P. v. Solorio CA2/6

Filed 5/13/13 P. v. Solorio CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX

THE PEOPLE, 2d Crim. No. B233913
(Super. Ct. No. F449063)
Plaintiff and Respondent, (San Luis Obispo County)

v.

SALVADOR SOLORIO et al.,

Defendants and Appellants.

Salvador Solorio and Frank Jamesricky Sanchez appeal the judgment
following their convictions for assault with a semiautomatic firearm. (Pen. Code, § 245,
subd. (b).)1 Sanchez was also convicted for negligent discharge of a firearm. (§ 246.3,
subd. (a).) The jury found to be true allegations that the assault was committed by
Solorio and Sanchez for the benefit of a criminal street gang, and that Sanchez personally
used a firearm in the assault.2 (§ 186.22, subd. (b).) Sanchez was sentenced to 13 years
in prison consisting of three years for the assault, plus 10 years for committing a violent
felony for the benefit of his gang. (§ 186.22, subd. (b)(1)(C).) His sentence for
negligently discharging a firearm was stayed. Solorio was sentenced to eight years

1 All statutory references are to the Penal Code.
2 The jury also found the gang enhancement to be true as to the negligent
discharge of a firearm offense committed by Sanchez.
consisting of three years for the assault, plus a five-year gang enhancement. (§ 186.22,
subd. (b)(1)(B).)
Solorio and Sanchez contend that there was insufficient evidence to support
the gang enhancement, ineffective assistance of counsel, juror misconduct, and
sentencing error. Solorio also contends that there was insufficient evidence that he aided
and abetted Sanchez in the assault with a semiautomatic firearm. We affirm.
FACTS AND PROCEDURAL HISTORY
Isaac Abarca was associated with a gang known as Mexican Pride. Solorio
and Sanchez were members of a rival gang known as Paso Robles 13. Abarca had
participated in previous gang-related fights with Solorio. Abarca and Solorio also had a
personal connection. Abarca had fathered two children with Sarah K., a woman who was
romantically involved with Solorio at the time of the charged offenses.
On July 10, 2010, Abarca was having a birthday party for his five-year-old
son in the front yard of his residence. The mother of the son was the woman then in a
relationship with Solorio. Solorio and Sanchez drove by in a Chevy Blazer. Sanchez
was driving and Solorio was a passenger. Seeing Solorio in the car, Abarca threw a can
of beer at the car. The beer can hit a tree, not the car. Abarca then hopped the fence and
ran towards the car seeking to fight with Solorio. Solorio got out of the passenger side of
the Blazer holding a knife. Sanchez got out of the driver's side holding a semiautomatic
firearm. Abarca stopped when Sanchez pointed the firearm at him. There was some
yelling. Abarca's father tried to pull Abarca away, and told Sanchez not to shoot his son.
Sanchez and Solorio appeared to be getting back into their car when Solorio
told Sanchez, "Shoot him, shoot him." Sanchez turned and fired a shot which hit the
ground in front of the feet of Abarca's father. The impact from bullet fragments or debris
on the ground caused minor injuries to the father's leg.
After the shot, Abarca ran towards the car and hit its back window as it
started to drive away. A friend of Abarca reached the car as Solorio and Sanchez drove
off. A witness saw the car and a portion of the confrontation. She heard yelling and
gesturing. She saw Sanchez fire a shot at the men standing in the road.

