Filed 4/1/ 16 P . v. Mariscal CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.

MICHAEL M ARISCAL,
Defendant and Appellant. B262278
(Los Angeles County Super. Ct. No. SA078033)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Antonio Barreto, Judge. A ffirmed in part, reversed in part, and rema nded. Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyosh i and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.2

Defendant and appellant Michael Mariscal was convicted of two counts of murder (Pen. Code, § 187, subd

. (a) 1 ) , three counts of attempted murder ( §§ 664 and 187, subd. (a)), street terrorism ( § 186.22, subd. (a)), and possession of a firearm by a felon ( § 12021, subd. (a)(1)). He contends there was insufficient evidence to support a finding the driver of the vehicle in which defendant was a passenger was a member of defendant’ s gang

. Defendant also contends the tr ial court erred by instructing the jury that t he element of a specific intent to kill required for an attempted murder conviction could be found based on a “kill zone
, ” and by admitting evidence of the psychological i mpact of the attempted
murder on one of the victim s . Defendant further contends the trial court erred by imposing a parole revocation fine
, and failing to credit defendant for the actual days he served prior to sentencing.
T he Attorney General argues t he indeterminate a bstract of j udgment 2 should be
corrected to r eflect the trial court’s o ral p ronouncement s that defendant was sentenced to
serve his terms on counts 1

- 5 consecutively, and was to serve the term of life with a possibility of parole on count s 3

- 5. We reverse the trial court’s imposition of a $200 parole revocation fine, and its order denying defendant custody credit. We remand the matter for the trial court to
amend the abstract s of judgment consistent with this opinion. We otherwise aff irm the judgment.

1 All statutory citations are to the Penal Code unless otherwise noted.

2 The record contains an indeterminate abstract of judgment and a determinate abstract of judgment.3 BACKGROUND

A. Factual Background

1. Prosecution Evidence At about 3:00 p.m. on June 22, 2011 , an employee of a property management firm located on Centinela Street, about 1.7 miles from Penmar Park in Venice, saw a Hispanic

man w ith a slight build park a light or silver colored Volvo station wagon in the parking space near where she worked. A bout one hour later, Allan Mateo, Salvador Diaz, Andy Santiago, Emmanuel Vasquez, and Christian Hernandez , were sitting together on
bleacher s at Penmar Park in Venice. None of the young men were gang members at that time but they knew gang members.
The Volvo station wagon pulled up near the park. Defendant exited the Volvo and approached the group holding his hands behind his back. Defend ant asked the young men where they were “ from, ” effectively asking them the name of their gang. Mateo replied they were not gang members. Defendant pulled out a gun, said “Culver City,”
and shot Mateo . Defendant then pointed the gun toward Diaz, Hernand ez, Santiago, and Vasquez.
Defendant shot : Mateo four times , two of which were fatal ; Diaz twice in the chest, one of which was fatal; and Hernandez twice in his legs

. Santiago fell through the bleachers onto the ground, and then ran and hid behind som e parked cars. N either Santiago n or Vasquez were shot.
Nine

. 9

- millimeter shell casings were found near the bleachers at the park. All of

t he casings were fired from the same gun. Maritza Perez, a softball coach, heard the gunshots. Defendant lowere d the gun and ran, crossing a street in front of Perez. The headlights of the Volvo turned on. 3 The driver of the car looked over his left shoulder in defendant’s direction. Perez saw the

3 Between about 4:00 p.m. and 4:15 p.m., a constructi on company employee observed a gray Volvo parked at the Centinela Street location.4

driver was a thin Hispanic man with short hair. Defendant ran to the car, looked around, and entered the car through the passenger door. The car drove away
, but Perez w as able
to write down a portion of the car’s license plate number

