Filed 2/10/12 P. v. Huerta CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
CARLOS ALBERTO HUERTA,
Defendant and
Appellant.
F060404
(Super.
Ct. No. VCF215605A)
APPEAL
from a judgment of the Superior Court
of
County. Kathryn T.
Montejano, Judge.
Athena
Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, David A.
Rhodes and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Carlos Alberto Huerta (appellant) as
charged in counts 1, 2, and 3 of attempted murder done willfully, deliberately
and with premeditation (Pen. Code, §§ 664, 187, subd. (a));
weapon (§ 245, subd. (a)(1)); in counts 7 and 8 of making a criminal
threat (§ 422); and in counts 9 and 10 of assault by means of force likely
to produce great bodily injury (§ 245, subd. (a)(1)).
name="_ftnref2" title="">[2]
The jury found true that each offense was committed for the benefit of a
criminal street gang (§ 186.22,
subd. (b) and that appellant was 16 years or older at the time of the offenses
(Welf. & Inst. Code, § 707, subd. (d)(1)). It also found true that appellant personally
inflicted great bodily injury in counts 1, 2, 4 and 5 (§ 12022.7, subd.
(a)), and that he personally used a deadly weapon in counts 1 and 2
(§ 12022, subd. (b)(1)). The trial
court sentenced appellant to a determinate term of 14 years and an
indeterminate term of 53 years to life.
Appellant
contends that the trial court erroneously denied his Wheeler/Batson
name="_ftnref3" title="">[3] motions.
He also claims sentencing errors:
(1) that section 654 bars imposing an enhancement for both use of a
deadly weapon and great bodily injury
in counts 1 and 2; (2) that the court cannot impose both a great bodily injury
and gang enhancement in counts 4 and 5; and (3) that the court erred when it
imposed rather than stayed sentence in counts 7 and 8. We agree only that the great bodily injury
enhancements attached to counts 4 and 5 must be stricken. In all other respects, we affirm.
FACTS
On January 9, 2009, around 9:45 p.m., Edgar M. and his girlfriend
Nerelin S. were standing outside a movie theater waiting to be picked up
by Edgar’s mother. With them were
Edgar’s brother, Robert M., Nerelin’s sister, and two of Robert’s
friends. As they were waiting, a group
of four or five people walked past. At
the end of the group was appellant’s younger brother Diego Huerta who called
Nerelin “baby girl†and said “fuck your boyfriend and come with me.†Edgar told Diego Huerta to “chill out†and
asked “why are you telling her that?â€
Diego
Huerta then pushed Edgar to the ground and a group of six to eight men and one
girl came toward Nerelin and Edgar. The
group, including Diego Huerta, punched and kicked Edgar. The girl wore red shoes, had a knife in her
pocket, and took Robert’s cell phone.
Many others in the attacking group also wore red.
Robert
attempted to help his brother Edgar, but two or three people from the group
attacked him, pushed him down, and kicked him.
As a result, he suffered a lump on his forehead.
The
assistant manager of the theater, David, and two theater employees, Chris and
Carlos, went outside and tried to stop the fight. David pulled Edgar from the pile and Edgar
ran away.
The
attacking group then backed the theater employees against the wall. David told the group to leave or he would
call the police. Appellant, who appeared
to be in charge of the attacking group, had a knife, yelled “Norte†and “Londonâ€
and threatened the employees and their families. Diego Huerta yelled that he was putting a hit
on the theater employees and their families.
David
attempted to get his employees back inside the theater, but someone pulled
Carlos’s jacket over his head and several people held him down. After another theater employee yelled that
someone in the group had a knife, David ran back outside to help Carlos.
As David
was pulling people off of Carlos, Diego Huerta stabbed David in the neck,
causing a six-inch wound, severing vocal cords and a vein that stemmed from his
carotid artery. Chris was stabbed in the
arm and suffered nerve damage. He was
also stabbed in the back.
Appellant
stabbed Carlos several times in the back, resulting in seven deep wounds
requiring stitches. Carlos also suffered
a punctured lung, a punctured kidney, and two broken ribs.
