Opinion
No. B196415.
January 23, 2008. [CERTIFIED FOR PARTIAL PUBLICATION] ]
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts III through VII.
Appeal from the Superior Court of Los Angeles County, No. SA053574, Kathleen Kennedy-Powell, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant Leo Anthony Reyes.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Sergio Ginez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
On a summer day near the beach, a Mercedes pulled next to a Camaro. The Mercedes's passenger said, "Where you from, ese?," and started shooting, killing two in the Camaro and wounding a third. Police forecast the escape route and intercepted Sergio Ginez and Leo Anthony Reyes in flight. A jury convicted them of murder and other charges and they appeal. We affirm, except we order that Ginez's abstract of judgment be corrected to conform to the sentence the trial court actually imposed.
I
The shooting was near a police substation a block and a half from Venice Beach. The Venice 13 gang claims this territory, testified gang expert Gerald Gibson. Gibson said Ginez and Reyes were active members of the Culver City Boys (CCB) gang, which is a rival to Venice 13. Both gangs apparently are Hispanic. Gibson said the three victims in the Camaro were not gang members.
The gang colors of red and blue figure in the evidence. Venice 13's color is blue. CCB's is red. Reyes owned the Mercedes, which was reddish: burgundy or maroon. Reyes drove and Ginez rode. Ginez wore a red bandana headband. Reyes drove up to the parked Camaro, which was blue. Surviving victim Juan Cortez, who was 21 at the time, was in the Camaro with Victor Rodriguez and Jose Acosta. Cortez wore blue shorts, a blue shirt, and a blue hat.
Cortez heard someone say, "`Where you from, ese?'" Cortez knew the question was about gangs. He looked left and saw Ginez holding a gun. He was about to say, "I don't bang," meaning "I'm not in a gang." Ginez opened fire without waiting for more words. He shot 15 bullets into the Camaro. Five hit Cortez. When the shooting stopped, Cortez asked his friend Rodriguez "Are you okay?," but Rodriguez was leaning in his seat throwing up blood and did not say anything. Acosta was in the front passenger seat, trying to open the door. Police arrived three or four minutes after the shooting. Rodriguez and Acosta died at the scene.
Victims Cortez, Rodriguez, and Acosta were not Venice 13 members. Ginez took them for Venice 13 because they were young Hispanic men showing blue on Venice 13 soil. So he shot them all.
The 911 call went out swiftly on this summer Sunday. Two officers heard the broadcast shooting address and figured the likely escape route. They aimed to "set our vehicle up on top of the 90 freeway." They backed up the Centinela Avenue off-ramp onto the eastbound freeway. "Within one to two seconds" they saw a car matching the radio description. It was a 2004 maroon Mercedes-Benz. It had no rear license plate. Freeway traffic was light and Reyes accelerated to 80 as police followed. He went south onto the 405 freeway and exited at La Tijera, where police pulled Reyes and Ginez over. Police had followed them for a total of only two or three minutes.
Police ferried witnesses from Venice to the La Tijera scene for a field showup. The witnesses identified Ginez, Reyes, and the Mercedes. Wounded victim Cortez went straight to the hospital, but later picked Ginez from a six-person photo display, and then identified him again at the preliminary hearing and at trial. When police searched the Mercedes, they found a red bandana. In the glove box were four live cartridges in a sock. The four cartridges matched the nine-millimeter caliber and the branding of the 15 nine-millimeter shells left at the shooting scene. Police found no gun.
The jury convicted Ginez of two counts of first degree murder (Pen. Code, § 187, subd. (a); counts one and two; all further undesignated section references are to the Penal Code), premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a); count three), shooting at an occupied vehicle (§ 246; count five), and possessing a firearm as a felon (§ 12021, subd. (a)(1); count six). (There was no count four.) The jury also found true allegations that, on counts one and two, Ginez committed multiple murders (§ 190.2, subd. (a)(3)), intentionally fired from a motor vehicle intending to kill (§ 190.2, subd. (a)(21)), and personally discharged a firearm causing death (§ 12022.53, subd. (d) and (e)(1)); on count three, he personally discharged a firearm causing great bodily injury; and on all counts, he committed the crimes to benefit a gang (§§ 12022.53, subds. (d), (e)(1)), 186.22, subd. (b)(1)(A)).
