P. v. Mendoza

Filed 8/22/08 P. v. Mendoza CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary R. Hahn, Judge. Modified and, as so modified, affirmed.

Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Guillermo Ramone Mendoza appeals from the judgment entered following a jury trial that resulted in his conviction for first degree murder. Mendoza was sentenced to a term of 50 years to life in prison.

Mendoza contends the evidence was insufficient to show premeditation and deliberation, and the court committed instructional and sentencing errors. We correct and modify the abstract of judgment as requested by Mendoza. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Peoples case.

This case arises from the brutal July 13, 2005 murder of Jose Luis Lujan, a Largo 36 gang member, by other Largo 36 gang members. Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following.

Mendoza, co-defendant Banuelos, and victim Lujan were all members of the Largo 36 gang. Mendozas moniker was Topo. Frances Sandaval lived in a converted detached garage apartment located on Bliss Street in Los Angeles. Drugs were sold from and used in the apartment. The apartment was a hangout for members of the Largo 36 gang, and the walls were covered with Largo 36 graffiti, including Mendozas moniker. Lujan was a drug user. Francess father, Jose Raul Sandaval, was a Largo 36 gang member known as Joker.[1]Alicia Ochoa lived across the street from the garage apartment.

On July 13, 2005, at approximately 11:30 p.m., Ochoa heard three pops outside her bedroom window. Shortly thereafter she heard fighting, breaking glass, and two additional gunshots. Looking out her window, she observed a very muscular man walking in the driveway of the Bliss Street residence. He looked back toward the garage apartment and stated, You have to do what you have to do. He then departed in a white Cadillac. Ochoa then saw Mendoza and another man drag a body out of the residence to the curb. Mendoza walked over to a couch that was on the street in front of the driveway area, and placed an object on it. He opened an iron gate so a white car parked in the driveway could exit. The second man drove off in that vehicle. Mendoza returned to the couch, retrieved the item, and placed it in his waistband. He then headed to a brown Lincoln parked on the street, and drove off. Ochoa called police.

Police discovered Lujans body on the curb, wrapped in a blanket, at the end of a trail of blood leading from the converted garage apartment. Lujan had suffered 13 knife wounds, i.e., 8 stab wounds and 5 incised wounds. He had been shot in the head three times and in the abdomen once. He suffered blunt force trauma to his head, causing large lacerations, and had contusions and abrasions on his legs and arms. Two of the wounds would have been rapidly fatal, i.e., a deep stab wound to the neck that severed the jugular vein, and the gunshot to the abdomen, which pierced his colon, liver, stomach, heart, and lung.[2] He had no defensive wounds.

Forensic evidence indicated that Lujan was initially shot in the head three times, and then attempted to flee. The killers intercepted him and prevented his escape. He was then hit on the head with an 18 pound porcelain sink which had been removed from its pedestal, and also hit at the back of his knees, causing him to fall to the ground. While on the ground, he was shot in the abdomen. A blanket was placed over his head and he was repeatedly and rapidly stabbed in the neck area through the blanket. Either before or after the stabbing, he was again hit with the porcelain sink. His body was dragged to the street, leaving a trail of blood. The attack was almost certainly carried out by two or more persons.

Shoes belonging to Mendoza matched bloody footprints found at the scene, and his fingerprint was found on a blue cup in the residence. When arrested, Mendozas shoes and car contained small amounts of blood as well.

Methamphetamine was found in the bedroom of the converted garage. Fake drugs were on a table near the blue cup.

A gang expert testified that he was aware of incidents in which gang members killed fellow members of their own gang due to a perceived insult, or to punish the member for breaking gang rules. Gang members present when a prearranged hit of another gang member take place are expected to assist in the killing, by, for example, luring the victim to the locale, acting as a lookout, or providing weapons.

b. Defense case.

Mendoza testified in his own behalf, as follows. Frances and Largo 36 gang member Jessie Morales, known as Sleepy, lived in the converted garage. Mendoza sometimes purchased drugs from Frances. On the date of the murder, he was doing construction work at a house next door to the garage. At approximately 7:00 p.m., he went to the garage to purchase drugs from Frances. Frances, her father, and Morales were present. Mendoza drank beer and used drugs at the residence.

