Filed 9/21/26 P. v. Wilson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
THE PEOPLE, C102280
Plaintiff and Respondent,
(Super. Ct. No. CR2022-0415)
v.
ANDRE CHEVILL WILSON,
Defendant and Appellant.
Defendant Andre Chevill Wilson shot at Brandon R. and Robert K. as they drove
to work on the morning of February 10, 2022. Law enforcement officers found unfired
and spent shell casings and a Glock 22 pistol with a loaded drum magazine attached
inside of defendant’s car that he had abandoned after the shooting. Defendant was found
several hours later hiding in bushes with a Sig Sauer AR-15 rifle that had 73 rounds in
the attached drum magazine and one in the chamber. A jury convicted defendant of a
variety of crimes related to the shootings, firearms, and ammunition.
On appeal, defendant claims that insufficient evidence supports six of his
convictions and that the trial court made several instructional errors. Defendant also
contends that he was erroneously convicted of four separate counts of being a felon in
possession of ammunition.
Defendant also raises several challenges related to the bifurcated bench trial on his
prior convictions and aggravating factors where, as relevant here, the trial court found
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true that defendant had previously been convicted of unlawful possession of a firearm
committed for the benefit of a criminal street gang. Defendant preliminarily argues that it
was prejudicial error for the trial court to hold the bifurcated bench trial in absentia
because he did not waive his right to be present in writing. Defendant also requests,
based on the recent decision in People v. Fletcher (2025) 18 Cal.5th 576 (Fletcher), that
the true finding on the prior gang-related enhancement be vacated and the matter
remanded for a retrial in conformance with the changes to the law on criminal street
gangs after Assembly Bill No. 333 (Assembly Bill 333).
Finally, defendant presents several claims related to the abstract of judgment. He
asks that we strike the restitution fines and ancillary costs that were included in the
abstract but not orally pronounced by the trial court. Defendant also requests that the
abstract of judgment be amended to reflect the correct amount of conduct credits.
We agree that defendant should not have been convicted of four separate counts of
being a felon in possession of ammunition. However, because we find that two separate
convictions were appropriate here, we will order that two of these four convictions be
vacated.
We also find that the trial court prejudicially erred by holding the bifurcated bench
trial on the prior convictions and aggravating factors in absentia. We will therefore
remand this matter for a new trial on these issues.
We will also vacate the true finding on the prior gang-related enhancement, and,
on remand, the People are permitted to retry defendant on that allegation based on the
changes in relevant law as amended by Assembly Bill 333. If it is not proven, a new
resentencing hearing must be held.
Lastly, we will order the trial court clerk to correct the abstract of judgment in
several ways. First, the discretionary restitution fines are to be stricken from the abstract
but the mandatory ancillary costs under Penal Code section 1465.8 and Government
Code section 70373 shall remain (statutory section references that follow are to the Penal
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Code unless otherwise stated). Second, the abstract must also reflect the correct amount
of custody credits consistent with this opinion.
In all other respects, the judgment is affirmed.
FACTS AND HISTORY OF THE PROCEEDINGS
Brandon R. Shooting
Brandon R. drove to work heading west on Interstate 80 in the early morning
hours of February 10, 2022. He heard a sound like “rocks falling from the sky” as he
turned off the freeway at the Mace Boulevard offramp.
A truck driving “considerably faster” than Brandon R. passed him on the driver’s
side as “flashes from a gun” came from inside the truck. Glass shattered and hit
Brandon R. in the face.
The truck then merged onto the Mace Boulevard exit and crashed into a fence near
the freeway onramp in the grass. Brandon R. pulled over and called law enforcement
authorities at 6:07 a.m.
The driver’s side window of Brandon R.’s car had been shot twice and there was
also a bullet hole on the rear passenger side pillar.
Robert K. Shooting
Robert K. was also driving to work on Interstate 80 in the early morning hours of
February 10, 2022, when the rear window of his truck suddenly “blew out” as he left the
freeway at Mace Boulevard. Robert K. estimated that he exited the freeway around 4:30
or 5:00 a.m. but admitted that it had “been a while” since the shooting.
Robert K. pulled over and saw two holes in the rear window of his truck. Feeling
unsafe in the area, he decided to leave and finish his drive to work. After further
assessing his car, Robert K. called law enforcement authorities at 6:40 a.m.
There was a bullet hole in the dash of Robert K.’s truck as well as two more bullet
holes in his rear window.
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Investigation
The truck, registered to defendant, that crashed off the side of the freeway near the
Mace Boulevard onramp was abandoned after the shootings. Several documents were
found inside the truck which bore defendant’s name including a receipt for the Red Roof
Inn, a Wells Fargo document, a receipt from a State of California paystub, a vehicle
purchase agreement, and checks.
A Glock 22 pistol with a loaded drum magazine attached, along with unfired .40
caliber rounds, spent .223 and .40 caliber shell casings, and two cell phones were found
inside defendant’s truck. There were 12 bullet holes in the windshield, one in the
passenger side front door, one through a coffee cup in the center console that went out
through the passenger door, and one in the rear window.
Defendant was found several hours later around 8:11 a.m. He was hiding in thick
foliage “within a football field’s length” of his abandoned truck. A Sig Sauer AR-15 rifle
with a 200-round drum magazine attached to it was in the bushes next to defendant. The
AR-15 contained a .223-caliber round in the chamber and 73 rounds of the same caliber
in the attached drum magazine.
Video surveillance from a Motel 6 in Sacramento showed defendant checking out
of the motel after 5:00 a.m. on February 10, 2022. There was a bulge on the right side of
his jacket. Defendant left the motel in his truck at 5:35 a.m. Authorities found a receipt
for Motel 6 with defendant’s name and check-out date of February 10, 2022, in
defendant’s truck.
Defendant’s hands tested positive for gunshot residue.