The jury convicted Reyes of two counts of second degree murder as a lesser crime (§ 187, subd. (a); counts one and two), attempted murder (§§ 664, 187, subd. (a); count three), and shooting at an occupied vehicle (§ 246; count five). (Reyes was not charged in count six.) The jury also found true allegations that, on counts one, two, and three, a principal had discharged a firearm causing death or great bodily injury, and on all counts, Reyes committed the crimes to benefit a gang. (§§ 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(1)(A).)
The court sentenced Ginez to two consecutive life-without-parole terms plus 70 years for the two murders and their enhancements, and stayed or made concurrent terms on all other counts. The court sentenced Reyes to 40 years to life on the count one murder and gun use enhancement and stayed or made concurrent the terms on all other counts.
II
The only substantial issue on appeal is an Aranda/Bruton question. We assume there was error and hold it harmless beyond a reasonable doubt.
Three factors raise the Aranda/Bruton question. There were two defendants tried together. Reyes spoke to police in a way that could incriminate Ginez. (We will recount this statement in a moment.) And Ginez could not cross-examine Reyes because Reyes did not testify.
At trial and outside the jury's presence, Ginez objected to the prosecution's plan to introduce Reyes's statement to police. Ginez argued this statement would implicate him in the crimes and to admit it in a joint trial where Reyes would not testify would violate Bruton v. United States (1968) 391 U.S. 123 [ 20 L.Ed.2d 476, 88 S.Ct. 1620] and People v. Aranda (1965) 63 Cal.2d 518 [ 47 Cal.Rptr. 353, 407 P.2d 265]. The court overruled the objection, ruling that the statement was admissible as to Reyes and inadmissible as to Ginez. The court instructed the jury not to consider the statement against Ginez. Ginez renews his objection on appeal.
This evidence issue presents a difficult question because the true meaning of Reyes's statement to police is debatable. The prosecution may well have offered this statement for its truth. It depends on what the true meaning is. We must interpret Reyes's words to determine their meaning. Only then can one tell if the prosecution offered these words for the truth of this meaning. If the prosecution offered the words for some other purpose, there is no hearsay and no Aranda/Bruton problem.
The starting point is the text and context of Reyes's statement. The police stopped Reyes's Mercedes at La Tijera and got Reyes and Ginez out of the car. Officer Rodrigo Rodriguez detained Reyes in a patrol car while waiting for witnesses to arrive from Venice Beach for the field showup. (We call Officer Rodrigo Rodriguez by his full name to distinguish him from shooting victim Victor Rodriguez.) Reyes spontaneously asked Rodrigo Rodriguez three questions. First Reyes asked what was going on. Rodrigo Rodriguez told him the vehicle Reyes was driving was involved in a crime. Second, Reyes asked what kind of crime was involved. Rodrigo Rodriguez replied that a shooting had occurred with the vehicle Reyes was driving described in the shooting. Third and crucially Reyes asked, " Well, if you don't find the gun, then you are going to let us go, right?" (Italics added.) No one said anything more.
The Attorney General now says "[t]here were no statements of fact made by appellant Reyes, and nothing he said to Officer Rodriguez was offered for the truth of the statements. . . . It is simply not possible to assert the truth of a question." (Italics added.) The Attorney General concludes there was no hearsay.
This argument is unpersuasive. Some questions actually are statements. Doubters might watch a cross-examination or an appellate argument. Questions sometimes conceal statements only thinly. And the statements the questions imply can be clear and powerful: "You are lying." "Your argument fails." Mueller and Kirkpatrick write that questions indeed can make "claims about events and conditions when subjected to everyday interpretive conventions. And such utterances express and communicate ideas, quite apart from whatever concrete facts they convey. Hence they should be viewed as `statements' for purposes of the hearsay doctrine." (Mueller Kirkpatrick, Modern Evidence: Doctrine and Practice (1995) § 8.4, p. 1057; see also People v. Hill (1992) 3 Cal.4th 959, 989-990 [ 13 Cal.Rptr.2d 475, 839 P.2d 984], disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [ 108 Cal.Rptr.2d 409, 25 P.3d 618]; Stoddard v. State (2005) 389 Md. 681, 709 [ 887 A.2d 564, 581].) The Attorney General offers no authority for the claim that statements cannot come in the form of a question. We reject the notion that a question can never be a statement. Rather, context is important to interpret meaning accurately.
