom, appellant and Fleming took the revolver apart and put
the parts in a towel. Appellant passed the cylinder to Fleming.

16
 Appellant’s recorded jailhouse visits and phone calls also
strongly suggested it was appellant, not Fleming, who had shot
Laguan to death. Within hours of police indicating to appellant
they knew the gun was hidden in Brandi’s apartment, appellant
exclaimed in a phone call, “They got the gun!” Sometime later in
a recorded conversation with an unidentified jailhouse visitor,
appellant told the visitor, “Hey, on blood, I need y’all to find that
one fat bitch that’s saying that she saw me empty the gun shells
in the toilet. [¶] . . . [¶] Brandi [phonetic].” When the visitor
offered to go to her apartment, appellant said, “Yeah, but I don’t,
I don’t need her threatened though, like⎯” The visitor
responded, “Oh, I ain’t threatening her. I just want to, uh, you
know me, I don’t threaten, bro. I just want to talk to her.”
Appellant then said he needed someone to talk to Fleming, who
was “the only one that could really hurt” him⎯“the rest of ‘em
can’t identify me. They just know what happened⎯”
In another jailhouse visit between appellant and someone
named Max, appellant tried to construct an alibi and pin the
shooting on Scudder and Fleming.
“King: But I was like that would get me out the whole
situation, cuz I said I I was with Brandi, at Brandi’s house the
whole time. See my P.I. been trying to get information out of
Ricky [Vaughns] the whole time, Ricky didn’t tell me that Po Po
he’s supposed to, he didn’t tell me that. I cussed him out last
time why the fuck you didn’t tell me that. My P.I. be trying to
find out who had the tah tah tun. Ricky hung up on me. Why
you didn’t tell me that stupid? You feel me?
“Max: That nigga’s acting weird, bro.
“King: So please like get in contact with him and tell him
that the video where they show Maurice [Scudder] walking,

17
where they say that’s Maurice walking, say that was him . . .
walking across Villa. And with a grey hoodie. And that Maurice
and Steven [Fleming] walked down Mar Vista and did that, but I
was at Brandi house the whole time. That he walked to Brandi
house and let me know what happened and he left, he saw
Maurice coming and leaving. You feel me?”
“King: . . . Tell Ricky [Vaughns] that the video that shows
[Maurice] Scudder walking, say that’s him and that Scudder and
Steven [Fleming] walked down Mar Vista. Steven did that. That
I was always at Brandi’s house. That’s it. In the video, tell him
to make up. Tell them we played basketball before and all that,
but he never seen me with a gun. So text him that shit, I know
he not going to try to talk to you on the phone. Please. Tell him
that’s the only thing that can help me, is him throwing blood
under the bus. My next trial, blood might try to do that. But he
already had a pretrial hearing, they denied it. It finished after I
start trial, you feel me? He might try to do this for a deal, or to
go home. And you need to know that what Scudder did, they’re
going to offer that to him again. So by Ricky throwing Blood
under the bus, that’s the only thing that can help me. And tell
him I’m going to get on the stand to corroborate with that.”
In sum, when the single, short certainty factor is viewed in
the context of the entire record, including the eyewitness
identifications and appellant’s own incriminating conduct, the
jury instructions, and arguments of counsel, we find no
fundamental unfairness that deprived appellant of his due
process rights or lessened the prosecution’s burden of proof. (See
Lemcke, supra, 11 Cal.5th at pp. 646–647.)

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 II. The Trial Court Properly Refused Appellant’s
Request for a Voluntary Manslaughter
Instruction Based on Imperfect Self-Defense
A. Proceedings below
During discussions about the jury instructions, appellant
requested CALCRIM No. 571, voluntary manslaughter based on
imperfect self-defense. Appellant asserted the instruction was
warranted because Laguan had threatened appellant with
immediate harm by issuing the gang challenge, “Where you
from?” According to appellant, it was a question for the jury
whether Laguan initiated the shooting with this challenge and if
appellant had a reasonable belief the immediate use of force was
necessary to confront such a challenge in rival gang territory.
The court responded that the instruction required evidence that
“ ‘the defendant actually believed that the immediate use of force
was necessary to defend himself.’ ” “[T]here has to be evidence of
actual belief, not [that the defendant] could have believed it or he
should have believed it. . . . I don’t think you get that from the
gang expert saying this is what gang members believe, especially
with the fact that the defense is contesting the fact he was a gang
member at all.” Although it would allow counsel to revisit the
issue, the court warned it would require a showing of appellant’s
actual belief.
In renewing the request for the imperfect self-defense
instruction, the defense argued the evidence showed that a
reasonable person could conclude appellant was actually in fear
of attack. The court refused the instruction, stating that
evidence of a defendant’s actual belief in the need to defend
against an imminent danger was a prerequisite for the
instruction.