— “W229.” Perez called 911. Citing People’s Exhibit 7, d efendant acknowledges the li cense plate of the car
defendant entered was LTWY229. The car had been stolen between June 18 and 19, 2011, and defendant’s fingerprints were found on its passenger door. Between approximately 4:00 p.m. and 4:15 p.m., telephone calls were made on defenda nt’s cell phone using cellular towers near where the Volvo was foun d and near the shooting scene. At 4:26 p.m., on June 22, 2011, the day of the shooting, defendant texted a female friend, “I love you, babe. If I don’t reply, I am busted.” At 4:30 p.m. , a local news website, yovenice.com, posted a story about the shooting, stating three people had been shot. Defendant texted someone, “Two men shot. One in the leg. Fox11la.com. Also on yo venice.” H e also texted this person, “Watch the news, bro.” At 4:53 p.m., a local television affiliate of the Fox News Network, posted a story about the shooting on its website. Later that day, defendant texted the female friend as follows: “News. Two men shot, One in leg. Fox 11 L.A. His friend texted back : “Did you shoot someone?” Defendant answered : “ Don’t text like that, babe. Come on now. Just letting you know what is on and what happened. ” The following morning, the Volvo remained parked at the parking space for the vacant apartment complex. The d river’s door of the car was half closed and keys were in the ignition. Perez identified photographs of the Volvo as the same car defendant entered
after he shot the victims. The police arrested defendant. After defendant arrived at the police station, he

was allowed to use his cell phone. Defendant sent someone a text message, summarized by Los Angeles Police Department Detective Terrance Keyzer as follows: “[Defendant] is saying that he is going to act innocent and ask the person he is talking to, to play along because he is scared. Then [defendant] tells [the p erson] to erase all messages.”5

Later at the stat ion, defendant told his mother the police would “never find the gun,” it was “impossible” for them to find it, and it was “gone.” 4 Defendant’ s mother told defendant the police had taken his cousin’s c ell phone. In response, defendant asked
his mother if his cousin had deleted “the messages,” and she responded, “Yeah.” Los Angeles City Police Officer Nicholas Coronado, the prosecutor’s gang e xpert, testified a gang member earns “respect” by “putting in work
, ” i.e., committing crimes

. A “roll call” is a list of gang members, usually using their gang monikers /nicknames . The question “Where are you from?” is a threat or a challenge to rival gan g members or the public at large tha t often precedes a confrontation

. Officer Coronado was assigned to the Pacific Police Station’s gang enforcement detail and specifically assigned to monitor the Culver City Boys gang. T he Culver City Boys gang members hip was primarily Hispanic. The gang claimed portions of Culver City and nearby areas of Los Angeles. Venice 13 or “V13” claimed adjacent areas, including Penmar Park. The Culver City Boys had a rivalry with V13, among other local

gangs. The Culver Ci ty Boys primary activities included robberies, burglaries, assaults with deadly weapons, vandalism s , narcotics sales, and auto theft s

. The gang members used signs including the letters “CXC” and “CC” to identify itself and communicate status in the gang. In 2009, two Culver City Boys gang members were convicted of separate robberies. Defendant was an admitted Culver City Boys gang members. He had a tattoo of “CC” on his hand and a moniker of “Little Poste.” A Culver City Boys roll call with the

name “Little Poste” included on it was found in defendant’s apartment.
Officer Coronado opined defendant was a Culver City Boys gang member and, based on a set of hypothetical facts matching the facts in this case, the murders and attempted murders were perfor med for the benefit of, at the direction of, or in association with the Culver City Boys gang. The expert also opined
, because the driver of the Volvo

4 The gun used in the shooting was never found.6

was willing to help defendant conduct the shootings, the driver “ [ was ] either a fellow gang member or [w as] at the time an associate putting in work [ to ] show that he was “represent[ ing the] hood [] too.”

2. Defendant’s Evidence Dr. Mitchell Eisen, defendant’s identification expert, testified several variables could affect the accuracy of an eyewitness’ s identification, including capacity limits on attention; stress and trauma; exposure duration and time passage

. According to Dr. Eisen, the manner in which eyewitness evidence is collected may also affect an identification, including how the identificati on procedure is set

- up and admonitions given
to the witness. He opined a “double

- blind” line

- up (such that neither the eyewitness nor the officer conducting the line

- up knows whether a suspect is included) is the most

accurate manner in which to collect e yewitness evidence.

