Filed 6/18/14 P. v. Sepulveda CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
JOSEPH LUIS SEPULVEDA et al.,
Defendants and Appellants. B237008
(Los Angeles County Super. Ct. No. BA344081)

APPEAL from judgments of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed in part , reversed in part, and remanded for further proceedings. Lynda A. Romero, under appointment by the Court of Appeal , for Defendant and Appellant Joseph Luis Sepulveda. Richard A. Levy, under ap pointment by the Court of Appeal, for Defendant and Appellant Gustavo Alvarez. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys Genera l, for Plaintiff and Respondent.

_____________ ____________2 Defendants and appellants, Joseph Sepulve da and Gustavo Alvarez, appeal their convictions for first degree murder, with financial gain and lying in wait special circumstances, and with a firearm use enhanc ement (Sepulveda only) (Pen Code, §§ 187, 190.2, subd. (a)(1), (15), 12022.53). 1 Alvarez was sentenced to life without possibility of parole. Sepulveda was sentenced to life without possibility of parole plus 25 years to life. The judgments are affirmed in part, re versed in part, and remanded for further proceedings. BACKGROUND Viewed in accordance with the usual rule of appellate review ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evid ence established the following.
1. Prosecution evidence.

a. The troubled marriage of Alvarez and Virginia. Defendant Alvarez had served on a U.S. Navy submar ine until a too-rapid dive caused his eardrums to rupture. The Navy gave him a disability discharge. Alvarez subsequently worked as a telephone technici an for AT&T. Virginia and Alvarez were married in 1996 and they lived in Pico Rivera. They had one son together and Virginia had a son from a former marriage. At the time of her death in 2003, Virginia was working as a secretary to the head of the Los Angeles Count y Sheriff’s Internal Affairs
Bureau. In early 2001, Alvarez began an affair with Deanne Joe, a coworker at AT&T. Joe testified that, by April 2001, Alvarez ha d moved out of his house and was living on his boat. Asked if Alvarez had said anything about his marriage, Joe testified: “Just that he wasn’t happy, that [Virginia] seemed to be overbearing. And the example that he used is that he had to ask permission to make a sandwich if you were hungry.” Joe broke up with Alvarez in June 2002 when she learned he was dating another coworker.

1 All further references are to the Pe nal Code unless otherwise specified.3 Alvarez and Virginia separated in June 2001 and filed for divorce citing irreconcilable differences. Alvarez initially believed the property settlement would be straight forward. He told Jo e he had quitclaimed the Pico Rivera house to Virginia and was willing to turn over a portion of his AT&T salary, but he ex pected to be able to keep all of his $2519 monthly Navy disability pension. Alvare z subsequently told Joe the divorce proceedings were no longer simple “because [Virginia] was going after his income with AT&T, as well as the Naval pension” Virginia had apparently been unawar e of the Navy pens ion until they began preparing the divorce paperwork. At an Oc tober 2001 meeting with Virginia and the attorney they had hired to file the divorce pa pers, Alvarez accused the attorney of having discovered his Navy pension and told Virginia about it. He got up and walked out of the attorney’s office. Thereafter, Alvarez a nd Virginia began filing separate divorce pleadings, vigorously contes ting child custody, visitati on rights, property division, Alvarez’s assets, and child and spousal support. Toward the end of 2002, however, the co uple reconciled and divorce proceedings were halted. b. The murder plot and the shooting. Defendant Sepulveda had known Alvarez since they were kids growing up in Highland Park. Sepulveda wa s still living in Highland Park in 2003, sometimes staying with his aunt and uncle, Sandra and Vince Hernandez, and sometimes living on the streets. During the first half of 2003, Alva rez visited Sepulveda at least three times. On one occasion, Vince, who knew Alvarez but had not seen him for almost 10 years, answered the door. Alvarez said he was lo oking for Sepulveda, whom he asked for by his nickname Pee Wee. When Vince said Sepulveda wasn’t home, Alvarez retrieved a 12-pack of beer from his car, gave it to Vince and then left without saying why he wanted to see Sepulveda. Sometime later, before Vi rginia’s death, Vince asked Sepulveda what Alvarez had wanted. Sepulveda said Alvarez “was looking for someone to . . . murder his wife.” Sepulveda said Alvarez had take n him to a marina where his boat was docked,4 and that Alvarez’s wife had a big insuranc e policy. Vince told Sepulveda not to get involved. Sandra Hernandez testified Alvarez cam e to her house in 2003 to meet with Sepulveda at least twice before Virginia’s death. Sandra did not hear what they were talking about either time. Jennifer Barreau was originally charged with murder in this case , but she agreed to testify after pleading guilty to voluntary mans laughter and receiving a 12-year term. In 2003, when Barreau was in her early 20’s and living with her family, she was addicted to methamphetamine and used it every day. She began dating Sepulveda, who was then living with Vince and Sandra th ree houses away. Initially, Se pulveda sold Barreau drugs, but then their relationship became romantic. On July 5, 2003, Barreau went to the Hernandez ho use for a barbeque. When she asked Sepulveda for methamphetamine, he sa id he could obtain some from a friend. They left in Barreau’s car 30 or 45 minutes later. Sepulveda had a shotgun with him. After Barreau drove for a while, Sepulveda told her to stop in the back of a restaurant parking lot which “smelled like Mexican food.” Sepulveda had her ba ck into one of the parking spaces so they would be able to s ee when his friend arrived. Shown photographs of the crime scene, Barreau pointed out wh ere she had parked her car. After 20 or 30 minutes, a dark green SUV drove into the park ing lot and stopped. Sepulveda announced his friend had arrived. Barreau could see th at a man was driving the SUV. Sepulveda exited Barreau’s car with the shotgun under his jacket. Barreau saw him “walk[ ] around the back of the SUV to the passenger side.” Then she heard a loud boom like fireworks. Sepulveda returned to her car and the man driving the S UV stepped out of the vehicle. Sepulveda frantically instructed Barreau to drive off, telling he r to go through red lights. Then he had her drop him at a frie nd’s house a short distance away. Barreau went back to the Hernandez barbeque by herself. Sepulveda returned to the barbeque 10 or 15 minutes later with out the shotgun. He did have some methamphetamine, which he shared with her.5 Several customers leaving the Villa Somb rero restaurant witnessed the shooting and identified Sepulveda as the gunman, alth ough these identifications were somewhat equivocal. 2 According to these witn esses, Virginia had just gotten out of the SUV when the gunman, without saying a word, bent down on one knee, took aim and shot Virginia in the head. The gunman did no t try to grab Virginia or ta ke anything from her or from the car. The driver did not get out of the SUV until after the shoo ting had taken place. Virginia died at the scene. The first police officers to respond found Alvarez calm and quiet, sitting on the bumper of the green SUV. He said he had driven into the restaurant parking lot, exited the SUV, hear d a gunshot, then went around the SUV and saw his wife on the ground. The police found blood spatter and brain matter on the side, roof and hood of the SUV. Vi rginia’s purse, which contained $33 as well as credit cards, was lying at her feet. There was a diamond ring on her hand.