Defense
Defendant did not present any evidence during the evidence phase of the trial but
argued that he was not the shooter. He agreed that the prosecutor had proven that bullets
had been shot from inside of his truck and that those bullets hit Brandon R.’s and
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Robert K.’s cars. However, defendant claimed that the prosecution failed to prove that he
was the only individual inside his truck at the time of the shootings.
Jury Trial Proceedings
A jury convicted defendant of two counts of attempted murder (§§ 664, subd. (a),
187, subd. (a)), two counts of shooting at an occupied vehicle (§ 246), two counts of
assault with a machinegun or assault weapon (§ 245, subd. (a)(3)), possession or
transportation of a machine gun (§ 32625, subd. (a)), possession of an assault weapon
(§ 30605, subd. (a)), and two counts of being a felon in possession of a firearm (§ 29800,
subd. (a)(1)). The jury also found defendant guilty of four counts of being a felon in
possession of ammunition including the .40 caliber ammunition, .223-caliber
ammunition, the drum magazine attached to the Glock 22, and the 200-round drum
magazine attached to the AR-15. (§ 30305, subd. (a)(1).)
The jury found true the allegations that defendant intentionally and personally
discharged a firearm (§ 12022.53, subd. (c)), that he was armed with a firearm (§ 667,
subd. (e)(2)(c)(iii)), and that he used an assault weapon during the commission of a
felony (§ 12022.5, subd. (b)(2)).
Bifurcated Bench Trial
In a bifurcated bench trial, the trial court found true the allegations that defendant
suffered prior strike convictions for voluntary manslaughter (§ 192, subd. (a)), assault
with a firearm (§ 245, subd. (a)(2)), assault with a deadly weapon with infliction of great
bodily injury (§§ 245, subd. (a)(1); 12022.7), and unlawful possession of a firearm
(former §12021, subd. (a)). The court also found true that each of defendant’s prior
convictions qualified as serious felonies for purposes of the five-year sentencing
enhancement (§ 667, subd. (a)) and that defendant’s unlawful possession of a firearm was
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
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In addition, the court found several alleged aggravating factors to be true including
that the crimes involved great violence, great bodily harm, threat of great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of
Court, rule 4.421(a)(1)); that defendant engaged in violent conduct which indicated a
serious danger to society (rule 4.421(b)(1)); that defendant’s prior convictions as an adult
or sustained petitions in juvenile delinquency proceedings are numerous and of
increasing seriousness (rule 4.421(b)(2)); that defendant had served a prior prison term
(rule 4.421(b)(3)); and that defendant’s prior performance on probation or parole was
unsatisfactory (rule 4.421(b)(5)).
Defendant was sentenced to an aggregate determinate term of 80 years and an
aggregate indeterminate term of 148 years to life.
Defendant appeals.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his convictions for
two counts of attempted murder, two counts of shooting at an occupied vehicle, and two
counts of assault with a machine gun or an assault weapon.
Defendant begins by arguing that there is no evidence that he shot Robert K.
because that shooting occurred between 4:45 and 5:15 a.m., and defendant did not leave
the Motel 6 until 5:35 a.m.
Defendant alternatively argues that even if he was the shooter, the evidence does
not establish that he pointed his guns at either Robert K., Brandon R. or their cars.
Instead, defendant contends the evidence shows that Robert K.’s and Brandon R.’s cars
were hit by “bullet-fragment deflection” or “bullet-fragment ricochet” instead of bullets.
On this basis, defendant concludes that the evidence is insufficient to establish that he
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shot directly at Robert K., Brandon R., or their cars, and therefore the evidence does not
support his convictions for attempted murder, shooting at an occupied vehicle, or assault
with a machine gun or assault weapon.
Applicable Law
In assessing a claim of insufficient evidence, we “ ‘ “examine the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ”
(People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) We presume the evidence of
each element of the offense was sufficient, and defendant bears the burden of
affirmatively demonstrating otherwise. (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573-1574.) To meet this burden, defendant must do more than just recite his own
evidence or portray the available evidence in a light favorable to him. (Ibid.)
“We do not reweigh the evidence or revisit credibility issues, but rather presume in
support of the judgment the existence of every fact that could reasonably be deduced
from the evidence.” (People v. Pham (2009) 180 Cal.App.4th 919, 924-925.) “We must
accept all logical inferences that the jury may have drawn from circumstantial evidence.”
(People v. Lucero (2019) 41 Cal.App.5th 370, 411.) “ ‘If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.’ ” (Ibid.)
Identity of the person who shot Robert K.
Defendant contends that there is insufficient evidence that he shot Robert K.
because defendant was still at the Motel 6 when the shooting took place. In support,
defendant relies upon Robert K.’s estimation that the shooting happened when he left the
freeway at Mace Boulevard around 4:30 or 5:00 a.m. Assuming Robert K.’s estimate
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was accurate, defendant claims he could not have been the shooter because video footage
from the Motel 6 shows that he did not leave until 5:35 a.m.
But the record establishes another plausible timeline of events. It is undisputed
that Robert K. called law enforcement to report the shooting at 6:40 a.m. Before he made
the call, Robert K. pulled over at the Mace Boulevard exit to inspect his car immediately
after the shooting. He did not stay long because he felt unsafe. Robert K. then finished
his drive to work where he inspected his car again before calling law enforcement.
The record does not establish an exact timeframe between the shooting and
Robert K.’s phone call to law enforcement at 6:40 a.m. However, looking at the evidence
in a light most favorable to the judgment, a reasonable trier of fact could determine that
the shooting occurred closer to the time Robert K. called law enforcement rather than
near his estimated time of between 4:30 and 5:00 a.m. Robert K’s candid admission that
it had “been a while” since the incident left room for this interpretation of the evidence.
Accordingly, a reasonable trier of fact could find that the shooting occurred after
defendant left the Motel 6.
Defendant essentially asks this court to reevaluate the evidence in a light most
favorable to him and to draw contrary inferences from the evidence. Given the
deferential standard of review, we cannot do so. (People v. Myles (2023) 89 Cal.App.5th
711, 740 [“for purposes of substantial evidence review, we are not permitted to draw
inferences contrary to the verdict”].) Because evidence in the record supports the jury’s
determination that defendant had left the Motel 6 before the shooting occurred, reversal is
not warranted.