After one
of the attackers waved a red bandana in the air and whistled, someone yelled
“all Norte,†and the attackers ran.
During a
police interrogation, appellant admitted that he stabbed a man who took a swing
at him at the movie theater. At trial,
he testified that he did so to protect his brother who was being attacked.
During
police questioning, Diego Huerta at first denied being at the movie theater,
but then said “some vato†asked him why he was trying to “rush†his girl, so he
hit him and then took off running. Diego
Huerta admitted starting the fight, but denied having a knife.
Both
appellant and Diego Huerta were gang members, affiliated with the Varrio Chico
London Norteno gang.
DISCUSSION
1. Peremptory Challenge
Appellant,
who is Hispanic, contends the trial court erred by concluding he had not made a
prima facie case of purposeful discrimination under Batson/Wheeler on three separate occasions during voir dire
Procedural Background
On the
first day of jury selection, Mr. T. stated he was an auto dismantler in
Bakersfield, his wife was not employed, and he had “no yes answers to these
questions,†referring to the questionnaire given to each prospective
juror. Mr. T. assured the
prosecutor that he would decide the case on the evidence and not on whether he
disliked the victim. After the
prosecutor related an incident in which he was pulled over for driving a fast
car, Mr. T. said he had once driven his car in a “bad area,†was pulled
over by five cops at gunpoint, and made to get out of the car and on the
ground. After a search of the vehicle,
he was let go. Mr. T. agreed with
the prosecutor that the incident was “not right.†He stated that it had happened to him
“twice.†Later during questioning,
Mr. T. was asked whether he lived in Tulare County and commuted to
Bakersfield for work. Mr. T. stated
that he did.
Also on the
first day of jury selection, Ms. Z. stated that she currently worked data
entry at a drug rehabilitation center, had been a police reserve officer for
the City of Lindsay for two years, a dispatcher, and had worked for the public
defender’s office for a summer. She had
a couple of cousins and “a lot of friends†who were police officers. She had no other “yes answers†on the
questionnaire.
After the
prosecutor excused Mr. T. on a peremptory challenge, defense counsel
objected. In chambers, defense counsel
argued that Mr. T. had been excused because he was Hispanic. Defense counsel also argued that the
prosecutor had only questioned Hispanic jurors whether they lived in Tulare
County. The trial court found no prima
facie showing of group bias and affirmed the peremptory challenge.
The
prosecutor next excused Ms. Z., to which defense counsel again objected on
grounds that “Hispanics are being excluded from this jury panel.†The trial court again made a determination
that no prima facie showing had been made.
The court later stated that, while Ms. Z. did appear to be
Hispanic, it “took into consideration the totality of the circumstances based
on the answers that were given by [Ms. Z.] where she had indicated where
she had worked previously for … the Public Defender’s Office in Tulare
County. And also that she was currently
working for a drug rehabilitation organization.â€
On the
second day of jury selection, Ms. M. stated that she was an instructional
assistant at Dinuba schools and was single.
She stated that she had four “yes†answers on her questionnaire, and
explained that she had health issues, was a diabetic with high blood pressure
and high cholesterol and didn’t feel “comfortable.†She acknowledged that she was still
working. When asked if there was any
other reason she could not sit as a juror, she stated, “No, I don’t think
so.†And after the trial court explained
the court schedule and asked Ms. M. if it was a schedule she could keep,
she stated, “Probably so.â€
When the
prosecutor excused Ms. M., defense counsel again objected on grounds that
she was being dismissed solely because she was Hispanic. Defense counsel described her as 40 or 50
years old and “a mature person who could be an objective juror.†The trial court recalled Ms. M.’s
apprehension due to health reasons. The
court found no prima facie showing of group bias, denied the
juror. In doing so, the court stated:
“[I]t appears to the Court that [Ms. M.] is also of
a cognizable group. It appears to the
Court that [Ms. M.] … is probably Hispanic. [¶] But I don’t believe as though this
rises to the level taken on the totality of all of the answers to a prima facie
case.â€
Applicable Law and Analysis
Both the state and federal
Constitutions forbid a prosecutor from excluding prospective jurors from the
jury for a racially discriminatory purpose.