19
 B. Legal principles
“ ‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’ (§ 187, subd. (a).) ‘Manslaughter is the
unlawful killing of a human being without malice.’ (§ 192,
subd. (a).) Manslaughter is a lesser included offense of murder,
and a defendant who commits an intentional and unlawful killing
but who lacks malice is guilty of voluntary manslaughter.”
(People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson); People v.
Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
Imperfect self-defense reduces murder to voluntary
manslaughter (People v. Soto (2018) 4 Cal.5th 968, 970) because
when a defendant kills under the actual but unreasonable belief
that he is “ ‘in imminent danger of death or great bodily injury,
the defendant is deemed to have acted without malice.’ ” (People
v. Nguyen (2015) 61 Cal.4th 1015, 1048 (Nguyen); People v.
Simon (2016) 1 Cal.5th 98, 132 (Simon).) As our Supreme Court
has explained, imperfect self-defense is a shorthand way of
describing one form of voluntary manslaughter; it is not an
affirmative defense. (Simon, at p. 132.) Thus, in light of the fact
that “imperfect self-defense reduces an intentional, unlawful
killing from murder to voluntary manslaughter by negating the
element of malice, this form of voluntary manslaughter is
considered a lesser and necessarily included offense of murder.”
(Ibid.; Breverman, supra, 19 Cal.4th at p. 154.)
It is settled that in a criminal case, even absent a request,
“a trial court is obligated to instruct the jury on all general
principles of law relevant to the issues raised by the evidence.
[Citation.] It is error for a trial court not to instruct on a lesser
included offense when the evidence raises a question whether all
of the elements of the charged offense were present, and the

20
question is substantial enough to merit consideration by the
jury.” (People v. Booker (2011) 51 Cal.4th 141, 181; Breverman,
supra, 19 Cal.4th at p. 154.)
However, “ ‘[a]n instruction on a lesser included offense
must be given only if there is substantial evidence from which a
jury could reasonably conclude that the defendant committed the
lesser, uncharged offense, but not the greater, charged offense.’ ”
(Nelson, supra, 1 Cal.5th at p. 538.) “The ‘substantial evidence
requirement is not satisfied by “ ‘any evidence . . . no matter how
weak’ ” ’ ” (ibid.), and “[s]peculative, minimal, or insubstantial
evidence is insufficient to require an instruction on a lesser
included offense” (Simon, supra, 1 Cal.5th at p. 132). “We review
de novo a trial court’s decision not to give an imperfect self-
defense instruction.” (Id. at p. 133; People v. Souza (2012) 54
Cal.4th 90, 113.)
“ ‘[J]ust as with perfect self-defense or any defense, “[a]
trial court need give a requested instruction concerning
[imperfect self-defense] only if there is substantial evidence to
support the defense.” ’ ” (Nguyen, supra, 61 Cal.4th at p. 1049.)
Accordingly, there must be substantial evidence that, when the
defendant acted, he actually believed (1) that he was in imminent
danger of being killed or suffering great bodily injury, and
(2) that the immediate use of deadly force was necessary to
defend against that danger, but (3) at least one of those beliefs
was unreasonable. (CALCRIM No. 571; People v. Her (2009) 181
Cal.App.4th 349, 352.)
Our Supreme Court has cautioned that the doctrine of
imperfect self-defense “is a ‘ “narrow” ’ one and ‘will apply only
when the defendant has an actual belief in the need for self-
defense and only when the defendant fears immediate harm that