The Attorney General also says Reyes's "questions were relevant because it seems suspicious that someone would choose to ask about the missing gun if he was actually totally unconnected to the shooting." We agree: Reyes's words about the gun were extremely suspicious. Why, exactly? We look to the prosecution's theory of the case.
The prosecution theory was Ginez fired a gun at the crime scene but had no gun when arrested. So he must have dumped the gun somewhere between Venice Beach and La Tijera. Little time had passed, so this goal must have been a priority for the fleeing Ginez and Reyes: dump the gun. Ginez and Reyes accomplished that goal. But soon police nab Ginez and Reyes, and Reyes blurts out, "Well, if you don't find the gun, then you are going to let us go, right?" As the prosecutor told the jury: "Defendant Reyes's statement even to Officer Rodriguez, `Hey, if you don't find the gun you're going to let us go.' Again, pointing to his knowledge." What knowledge? A reasonable candidate inference is the prosecution wanted the jury to believe Reyes blurted out the truth: "you won't find the gun because Ginez just dumped it." So it may be reasonable to interpret Reyes's question as an implied statement that "Ginez just dumped the gun."
This candidate interpretation seems reasonable even though it is the opposite of what Reyes would plan to say to police. People make revealing slips all the time. You are introduced to someone with a prominent nose wart and are mortified to hear yourself say "Hello, Mr. Wart." A wife calls her husband by a different man's name. "As a common pun goes, `A Freudian slip is like saying one thing, but meaning your mother.'" (Wikipedia http://en.wikipedia.org/wiki/Freudian_slip [as of Jan. 23, 2008].) Words continually give us glimpses into active and anxious minds.
This meaning of Reyes's statement — "Ginez just dumped the gun" — would be implied rather than express. The problem of implied assertions in the law of hearsay is venerable and complex. (See, e.g., People v. Morgan (2005) 125 Cal.App.4th 935, 937-946 [ 23 Cal.Rptr.3d 224]; Stoddard v. State, supra, 389 Md. at pp. 687-712 [ 887 A.2d at pp. 568-582]; State v. Dullard (Iowa 2003) 668 N.W.2d 585, 590-598.) "The starting point for a discussion of the implied assertion doctrine is the English case of Wright v. Doe d. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837) and 47 Rev. Rep. 136 (H.L. 1838)." ( Stoddard v. State, supra, 389 Md. at p. 691 [ 887 A.2d at p. 570].) One California case holds the hearsay rule should exclude an implied statement — at least in one setting. ( People v. Hill, supra, 3 Cal.4th at pp. 988-990.)
This issue about the proper treatment of Reyes's implied assertion is critical. If we interpret Reyes's statement as the implied assertion "Ginez dumped the gun," then there may well have been error in the trial court. The trial judge allowed the jury to hear the evidence, telling jurors it was admissible as to Reyes but not Ginez. Bruton invalidated this procedure. ( Bruton v. United States, supra, 391 U.S. at pp. 129-130 [quoting Chief Justice Traynor's opinion in People v. Aranda, supra, 63 Cal.2d at pp. 528-529].)
The current briefing does not begin to assist us with the proper treatment of Reyes's implied assertion. The Attorney General cites just one case. It is about a false statement. (See People v. Crew (2003) 31 Cal.4th 822, 841 [ 3 Cal.Rptr.3d 733, 74 P.3d 820].) But the prosecution may have wanted the jury to conclude Reyes said something incriminatingly true when he volunteered his gun comment. Ginez indeed had just dumped the gun. So the case about the false statement seems inapposite.