B. Procedural Background The Los Angeles County District Attorney filed a n amended information charging
defendant with the murders of Mateo and Diaz in violation of section § 187, subdivision (a) (counts 1 and 2), the willful, deliberate , and premeditated attempted murders of Hernandez, Santiago, and Vasquez in violation of sections 664 and 187, subdivision (a) (counts 3

- 5); street terrorism in violation of section 186.22, subdivision (a) (count 6); and possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) (count 7). The District Attorney alleged as to counts 1 and 2: defendant committed multiple murders, a special circumstance pursuant to section 190.2, subdivision (a)(3); and
defendant committed the murde rs while he was an active participant in a criminal street gang and did so to further that gang’s activities, a special circumstance pursuant to section 190.2, subdivision (a)(22)

. As to counts 1

- 3, it was alleged during the
commission of the two murders (counts 1 and 2) and the attempted murder of Hernandez (count 3), defendant personally and intentionally discharged a firearm, which caused7

great bodily injury and death (§ 12022.53, subd

. (d) )

. 5 As to counts 1

- 5, it was alleged: during the commission of the offenses , defendant personally and intentionally discharged
a firearm (§ 12022.53, subds

. (b) & (c) ) ; and the offenses were committed by defendant for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd

. (b)(4)

. 6 As to count 7, it was alleged defendant committed the offense within the meaning of section 186.22, subdivision (b)(1)( A ). Following a trial, the jury found defendant guilty on all counts, determined the murders were in the first degree, and
fou nd the alleged special circumstances and enhancement s to be true. The trial court sentenced defendant to state prison for the following indeterminate terms, each to run consecutively to each other: on count 1, life without the possibility of parole, plus 25 years to life pursuant to section 12022.53, subdivision (d); on count 2, life without the possibility of parole, plus 25 years to life pursuant to section 12022.53, subdivision (d); on count 3, life with the possibility of parole, plus 25 years to life pursuant to section 12022.53, subdivision (d); on count 4, life with the possibility of parole; and on count 5, life with the possibility of parole. Under section 654, the trial court imposed but stayed sentences on counts 6 and 7, enhancements pursuant to section 12022.53, subdivisions (b) and (c) for counts 1

- 5, and enhancements pursuant to section
186.22 on counts 1

- 5, and 7. The trial court ordered defendant to pay a $200 restitution fine under section 1202.4, sub division (b), and a $200 parole revoc ation fine under section 1202.45, to be stayed pending successful completion of parole. The trial court declined to credit
defendant for actual time served as of date of sentencing. Defendant filed a timely notice of appeal.

5 Because the crime in this case took place in June 2011, a ll references to section 12022.53 a re to the version of that s ection in effect at that time. (Stats. 2006, ch. 901, § 11.1.)

6 All references to section 186.22 are to the version of that section in effect in June 2011. (Stats. 2010, ch. 256, § 1.)8 DISCUSSION
A

. Substantial E vidence
Defendant contends the judgment of conviction on count 6 must be reversed
because there was insufficient evidence the driver of the Volvo was a member of defendant’s gang. We disagree.

1. Standard of Review

“‘“ [W]e review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence

— that is, evidence that is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable dou bt. ” [Citation.] We determine “ whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ” [Citation.] In so doing, a re viewing court “ presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. ” [Citation.] ’” ( People v. Williams (2015) 61 Cal.4th 1244, 1281; People v. Combs (2004) 34 Cal.4th 821, 849 [ “ An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded
otherwise ” ].) The same standard of review applies where the prosecution relies on
circumstantial evidence. ( People v. Stanley (1 995) 10 Cal.4th 764, 792.)

2. Applicable Law Section 186.22, subdivision (a), defines the crime of street terrorism and provides in relevant part: “Any person who actively participates in any criminal street gang with knowledge that its members engag e in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished

. . . . ” “ The plain meaning of section 186.22(a) requires that felon ious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member. [Citation.]”9

( People v. Rodriguez (2012) 55 Cal. 4th 1125 , 1132, 1140 ( Rodriguez ) ; People v. Vega (2015) 236 Cal.App.4th 484, 50 3.) The court in Rodriquez
, in responding to a hypothetical in which an active participant provides a gang member (a gang leader) with a gun to use in shooting rival gang members, said: “ If the active participant is not a gang member, he would be no more guilty of violating section 186.22(a) than the gang leader because only one member of the gang

— the gang leader

— committed the shootings. ” ( Rodriguez
, supra , 55 Cal. 4th at p. 1138.)