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 In his initial interview with the police, Abarca's father recited the facts as
set forth above but did not state that he heard Solorio say, "shoot him, shoot him" to
Sanchez. In another police interview the following day, Abarca's father told police that
he heard Solorio repeatedly tell Sanchez to shoot him. Abarca claimed the shooting
occurred because of the people he and Solorio associated with in the past, namely, the
Mexican Pride and Paso Robles 13 gangs.
DISCUSSION
Substantial Evidence Supports Solorio Conviction
Solorio contends there was insufficient evidence to support his conviction
as an aider and abettor of Sanchez because he was unaware of Sanchez's criminal purpose
and did not aid, encourage, or facilitate commission of the offense. We disagree.
In evaluating a sufficiency of the evidence claim, we examine the entire
record and draw all reasonable inferences from the record in favor of the judgment to
determine whether there is reasonable and credible evidence from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. (People v.
Streeter (2012) 54 Cal.4th 205, 241.) We do not reweigh the evidence or assess the
credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.)
The elements of assault with a semiautomatic firearm are that the person (1)
used such a firearm in a manner that by its nature would directly and probably result in
the application of force to someone, (2) acted willfully, (3) was aware of facts that would
lead a reasonable person to realize the act by its nature would directly and probably result
in application of force to someone, and (4) had the ability to apply force with the firearm.
(See People v. Golde (2008) 163 Cal.App.4th 101, 121; CALCRIM No. 875.) A person
aids and abets an offense if he or she aids, encourages or facilitates the commission of the
offense, with knowledge of the criminal purpose of the direct perpetrator, and with the
intent to aid, encourage or facilitate the offense. (People v. McCoy (2001) 25 Cal.4th
1111, 1118; see also People v. Houston (2012) 54 Cal.4th 1186, 1224.)
We conclude that substantial evidence supports Solorio's conviction.
Solorio and Sanchez were members of the same gang. They drove together to a party

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being given by a member of a rival gang. Solorio was armed with a knife and Sanchez
was armed with a semiautomatic firearm. They stopped in front of the Abarca residence,
both got out of their car, and both participated in a threatening verbal altercation with
Abarca and others. While outside their car, both held their respective weapons. During
the altercation, Solorio encouraged Sanchez to shoot Abarca, stating "shoot him, shoot
him."
Solorio argues that mere presence at the crime scene and membership in the
same gang standing alone are insufficient to establish aiding and abetting. We do not
dispute this assertion, but gang affiliation, companionship, and conduct before and after
the offense are relevant factors in determining aider and abettor liability. (See Calderon
v. Superior Court (2001) 87 Cal.App.4th 933, 940–941; Mitchell v. Prunty (9th Cir.
1997) 107 F.3d 1337, 1342, overruled on other grounds in Santamaria v. Horsley (9th
Cir. 1998) 133 F.3d 1242.) Moreover, the evidence in this case extended far beyond
mere presence and common gang membership. The evidence shows Solorio was not a
passive bystander but rather drove to the party with Sanchez with weapons and with the
intent to engage in a fight with Abarca.
Gang Enhancement Alleged Against Solorio
Solorio contends that the prosecution's failure to allege the gang
enhancement in an amended information filed after the evidentiary phase of the trial
prevents a true finding on the enhancement against him. We disagree.
Section 952 requires an accusatory pleading to include express allegations
of all offenses charged and enhancements alleged. (§ 1170.1, subd. (e).) The purpose of
this requirement is to provide the accused with reasonable notice of all charges against
him. (People v. Sandoval (2006) 140 Cal.App.4th 111, 132.) Any defect in the form of
an accusatory pleading, however, does not require reversal unless it prejudices a
substantial right of the defendant on the merits. (Ibid.) Also, under modern pleading
procedures, notice of the circumstances of an alleged crime is provided more by evidence
at a preliminary hearing than the contents of the pleading. (People v. Jennings (1991) 53