Defendant Cannot Challenge his Convictions Based on New Evidence and a
Theory not Presented at Trial
Defendant claims that insufficient evidence supports his convictions for attempted
murder, shooting at an occupied vehicle, and assault because Brandon R.’s and
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Robert K.’s cars were hit with “bullet-fragment deflection” or “bullet-fragment ricochet.”
According to defendant, this means that there was no evidence presented at trial that he
pointed his guns directly at Robert K., Brandon R., or their cars, and therefore, his
aforementioned convictions were not supported by sufficient evidence. We decline to
consider this argument.
“It is a firmly entrenched principle of appellate practice that litigants must adhere
to the theory on which a case was tried. Stated otherwise, a litigant may not change his
or her position on appeal and assert a new theory. To permit this change in strategy
would be unfair to the trial court and the opposing litigant. [Citations.] To be sure, we
have discretion to consider a new theory on appeal when it is purely a matter of applying
the law to undisputed facts.” (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.)
Here, defendant presents new facts and a new argument post-trial to dispute the
sufficiency of evidence for his convictions that were neither presented nor argued at trial.
Indeed, defendant did not present any evidence at trial, let alone evidence of “bullet-
fragment deflection” or “bullet-fragment ricochet.” Instead, defendant argued that he
was not the shooter because someone else may have been in his car at the time of the
incident. Defense counsel also expressly admitted in closing argument that the
prosecution had proven that Robert K.’s and Brandon R.’s cars “had bullet holes” in them
and “were shot at.” He cannot now, for the first time, claim that insufficient evidence
supports his convictions based on this new evidence and theory of “bullet-fragment
deflection” or “bullet-fragment ricochet.”
Accordingly, we decline to consider defendant’s new theory on appeal.
II
CALCRIM No. 965
Defendant contends that the trial court erred by giving only the CALCRIM
No. 965 pattern instruction on shooting at an occupied vehicle (§ 246), which instructs
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the jury that the prosecutor must prove that “1 the defendant willfully and maliciously
shot a firearm [⁋] AND 2 the defendant shot the firearm at an occupied motor vehicle.”
Defendant suggests that the trial court should have also given a pinpoint instruction
consistent with the decision in People v. Overman (2005) 126 Cal.App.4th 1344
(Overman), which held that “section 246 is not limited to shooting directly at an
inhabited or occupied target. Rather, it proscribes shooting either directly at or in close
proximity to an inhabited or occupied target under circumstances showing a conscious
disregard for the probability that one or more bullets will strike the target or persons in or
around it.” (Overman, at pp. 1355-1366.)
The Overman court found the following pinpoint instruction to be proper: “ ‘[A]n
act done with a reckless disregard of probable consequences is an act done with intent to
cause such result within the meaning of the words used in the instruction related to Count
[5] [shooting at an occupied building]. If you conclude that the defendant was aware of
the probability that some shots would hit the building and that he was consciously
indifferent to that result, that is ... a sufficient intent to satisfy the statutory
requirement.’ ” (Id., supra, 126 Cal.App.4th at p. 1355.)
According to defendant, the trial court was required to instruct on this “Overman
alternative” because there was “substantial evidence to support a theory that both vehicles
were hit by bullet fragments rather than intact bullets fired in a direct line of fire…” and
therefore, “an issue of indirect shooting was raised by the evidence.” Defendant’s
argument cannot be sustained.
A trial court must give an instruction on every theory of the case that is supported
by substantial evidence. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) But the court
must not give an instruction that is not correct or pertinent, nor is it required to give an
instruction that is not supported by substantial evidence. (People v. Larsen (2012)
205 Cal.App.4th 810, 823; § 1127.)
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As we have explained, defendant presented no evidence at trial that Robert K.’s or
Brandon R.’s cars were hit with bullet fragments or ricochets as opposed to bullets. Nor
was there any evidence presented that defendant shot in close proximity to the cars as
opposed to directly at them. Instead, the uncontroverted evidence established that
defendant shot directly at Brandon R., Robert K., and their cars. Brandon R.’s driver’s
side window had been shot twice and there was a bullet hole on the rear passenger side
pillar of his truck. There was also a bullet hole in the dash of Robert K.’s car as well as
two more holes in his rear window. Notably, there was no objection by defendant to the
characterization of these holes as bullet holes throughout the trial, and the defense
attorney admitted in closing argument that the prosecutor had proven that both cars “had
bullet holes” in them and “were shot at.”
Accordingly, the uncontested evidence at trial was that defendant directly shot at
and hit Robert K.’s and Brandon R.’s cars with bullets. The trial court therefore had no
obligation to provide a pinpoint instruction consistent with Overman.
III
CALCRIM No. 252
CALCRIM No. 252 instructs the jury that the charged offenses require proof of
the union of act and wrongful intent. The instruction also advises jurors how to consider
general intent crimes that do not require a specific mental state and then, separately, how
to consider specific intent crimes that do require one or more specific mental states.
(CALCRIM No. 252.)
For general intent crimes, the instruction explains that the defendant “must not
only commit the prohibited act, but must do so with a wrongful intent.” (CALCRIM No.
252.) The instruction also details that “[a] person acts with a wrongful intent when he or
she intentionally does a prohibited act; however, it is not required that he or she intend to
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break the law. The act required is explained in the instruction for that crime or
allegation.” (CALCRIM No. 252.)
For specific intent crimes, the jury is advised that the “person must not only
intentionally commit the prohibited act, but must do so with a specific mental state” and
that “[t]he act and the specific mental state required are explained in the instruction for
that crime.” (CALCRIM No. 252.)