Lujan arrived later, purchased drugs from Frances, and departed. He returned approximately one hour later and began drinking beer. Mendoza, Frances, and Francess father were sitting in the bedroom area when Morales challenged Lujan to do pushups. Lujan and Morales went to the living room. Mendoza then heard two shots. Frances ran and closed the door from the garage leading to the outside. Lujan took two or three steps, and Morales shot him in the back. After Morales fired a third shot, Lujan fell to the ground. Mendoza said, what the fuck are yall doing? and leave him alone. Francess father became very angry, pulled a gun from his waistband, pointed it at Mendoza, and called Mendoza names. Morales attempted to shoot Lujan several more times, but the gun did not fire. Frances stabbed Lujan repeatedly. Sandaval told Morales to Take that piece of shit out of there. Morales used a blanket to move Lujans body outside. Sandaval was angry and asked Morales what they were going to do with Mendoza. Frances suggested they kill him. Morales stated, you got to do what you got to do. Morales told Sandaval not to shoot Mendoza, stating that they knew where Mendoza and his family lived. Morales and Frances departed in a white car, followed by Mendoza.

Mendoza denied any involvement in planning or carrying out Lujans murder.

2. Procedure.

Trial was by jury. Mendoza and Banuelos were tried together. Mendoza was found guilty of first degree murder (Pen. Code, 187, subd. (a)).[3] The jury found true allegations that a principal personally and intentionally used and discharged a firearm, causing Lujans death ( 12022.53, subds. (b), (c), (d), & (e)(1)), and that the murder was committed for the benefit of a criminal street gang ( 186.22, subd. (b)). The jury was unable to reach a unanimous verdict concerning Banuelos. The trial court sentenced Mendoza to a term of 50 years to life. It also imposed a restitution fine, a suspended parole restitution fine, and a court security assessment, and awarded victim restitution.

DISCUSSION

1. The evidence was sufficient to establish the murder was premeditated and deliberate.

Mendoza asserts that there was insufficient evidence of premeditation to support a first-degree murder verdict. We disagree.

When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Halvorsen (2007) 42 Cal.4th 379, 419; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) We draw all reasonable inferences in support of the judgment. [Citation.] (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)  The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] (People v. Snow (2003) 30 Cal.4th 43, 66.) An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. (People v. Halvorsen, supra, at p. 419.)

In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court stated that generally first degree murder convictions are affirmed when (1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill. (See People v. Mincey (1992) 2 Cal.4th 408, 434-435.) These factors are not the exclusive means, however, to establish premeditation and deliberation; for instance, an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive. [Citation.] (People v. Tafoya (2007) 42 Cal.4th 147, 172; People v. Lenart (2004) 32 Cal.4th 1107, 1127.)

A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation . . . does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.] [Citation.] (People v. Halvorsen, supra, 42 Cal.4th at p. 419; People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

Here, the evidence was sufficient. There was evidence from which the jury could reasonably have concluded Mendoza was one of the participants in the attack. An eyewitness saw Mendoza dragging Lujans body to the curb. Bloody footprints matching shoes belonging to Mendoza were found at the scene, and his fingerprint was found on a cup. There were small amounts of blood on Mendozas shoes and in his vehicle. Indeed, Mendoza admitted he was present when the murder occurred. Mendoza was seen placing an item on a couch at the exterior of the house, opening a gate so that a second man could drive away in a vehicle, and then retrieving the item from the couch and placing it in his waistband. As it is common knowledge gang members often store guns in their waistbands, the jury could reasonably have inferred the item was the murder weapon. Forensic and expert evidence showed that at least two or more persons committed the attack. Given the nature of the killing, including the use of three separate weapons and a prolonged attack in which the victim was likely restrained, the jury could reasonably have concluded that all three men who left the scene were the perpetrators.

There was ample evidence the killing was premeditated, willful, and deliberate. An empty box for a cooks knife was found in the trash at the garage apartment; based on the size of the box, the knife used in the attack could have been contained therein. Forensic evidence indicated the attack on Lujan likely occurred as follows. Lujan was first shot three times in the head, as he was moving and attempting to dodge the shots. The wounds did not penetrate the skull and would not have been fatal. Lujan then attempted to flee, but was intercepted by one of the assailants at the front door. He was then hit on the head with the sink and hit in the back of the knees, causing him to fall to the ground. He was then shot in the abdomen as he was on the ground. A blanket was thrown over his head to restrain him, and he was repeatedly stabbed in the neck area through the blanket, severing his jugular. Lujan was still struggling when the stab wounds were inflicted. At some point after the final gunshot, he was hit again with the sink. This chronology was also corroborated by testimony that three gunshots were fired initially, followed by two more after a delay. Some of the injuries to Lujans legs indicated one of the attackers knelt of top of him or held him down. The presence of a can of oven cleaner and a foamy material on Lujans face and shoulders indicated Lujan may have been sprayed in the face with oven cleaner. Based on the nature of the attack, involving at least three weapons and restraint of the victim, it was extremely unlikely the killing was carried out by just one person. Lujan had no defensive wounds and no DNA other than his own under his fingernails. Fake drugs were found at the scene, and Lujan was a drug user. The three men seen leaving the house all departed in separate cars. The men left in a calm fashion, and did not appear confused or panicked.