Because the proof was powerful but briefing is not, we will assume there was an Aranda/Bruton error. The proof of guilt was overwhelming, so any error from Reyes's statement was harmless beyond a reasonable doubt. The police captured the fleeing shooters in the area of the crime, speeding away on the predictable and predicted escape route. Thus there was proximity of time and place. Three eyewitnesses (Juan Cortez, Don Jordan, and Cesar Garnica) saw Ginez in noon light at close range and repeatedly identified him as the shooter. Two of those witnesses apparently were Hispanic, reducing any cross-racial infirmities in their identifications. Despite the defense's attack on the reliability of the identifications, police spotted Reyes's distinctive car almost immediately, pursued and stopped it, and arrested Reyes and Ginez, its only occupants. The witnesses identified Reyes's car as the one from which Ginez fired the shots. Nothing suggested anyone entered or left the car between the shootings and the arrests.
The gang elements match up. The shooting followed the shooter's gang challenge, "Where you from, ese?" Reyes and Ginez were together, and they both had gang tattoos for the same gang. There was no nongang person in the car. Their gang was a rival to the gang claiming the shooting area. The colors matched up. The car had no rear license plate, consistent with gang attack planning.
The Mercedes's interior contained earmarks of guilt. There was the bandana, matching the witness description for the crime scene. There was the sock of live cartridges. Few drivers carry live cartridges in a sock in the glove compartment, even in Los Angeles. The only use for cartridges is in a gun, and this was a gun crime. The nine-millimeter caliber was a match between the casing at the crime scene and the cartridges in the Mercedes. The cartridge manufacturers matched up. The evidence was that many different manufacturers make many different brands of nine-millimeter cartridges. The branding from the cartridges in the glove compartment matched the casings from the crime scene.
Beyond a reasonable doubt, Reyes and Ginez were the perpetrators. The brief testimony about Reyes's statement and the prosecutor's passing mention were no more than harmless error.
III
Ginez contends that admission of Reyes's statement violated Crawford v. Washington (2004) 541 U.S. 36. We will assume Reyes made his statement "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (Id. at p. 52.) Any Crawford error would have been harmless beyond a reasonable doubt, however, as we have just explained.
IV
Ginez and Reyes both attack the gang related sentencing enhancements the jury endorsed. They join each other's attacks.
A
Gang expert Gibson testified Ginez's and Reyes's CCB gang was an active gang that committed burglaries, robberies, kidnappings, murders, and attempted murders. Gibson testified that, between 2000 and 2004, he investigated confirmed CCB members Sophan Pok and Marcos de la Trinidad for, respectively, murder and attempted murder. A court document confirmed that an information charging Pok with murder was filed in May 2002, a jury later convicted him of that crime, and a court sentenced him in March 2003. A second court document confirmed that an information charging de la Trinidad with three counts of attempted murder was filed in September 2003, a jury later convicted him of those crimes, and a court sentenced him in October 2004. Gibson opined that a hypothetical shooting paralleling the facts in this case would be committed to benefit the CCB gang. A gang challenge preceded the shooting. And it occurred in the rival gang's territory. Gibson said both factors would be designed to intimidate CCB's rivals and to boost CCB's power and prestige.
B
Ginez says there was not enough evidence to support his gang enhancements. He argues the prosecution failed to present sufficient evidence of when two other CCB members committed predicate crimes. To prove a gang enhancement under the relevant law, "the prosecution must prove that the crime for which the defendant was convicted had been committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. In addition, the prosecution must prove that the gang . . . includes members who either individually or collectively have engaged in a pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called predicate offenses) during the statutorily defined period." ( People v. Gardeley (1996) 14 Cal.4th 605, 616-617, internal quotations, citations, and italics omitted, other italics added.) Neither the court records nor Gibson expressly said when Sophan Pok and Marcos de la Trinidad committed the predicate crimes. A reasonable jury nevertheless could have drawn inferences fatal to the argument Ginez makes on appeal. Gibson investigated the crimes between 2000 and 2004. Pok and de la Trinidad were charged and sentenced between May 2002 and October 2004. A reasonable jury could infer both predicate crimes occurred long after 1988 and within three years of each other. This evidence sufficiently proved up the predicate offences, even if a jury conceivably could have drawn other inferences.