As relevant here, CALCRIM No. 252 listed shooting at a motor vehicle and
assault with a machine gun or assault weapon as general intent crimes. Defendant claims
this was error. Although defendant acknowledges that each of these offenses are general
intent crimes, he argues that they also include a specific mental state: malice for shooting
at an occupied motor vehicle and knowledge for assault. Because these crimes include
specific mental states, defendant contends it was error for the trial court not to include
them in the list of specific intent crimes in CALCRIM No. 252 so that the jury would
know that “[t]he act and the specific intent or mental state required are explained in the
instruction” for these crimes. Since these offenses were not included in the specific
intent category in CALCRIM No. 252, defendant surmises that the jury was not properly
instructed to find a “union or joint operation of act” with malice for shooting at an
occupied vehicle or knowledge for assault.
Additional Background
Defense counsel requested that the trial court modify CALCRIM No. 252 by
expressly distinguishing between offenses that require specific intent and specific mental
states. Counsel suggested that CALCRIM No. 252 be amended to include a list of
charges that have a “required mental state” along with the list of the general and specific
intent charges already encompassed in the pattern instruction.
The trial court declined to modify the instruction.
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We note that defendant forfeited his challenge to this jury instruction because he
did not raise the same instructional error issue in the trial court as he raises on appeal.
(People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [“Generally, an issue is forfeited on
appeal if the defendant failed to make a timely and specific objection on the ground
asserted on appeal”].) We nonetheless address the merits because defendant maintains
that CALCRIM No. 252 as given was not a correct statement of the law. (People v.
Franco (2009) 180 Cal.App.4th 713, 719 [“The rule of forfeiture does not apply,
however, if the instruction was an incorrect statement of the law [citation], or if the
instructional error affected the defendant’s substantial rights”].)
After declining to modify CALCRIM No. 252, the trial court instructed the jury
with CALCRIM No. 252 as follows: “The crimes and other allegations charged in this
case require proof of the union or joint operation of act and wrongful intent. The
following crimes and acts require general criminal intent: Intentional and personal
discharge of a firearm as charged in Count 1—excuse me, as charged in Count
Enhancements 1a and 2a; shooting at an occupied motor vehicle as charged in Counts 3
and 4; assault with a machine gun or assault weapon as charged in Counts 5 and 6; and
use of assault weapon during commission of a felony as charged in Count Enhancements
3a, 4a, 5a, and 6a. For you to find a person guilty of these crimes or to find the
allegations true, that person must not only commit the prohibited act, but must do so with
wrongful intent. A person acts with wrongful intent when he or she intentionally does a
prohibited act. However, it is not required that he or she intend to break the law. The act
required is explained in the instruction for that crime or allegation. The following crimes
and allegations require a specific intent or mental state: Attempted murder as charged in
Counts 1 and 2; possession of a firearm by a person previously convicted of a felony as
charged in Counts 7 and 8; possession of a machine gun as charged in Count 9;
possession of an assault weapon as charged in Count 10; possession of ammunition by a
person prohibited from owning or possessing a firearm as charged in Counts 11, 12, 13,
13
and 14. For you to find a person guilty of these crimes or to find the allegations true, that
person must not only intentionally commit the prohibited act, but must do so with a
specific intent or mental state. The act and the specific intent or mental state required are
explained in the instruction for that crime.”
The jury was also instructed on shooting at an occupied motor vehicle as follows:
“[Defendant] is charged in Counts 3 and 4 with shooting at an occupied motor vehicle in
violation of Penal Code Section 246. To prove that the defendant is guilty of this crime,
the People must prove that one, the defendant willfully and maliciously shot a firearm;
and two, the defendant shot the firearm at an occupied motor vehicle. Someone commits
an act willfully when he or she does it willingly or on purpose. Someone acts
maliciously when he or she intentionally does a wrongful act, or when he or she acts with
the unlawful intent to disturb, annoy, or injure someone else. A motor vehicle includes a
pickup truck, and a firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an explosion or other
form of combustion.” (CALCRIM No. 965.)
The jury was instructed on assault as follows: “The defendant is charged in
Counts 5 and 6 with assault with a machine gun or assault weapon in violation of Penal
Code Section 245(a)(3). To prove that the defendant is guilty of this crime, the People
must prove that one, the defendant did an act with a machine gun or assault weapon that,
by its nature, would directly and probably result in the application of force to a person;
two, the defendant did that act willfully; three, when the defendant acted, he was aware of
facts that would lead a reasonable person to realize that his act, by its nature, would
directly and probably result in the application of force to someone; and four, when the
defendant acted, he had the present ability to apply force with a machine gun or an
assault weapon to a person. Someone commits an act willfully when he or she does it
willingly or on purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage. The People are not required to prove that the
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defendant actually intended to use force against someone when he acted. No one needs
to have actually been injured by the defendant’s act, but if someone was injured, you may
consider that fact along with all the other evidence in deciding whether the defendant
committed an assault. Voluntary intoxication is not a defense to an assault. Great bodily
injury means significant or substantial physical injury. It is an injury that is greater than
minor or moderate harm. The term machine gun is defined in another instruction, and the
term assault weapon is also defined in another instruction. The People allege that the
defendant did an act with the following assault weapon: AR-15. The People allege that
the defendant did an act with the following machine gun: Glock 22. You may not find
the defendant guilty unless all of you agree that the People have proved that the
defendant did an act with an assault weapon or machine gun, and you all agree on which
assault weapon or machine gun he did an act with.” (CALCRIM No. 875.)
Applicable Law
We review claims of instructional error de novo. (People v. Mitchell (2019)
7 Cal.5th 561, 579.) We must review the wording of the jury instruction and assess
whether it accurately states the law. (Ibid.) We must also consider whether a reasonable
likelihood exists that the challenged instruction “caused the jury to misapply the law in
violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the
context of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.’ ”
(Ibid.) “There is no error in a trial court’s failing or refusing to instruct on one matter,
unless the remaining instructions, considered as a whole, fail to cover the material issues
raised at trial. As long as the trial court has correctly instructed the jury on all matters
pertinent to the case, there is no error.” (People v. Dieguez (2001) 89 Cal.App.4th 266,
277.)