(Batson, supra, 476 U.S. at pp. 95-96; Wheeler,
supra, 22 Cal.3d at pp.
276-277.) Thus, the prosecution may not
exercise peremptory challenges solely on the basis of presumed group bias,
i.e., on the presumption “jurors are biased merely because they are members of
an identifiable group distinguished on racial … or similar grounds[.]†(Wheeler,
supra, at p. 276.)
The
following procedure applies to a Batson/Wheeler
challenge to a peremptory strike:
“‘“First, the defendant must make out a prima facie case
‘by showing that the totality of the relevant facts gives rise to an inference
of discriminatory purpose.’
[Citations.] Second, once the
defendant has made out a prima facie case, the ‘burden shifts to the State to
explain adequately the racial exclusion’ by offering permissible race-neutral
justifications for the strikes.
[Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then decide …
whether the opponent of the strike has proved purposeful racial
discrimination.’ [Citation.]â€â€™â€ (People
v. Zambrano (2007) 41 Cal.4th 1082, 1104, overruled on another point in
421, fn. 22.)
“‘We review
the trial court’s ruling on purposeful discrimination for substantial
evidence. [Citation.] It is presumed that the prosecutor uses
peremptory challenges in a constitutional manner.’†(People
v. Zambrano, supra, 41 Cal.4th at
p. 1104; People v. Turner (1994) 8
Cal.4th 137, 165, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
“When a trial court denies a Wheeler motion without finding a prima facie case of group bias,
the appellate court reviews the record of voir dire for evidence to support the
trial court’s ruling. [Citations.] We will affirm the ruling where the record
suggests grounds upon which the prosecutor might reasonably have challenged the
jurors in question. [Citation.] Moreover, if we find that the trial court
properly determined that no prima facie case was made, we need not review the
adequacy of the prosecution’s justifications, if any, for the peremptory
challenges. [Citation.]†(People
v. Farnam (2002) 28 Cal.4th 107, 135; see People v. Griffin,
This case
concerns the first step in the procedure:
whether appellant made a “prima facie showing that jurors [were] being
excluded on the basis of racial or group identity. [Citations.]
To establish a prima facie case, the defendant should first make as
complete a record as possible.
[Citations.] Second, the
defendant must establish that the persons excluded are members of a cognizable
group. [Citations.] Third, the defendant must show a … reasonable
inference that such persons are being challenged because of their group
association. [Citations.]†(People
v. Farnam, supra, 28 Cal.4th at
p. 135.) In Johnson, supra, 545 U.S.
at page 170, the United States Supreme Court clarified that under the third
step of the analysis, the burden is on the defendant to “‘produc[e] evidence
sufficient to permit the trial judge to draw an inference that discrimination
has occurred.’†(People v. Hawthorne (2009) 46 Cal.4th 67, 79, abrogated on another
ground in People v. McKinnon (2011)
52 Cal.4th 610, 637-638, quoting Johnson,
supra, at p. 170.)
We conclude
substantial evidence supports the trial court’s determination that appellant
did not make a “prima facie showing that jurors [were] being excluded on the
basis of racial or group identity.†(
“[T]he record discloses ample grounds upon which the prosecution might
reasonably have challenged†the prospective jurors in question here. (Id.
at p. 137.) Mr. T. related a
negative incident involving law enforcement in which he was pulled over in his
vehicle by five officers at gunpoint, made to get out of the car and on the
ground, and the car was searched—an incident he agreed was “not right.†He also stated that it had happened to him
“twice.†(See People v. Turner, supra,
8 Cal.4th at p. 171 [peremptory challenges made on basis of prospective juror’s
negative experience with law enforcement upheld repeatedly].) Ms. Z. had numerous friends and family
who were police officers, but had also worked for the public defender’s
office. The trial court also noted that
Ms. Z. was currently working for a drug rehabilitation organization. Both employment at the public defender’s
office and at the drug rehabilitation organization could be seen as being
overly sympathetic to the defense. (See,
e.g., People v. Watson (2008) 43
Cal.4th 652, 677-678 [prosecution’s peremptory challenge to prospective juror
with background in social work was proper race-neutral reason];
923, fn. 5 [prosecution’s peremptory challenge to prospective juror who was a
counselor for high-risk youth was a proper race-neutral reason].) Ms. M. had numerous health concerns and
her statements that she “[did]n’t think†she had any other reasons she could
not sit as a juror and that she “probably†could keep the expected court
schedule for trial were not altogether convincing.