21
‘ “ ‘must be instantly dealt with.’ ” ’ ” (People v. Landry (2016) 2
Cal.5th 52, 98.) “To satisfy the imminence requirement, ‘[f]ear of
future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great
bodily injury. “ ‘[T]he peril must appear to the defendant as
immediate and present and not prospective or even in the near
future. An imminent peril is one that, from appearances, must be
instantly dealt with.’ . . . [¶] . . .” Put simply, the trier of fact
must find an actual fear of an imminent harm.’ (In re
Christian S. (1994) 7 Cal.4th 768, 783.)” (People v. Trujeque
(2015) 61 Cal.4th 227, 270–271 (Trujeque).)
C. The trial court was under no duty to instruct on
imperfect self-defense
The trial court properly refused to instruct the jury on
imperfect self-defense in this case because there was no evidence
that appellant actually believed he was in any danger of
immediate harm that had to be dealt with instantly.
Appellant himself did not testify, but relies on Carrier’s
testimony about the shooting and the prosecution gang expert’s
testimony about gang culture to argue that there was substantial
evidence of appellant’s belief that he was in imminent peril to
which he needed to respond with deadly force. Specifically,
appellant cites the prosecution gang expert’s testimony that the
question, “Where you from?” is a “form of intimidation” that gang
members and those who live in communities with gangs
understand as a challenge. Such a challenge could lead to
violence⎯anything from a fight to serious injury or death.
Appellant then points to Carrier’s testimony that Laguan
repeatedly turned his attention from his conversation with

22
Carrier to look over at appellant. As Laguan walked toward
appellant, he said, “What’s up,” and, escalating the situation, he
then asked appellant, “Where you from?” Appellant adds that
Laguan was very close to appellant⎯about six feet away⎯when
appellant responded to Laguan’s aggression by opening fire.
Appellant also argues that the jury could have reasonably
inferred that appellant subjectively feared he was in imminent
danger of great bodily injury or death which called for the use of
deadly force based on Montiglio’s testimony that walking through
a rival gang’s territory is a sign of great disrespect, which can be
deadly for a member of another gang. According to Montiglio,
retaliation for disrespect can consist of “[a]nything as simple as
beatings all the way to murders.” Appellant thus asserts that
because he was walking through the rival gang Villa Boys
territory, he “reasonably would have had a heightened sense of
the possibility that danger might come his way.”
While appellant identifies what might have amounted to a
potentially dangerous situation, he fails to cite any evidence
showing appellant’s subjective state of mind, much less even a
suggestion that appellant was in “ ‘actual fear of an imminent
harm’ ” which called for the use of deadly force. (Trujeque, supra,
61 Cal.4th at p. 270.) It is true that “the ‘substantial evidence of
a defendant’s state of mind may be found in the testimony of
witnesses other than a defendant’ ” (People v. Oropeza (2007) 151
Cal.App.4th 73, 82), but such evidence is lacking here. No
witness testified that appellant fired on Laguan out of fear or
appeared fearful in any way. There was no evidence of any words
or statements by appellant in the moments before the shooting,
nor evidence of anything he said after the killing to indicate he

23
believed deadly force was necessary to defend himself against an
immediate threat posed by Laguan.
In the absence of such evidence to support this element of
the voluntary manslaughter instruction, the trial court was
under no duty to instruct on imperfect self-defense, and properly
declined to do so.
III. The Trial Court Did Not Abuse Its Discretion in
Refusing to Strike the Firearm Allegation
A. Proceedings below
The jury found true all three firearm enhancement
allegations under section 12022.53, subdivisions (b), (c), and (d).
At sentencing, appellant requested dismissal of the firearm
enhancement under section 12022.53, subdivision (d), which
carried a consecutive term of 25 years to life. The trial court
declined the request, stating: “[T]he court recognizes that it does
have the discretion to strike either the allegation as a whole or
punishment for the allegation; and in this case, the court in its
discretion chooses to do neither.” The court specifically found
that appellant “fall[s] within the spirit of the gun allegation,” and
explained in detail how appellant’s use of the firearm in this
instance made it “so easy” to shoot and kill a stranger from a
distance with no provocation or even interaction between them.
The court noted that had another type of weapon been used,
Laguan might “have had a fighting chance to survive,” but
because appellant used a firearm, Laguan really had no
opportunity to defend himself and no chance of survival. On that
basis, the court imposed a consecutive term of 25 years to life
pursuant to section 12022.53, subdivision (d).