15
“We interpret the instructions so as to support the judgment if they are reasonably
susceptible to such interpretation ....” (People v. Vang (2009) 171 Cal.App.4th 1120,
1129.)
Intent and Mental State Requirements
Shooting at an occupied vehicle is a general intent crime. (Overman, supra,
126 Cal.App.4th at p. 1356.) However, this offense requires the specific mental state that
the defendant “maliciously” discharge the firearm. (§ 246.)
Assault is also general intent crime. (People v. Williams (2001) 26 Cal.4th 779,
785.) However, assault requires a specific mental state of knowledge. “[A]ssault only
requires an intentional act and actual knowledge of those facts sufficient to establish that
the act by its nature will probably and directly result in the application of physical force
against another.” (Id. at p. 790.)
There is no Reasonable Likelihood that the Jury Misapplied the Instructions
In reviewing the instructions as a whole, we find that the jurors were fully and
fairly instructed on the union of intent and act, which included the required mental states
for shooting at an occupied vehicle and assault with a machine gun or assault weapon.
We start with the first line in CALCRIM No. 252 which explains to the jury that
“[t]he crimes and other allegations charged in this case require proof of the union, or joint
operation, of act and wrongful intent.” For the general intent crimes, which included
shooting at an occupied vehicle and assault, the jury was told that, in addition to wrongful
intent, the jury also needed to reference the required acts in the instructions for those
crimes. (CALCRIM No. 252.)
The instructions included the required acts and the specific mental states for each
offense. For shooting into an occupied vehicle, the jury was told that it must find that
defendant willfully and maliciously shot the firearm. (CALCRIM No. 965.) The jury
was also required to find the mental state of knowledge for the assault charges.
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Specifically, the jury needed to find that defendant “was aware of facts that would lead a
reasonable person to realize that his act by its nature would directly and probably result in
the application of force to someone.” (CALCRIM No. 875.)
These instructions demonstrate that the jury knew it had to find both the general
intent required for these crimes and as well as the specific acts included in the individual
instructions for each offense. The individual instructions defining the acts likewise
required the jury to find the mental states of malice and knowledge. The jurors were
expressly instructed to “[p]ay careful attention to all of these instructions and consider
them together.” (CALCRIM No. 200.) There is nothing in the record to indicate that the
jury neither followed nor understood these instructions as given, and we presume they did
so. (People v. McKinnon (2011) 52 Cal.4th 610, 670.) Accordingly, it is not reasonably
likely that the jury misapplied the instructions by failing to find the union of act and
intent, including the specific mental states for each offense.
We conclude there was no error.
IV
CALCRIM No. 970
Defendant contends the trial court should have instructed the jury sua sponte with
CALCRIM No. 970 for negligent discharge of a firearm (§ 246.3, subd. (a)) as a lesser
included offense of shooting at an occupied vehicle (§ 246). According to defendant,
there was substantial evidence to support instructing the jury on this lesser included
offense because Robert K.’s and Brandon R.’s cars were “hit by bullet fragments that
deviated or ricocheted from their normal trajectory….”
We will once again reject defendant’s argument grounded in a theory that was not
presented at trial.
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Applicable Law
“On appeal, we review independently the question whether the trial court
improperly failed to instruct on a lesser included offense.” (People v. Souza (2012)
54 Cal.4th 90, 113.)
Trial courts have a sua sponte duty to instruct juries on all lesser included offenses
where there is substantial evidence raising a question as to whether all the elements of the
charged offense are present. (People v. Lewis (2001) 25 Cal.4th 610, 645; People v.
Breverman (1998) 19 Cal.4th 142, 155, 162.) Under the substantial evidence standard,
“[t]he trial court has no obligation to instruct on theories not supported, or only weakly
supported by the evidence; however, ‘instructions are required whenever evidence that
the defendant is guilty only of the lesser offense is “substantial enough to merit
consideration” by the jury. [Citations.] “Substantial evidence” in this context is
“ ‘evidence from which a jury composed of reasonable [persons] could ... conclude[ ]’ ”
that the lesser offense, but not the greater, was committed.’ ” (People v. Reeves (2001)
91 Cal.App.4th 14, 51.)
Negligent discharge of a firearm (§ 246.3, subd. (a)) is a lesser included offense of
shooting at an occupied vehicle (§ 246). (People v. Bell (2019) 7 Cal.5th 70, 108.) To
prove a defendant has negligently discharged a firearm, it must be shown that he willfully
discharged a firearm in a grossly negligent manner which could result in injury or death.
(§ 246.3, subd. (a); CALCRIM No. 970.)
No Evidence was Presented at Trial that Defendant Shot his Firearms in a Grossly
Negligent Manner
There was no evidence presented at trial that Robert K.’s and Brandon R.’s cars
were “hit by bullet fragments that deviated or ricocheted from their normal trajectory….”
Instead, the uncontested evidence established that the cars were directly hit by bullets
from defendant’s guns. Thus, on this record, there was no evidence at all—let alone
18
substantial evidence—from which the jury could conclude the defendant committed
grossly negligent discharge of a firearm but not shooting at occupied vehicles. The trial
court therefore had no sua sponte duty to instruct on the lesser included offense of
negligent discharge of a firearm.
V
Felon in Possession of Ammunition
Defendant’s truck was found near the Mace Boulevard on-ramp with a Glock 22
pistol that had a loaded drum magazine attached, along with unfired .40 caliber rounds,
and spent .223 and .40 caliber shell casings. Defendant was located in some foliage
about a “football field’s” distance away from his truck possessing a Sig Sauer AR-15 rifle
that had a 200-round drum magazine attached. The AR-15 contained a .223-caliber
round in the chamber and 73 rounds of the same caliber in the drum magazine.
Defendant was convicted of four separate charges of being a felon in possession of
ammunition (§ 30305, subd. (a)(1)) for (1) possessing the .40 caliber ammunition, (2) the
.223 caliber ammunition, (3) the loaded drum magazine attached to the Glock 22, and (4)
the 200-round drum magazine containing 73 rounds of .223 caliber ammunition attached
to the AR-15.