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Cal.3d 334, 358.) In any event, the record shows that the amended information alleged
the gang enhancement against both defendants.
The original September 2010 information included an allegation against
both Solorio and Sanchez that the use of a semiautomatic gun offense was committed for
the benefit of a criminal street gang. The September 2010 information was the operative
accusatory pleading until after completion of the evidentiary phase of trial. On or about
November 22, 2010, the court questioned whether the correct firearm enhancement was
alleged in the information. In response, the prosecution prepared an amended
information which changed the firearm enhancement but also deleted Solorio from the
gang enhancement. The proposed amended information, dated November 23, 2010, was
stamped as "received" by the trial court. Based on the record, this proposed amended
information was not filed with the court. Instead, the prosecution prepared another
version of the amended information which was stamped as "filed" by the trial court on
November 29, 2010. The amended information filed with the court included an
allegation of the gang enhancement against both Solorio and Sanchez.
Accordingly, Solorio has not shown that any operative version of the
information omitted the gang enhancement against him. The appellant has the burden to
provide an adequate record on appeal to allow the reviewing court to assess any
purported error. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955; People v.
Neilson (2007) 154 Cal.App.4th 1529, 1534.)
Substantial Evidence Supports Gang Enhancement
Solorio and Sanchez contend there was insufficient evidence to support the
gang enhancement. They argue that the offenses were committed for a personal reason
and that the only evidence of a gang-related motive was the testimony of the prosecution
gang expert. Applying the usual substantial evidence standard set forth in this opinion,
we conclude that substantial evidence supports the enhancement against both Solorio and
Sanchez. (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.)
A gang enhancement requires proof of the existence of a criminal street
gang and that the offense was "committed for the benefit of, at the direction of, or in

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association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(4).) Expert
testimony is admissible to prove these elements, including the motivation for a crime, and
whether it was committed to benefit or promote a gang. (People v. Albillar, supra, 51
Cal.4th at p. 63; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.)
Here, the prosecution presented expert testimony from sheriff's deputy
Michael Hoier. Deputy Hoier testified that Solorio and Sanchez were members of the
Paso Robles 13 gang whose criminal activities included assaults with deadly weapons
and other crimes likely to cause great bodily injury. He testified that Abarca's Mexican
Pride gang was a rival of Paso Robles 13. He testified to various predicate offenses by
the gang, including offenses involving confrontations between Solorio and Abarca.
Deputy Hoier testified that respect was of critical importance to gang
members, and that a gang member will confront anyone who shows him disrespect. A
gang member who avoids confrontation or fails to confront disrespect loses status in the
gang. An enemy of one gang member will become the enemy of the entire gang and
gang members are expected to stand up for each other.
In response to a hypothetical question using the facts of this case, Deputy
Hoier opined that the assault with a semiautomatic weapon offense was committed for
the benefit of, in association with, and at the direction of a criminal street gang. He
testified that a crime committed with a firearm would benefit the gang because of its
terrorizing effect on the public, and that a crime committed by multiple gang members is
committed in association with and at the direction of the gang because gang members are
required to support and assist fellow gang members.
Solorio and Sanchez argue that an expert's testimony alone is insufficient to
support the gang enhancement. Although some earlier cases imply such a rule, our
Supreme Court has recently concluded that "[e]xpert opinion that particular criminal
conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to
raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal

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street gang' . . . ." (People v. Albillar, supra, 51 Cal.4th at p. 63; People v. Vang (2011)
52 Cal.4th 1038, 1048.)
Here, the jury could reasonably infer from the expert opinion and other
evidence that the assault with a semiautomatic firearm was committed for the benefit of,
in association with, and/or at the direction of the Paso Robles 13 gang. In addition,
inferences from the evidence are sufficient to support a finding that the offenses were
committed "with the specific intent to promote, further, or assist in any criminal conduct
by gang members." (§ 186.22, subd. (b)(1).) If substantial evidence otherwise
establishes that the offense was gang related, the jury reasonably may infer that the
defendant had the specific intent to promote, further, or assist criminal conduct by gang
members. (See People v. Albillar, supra, 51 Cal.4th at pp. 67-68.)
Solorio repeatedly characterizes the offense as being personally motivated.
He asserts that the confrontation was initiated by Abarca who was jealous that Solorio
was in a relationship with the mother of his children. This argument has no merit, even
assuming that Abarca initiated the confrontation. First, Abarca's jealousy does not
support the inference that Solorio was similarly jealous. Second, even if the evidence
could reasonably have been interpreted by the jury as Solorio suggests, the existence of
some evidence which would support a contrary finding is not a basis for reversal.
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.)
No Ineffective Assistance of Counsel
Solorio and Sanchez contend that they received ineffective assistance of
counsel when counsel failed to object to the prosecutor's statement during argument that
he believed Solorio and Sanchez were guilty. We disagree.
A prosecutor may not express a personal opinion or belief in the guilt of the
accused when there is a substantial danger that the jury will view the comments as based
on information other than evidence at trial, or when the comments will induce the jury to
trust the prosecutor's judgment rather than its own view of the evidence. (United States v.
Young (1985) 470 U.S. 1, 18–19; People v. Lopez (2008) 42 Cal.4th 960, 971.) It is not
misconduct for a prosecutor to express a belief in a defendant's guilt based on the