24
 B. The Trial Court Properly Exercised Its Discretion
Appellant contends the trial court abused its discretion in
declining to strike the firearm enhancement because it failed to
consider the nature and circumstances of his current crimes and
prior convictions, and the particulars of his background,
character, and prospects. (See People v. Williams (1998) 17
Cal.4th 148, 161.) Instead, according to appellant, by relying on
irrelevant factors while ignoring relevant ones, the court did not
exercise “informed discretion” and the matter must be remanded
for resentencing. (See People v. Gutierrez (2014) 58 Cal.4th 1354,
1391 [“ ‘Defendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing
court’ ”].) We reject the claim.
In People v. Pearson (2019) 38 Cal.App.5th 112 (Pearson),
our colleagues in Division One of this district resolved this issue,
noting that when determining whether to strike a firearm
enhancement under section 12022.53, subdivision (h) the trial
court must weigh the same factors it must consider when
pronouncing sentence in the first instance. (Id. at p. 117.) “In
addition to the factors expressly listed for determining whether to
strike enhancements listed in California Rules of Court, rule
4.428(b), the trial court is also to consider the factors listed in
California Rules of Court, rule 4.410 (listing general objectives in
sentencing), as well as circumstances in aggravation and
mitigation under California Rules of Court, rules 4.421 and
4.423. ‘[U]nless the record affirmatively reflects otherwise,’ the
trial court is deemed to have considered the factors enumerated
in the California Rules of Court. (Cal. Rules of Court, rule 4.409.)
Among other factors the court may have considered were that
‘[t]he crime involved great violence . . . threat of great bodily

25
harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness,’ that the ‘defendant was armed with
or used a weapon at the time of the commission of the crime,’ and
that the ‘victim was particularly vulnerable.’ (Cal. Rules of
Court, rule 4.421(a)(1)–(3).)” (Ibid.)
Here, by highlighting the fact that appellant used a firearm
to shoot a perfect stranger from a distance without even
interacting with him and without provocation, the court expressly
determined that “[t]he crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness” and “[t]he
defendant has engaged in violent conduct that indicates a serious
danger to society.” (Cal. Rules of Court, rule 4.421(a)(1), (b)(1).)
The court further took into account the victim’s particular
vulnerability by noting that Laguan had had no opportunity to
defend himself and did not stand a “fighting chance to survive.”
(Cal. Rules of Court, rule 4.421(a)(3).) And in finding that the
murder was committed with a firearm, the court explicitly
determined “[t]he defendant was armed with or used a weapon at
the time of the commission of the crime.” (Cal. Rules of Court,
rule 4.421(a)(2).)
Moreover, there is nothing in the record to indicate, much
less affirmatively establish that the trial court did not consider
other relevant factors it was required to consider. (Cal. Rules of
Court, rule 4.409 [“Relevant factors enumerated in these rules
must be considered by the sentencing judge, and will be deemed
to have been considered unless the record affirmatively reflects
otherwise”]; see Pearson, supra, 38 Cal.App.5th at p. 117.)
It is readily apparent on this record that the trial court
carefully considered the factors it was required to consider when

26
pronouncing sentence in this case, and its denial of appellant’s
request to dismiss the firearm enhancement “was squarely within
the bounds of the trial court’s discretion.” (Pearson, supra, 38
Cal.App.5th at p. 118.)
IV. Appellant Is Not Entitled to a Hearing to
Determine His Ability to Pay the Fines and
Assessments
Appellant contends the trial court’s imposition of
restitution and parole revocation fines as well as the criminal
conviction assessment and the court security fee was
unconstitutional under People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). He thus asserts he is entitled to remand with
instructions to stay enforcement of these financial obligations
until the People prove that he has the ability to pay them. We
reject the claim.
In People v. Hicks (2019) 40 Cal.App.5th 320, 322, 329,
review granted November 26, 2019, S2589468 (Hicks), we
concluded that Dueñas was wrongly decided, and we rejected its
holding that “due process precludes a court from ‘impos[ing]’

8 The California Supreme Court ordered briefing deferred
pending decision in People v. Kopp, S257844, which presents the
following issues:
“(1) Must a court consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments? (2) If
so, which party bears the burden of proof regarding the
defendant’s inability to pay?” (People v. Hicks, S258946,
[as of Apr. 15, 2020], archived at
.)