This evidence strongly suggested a premeditated, planned attack. The nature of the attack was inconsistent with a sudden quarrel or fight. As noted, the victim had no defensive wounds, which would be likely had he and the others unexpectedly quarreled or engaged in mutual combat. Lujans injuries did not suggest a frenzied, unplanned explosion of violence: to the contrary, all the stab wounds, and all but one of the gunshots, were to his head and neck area, indicating an intent and plan to kill as efficiently as possible. The lack of defensive wounds, the use of multiple weapons, and the use of the blanket to restrain Lujan strongly suggested he was ambushed by several people in a surprise attack. Pursuit of the fleeing Lujan when the first shots failed to kill him, continuation of the attack with repeated, multiple methods of execution, and the fact the fatal wounds were administered after Lujan had been brought to the floor, disabled and restrained, strongly suggested premeditation. (See People v. Sanchez (1995) 12 Cal.4th 1, 34 [where attackers relentlessly pursued murder victim even after victim was gravely wounded, and used two weapons, evidence supported jurys implied finding of premeditation and deliberation].) Such a coordinated attack could only have been carried out if the attackers had preplanned the killing. A killing may be committed with such calculation that the manner of killing may itself support a jury finding of premeditation and deliberation, even when there is little or no evidence of planning and motive. (People v. Lenart, supra, 32 Cal.4th at p. 1127.) Such was the case here.

Contrary to the suggestion in Mendozas brief that premeditation and deliberation can exist only when the level of reflection and calculation is comparable to that involved in killings committed by poison, a bomb, or torture, premeditation and deliberation can and often are found where events transpire quickly. As noted, the process of premeditation does not require an extended period of time. (People v. Halvorsen, supra, 42 Cal.4th at p. 419; People v. Koontz, supra, 27 Cal.4th at p. 1080.) Moreover, there was evidence from which the jury could infer planning. From the presence of the empty knife box, the jury could infer the perpetrators had recently obtained and had ready a knife to use in the attack, as well as the gun. The presence of multiple weapons, the fact the men calmly left the scene in three separate vehicles, and the presence of the fake drugs -- which could have been used to lure Lujan to the house -- all suggested considerable preplanning and coordination between the men. Thus, even setting aside Mendozas own testimony which suggested Sandaval ordered the killing, and that it was preplanned there was ample evidence to support the jurys finding of first degree murder. (See generally People v. Tafoya, supra, 42 Cal.4th at pp. 172-173.)[4]

2. Instruction with CALCRIM No. 521 was adequate and did not mislead the jury.

The trial court instructed the jury with the standard version of CALCRIM No. 521, describing first and second degree murder. That instruction provided in pertinent part: The defendant has been prosecuted for first degree murder under two theories: (1) the murder was willful, deliberate, and premeditated; [and] (2) the murder was committed by lying in wait. [] . . . [] The defendant is guilty of first degree murder if the People have proved that (he/she) acted willfully, deliberately, and with premeditation. The defendant acted willfully if (he/she) intended to kill. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he/she) decided to kill before committing the act that caused death. [] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. The instruction further advised, The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.

Mendoza complains that CALCRIM No. 521 is defective because it conflates the concepts of premeditation and intent. In particular, he asserts that the phrase The defendant acted with premeditation if (he/she) decided to kill before committing the act that caused death could incorrectly lead jurors to equate intent to kill with premeditation. This flaw, he posits, is not cured by other language in the instruction.

Preliminarily, we reject the Peoples contention that Mendoza waived or forfeited his right to challenge CALCRIM No. 521 because he did not object to the instruction or request a clarifying or amplifying instruction below. A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial. [Citation.] (People v. Hillhouse, supra, 27 Cal.4th at p. 503.) Here, however, Mendozas claim is that the instruction was not correct in law, and therefore his failure to object below did not forfeit the claim. ( 1259 [The appellate court may . . . review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby]; People v. Cleveland (2004) 32 Cal.4th 704, 750; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)

Nonetheless, Mendozas claim fails on the merits. In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.] (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.)