7
evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 782.) The propriety of an assertion
of personal belief depends on the context and perspective of the assertion. (Ibid.) Most
importantly, a prosecutor may not suggest that his or her personal belief is based in whole
or in part on information that has not been disclosed at trial. (People v. Frye (1998) 18
Cal.4th 894, 975, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390,
421.) "The danger that the jury will view the prosecutor's expressed belief in the
defendant's guilt as being based on outside sources 'is acute when the prosecutor offers
his opinion and does not explicitly state that it is based solely on inferences from the
evidence at trial.' [Citation.] Nevertheless, not all such comments are improper. Rather,
'[t]he prosecutor's comments must . . . be evaluated in the context in which they were
made, to ascertain if there was a substantial risk that the jury would consider the remarks
to be based on information extraneous to the evidence presented at trial.' [Citations.]"
(Lopez, at p. 971.)
Our examination of the record persuades us that the prosecutor's comment
was not misconduct in this case. Nothing in the prosecutor's articulation of belief in
defendants' guilt suggested it was based in any part on facts which were not presented to
the jury as evidence. The prosecutor argued the evidence at length and a reasonable juror
would not have construed any of her remarks as suggesting the existence of incriminating
information which was not presented at trial. (People v. Lopez, supra, 42 Cal.4th at p.
971.) Because there was no misconduct, there was no ineffective assistance of counsel.
No Prejudicial Juror Misconduct
Solorio and Sanchez contend the trial court erred in denying a motion for
new trial based on juror misconduct. They argue that some jurors discussed the case
prior to deliberations and outside the presence of other jurors and some jurors discussed
punishment. We conclude there was no abuse of discretion in denying the motion.
The court conducted an extended hearing on the motion for new trial.
Nonjuror Carrie Watkins, a friend of appellant Sanchez, testified that she and Sanchez's
mother had lunch one day during trial and saw three jurors in the same restaurant. She
knew they were jurors because she had attended portions of the trial. Watkins testified

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that she heard the three jurors discussing the case and that one juror stated, "Of course
he's guilty; he shot the gun." Sanchez's mother, Eva Sanchez, corroborated Watkins by
testifying that she heard one juror state the name "Frank" (Sanchez) and another say, "He
shot the gun."
Two jurors testified to the contrary. Juror C.A. testified that he was at the
lunch in question but neither he nor other jurors discussed the case. He specifically
testified that he heard no juror refer to anyone as "Frank" or refer to who shot the gun.
Juror F.C. testified that he ate at the subject restaurant several times, saw members of the
Sanchez family there, but never discussed the case at lunch or heard any other juror
discuss the case.
There was also testimony regarding a discussion of the three strikes law.
Juror L.F. testified that, during deliberations, he mentioned the three strikes law and Juror
D.F., a corrections officer, explained what it was. L.F. stated that the discussion lasted no
more than 30 seconds. Juror F.C. testified that he remembered a discussion about the
three strikes law during deliberations and stated that one juror brought the three strikes
law up and another explained it. He stated that the jury as a whole thought it was
irrelevant and the matter "didn't get much play." The discussion lasted approximately
one minute. Juror J.H. recalled a discussion about the three strikes law during
deliberations that lasted one or two minutes.
The trial court denied the new trial motion concluding that there was an
insufficient showing of prejudicial misconduct by the jury. The court stated that it was
inappropriate for the jury to discuss the three strikes law but not prejudicial misconduct
because the discussion was general and the jury considered the law to be irrelevant. As
to the restaurant discussion, the trial court questioned the credibility of witnesses Carrie
Watkins and Eva Sanchez, and noted that no juror admitted having any discussions about
the case in the restaurant or otherwise prior to deliberations.
A defendant is entitled to trial by an impartial jury which has not been
improperly influenced and which decides the case solely on the evidence. (People v.
Harris (2008) 43 Cal.4th 1269, 1303; In re Hamilton (1999) 20 Cal.4th 273, 294.) Juror