The record
clearly discloses grounds upon which the prosecutor might have made a
peremptory challenge against prospective jurors Mr. T., Ms. Z., and
Ms. M. (People v. Griffin, supra,
33 Cal.4th at p. 556; People v. Taylor
(2010) 48 Cal.4th 574, 644 [record showed “obvious race-neutral reasons for the
excusal of all three of the prospective jurors in questionâ€];
50, 76 [“views or family experiences disclosed by these [prospective jurors]
were more than sufficient to overcome any inference of improper
discriminationâ€].) Although appellant
asserts that the trial court impermissibly speculated about the prosecutor’s
reasons for exercising peremptory challenges, a trial court is to examine all
the relevant facts to determine whether an inference of discrimination can be
inferred from the record, or a race-neutral reason is apparent from the
circumstances. (People v. Lancaster, supra,
at pp. 75-77.) Based on the foregoing,
we conclude substantial evidence supports the trial court’s ruling that
appellant failed to establish a prima facie case of purposeful
discrimination. Therefore, the court did
not err in denying his Batson/Wheeler
motions.
2. Imposition of Knife Use and
Great Bodily Injury Enhancements
The jury
found true that appellant, within the meaning of section 12022, subdivision
(b)(1), personally used a deadly weapon, a knife, to commit the attempted
murder offenses in counts 1 and 2 and personally inflicted great bodily injury
within the meaning of section 12022.7, subdivision (a). In calculating appellant’s sentence on the
murder counts, the trial court imposed a great bodily injury enhancement of
three years along with a knife use enhancement of one year. Appellant contends section 654
enhancement and the great bodily injury enhancement based on his use of a knife
to inflict great bodily injury.
name="_ftnref6" title="">[6] We disagree.
The
California Supreme Court recently granted review of an analogous issue in two
cases: People v. Ahmed (2011) 191 Cal.App.4th 1407, review granted
April 20, 2011 (S191020), in which the court held that section 654 applies
to firearm use and great bodily injury enhancements under sections 12022.5 and
12022.7; and People v. Robinson
(2011) 194 Cal.App.4th 672, review granted July 13, 2011 (S193289), which
disagreed with Ahmed and held the
specific mandates of sections 12022.5 and 12022.7, combined with the statutory
directions in section 1170.1, subdivisions (f) and (g), created an implied
exception to section 654 as a general sentencing statute.
We conclude
that section 654 does not bar imposition of both the weapon use and great
bodily injury enhancements under sections 12022 and 12022.7, which are at issue
here.
Sentence
enhancements are specified in various provisions of the Penal Code, such as
sections 12022 and 12022.7, but may be limited by application of other
statutes. Prior to 1997, section 1170.1
provided limits on the number of enhancements that could be imposed for a
single criminal offense. Former section
1170.1, subdivision (e) provided: “When
two or more enhancements under Sections 12022 [and] 12022.7 … may be imposed
for any single offense, only the greatest enhancement shall apply.â€
In 1997,
however, the Legislature rewrote section 1170.1 (Stats. 1997, ch. 750,
§ 3), adding two new subdivisions, (f) and (g), which expressly authorize
the enhancements imposed in this case.
Section 1170.1, subdivision (f) now provides:
“When two or more enhancements may be imposed for being
armed with or using a dangerous or deadly weapon … in the commission of a
single offense, only the greatest of those enhancements shall be imposed for
that offense. This subdivision shall not limit the imposition of any other
enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury.†(Italics added.)
Section 1170.1, subdivision (g) now provides:
“When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the commission of a
single offense, only the greatest of those enhancements shall be imposed for
that offense. This subdivision shall not limit the imposition of any other
enhancement applicable to that offense, including
an enhancement for being armed with or using a dangerous or deadly
weapon .…†(Italics added.)