C
For different reasons, Reyes also challenges the sufficiency of the evidence supporting his gang enhancements. He says there was no good proof that the shootings were for the benefit or at the direction of the CCB gang. This is incorrect. Reyes and Ginez looked like and acted like and were CCB gang members, according to the evidence. They had the tattoos. They chose their colors. The jury could infer the two knew the geography of gang turf. Reyes stopped his red Mercedes at the blue Camaro so that Ginez could say to the man in blue, "Where you from, ese?" Reyes and Ginez directed events. They left off the rear license plate. They drove into rival territory. Reyes kept his car next to the Camaro long enough for Ginez to empty his gun. Ginez landed all 15 shots, prompting the prosecutor to complement Ginez on marksmanship. So it looks as though Reyes kept the car steady during the killing minute. Then Reyes drove the car towards safety and not the police. The live cartridges were in Reyes's glove compartment. It was reasonable to infer Reyes the driver was directing his share of the decisionmaking and that his purposes were for CCB gang reasons. It was reasonable to infer the gang wanted a reputation as willing to kill at the flash of blue in the wrong place by the wrong sort and that the intended audience of rival gang members would get the message. None of Reyes's cases negate these reasonable inferences from the proof at his trial. Reyes claims no one in the Mercedes could see Cortez's blue clothing. But Ginez saw enough of Cortez to shoot five bullets into him. The jury could infer Ginez had a rather clear view of Cortez. Reyes also claims no evidence showed he committed the crimes in association with any criminal street gang. He suggests he might have been off-duty — on a "frolic and detour unrelated to the gang." Why then the trip with another active CCB gang member, the gang challenge, the red bandana, the targeting of a group of young Hispanic males in blue? Reyes has rebuttals point by point, but he made them to the jury, which rejected them. The jury was entitled to take a simple situation at face value. Reyes's attack on its verdict is not valid. Reyes makes many other unpersuasive arguments. He says he had quit the gang life. But the jury reasonably could have found his actions on August 15, 2004 spoke louder than his words to those who testified for him. Reyes says the gang evidence was too weak because Ginez did not claim the crimes for CCB by calling out its name at any point, but this action is inessential. Reyes suggests the shootings were too brazen to be gang crimes. But the jury may have decided that Reyes and Ginez thought brazen murder would be more intimidating, or that the two were just foolish, or both. All these inferences were permissible. None would be error.
D
In conclusion, overwhelming evidence supported the gang enhancements in this case. These enhancement objections fail.
V
Reyes and Ginez say the court erred in failing to instruct the jury sua sponte on sudden quarrel/heat of passion voluntary manslaughter as lesser crimes on counts one through three. They say there was evidence that the victims provoked Ginez into shooting rage. This is incorrect. Sudden quarrel/heat of passion voluntary manslaughter is a lesser included crime of murder. ( People v. Manriquez (2005) 37 Cal.4th 547, 583.) The court must instruct the jury regarding a lesser included crime sua sponte if substantial evidence would support a guilty verdict of the lesser included rather than the charged crime. ( People v. Barton (1995) 12 Cal.4th 186, 194-198.) "Conversely, even on request, the court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [¶] On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." ( People v. Cole (2004) 33 Cal.4th 1158, 1215, internal quotation marks and citations omitted; People v. Manriquez, supra, 37 Cal.4th at page 584.) A defendant seeking to mitigate a killing from murder to heat of passion voluntary manslaughter must demonstrate heat of passion and provocation. ( People v. Steele (2002) 27 Cal.4th 1230, 1252.) "The heat of passion requirement for manslaughter has both an objective and a subjective component. The defendant must actually, subjectively, kill under the heat of passion. But the circumstances giving rise to the heat of passion are also viewed objectively. . . . [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." ( People v. Steele, supra, 27 Cal.4th at pp. 1252-1253, italics added, internal quotation marks and citations omitted; People v. Manriquez, supra, 37 Cal.4th at p. 584.) The first and complete barrier to this argument is that no evidence suggested the victims did anything to provoke Ginez. Cortez testified that Ginez said "Where you from, ese?" and started shooting. Reyes fastens on the testimony of witness Lori Pawinski. Pawinski testified she was near the scene when shouting got her attention. On direct she testified the shouting came from the car "right next to the Camaro." On cross she said the shouting "came from one of the vehicles," but she did not know which one. She did not understand what was shouted. Pawinski's testimony is consistent with Cortez's: there was shouting from one car. There was no exchange or argument. There was no basis for instructing on sudden quarrel/heat of passion voluntary manslaughter. Assume the victims said something before Ginez opened fire. Even with this assumption, there was no evidence of what they said. To warrant the manslaughter instruction, the statement would have to be provocative enough to incite not just Ginez but also a reasonable person to lethal force. Without evidence of content, the assumed statement would not suffice. For this same reason, the evidence about the look on Ginez's face before the shooting could not mandate the manslaughter instruction. Ginez's "mean face" does not address whether the assumed provocation would have affected a reasonable person. Moreover, this slight evidence does not seem to be about provocation at all. Ginez "just looked mean. . . ." The simplest inference is he just was mean. Ginez and Reyes try to make something from nothing on this issue of a lesser included crime. There is no basis for their argument.