9
misconduct occurs when there is a direct violation of the oaths, duties, or admonitions
imposed on jurors, such as when a juror conceals bias on voir dire, consciously receives
outside information about the case, discusses the case with nonjurors, or shares improper
information with other jurors. (Hamilton, at p. 294.)
When a juror engages in misconduct, prejudice is presumed and must be
rebutted by the prosecution to avoid the granting of a new trial. (In re Carpenter (1995)
9 Cal.4th 634, 651, 654; People v. Chavez (1991) 231 Cal.App.3d 1471, 1483-1485.)
There is prejudice when the jury's impartiality has been adversely affected, the
prosecution's burden of proof lightened, or any defense contradicted. (People v. Zapien
(1993) 4 Cal.4th 929, 994.)
The applicable standard is whether there is a substantial likelihood that any
of the jurors were actually biased. A verdict will not be disturbed when the surrounding
circumstances indicate no reasonable probability of prejudice, that is, no substantial
likelihood a juror was actually biased against the defendant by misconduct undermining
the juror's impartiality. (People v. Foster (2010) 50 Cal.4th 1301, 1342.)
We defer to credibility determinations by the trial court and its factual
findings if supported by substantial evidence, but exercise our independent judgment as
to whether the presumption of prejudice has been rebutted. (People v. Ramos (2004) 34
Cal.4th 494, 520.) Any presumption of prejudice is rebutted "if the entire record . . . ,
including the nature of the misconduct or other event, and the surrounding circumstances,
indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood
that one or more jurors were actually biased against the defendant." (In re Hamilton,
supra, 20 Cal.4th at p. 296.) "The standard is a pragmatic one, mindful of the 'day-to-day
realities of courtroom life' [citation] and of society's strong competing interest in the
stability of criminal verdicts [citations]. It is 'virtually impossible to shield jurors from
every contact or influence that might theoretically affect their vote.' [Citation.] . . . '. . .
[Jurors] are imbued with human frailties as well as virtues. If the system is to function at
all, we must tolerate a certain amount of imperfection short of actual bias.'" (Ibid.)

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 Based on the record as a whole, we conclude that the presumption of
prejudice was rebutted and the trial court did not abuse its discretion in denying the new
trial motion.
No Error in Sanchez Sentencing
Sanchez was sentenced to three years for assault with a semiautomatic
firearm, plus 10 years pursuant to section 186.22, subdivision (b)(1)(C). Section 186.22,
subdivision (b) provides for an additional sentence when a felony is committed for the
benefit of a gang. The additional sentence is 10 years for a "violent felony" as defined in
section 667.5, five years for a serious felony as defined in section 1192.7, and 16 months,
two years, or three years for other felonies. (§ 186.22, subd. (b)(1)(A)-(C).) Sanchez
contends he was not convicted of a "violent felony" and, therefore, the 10-year sentence
was improperly imposed and must be stricken or reduced. We disagree. Despite a
pleading error, the jury finding that Sanchez personally used a firearm supports the 10-
year additional sentence.
The original information alleged that Sanchez "personally used a firearm"
in committing assault with a semiautomatic firearm "within the meaning of Penal Code
Section 12022.5(a)," which caused the felony to become a serious felony as set forth in
section 1192.7, subdivision (c)(8) and a violent felony as set forth in section 667.5,
subdivision (c)(8). Had there been no amendment to the information, the 10-year
sentence for a "violent felony" under section 186.22, subdivision (b)(1)(C) would have
been indisputable. Section 667.5, subdivision (c)(8) includes as violent felonies "any
felony in which the defendant uses a firearm which use has been charged and proved as
provided in subdivision (a) of . . . Section 12022.5." Section 12022.5 broadly covers
felonies in which the defendant personally uses a firearm and expressly covers assault
with a semiautomatic weapon. (§ 12022.5, subds. (a), (d).)
After completion of the evidentiary phase of trial, however, the information
was amended to delete the reference to section 12022.5 and substitute a reference to
section 12022.53. The amended allegation was that Sanchez personally used a firearm in
the commission of the offense "within the meaning of Penal Code Section 12022.53(c)."