It is well
settled that the Legislature may create an express exception to the application
of section 654 by stating a specific legislative intent to impose additional
punishment, e.g., by stating that a defendant shall receive a sentence
enhancement in addition to any other authorized punishment. (People
v. Hicks (1993) 6 Cal.4th 784, 792-793; People
v. Ramirez (1995) 33 Cal.App.4th 559, 572-573.) Here, the Legislature created an express
exception in section 1170.1, subdivisions (f) and (g), authorizing a great
bodily injury enhancement even where an enhancement for weapon use is
authorized. The trial court properly
enhanced appellant’s sentence under sections 12022 and 12022.7 for his use of a
knife to inflict great bodily injury.
3. Imposition of Great Bodily
Injury and Gang Enhancements
The jury
found true the allegations that appellant inflicted great bodily injury in
committing the assault offenses in counts 4 and 5, within the meaning of section
12022.7, subdivision (a), and it also found true that both offenses were
committed for the benefit of a criminal street gang, within the meaning of
section 186.22, subdivision (b)(1)(C).
In calculating appellant’s sentence, the trial court imposed a 10-year
sentence on each count for the criminal street gang enhancement, plus a
consecutive three-year sentence for the great bodily injury enhancement. The entire sentence for counts 4 and 5 was
stayed pursuant to section 654.
Appellant contends, respondent concedes, and we agree that the trial
court erred in imposing both the great bodily injury enhancement and the gang
enhancement.
Section
12022.7, subdivision (a) provides: “Any
person who personally inflicts great bodily injury on any person other than an
accomplice in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment in the state prison for
three years.â€
Section
186.22, subdivision (b)(1)(C) provides a 10-year enhancement “[i]f the felony
is a violent felony, as defined in subdivision (c) of Section 667.5.†For the assault convictions in counts 4 and
5, appellant was subject to the section 186.22, subdivision (b)(1)(C)
enhancement because section 667.5, subdivision (c)(8) defines a “violent
felony†to include “[a]ny felony in which the defendant inflicts great bodily
injury on any person other than an accomplice which has been charged and proved
as provided for in Section 12022.7 .…â€
As
previously noted, section 1170.1, subdivision (g) provides: “When two or more enhancements may be imposed
for the infliction of great bodily injury on the same victim in the commission
of a single offense, only the greatest of those enhancements shall be imposed
for that offense. This subdivision shall
not limit the imposition of any other enhancements applicable to that offense,
including an enhancement for being armed with or using a dangerous or deadly
weapon or a firearm.â€
The court
in People v. Gonzalez (2009) 178
Cal.App.4th 1325, 1327-1328, concluded that the imposition of a three-year
great bodily injury enhancement and a 10-year gang enhancement violates
subdivision (g) of section 1170.1. In so
concluding, the court relied on People v.
Rodriguez (2009) 47 Cal.4th 501, 508-509, in which our Supreme Court held
that the similar provision of subdivision (f) of section 1170.1, which
addresses multiple punishments for using a dangerous or deadly weapon,
prevented the imposition of two enhancements.
In
sentences stemming from three separate assaults, with two firearm enhancements
imposed on each sentence. Under those
circumstances, remand was appropriate to allow the trial court to restructure
its sentencing choices. (
action to be taken by the court, other than the clear mandate of section
1170.1, subdivision (g) that the greater enhancement be imposed. Accordingly, we order the great bodily injury
enhancement attached to counts 4 and 5 be stricken.
4. Sentence for Criminal
Threats
The jury convicted appellant in
counts 7 and 8 of making a criminal threat in violation of section 422, and the
trial court imposed consecutive sentences on those counts. Appellant contends that the trial court
should have stayed his sentence for the criminal threats, pursuant to section
654, because the threats to David and Carlos were “part and parcel of the
attempted murder offenses.†We disagree.