VI
Ginez argues the court should have stayed his sentence on count six under section 654, rather than imposed a concurrent term, because there was no evidence he possessed the gun at any time other than during the shootings. We reject this argument. Ginez mainly relies on People v. Kane (1985) 165 Cal.App. 3d 480, 488. That decision is slight authority, for there the People conceded the point and the Kane court gave the issue only cursory attention. Later decisions have not been kind to Kane. (See People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412 [classing Kane with cases that "failed to address the issue . . . or, in our view, reached the wrong result on the facts"].) The decision in People v. Jones (2002) 103 Cal.App.4th 1139, 1141, is more recent and more persuasive. "[W]hen an ex-felon commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime." ( Ibid.) Logic from Jones applies to Ginez: "The record supports the trial court's implied findings, because the evidence was sufficient to allow the inference that [Ginez's] possession of the firearm was antecedent to and separate from the primary offense of shooting at [the Camaro]. It strains reason to assume that [Ginez] did not have possession for some period of time before firing shots at the [Camaro]. Any other interpretation would be patently absurd. [Ginez] committed two separate acts: arming himself with a firearm, and shooting at [the Camaro]. [Ginez] necessarily had the firearm in his possession before he shot at [the Camaro]. . . . It was therefore a reasonable inference that [Ginez] possession of the firearm was antecedent to the primary crime. . . . That [Ginez] did not possess the weapon for a lengthy period before commission of the primary crime is not determinative." ( Id. at pp. 1147-1148 [bracketed words added].) The Attorney General says Ginez's argument here is "well taken," but offers two citations that do not support this surprising concession. One offers no holding at all on the issue of section 654. The other is the case of People v. Venegas (1970) 10 Cal.App. 3d 814, 821. A later case interpreted Venegas to stand for the rule that section 654 will bar a separate punishment for the possession of the weapon by an ex-felon when "fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense." ( People v. Ratcliff, supra, 223 Cal.App.3d 1401, 1412.) But no evidence suggests Ginez gained access to the gun only at the shooting scene. (Compare People v. Bradford (1976) 17 Cal.3d 8, 13, 22 [officer stops Bradford's car for speeding, Bradford wrests officer's revolver from him, and shoots at officer; Bradford's possession of revolver was not antecedent and separate from his use of revolver in assaulting the officer].) We reject the arguments of Ginez and the Attorney General on this issue. The trial court's ruling here was not error.
VII
See footnote, ante, page 214.
Ginez correctly notes a clerical error in his abstract of judgment. There is an extra fine that should not be there. The trial judge imposed one $10,000 restitution fine. At page 2 line 9A, however, the abstract of judgment incorrectly reports two fines: one under section 1202.4(b) and another under section 1202.45. The second fine is an error. The trial court did not impose it. We order the abstract of judgment modified to strike the second fine.
DISPOSITION
As to Reyes, we affirm the judgment. As to Ginez, we affirm the judgment, but we remand the case to the trial court with directions (1) to prepare an amended abstract of judgment that deletes the fine under section 1202.45 and (2) to forward the amended abstract of judgment to the Department of Corrections.PerIuss, P. J., and Zelon, J., concurred.
As to Reyes, we affirm the judgment. As to Ginez, we affirm the judgment, but we remand the case to the trial court with directions (1) to prepare an amended abstract of judgment that deletes the fine under section 1202.45 and (2) to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.