CALCRIM No. 521 adequately apprised the jury of the relevant legal principles. The California Supreme Court has long held that CALJIC No. 8.20,[5] the precursor to CALCRIM No. 521, correctly states the law. (People v. Millwee (1998) 18 Cal.4th 96, 135, fn. 13; People v. Perez (1992) 2 Cal.4th 1117, 1123; People v. Lucero (1988) 44 Cal.3d 1006, 1021.) A comparison between CALJIC No. 8.20 and CALCRIM No. 521 reveals that the two instructions are conceptually comparable.

First, CALCRIM No. 521, like CALJIC No. 8.20, informs the jury that first degree murder is committed when the defendant acts willfully, deliberately, and with premeditation. This is a correct statement of law. (See 189 [All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing . . . is murder of the first degree], italics added; People v. Memro (1995) 11 Cal.4th 786, 862 [First degree murder may be found when the prosecution proves beyond a reasonable doubt that the actor killed with malice aforethought, intent to kill, premeditation, and deliberation].)

Second, CALCRIM No. 521 correctly states that a defendant acts willfully if he intended to kill. This is a correct statement of law. (People v. Moon (2005) 37 Cal.4th 1, 29 [A willful murder is an intentional murder, and malice is express when there is an intent to unlawfully kill a human being].) The language in CALCRIM No. 521 parallels that in CALJIC No. 8.20, which states, The word willful, as used in this instruction, means intentional.

Third, CALCRIM No. 521 informs the jury that the defendant acted deliberately if he carefully weighed the considerations for and against [his] choice and, knowing the consequences, decided to kill. This language, while modernized and made more easily understandable to jurors, again parallels that contained in CALJIC No. 8.20 [The word deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action].) Both instructions correctly inform the jury that the defendant must have carefully weighed his decision. Importantly, this language would have clearly alerted jurors that reflection and something more than the mere intent to kill was required.

Next, the phrase challenged by Mendoza that The defendant acted with premeditation if [he] decided to kill before committing the act that caused death parallels that found in CALJIC No. 8.20. CALJIC No. 8.20 provides, The word premeditated means considered beforehand. Conceptually, there is no difference between the two versions of the language; the phrases considered beforehand and decided to kill before committing the act both convey the correct principle that the defendant must have formed the intent to kill before committing the act. (See People v. Mayfield (1997)14 Cal.4th 668, 767 [ premeditated means considered
beforehand ].) We are not persuaded by Mendozas argument that the former instruction spoke of the consideration of the options not the decision to kill, and that [c]onsideration takes more time than decision. In our view, both instructions convey the same thing: that the decision to kill must have been made before the killing. In any event, as noted, other language in CALCRIM No. 521 unambiguously informed jurors that premeditation requires a careful weighing of the considerations for and against the defendants choices. Contrary to Mendozas argument, no juror, upon reviewing the instruction as a whole, would have understood that mere intent to kill, without reflection and deliberation, would suffice.

The remainder of CALCRIM No. 521 addresses the relationship of time to premeditation and deliberation, and again conveys the same information as is included in CALJIC No. 8.20. Mendoza asserts that this portion of the instruction reinforces the inaccurate impression that premeditation may be found to have occurred within an unreasonably short time, insufficient to distinguish premeditation from the formation of an intent to kill. But as noted, our Supreme Court has repeatedly held that the process of premeditation does not require an extended period of time. (See People v. Manriquez (2005) 37 Cal.4th 547, 577 [while premeditation and deliberation must result from
careful thought and weighing of considerations [citation], we continue to apply the principle that [t]he process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citations.] [Citation.] ]; People v. Halvorsen, supra, 42 Cal.4th at p. 419; People v. Koontz, supra, 27 Cal.4th at p. 1080.) To the extent Mendoza objects to this principle, his arguments are unavailing, as we are bound to follow the precedents of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, CALCRIM No. 521 expressly states that A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated, further reinforcing for jurors that first degree murder requires more than the mere intent to kill.

In any event, even assuming arguendo that the instruction was ambiguous, reversal is not required because there is no reasonable probability the jury would have reached a more favorable result even if CALJIC No. 8.20, rather than CALCRIM No. 521, had been used. (People v. Moore, supra, 44 Cal.App.4th at pp. 1330-1331.) The key question for the jury was whether Mendoza was a participant in the murder, or an unwitting guest at the residence who was surprised by the killing. The evidence did not suggest the killing was rash, unconsidered, or impulsive. To the contrary, the evidence of premeditation was very strong. There was no risk jurors would mistakenly believe that a decision an instant before the killing suffices for first-degree murder as Mendoza suggests.