3

. Analysis The jury was instructed with a CALCRIM No. 1400, which prov ides: “At least two gang members of that same gang must have participated in committing the felony offense,” and “[t]he defendant may count as one of those members if you find that the defendant was a member of the gang.” “[T] he jury is presumed to follo w the trial court ’ s instructions.” ( People v. Fuiava (2012) 53 Cal.4th 622, 669 .) Substantial evidence permitted the jury to conclude the driver of the Volvo was a member of defendant’s gang. Officer Coronado, the prosecutor’s gang e xpert, opined
defe ndant was a member of the Culver City Boys gang, and testified the Culver City Boys members were primarily Hispanic and the gang’s primary activities included assaults with deadly weapons and auto theft. There was evidence the Volvo had been
stolen
, and t he driver of that stolen car was a Hispanic male

. There was also evidence the
driver worked closely with defendant, a comrade who was a Culver City Boys gang member, to carry out the shootings. He drove defendant to the location of the crimes;
waited for defendant to return to the car; started the car and turned on the headlights after seeing defendant running to the car from the scene of the shootings; and facilitated defendant’s escape by fleeing the scene after defendant entered the car. Officer
Coron ado opined the driver, by helping the shooter, showed he not only knew the shooter and was “associating” with him, but the fact that the car was stolen additionally meant the driver was either a fellow gang member or an associate putting in work with the s hooter and representing the gang.10

Although the evidence could have been reconciled with a finding that the driver of the Volvo was not a Culver City Boys gang member, a rational trier of fact could have
also determined the evidence was sufficient to find the driver as a gang member. Nothing more is required to affirm the judgment on count 6. ( Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal. 4th 204 , 215; City of Glendale v. Marcus Cable Associates, LLC (2014) 231 Cal.App. 4t h 1359 , 1385.)

B

. Jury Instruction
Defendant contends the tr ial court erred by instructing the jury on the “kill zone” theory (CALCRIM No. 600) for counts 4 and 5 (the attempted murders of Santiago and Vasquez) because it was not supported by substant ial evidence. The trial court did not

err.

1. Standard of Review “‘The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” [Citation.] ’” ( People v. Alexander (2010) 49 Cal.4th 846,
92 0 , citing People v. Saddler (1979) 24 Cal.3d 671, 681

. ) A trial court err s when it gives an instruction “ which, while correctly stating a principle of law, has no application to the
facts of the case. ” ( People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

2. Applicable Law

“‘ Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. ’” ( People v. Stone (2009) 46 Cal.4th 131, 136 ( Stone ) .) “‘ There is rarely d irect evidenc e of a defendant’ s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant ’ s actions. [Citation.]’” ( People v. Smith (2005) 37 Cal.4th 733,11

741.) The “ very act of firing a weapon ‘“ in a manner that could have inflicted a mortal wound had the bullet been on target ”’ is sufficient to support an inference of intent to
kill. ” ( Id . at p. 742.) “[A] primary intent to kill a specific target does not rule out a co ncurrent intent to kill others.” ( People v. Bland (2002) 28 Cal.4th 313 , 331, fn. 6 ( Bland ) .) “‘ The intent is

concurrent

. . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’ s vicinity.

. . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all
who are in the anticipated zone. ’ [Citation

. ]” ( Id . at pp. 329

- 330 ; People v. Perez (2010) 50 Cal.4th 222, 232.) “[T]he ‘kill zone’ [is not] the only way to establish concurrent intent to kill more than one person in a fired

- upon group.” ( People v. Campos (20 07) 156 Cal.App .4th 1228, 1242 .) Instead, the kill zone theory “‘is simply a reasonable inference the jury may draw in a given case

. . . . ’ ” ( Stone , supra , 46 Cal.4th at p. 137; Bland
, supra , 28 Cal. 4th at p. 331, fn. 6).) The language in CALCRIM No. 6 00 concerning the kill zone theory is not required. ( Bland
, supra , 28 Cal.4th at p. 331, fn. 6.) That portion of the instruction is contained in brackets; it is provided for the trial court to use in its discretion. (Bench Notes to CALCRIM No. 600.)