Defendant contends that he cannot be convicted of four separate charges of being
a felon in possession of ammunition. Instead, defendant suggests that he should have
been convicted of only one count because ammunition, as used and defined in section
30305, subdivision (a)(1) is plural. Defendant therefore concludes that he only violated
the statute once despite his possession of multiple types of ammunition.
The People acknowledge that possession of multiple types of contraband that are
classified within a single category—like ammunition under sections 30305, subdivision
(a) and 16150, subdivision (b)—support only a single violation of the statute. On this
basis, the People concede that defendant could not be convicted separately for possessing
19
bullets and magazines since both are included in the statutory definition of ammunition.
(§ 16150, subd. (b).)
However, the People point to an exception where contraband is possessed at
different times or at different locations, which would permit a separate charge for each
possession. Because defendant had one magazine with ammunition in his truck and
another magazine with ammunition with him in the bushes, the People argue that he was
properly convicted of two counts of being a felon in possession of ammunition for the
contraband found at each location.
Defendant questions whether this separate location exception applies to the crime
of being a felon in possession of ammunition. The three cases that apply this exception
are De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40 and People v. Sample
(2011) 200 Cal.App.4th 1253, both of which involve possession of child pornography,
and People v. Von Latta (1968) 258 Cal.App.2d 329, which deals with possession of
marijuana. Each of these cases held that multiple convictions for possession of
contraband was appropriate because the defendants possessed them in separate and
distinct locations. (De La Cerda, at p. 59, fn. 8; Sample, at p. 1259; Von Latta, at
pp. 339-340.)
In requesting that we decline to apply the separate location exception here,
defendant attempts to distinguish the offense of being a felon in possession from the
offenses of possessing child pornography and drugs in De La Serda, Sample, and Von
Latta. Specifically, defendant argues that the offense of possessing the otherwise legal
ammunition should be treated differently from offenses that prohibit possession of illegal
items like child pornography and drugs because the purposes of criminalizing them are
different. According to defendant, the purpose of criminalizing possession of child
pornography and drugs is to eradicate the illegal items from society, whereas the purpose
of criminalizing a felon’s possession of ammunition is to keep the legal ammunition out
of the hands of dangerous individuals. Based on this distinction, defendant concludes
20
that compounding liability for those who possess illegal material in separate locations is
permissible because those actions increase the proliferation of that illegal contraband.
However, defendant claims that the same is not true for a felon in possession of
ammunition because the purpose of the law is not to eradicate ammunition from society,
but rather, it is to limit the dangerousness of the felon. Defendant therefore concludes
that the separate location exception used in De La Serda, Sample, and Von Latta should
not apply here.
Alternatively, defendant argues that even if the location exception applies to the
offense of being a felon in possession, the facts here do not support separate convictions.
According to defendant, the ammunition on his person when he was found was in the
same “geographic location” as his truck, which was approximately 100 yards away. He
therefore claims that he is only guilty of one violation of the offense for all the
ammunition he possessed both on his person and in his truck.
We agree with the People’s argument on this point.
Applicable Law
Multiple items of contraband that are classified within a single statutory category
or subdivision will support only a single violation of a possession statute. (In re
Carleisha P. (2006) 144 Cal.App.4th 912, 923.) This includes possession of different
types of ammunition. (Ibid.)
There is, however, an exception when contraband is possessed by a defendant at
different times or at different locations. (De La Cerda v. Superior Court, supra,
75 Cal.App.5th at p. 59, fn. 8; People v. Sample, supra, 200 Cal.App.4th at p. 1259;
People v. Von Latta, supra, 258 Cal.App.2d at pp. 339-340.) The reasoning underlying
this exception is that a defendant should be held accountable for each of his or her
separate and distinct acts of possession, such as actual and constructive possession of the
21
same type of contraband at different geographic locations. (See De La Cerda, at p. 59,
fn. 8; Sample, at p. 1259; Von Latta, at pp. 339-340.)
The Separate Location Exception Applies
As a preliminary matter, we decline defendant’s invitation not to apply the
separate location exception to the offense of being a felon in possession of ammunition.
While child pornography and drugs are fundamentally different types of contraband from
ammunition, this is a distinction without a difference for our purposes. Here what was
being possessed was ammunition illegally possessed by a felon and was still contraband
nonetheless. Indeed, the underpinnings of the separate location exception focus on a
defendant’s distinct and separate acts of possessing contraband. We therefore fail to see
a reason not to apply this exception to the offense of felon in possession of ammunition.
Defendant was Properly Convicted of Two Counts of Being a Felon in Possession
of Ammunition
Applying the separate location exception here, we conclude that defendant was
properly convicted of two separate counts of being a felon in possession of ammunition.
After defendant shot at Robert K. and Brandon R. on the freeway, he abandoned his truck
that had crashed near the on-ramp. Defendant then took his Sig Sauer AR-15 rifle that
had 73 rounds in the drum magazine and one in the chamber and fled about 100 yards
away from his truck where he waited in the bushes for several hours before being
apprehended. These facts demonstrate that defendant took a distinct step to actually
possess the ammunition that he carried on his person when he fled from his truck, which
was separate and distinct from his constructive possession of the ammunition he left in
his truck. Accordingly, there are two separate and distinct possessions of ammunition
that warrant accountability for both. (De La Cerda, supra, 75 Cal.App.5th at p. 59, fn. 8;
Sample, supra, 200 Cal.App.4th at p. 1259; Von Latta, 258 Cal.App.2d at pp. 339-340.)