Because we conclude CALCRIM No. 521 is a correct statement of law and adequately instructed the jury on the relevant legal principles, we necessarily reject Mendozas contention that the purported deficiencies in the instruction infect[ed] the portion of the instruction which defines the lying-in-wait theory.

3. The trial court correctly declined to instruct on the lesser related offense of accessory after the fact.

During closing argument, Mendozas attorney argued that if jurors believed Mendoza helped carry the victims body out of the garage, he could be found guilty of being an accessory after the fact. The trial court interjected that the People had not charged Mendoza with being an accessory after the fact. Defense counsel requested that the jury be given an accessory after the fact instruction. The trial court refused. Mendoza contends the trial courts refusal to give the requested instruction violated his constitutional right to have the jury instructed on the defense theory of the case.

Mendoza is incorrect. Acting as an accessory after the fact to murder is a lesser related offense to murder, not a lesser included offense. (People v. Schmeck (2005) 37 Cal.4th 240, 292; People v. Majors (1998) 18 Cal.4th 385, 409.) It is settled that a trial court has no duty to instruct on an uncharged lesser related offense based on the defendants unilateral request. (People v. Rundle (2008) 43 Cal.4th 76, 146-148; People v. Schmeck, supra, at p. 292; People v. Birks (1998) 19 Cal.4th 108, 136; People v. Kraft (2000) 23 Cal.4th 978, 1064-1065; People v. Steele (2000) 83 Cal.App.4th 212, 217.) Birks overruled People v. Geiger (1984) 35 Cal.3d 510 [ ], which had permitted courts to give such instructions. Under Birks, supra, 19 Cal.4th 108, trial courts can no longer instruct juries on such related, but not included, offenses without the prosecutors permission. (People v. Martinez (2002) 95 Cal.App.4th 581, 586.) We are not at liberty to disregard the pronouncements of our Supreme Court. (Ibid.; Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450.) Neither the state nor federal Constitutions require that a trial court instruct on uncharged lesser related offenses, even upon request. (Hopkins v. Reeves (1998) 524 U.S. 88, 96-97; People v. Rundle, supra, at p. 148; Birks, supra, at p. 124.)

Nor was Mendoza deprived of an adequate opportunity to present his defense. (See People v. Rundle, supra, 43 Cal.4th at p. 148.) Accessory after the fact to murder is not a defense, but instead is a theory of liability based on a different offense. The jury was fully apprised of the defense theory through closing argument. (See People v. Schmeck, supra, 37 Cal.4th at p. 292.) As explained in Birks, nothing in our holding prevents the defendant from arguing in any case that the evidence does not support conviction of any charge properly before the jury, and that complete acquittal is therefore appropriate. (People v. Birks, supra, 19 Cal.4th at p. 136, fn. 19; People v. Rundle, supra, at p. 148.)

4. Correction and modification of the abstract of judgment.

At sentencing, the trial court orally imposed a $200 restitution fine. The abstract of judgment, however, erroneously lists a restitution fine of $10,000. As the People concede, the error in the abstract of judgment must be corrected. Clerical errors may be corrected by this court on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Where a minute order or abstract of judgment differs from the courts oral pronouncements, the minute order does not control. (Ibid.; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Price (2004) 120 Cal.App.4th 224, 242 [Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error].) Accordingly, we order the minute order corrected.

Likewise, Mendoza is correct that the trial courts imposition of a $10,000 parole revocation fine was improper. As the People again agree, by statute the parole revocation fine must be in the same amount as the restitution fine. ( 1202.45; People v. Smith (2001) 24 Cal.4th 849, 851.) Accordingly, we order the judgment modified to reflect a $200 parole restitution fine pursuant to section 1202.45.

DISPOSITION

The judgment is modified to reflect a $200 suspended parole revocation fine
( 1202.45). The abstract of judgment is ordered modified to reflect a restitution fine of $200. ( 1202.4.) The Clerk of the Superior Court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] For ease of reference, we sometimes hereinafter refer to Frances Sandaval by her first name, and to her father by his last name.

[2] The first three gunshot wounds to Lujans head did not penetrate the skull and would likely not have proved fatal.

[3] All further undesignated statutory references are to the Penal Code.

[4] Because the evidence was sufficient to establish premeditation and deliberation, we need not address Mendozas contention that the evidence was insufficient to establish first degree murder on a lying-in-wait theory.

[5] CALJIC No. 8.20 provides, All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [] The word willful, as used in this instruction, means intentional.  [] The word deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word premeditated means considered beforehand.  [] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.  [] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.  [] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.  [] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] [she] decides to and does kill.