3. Relevant Proceedings

a ) The Jury Instructions Without objection
, 7 the trial court instructed the jury on attempted murder with a modified version of CALCRIM No. 600

. The jury was instructed, in part, as follows:

7 Defendant contends, and the Atto rney General does not dispute , d espite the lack of an objection to the instruction on the kill

- zone theory of attempted murder liability, the12

“ D efendant is charged in Counts 3, [ 8 ] 4, and 5 with attempted murder. To prove the defendant guilty of attempted murder the People must prove that t he defendant took one direct but ineffective step toward s killing another person; [¶] and, two, that the defendant intended to kill that pe rson. [¶]

. . . [¶] A person may intend to kill a specific
victim or victims
, and at the same time intend to kill everyone in a particular zone of
harm or

. . . kill zone. [¶] In order to convict the defendant of the attempted murder in counts 3, 4, an d/or 5 the People must prove that the defe ndant not only intended to
kill

. . . [ Allan ] Mateo and/or Salvador Diaz
, but also either intended to kill the victim in counts 3, 4 or 5 or intended to kill everyone within the kill zone

. [¶] If you have a

reaso nable doubt whether the defendant intended to kill the victim in counts 3, 4, and /or
5 , or intended to kill [ Allan ] Mateo and/or Salvador Diaz by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the victim in counts 3, 4, and/or 5 .”

b ) The Prosecutor’s Argument The prosecutor argued in closing to the jury: “ Attempted murder. Again, when you shoot into a crowd of people, you are trying to kill those people. He shot at least
nine times. They were direct, but ineffectual steps. The mental state or to elevate it first degree is the same to make it first degree murder. Did he reflect, how much did he reflect
and premediate? And the answer is he premediated just as much for the attempted
murder s as he did for the actual murders. [¶] Another way of looking at the kill zone, I

mean, you can conclude that he also attempted to kill Andy Santiago and Manual Vasquez, even though he didn’t hit them, because he was trying to kill everyone in that

area

. He had two [ sic ] obvious intended targets of Salvador Diaz and [ A l lan ] Mateo and
Christian Hernandez, but you can conclude that the other two young men were also

issue can be raised on appeal because the inst ruction affected defendant’s substantial rights. (See § 1259; People v. Flood (199 8) 18 Cal.4th 470, 482, fn. 7.)

8 Defendant does not contend the trial court erred by instructing the jury on the “kill zone” theory for count 3 (the attempted murder o f Hernandez).13

intended victims because the intent to kill the people who got shot can be transferred to

t he people who didn’t get hit, that all of them are in this little target area of kill zone
where the defendant was just spraying bullets, boom, boom, boom, boom, boom, and all of those people are victims of his attempted murder, whether they got hit or

not

. [¶]

. . . [¶] [T]he defendant approached Salvador Diaz, Allan Mateo, Christian Hernandez, [ Emmanuel ] Vasquez , and Andy Santiago with his loaded .9

- millemeter semiautomatic pistol, and he walked up to the bleachers and he pointed at them and
claimed his gang , Culver City, and

. . . he fired at least nine shots into that crowd

. . . . ”

4. Analysis
Defendant relies on People v. McCloud (2012) 211 Cal.App.4th 788 ( McCloud

) to criticize the kill zone instruction given in this case. McCloud stated,
witho ut authority, “ The kill zone theory thus does not apply if the evidence shows only that the defendant intended to kill a particular targeted individual but attacked that individual in a manner that subjected other nearby individuals to a risk of fatal inju ry. Nor does the kill zone theory apply if the evidence merely shows, in addition, that the defendant was aware of the lethal risk to the nontargeted individuals and did not care whether they were killed in the course of the attack on the targeted individ ual. Rather, the kill zone theory applies only if the evidence shows that the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was
locate d

. The defendant in a kill zone case chooses to kill everyone in a particular area as a means of killing a targeted individual within that area. In effect, the defendant reasons that he cannot miss his intended target if he kills everyone in the area in which the target
is located. [¶]

. . . [T]he defend ant specifically intends that everyone in the kill zone die. If some of those individuals manage to survive the attack, then the defendant

—having specifically intended to kill every single one of them and having committed a direct but
ineffectual act towar d accomplishing that result

— can be convicted of their attempted murder.” ( McCloud
, supra , 211 Cal.App.4th at p. 798, some italics added.)14