22
We do, however, agree with the parties that defendant cannot be separately
convicted for possessing both bullets and magazines at each location. “Ammunition” is
defined to include “any bullet, cartridge, magazine, clip, speed loader, autoloader,
ammunition feeding device, or projectile capable of being fired from a firearm with a
deadly consequence.” (§ 16150, subd. (b), italics added.) Possession of multiple items of
contraband that are classified within a single statutory category or subdivision will
support only a single violation of a possession statute. (People v. Sample, supra,
200 Cal.App.4th at pp. 1257-1258.) Therefore, defendant could only be convicted of one
count for the magazine and bullets found in his truck and one count for the magazine and
bullets found on his person.
Accordingly, we vacate two of defendant’s convictions for being a felon in
possession of ammunition. The other two convictions are affirmed.
VI
Bench Trial in Absentia
Defendant was not present for the bifurcated bench trial on his prior convictions
and aggravating factors allegations. The parties agree that this was error because
defendant did not expressly waive his right to be present for the bench trial in writing as
required by section 977, subdivision (b)(1). The parties disagree on whether this error
was harmless.
Additional Background
On August 28, 2024, before the jury returned its verdict, defense counsel
submitted a letter from defendant that he waived his right to a jury trial on the prior
convictions and aggravating factors allegations.
The parties discussed scheduling the bifurcated bench trial later that day. During
this conversation, the defense attorney said, “I don’t necessarily know if we would
actually need a hearing then if it’s just documentation, because the defense isn’t calling
23
any witnesses, and we’re submitting on the prosecution’s exhibits.” Ultimately, however,
a later date was set for the bench trial on the bifurcated issues.
When the parties arrived for the bench trial, the trial court noted that defendant
was not present, but that it had “approved [defendant]’s nonappearance at the previous
court date.”
Defendant Did Not Waive his Right to be Present at the Bifurcated Bench Trial
A defendant has a right to be present at critical stages of a criminal prosecution, a
right protected by both the federal Constitution and the state Constitution. (U.S. Const.,
6th & 14th Amends.; Kentucky v. Stincer (1987) 482 U.S. 730, 745; Cal. Const., art. I,
§§ 15, 16; People v. Perry (2006) 38 Cal.4th 302, 311.) California has also guaranteed
the right by statute: “in all cases in which a felony is charged, the accused shall be
physically present at the arraignment, at the time of plea, during the preliminary hearing,
during those portions of the trial when evidence is taken before the trier of fact, and at the
time of the imposition of sentence. The accused shall be physically or remotely present
at all other proceedings unless they waive their right to be physically or remotely present,
with leave of court and with approval by defendant’s counsel.” (§ 977, subd. (b)(1).)
The waiver of a defendant’s right to be present “may be in writing and filed with the
court or, with the court’s consent, may be entered personally by the defendant or by the
defendant’s counsel of record.” (§ 977, subd. (b)(2).)
If a defendant does waive his right to be present, the waiver “shall be on the record
and state that the defendant has been advised of the right to be physically or remotely
present for the hearing at issue and agrees that notice to the attorney that the defendant’s
physical or remote presence in court at a future date and time is required is notice to the
defendant of that requirement.” (§ 977, subd. (b)(2)(A).)
It does not appear on this record that defendant waived his right to be present at
the bench trial as required by section 977. Defendant submitted a letter, but in it he
24
waived his right to a jury trial only. And although the trial court mentioned that it had
approved defendant’s nonappearance at a previous court date, there is no record of this
waiver and approval. As such, we accept the People’s concession that the trial court
erred by holding the bifurcated trial on the prior convictions and aggravating factors in
absentia.
Harmless Error
“Absent a valid waiver, constitutional error concerning a defendant’s right of
presence is subject to harmless error review under Chapman v. California (1967)
386 U.S. 18, 23.” (People v. Millsap (2025) 114 Cal.App.5th 368, 384.) We must
therefore assess whether the error was harmless beyond a reasonable doubt and did not
contribute to the outcome of the proceeding. (Chapman, supra, at p. 24.)
Here, defense counsel did not call any witnesses and submitted on the
prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he
could have assisted in his defense and/or exercised his constitutional right to testify on his
own behalf regarding any number of the aggravating factors that were alleged against
him. Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial
was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a
new bifurcated trial on the prior convictions and aggravating factors.
VII
Prior Gang Enhancement
At the bifurcated bench trial, the trial court found true that defendant had been
convicted in 1999 of unlawful possession of a firearm (former § 12021, subd. (a)(1))
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Based upon
the recent decision in Fletcher, both parties request that the true finding on the prior
gang-related enhancement be vacated and that the matter be remanded for a retrial in
25
conformance with the changes to the law on criminal street gangs after Assembly Bill
333.
The Three Strikes law doubles a felony sentence if the defendant has a prior
conviction for a “serious felony,” which includes “any felony offense, which would also
constitute a felony violation of Section 186.22.” (§§ 1192.7, subd. (c)(28), 667, subds.
(d)(1), (e)(1), 1170.12, subds. (b)(1), (c)(1).) A prior felony firearm conviction
constitutes a strike if “committed for the benefit of a criminal street gang” pursuant to
section 186.22, subdivision (b)(1). (People v. Briceno (2004) 34 Cal.4th 451, 456.)
Assembly Bill 333, effective January 1, 2022, amended section 186.22 to narrow
the definition of “benefit” to mean “to provide a common benefit to members of a gang
where the common benefit is more than reputational. Examples of a common benefit that
are more than reputational may include, but are not limited to, financial gain or
motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or informant.” (§ 186.22, subd. (g).)
This provision applies retroactively to cases that are not final on appeal to determine
whether a prior violation of section 186.22 constitutes a strike. (Fletcher, supra,
18 Cal.5th at pp. 586-587.) “[W]ith regard to prior convictions ... that are premised on
violations of section 186.22, current law applies in determining whether they qualify as
prior serious felony convictions under section 1192.7, subdivision (c)(28).” (Id. at
p. 587.)
In Fletcher, there was no evidence whether the facts of the prior conviction
established more than a reputational benefit to the gang. (People v. Fletcher, supra,
18 Cal.5th at p. 606.) Similarly here, the People did not present evidence to establish that
the facts of the prior conviction constituted a violation of section 186.22 as amended by
Assembly Bill 333.