During
sentencing, the trial court concluded that section 654 did not apply to the
conviction for criminal threats, finding that the threats were separate and
apart from the question of premeditation and deliberation. As stated previously, section 654,
subdivision (a) provides in pertinent part:
“[a]n act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision.â€
Section 654 therefore,
“‘precludes multiple punishment for a single act or for
a course of conduct comprising indivisible acts. “Whether a course of criminal conduct is
divisible … depends on the intent and objective of the actor.†[Citations.]
“If all the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have
harbored a single intent and therefore may be punished only once.†[Citation.]’
[Citation.]†(
119, 129; see Neal v. State of California
(1960) 55 Cal.2d 11, 19.)
But if the defendant harbored “multiple or simultaneous
objectives, independent of and not merely incidental to each other, the
defendant may be punished for each violation committed in pursuit of each
objective even though the violations share common acts or were parts on an
otherwise indivisible course of conduct.
[Citation.]†(
Cal.App.4th 263, 267-268; People v. Solis
(2001) 90 Cal.App.4th 1002, 1021.)
Whether
section 654 applies in a given case is a question of fact for the trial court,
which is vested with broad latitude in making its determination. (People
v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its findings will not be reversed on appeal
if there is any substantial evidence to support them. (Ibid.) We review the trial court’s determination in
the light most favorable to the respondent and presume the existence of every
fact the trial court could reasonably deduce from the evidence. (Id.
at pp. 1312-1313.)
the defendant left messages on the victims’ answering machine saying he was on
his way to kill them and burn their apartment.
The victims left their apartment, returned an hour later, and found it
in flames. (Id. at p. 1009.) The
defendant was convicted of both arson and making terrorist threats. (Id.
at p. 1008.) On appeal, the court
concluded section 654 was not violated, since the two crimes were
chronologically divisible and had distinct objectives: one, intent to frighten; the other, intent to
burn. (Solis, at p. 1022.)
Here, as in
People v. Solis, appellant had
distinct objectives. Appellant argues
that his overall intent was to kill the victims, as evidenced by the fact that
he was waving the knife when he made the threats. But on the record, it is reasonable to infer
his threats were intended to intimidate and frighten the victims, as he
threatened both them and their families, and his assaults with a knife were
intended to kill the victims.
Appellant’s effort to sweep separate crimes under a single intent by
characterizing that intent broadly is unavailing. (People
v. Solis, supra, 90 Cal.App.4th
at p. 1022.)
The crimes
need not be as chronologically distinct as those in People v. Solis, for it is a defendant’s intent and objective, not
the temporal proximity of the offenses that determine whether a transaction is
indivisible. (People v. Hicks, supra, 6
Cal.4th at p. 789.) Here, the criminal
objectives—to frighten the victims with harm to themselves and their families
and to kill them by assaulting them with a knife—are sufficiently distinct to
justify separate punishment. (See
87 Cal.App.4th at p. 271.)
Prohibiting
multiple punishment under the circumstances presented here would not further
the policies underlying section 654.
Section 654’s purpose is to ensure that punishment is commensurate with
a defendant’s culpability. (
statute to lighten a just punishment as it is to ignore the statute and impose
an oppressive sentence.†(
710, 715.)
We find
substantial evidence supports the trial court’s decision not to apply section
654 to stay appellant’s sentence for making criminal threats in counts 7 and 8.
DISPOSITION
The
judgment is affirmed. The trial court is
directed to correct the minutes and abstract of judgment as noted in footnote 2, ante, and to amend the abstract of judgment to strike the section
12022.7 great bodily injury enhancements attached to counts 4 and 5. A certified copy of the amended abstract of
judgment shall be forwarded to the Department
of Corrections and Rehabilitation.
__________________________
DAWSON, J.
WE CONCUR:
________________________________
GOMES, Acting P.J.
________________________________
KANE, J.
name="_ftn1" title="">[1]All
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2]The
court’s minutes for the sentencing hearing on June 9, 2010, conflict with
the verdicts because the minutes indicate the convictions on counts 9 and 10
were pursuant to subdivision (b)(1) of section 245. The minutes should instead reflect that the
two convictions were pursuant to subdivision (a)(1) of section 245. The same error was repeated in the abstract
of judgment filed June 10, 2010.