McCloud
, supra , 211 Cal.App.4th 788 overstates the kill zone jury instruction. The Supreme Court in Bland
, supra , 2 8 Cal.4th 313 stated that the intent to kill a person can be inferred from the nature and scope of the attack or from the method employed. ( Id. at p p. 330, 331, fn. 6.) If, as described by McCloud
, the defendant must in fact intend to kill each attempted murder victim for the kill zone theory to be applicable
, t here would
be no reason to employ th at theory
, i.e., the intent to kill would be established without
resort to the kill zone theory

. There is substantial evidence to support the jury instruction t hat the specific intent to kill required for an attempted murder conviction could be found based on a “kill zone.” The jury found defendant intended to kill Mateo and Diaz

. There is evidence they, along
with Santiago, Vasquez, and Hernandez , were sitting as a group on bleachers, and the nature and scope of defendant’s attack is that he shot nine bullets at the group

. T he jury
could have reasonably infe r r ed defendant either intended to kill Santiago and Vasquez, or intended to kill everyone within that ki ll zone.

C. Admission of Psychological Impact Evidence
Defendant contends the trial court violated his federal rights of due process and
fair trial b y erroneously admitting irrelevant evidence concerning the psychological
i mpact of the attempted murder on Santiago. We disagree.

1. Standard of Review We review a trial court’ s ruling on the admissibility of evidence for an abuse of
discretion. ( People v. Alvarez (1996) 14 Cal.4th 155, 203.) “ A trial court abuses its discretion when its ruling ‘fall[s ] “ outside the bounds of reason. ” ’ [Citations.] ” ( People
v. Waidla (2000) 22 Cal.4th 690, 714.) If the erroneous admission “ implicates defendant’ s federal constitutional rights to due process and concerns the fundamental fairness of his trial, we will a pply the de novo standard of review.” ( People v. Albarran ( 2007) 149 Cal.App.4th 214, 225, fn. 7.)15 2

. Applicable Law
T he admission of evidence regarding the psychological i mpact of a gunshot victim
is irrelevant at trial in a non

- capital case . ( People v. Redd (2010) 48 Cal.4th 691, 731

- 732.) T he admission of evidence violates a defendant’s federal due process rights i f it makes the trial fundamentally unfair. ( People v. Partida (2005) 37 Cal.4th 428, 439 .)

3

. Relevant Proceedings During Santiago’s testimony, the following exchange occurred: [The Prosecutor]: Now, Mr. Santiago, after this shooting happened in 2011, what trajectory did your life
take ? [¶] [Defense Counsel]: Objection. Relevance. [¶] The Court: Overruled. Do you understand t he question? [¶] [Santiago]: Yeah. [¶] The Court: Did this shooting in any way change the way you were living. [¶] [Santiago]: Yeah. It did. [¶] [The Prosecutor]: How was that? [¶] [Santiago]: I was trying to forget. I started using drugs trying to forget. Everything that happened. ”

4

. Analysis
Defendant contends the admission of the challenged evidence , inter alia, violated
his federal right s to due process and a fair trial. Defendant forfeited the federal portion of
his claim of err or by failing to object at trial on any ground other than relevance. ( People
v. Martinez (2010) 47 Cal.4th 911
, 961 [defendant forfeited his federal claims, including his claims for violation of his due process and fair trial rights, “ because defense coun sel objected to [the] evidence only on Evidence Code section 352 grounds ”].)

. Even if the trial court erred in admitting evidence of the psychological i mpact of the shooting on Santiago, a ny error was harmless under the standard of either People v.
Watson (1956) 46 Cal.2d 818, 836

- 837 [more favorable outcome for defendant reasonably probable absent error], or Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]. As discussed above, t he evidence of defendant’s attempted murder o f Santiago was overwhelming.16

D. Cumulative Impact Defendant contends even if the trial court errors in instructing the jury on the “kill zone” theory for counts 4 and 5, and in admitting evidence of the psychological i mpact

on Santiago , did not warrant r eversal of the convictions on counts 4 and 5, the cumulative impact of those errors does. However, h aving determined there is no merit to defendant’s contention the trial court erred in instructing the jury on the “kill zone” theory for counts 4 and 5, an d it was harmless error for the trial court to admit evidence of the psychological i mpact on Santiago
, there is no cumulative error justifying relief.