27
certain assessments and fines when sentencing a criminal
defendant absent a finding that the defendant has a ‘present
ability to pay’ them.” (Accord, People v. Petri (2020) 45
Cal.App.5th 82, 92 [quoting Hicks, at p. 329: “The ‘imposition of
these financial obligations has not denied defendant access to the
courts’ and ‘their imposition has [not] . . . result[ed] in
defendant’s incarceration’ ”]; People v. Aviles (2019) 39
Cal.App.5th 1055, 1067–1068 [“Dueñas was wrongly decided”];
People v. Caceres (2019) 39 Cal.App.5th 917, 923, 926–927
[Dueñas’s due process analysis does not justify extending its
“broad holding” beyond its “extreme facts”]; People v. Kingston
(2019) 41 Cal.App.5th 272, 279–282 (Kingston) [no due process
violation in imposition of assessments and restitution fine
without first ascertaining defendant’s ability to pay them]; People
v. Kopp (2019) 38 Cal.App.5th 47, 96–97 [“there is no due process
requirement that the court hold an ability to pay hearing before
imposing a punitive fine and only impose the fine if it determines
the defendant can afford to pay it”], review granted Nov. 13,
2019, S257844.)
In Kingston, our colleagues in Division One of this district
agreed with our opinion in Hicks that, contrary to Dueñas’s
analysis, “due process precludes a court from imposing fines and
assessments only if to do so would deny the defendant access to
the courts or result in the defendant’s incarceration.” (Kingston,
supra, 41 Cal.App.5th at p. 279, citing Hicks, supra, 40
Cal.App.5th at p. 329.) Here, as in Kingston and Hicks, the
“imposition of the [restitution fine], assessments and fees in no
way interfered with [appellant’s] right to present a defense at
trial or to challenge the trial court’s rulings on appeal . . . . And
their imposition did not result in [appellant’s] incarceration.”

28
(Kingston, at p. 281; Hicks, at p. 329.) Moreover, due process
does not deny appellant the opportunity to try to satisfy these
obligations. (See Hicks, at p. 327.)
Further, we agree with the People that appellant’s failure
to object to the imposition of the restitution fine or assessments
and his failure to assert any inability to pay them (unlike the
defendant in Dueñas) forfeited the issue on appeal. Generally,
where a defendant has failed to object to a restitution fine or
court fees based on an inability to pay, the issue is forfeited on
appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 864
[“defendant’s failure to challenge the fees in the trial court
precludes him from doing so on appeal”]; People v. Avila (2009) 46
Cal.4th 680, 729.) We agree with our colleagues in Division Eight
of this district that this general rule applies here to the
restitution fine and the assessments imposed under the Penal
and Government Codes. (People v. Bipialaka (2019) 34
Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th
1126, 1153–1155; but see People v. Petri, supra, 45 Cal.App.5th at
pp. 88–89; People v. Castellano (2019) 33 Cal.App.5th 485, 488.)
Finally, even if appellant did not forfeit his argument, we
decline to extend Dueñas’s broad holding beyond the extreme
facts in that case, which are not present here. Dueñas was a
disabled, unemployed, and often homeless mother of two young
children. Over the course of several years she served jail time
because she could not pay the fines imposed in connection with
various misdemeanor vehicle offenses. (Dueñas, supra, 30
Cal.App.5th at pp. 1160–1162.) Applying a due process analysis
to the particular facts before it, the appellate court concluded
that “[b]ecause the only reason Dueñas cannot pay the fine and
fees is her poverty, using the criminal process to collect a fine she

29
cannot pay is unconstitutional.” (Dueñas, at p. 1160.) By
contrast, the situation in which appellant finds himself—subject
to a state prison sentence of 55 years to life on a first-degree
murder conviction with a firearm enhancement—simply does not
implicate the same due process concerns at issue in the factually
unique Dueñas case. Appellant, unlike Dueñas, does not face
incarceration because of an inability to pay court-imposed fines,
fees and assessments. Instead, appellant is in prison because he
committed a deliberate and premeditated murder. Even if
appellant does not pay the fines and assessments, he will suffer
none of the cascading and potentially devastating consequences
that Dueñas faced. (See Dueñas, at p. 1163.)
V. Remand Is Necessary to Permit the Trial Court
to Exercise Its Discretion to Determine
Whether to Strike the Five-year Enhancement
for the Prior Serious Felony Conviction
Appellant’s sentence includes a five-year enhancement
imposed under section 667, subdivision (a)(1) for a prior serious
felony conviction.
Senate Bill No. 1393, which amended sections 1385 and
667 to give trial courts the discretion to strike the five-year
enhancement under section 667, subdivision (a)(1), became
effective on January 1, 2019, after appellant was sentenced in
this case. The legislation applies retroactively to cases in which
judgment is not yet final on appeal. (People v. Garcia (2018) 28
Cal.App.5th 961, 973 [holding Sen. Bill No. 1393 would apply
retroactively upon effective date]; see People v. Brown (2012) 54
Cal.4th 314, 323 [“[w]hen the Legislature has amended a statute
to reduce the punishment for a particular criminal offense, we
will assume, absent evidence to the contrary, that the Legislature