We therefore agree with the parties that the appropriate remedy is to remand to
permit the prosecution the opportunity to establish that the prior conviction constitutes a
26
strike under current law. (People v. Fletcher, supra, 18 Cal.5th at pp. 607-608.) We
vacate the admission of the prior strike and remand for retrial of the strike, applying the
elements of section 186.22 as amended by Assembly Bill 333, or, if it is not proven, for
resentencing.
VIII
Fines and Fees
The trial court did not mention any fines or fees at the sentencing hearing and the
minute order is also silent on this subject. However, the abstract of judgment reflects the
following fines and fees were imposed: $300 for restitution (§ 1202.4, subd. (b)); $400
for the court security fee (§ 1465.8); and $300 for the criminal conviction assessment
(Gov. Code, § 70373). The $300 parole revocation restitution fine (§ 1202.45) was
conditionally suspended.
Defendant argues that all fines and fees should be stricken because the clerk had
no authority to include them on the abstract of judgment when they were not orally
pronounced by the trial court. As to the mandatory ancillary fees under section 1465.8
and Government Code section 70373, defendant further contends that the clerk had no
authority to include them in the abstract because he had no opportunity to object and
claim an inability to pay them. Defendant alternatively argues that the trial court’s
decision not to impose these fees implies that it found he had no ability to pay them.
The People agree that all fines and fees should be stricken because they were not
orally pronounced. However, they contend that because the trial court did not state
reasons on the record for failing to impose a restitution fine—as required by section
1202.4, subdivision (b)—a limited remand is necessary to allow the court to expressly
consider whether to impose the restitution fine. Defendant disagrees, arguing that the
People have waived their ability to seek a statement of reasons for failing to object below.
27
“ ‘Rendition of judgment is an oral pronouncement.’ Entering the judgment in the
minutes being a clerical function ([] § 1207), a discrepancy between the judgment as
orally pronounced and as entered in the minutes is presumably the result of clerical error.
Nor is the abstract of judgment controlling. ‘The abstract of judgment is not the
judgment of conviction. By its very nature, definition and terms [citation] it cannot add
to or modify the judgment which it purports to digest or summarize.’ ” (People v. Mesa
(1975) 14 Cal.3d 466, 471.)
If there is a discrepancy between the oral pronouncement of judgment and the
minutes or abstract of judgment, the oral pronouncement controls. (People v. Zackery
(2007) 147 Cal.App.4th 380, 385; People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
Here, the trial court did not orally impose restitution fines or fees, nor were any
included in the Minute Order from the sentencing hearing. The People did not object to
the court’s failure to orally impose the fines or fees. Because the restitution fine
(§ 1202.4) and matching parole revocation fine (§ 1202.45) are discretionary given the
court’s ability to not impose them if it makes certain findings on the record, the People
forfeited the imposition of the fines by not objecting. (People v. Tillman (2000)
22 Cal.4th 300, 303.) Accordingly, we decline the People’s request for a remand on the
restitution fines and instead, direct those fines to be stricken.
However, the same is not true for the two mandatory ancillary costs including the
court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code,
§ 70373). Indeed, the trial court was required to impose these fees but did not do so, nor
did it state any reasons for declining to do so. Accordingly, on remand, the trial court is
directed to either impose these fees or state its reasons for declining to do so. (People v.
El (2021) 65 Cal.App5th 963, 967.)
28
IX
Credit for Time Served
Defendant contends, and the People agree, that the abstract of judgment
incorrectly reflects a total of 967 days of credit for actual time served and 145 days of
conduct credit for a total of 1,112 days of total credit for time served. Although there
was no oral pronouncement of credit for time served at the sentencing hearing, the
probation officer’s report shows that she calculated the total of 967 days of credit for time
served based on defendant’s presentencing time in jail from February 10, 2022, to
October 3, 2024. We agree with the parties that this is a miscalculation, and any
miscalculation of credits results in an unauthorized sentence, which may be corrected
upon discovery. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
Credits for presentence custody are calculated from the day of arrest through the
day of sentencing. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Defendant was
sentenced on October 14, 2024, not on October 3, 2024. Accordingly, the correct number
of actual days of presentencing time served is 978.
Defendant cannot accrue more than 15 percent for conduct credits because he was
convicted of violent felonies. (§§ 667.5, subd. (c), 2933.1, subd. (a).) Thus, based on the
actual days of presentencing time served of 978, defendant is entitled to 146 days of
custody credits; this is 15 percent of his time served, calculated to the greatest whole
number without exceeding 15 percent. (People v. Ramos (1996) 50 Cal.App.4th 810, 816
[explaining proper method of calculation for conduct credits under section 2933.1].)
Defendant’s total credit for time served is therefore 1,124 days.
On remand, the trial court clerk is directed to prepare an amended abstract of
judgment that reflects the correct number of days for actual time served, conduct credits,
and total credits.
29
DISPOSITION
Two of the four convictions for felon in possession of ammunition and the true
finding on the gang-related enhancement are vacated.
This matter is remanded for a retrial on the gang-related enhancement consistent
with section 186.22 as amended by Assembly Bill 333, or, if it is not proven, for a new
resentencing hearing. This matter is also remanded for a new bifurcated bench trial on
the prior convictions and aggravating factors.
On remand, the trial court is directed to impose the criminal conviction facilities
assessment (Gov. Code, § 70373, subd. (a)(1)) and the court security fee (§ 1465.8, subd.
(a)(1)) or state its reasons for declining to do so.
The trial court clerk is also directed to correct the abstract of judgment to strike the
$300 restitution fine and the corresponding parole revocation restitution fine. The clerk
must also amend the abstract to include the correct number of days for actual time served,
conduct credits, and total credits consistent with this opinion. The trial court clerk shall
prepare an amended abstract of judgment and forward a certified copy to the Department
of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
/s/
HULL, Acting P. J.
We concur:
/s/
KRAUSE, J.
/s/
MESIWALA, J.
30