E. Restitution Parole Revocation Fine Defendant contends, and the Attorney General agrees, the trial cou rt erred in imposing a parole revocation fine. We accept the Attorney General’s concession

. The trial court imposed but stayed all of the determinate sentences ( counts 6 and
7 ) , and imposed a $200 parole revocation restitution fine pursuant to section 120 2.45. 9 A parole revocation restitution fine may not be imposed when all d eterminate sentences have been stayed under section 654. ( People v. Pearson (1986) 42 Cal.3d 351, 361; People v. Cruz (2012) 207 Cal.App.4th 664, 672

- 673, fn. 8 .)
We reverse the trial court’s imposition of the $200 parole revocation restitution
fine. The indeterminate abstract of judgmen t s hould be amended to delete any reference to a $200 parole revocation fine.

F. Cu stody Credit Defendant contends, and the Attorney General co ncedes, the trial court erred in failing to credit defendant for the actual days he served prior to sentencing. We agree. A person convicted of murder is entitled to credit for actual time spent in custody prior to sentencing. (§ 2900.5, subd. (a); Peop le v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) Defendant was arrested on June 28, 2011
, and sentenced on February 11, 2015; a

9 Although the trial court stayed all of the determinate sentences, the parole

revoc ation fine is reflected on the indeterminate abstract of judgment.17

total of 1,325 days. The trial court declined to credit defendant for the actual days he served prior to sentencing. As noted , however, defendant was entitled to actual presentence custody credits.
W e reverse the trial court’s refusal to award defendant custody credit. Both the indeterminate abstract of judgment and the determinate abstract of judgment should be
amended to refl ect defendant is entitled to 1,325 actual days of credit.

G. C orrection of the I ndeterminate Abstract of Judgment to Reflect Oral
Pronouncement s The Attorney General argues, and defendant agrees, the indeterminate a bstract of j udgment should be corre cted to r eflect the trial court’s o ral p ronouncement s that
defendant was sentenced to serve his terms on counts 1

- 5 consecutively, and was to serve the term of life with a possibility of parole on counts 3

- 5

. T he abstract of judgment must
be so amended.
The indeterminate abstract of judgment of fails to reflect the trial court sentenced
defendant to serve his indeterminate terms for counts 1

- 5 consecutively. It also reflects the trial court sentenced defendant to three terms of 15 years to life on counts 3

- 5, but on
counts 3

- 5 the trial court sentenced defendant to terms of life with the possibility of parole. (§§ 186.22, subd. (b)(5), 664, subd. (a).) An abstract of judgment must fully and accurately reflect a defendant’s sentence. ( People v. Mitchell (2001) 26 Cal.4th 181, 185

- 186 ( Mitchell ) .) “[A] trial court’ s oral sentence governs if it is different from what appears in a minute order or an abstract of judgment [citations]

. . . . ” ( People v. Wynn (2010) 184 Cal.App.4th 1210, 1221;18

Mitchell
, supra , 26 Cal.4th at p. 185; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) A ccordingly, the indeterminate abstract of judgment should be amended to reflect
the trial court sentenced defendant to serve his indeterminate terms on counts 1

- 5

co nsecutively, and to serve the term of life with a possibility of parole on counts 3

- 5.

DISPOSITION We reverse the trial court’s imposition on defendant of a $200 parole revocation restitution fine, and its refusal to award defendant custody credit. The matter is remanded
for the trial court to amend t he indeterminate abstract of judgment to delete any reference

to a $200 parole revocation fine ; reflect defendant is to serve his indeterminate terms on
counts 1

- 5 consecutively ; and to indicate the term on counts 3

- 5 life with a possibility of parole. T he trial court shall also amend both the indeterminate abstract of judgment and the determinate abstract of judgment to reflect defendant is entitled to 1,325 actual days
of custody credit. The clerk of th e superior court is to deliver the amended abstract s of judgment t o the Department of Corrections and Rehabilitation

. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J.  We concur:

TURNER , P. J.

KRIEGLER, J.

 Judge of the Superior Court of the County of Los Angeles, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.