30
intended the amended statute to apply to all defendants whose
judgments are not yet final on the statute’s operative date”], fn.
omitted.)
Prior to Senate Bill No. 1393, section 1385, subdivision (b),
expressly prohibited a trial court from striking “ ‘any prior
conviction of a serious felony for purposes of enhancement of a
sentence under Section 667.’ ” (People v. Valencia (1989) 207
Cal.App.3d 1042, 1045, fn. 2; Valencia, at p. 1045 [under § 1385,
subd. (b), trial court has no discretion to strike § 667, subd. (a)
enhancement].) Senate Bill No. 1393 eliminated this restriction.
In the context of Senate Bill No. 620, courts have held that
remand is required absent a clear indication that the trial court
would not have reduced the sentence if it had been aware of its
discretion to do so. (People v. Almanza (2018) 24 Cal.App.5th
1104, 1110.) The trial court gave no such indication here. To the
contrary, given that the court granted appellant’s request to
strike the prior conviction pursuant to Romero and thus not
double appellant’s sentence under the Three Strikes law, the
record suggests the court may choose to exercise its discretion in
favor of leniency on this matter as well. Accordingly, on remand
the trial court may consider whether to exercise its discretion to
impose or strike the five-year prior serious felony enhancement
under section 667, subdivision (a)(1).
VI. The Trial Court Is Directed to Correct the
Minutes and Abstract of Judgment to Conform
to the Trial Court’s Oral Pronouncements
At the sentencing hearing in this case, the trial court
sentenced appellant to an aggregate term of 55 years to life and
imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a $300
parole revocation fine, which was stayed (§ 1202.45). The trial

31
court further ordered that appellant and Fleming be held jointly
and severally liable for victim restitution in the amount
determined for the burial expenses.
However, the minute order from the hearing incorrectly
reflects imposition of a probation revocation restitution fine,
effective upon the revocation of probation pursuant to section
1202.44. The abstract of judgment contains several errors and
omissions as well: It does not reflect the indeterminate sentence
of 50 years to life plus five years imposed by the court, but
instead shows only 25 years to life for the firearm enhancement
under section 12022.53, subdivision (d) plus five years for the
prior serious felony conviction enhancement under section 667,
subdivision (a)(1), and it omits the 25 years to life sentence for
murder altogether; the abstract fails to reflect that the court
ordered joint and several liability between appellant and Fleming
for victim restitution; and, like the minutes, the abstract fails to
reflect that the court imposed and stayed a $300 parole
revocation fine under section 1202.45, but incorrectly shows a
$300 probation revocation fine “now due” under section 1202.44.
“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; People v. Walz (2008)
160 Cal.App.4th 1364, 1367, fn. 3; see also People v. Jones (2012)
54 Cal.4th 1, 89 [“ ‘[a]n abstract of judgment is not the judgment
of conviction; it does not control if different from the trial court’s
oral judgment and may not add to or modify the judgment it
purports to digest or summarize’ ”].) Discrepancies between the
judgment as orally pronounced and as entered in the minutes or
abstract of judgment are presumed to be the result of clerical

32
error (People v. Mesa (1975) 14 Cal.3d 466, 471), and an appellate
court that has properly assumed jurisdiction of a case has the
inherent authority to correct clerical errors in the record to
conform to the oral judgment of the sentencing court (People v.
Mitchell (2001) 26 Cal.4th 181, 185). Accordingly, the minutes of
the February 21, 2018 probation and sentencing hearing and the
abstract of judgment must be corrected to conform to the trial
court’s oral pronouncement of judgment.

33
 DISPOSITION
The judgment of conviction is affirmed. The matter is
remanded to the trial court for the limited purpose of allowing it
to exercise its discretion under Penal Code sections 667,
subdivision (a) and 1385, as amended by Senate Bill No. 1393, to
strike or impose the five-year prior serious felony enhancement.
The trial court is further directed to correct the minutes and
abstract of judgment to reflect the court’s oral pronouncements
and to forward a certified copy of the abstract of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.

34