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 Although a violation of section 12022.53 is a violent felony, commission of
an assault with a semiautomatic firearm did not violate section 12022.53. Section
12022.53 covers only enumerated crimes and assault with a semiautomatic firearm is not
one of them. Therefore, section 12022.53, subdivision (c) does not apply and does not
cause the offense to "become" a violent felony under section 667.5.
The trial court acknowledged the problem at the time of sentencing. The
court stated that section 12022.53, subdivision (c) was not applicable to an assault with a
semiautomatic firearm, but that "it appears the jury's intention with the finding was that
the defendant personally used the firearm. Therefore, the sentence imposed is based on
that premise." We conclude that the trial court properly sentenced Sanchez. The task of
the jury was to determine whether Sanchez personally used a firearm, not the
applicability of a statute relevant solely to sentencing. The personal use factual finding is
unassailable and, standing alone, a sufficient finding to support the enhancement imposed
by the trial court.
Due process requires a defendant to be given fair notice of the charges
against him, including enhancements so that he or she has an opportunity to prepare a
defense and to avoid unfair surprise at trial. (People v. Tardy (2003) 112 Cal.App.4th
783, 786; People v. Neal (1984) 159 Cal.App.3d 69, 73.) Here, Sanchez was fully
informed that he had to defend against an allegation that he personally used a firearm in
the commission of the offense, that a sentence enhancement based on section 186.22,
subdivision (b)(1) was being sought, and that the term of the enhancement would turn on
whether the offense was a serious and/or violent felony.3 In fact, the version of the
information in effect through the completion of the evidentiary phase of the trial was
accurate and complete in all respects. "[W]here the information puts the defendant on
notice that a sentence enhancement will be sought, and further notifies him of the facts

3 During oral argument, Sanchez cited the case of People v. Mancebo (2002) 27
Cal.4th 735 as pertinent to the sufficiency of the allegations in the information. Mancebo
is not helpful to Sanchez. Mancebo states that an accusatory pleading must allege the
existence of facts material to the imposition of an enhanced sentence under the one strike
law. (Id. at pp. 743-744.) As we have stated, the accusatory pleading in the instant case
alleges that Sanchez personally used a firearm.
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supporting the alleged enhancement, modification of the judgment for a misstatement of
the underlying enhancement statute is required only where the defendant has been misled
to his prejudice." (Neal, supra, at p. 73; see also People v. Dixon (2007) 153 Cal.App.4th
985, 1001–1002.)
Error in Computation of Solorio Conduct Credit
Solorio contends the trial court erred in its calculation of conduct credits
under section 4019, respondent concedes, and we agree. Based on the version of section
4019 in effect, Solorio was entitled to one day of credit for every two days of local
custody. That computation results in a total of 160 days of conduct credit. The trial court
awarded Solorio 158 days of conduct credit instead of the required 160 days. Therefore,
the judgment against Solorio must be modified to reflect 160 days.
We order the trial court to amend the abstract of judgment for Solorio to
reflect 160 days of presentence conduct credit. The judgments are otherwise affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

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 Teresa Estrada-Mullaney, Judge

Superior Court County of San Luis Obispo

______________________________

Susan S. Bauguess, under appointment by the Court of Appeal, for
Defendant and Appellant Solorio.
Wilson & Wilson and Denton J. Wilson for Defendant and Appellant
Sanchez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Brendan Sullivan,
Deputy Attorneys General, for Plaintiff and Respondent.

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