c. Post-shooting evidence

. Marco Arrellano testified that in the 1980 s and 1990s he belong ed to the Avenues gang. He had known Sepulveda, Alvarez and Alvarez’s brother Jimmy for many years. On the day of Virginia’s murder, Arrellano was living at 733 North Avenue 66, about 10 blocks from the Villa Sombrero restaurant. In 2008 he told police that, at some point during the July 4th weekend in 2003, Sepulveda showed up at his house. At the time,

2 Patricia Van Cleave identified Sepulveda at the preliminary hearing and at trial. However, although she picked him out of a photo array, she refused to initial her identification because she had only viewed him from the side: “I told them that I was hesitant to say absolutely because I hadn’t s een the person at the crime scene head on, I had seen him from the side, but . . . the way he looked in that picture was . . . so close to how I saw him in the profile that I was able to say I think that could be [him].” Although Michael Beckman initially testified at tria l that Sepulveda was the gunman, he soon retreated and said he was “Not positive, no” in his identification. Beckman also qualified his pretrial photo array identific ation, testifying: “Yes, I said that I’m not positive, but if I had to pick one I choose . . . the most similar. I didn’ t do a positive identification.” Mary Prisant’s identification was so equi vocal she was only called by the defense.6 there were helicopters hovering near the V illa Sombrero restaura nt. Sepulveda asked Arrellano if he could hide a gun at Arrellano’s house. 3 When Sepulveda returned to the barb eque after stopping at Arrellano’s house, Sandra Hernandez became suspicious becaus e she noticed his face was all red. She followed him into the house and overheard him say to someone on the phone either “I did it. Now Hopper has to help me clean the me ss,” or “Hopper, you have to help me clean the mess.” “Hopper” was Alvarez’s younger brother, Jimmy. In 2006, Sandra overheard Sepulveda tell someone Alvarez had offered hi m $20,000 to $30,000 to murder his wife and that Alvarez still owed him the money. Another time, Sandra heard Sepulveda say, “[Y]ou want me to kill Jennifer?” Sandra wa rned Barreau about this because Barreau’s first name was Jennifer. Sandra also overhear d Sepulveda say something about “the gun got shredded up.” Commenting on the clothes Virginia had been wearing the night she was shot, her sister Ruby Contreras testified she found it odd Virginia “would wear something like that knowing that she was going to be in L.A.” Ruby thought Virginia was “too dressed up” to go for dinner in Hi ghland Park, “especially at a little mom and pop type restaurant, she would never dress like that.” A little less than a year after the shooti ng, Sepulveda told Vi nce Hernandez he had shot a woman. Sepulveda said “he shot her with a shotgun” and “she like flew back.” Vince testified he immediately cut Sepulveda o ff, saying he didn’t want to hear about it. In 2007, Alvarez and his brother Jimmy had a conversation about Virginia’s murder. When Jimmy said he had heard Alva rez was involved, Alvarez did not deny it. He apologized to Jimmy and said he didn’t “know why he did what he did, but that she was taking everything.” Jimmy contacted the police in April 2008 about Alvarez’s

3 Arrellano said Sepulveda asked to hide a “strap,” which Arrellano assumed meant a pistol.7 confession. He agreed to wear a wire and record their future conversations, but Alvarez refused to speak to him again. Alvarez benefitted financially from Virginia ’s death in various ways. He received $8,600 from a class-action settlement that woul d have gone to Virginia. He received about $40,000 as his share of Virginia’s esta te. He received survivor benefits from Virginia’s county pension plan in the amount of $1,175 a month; these payments stopped in April 2010 after Alvarez had received a tota l of $92,272. He also received $926 a month in survivor benefits from Virginia’s life insurance policy; these payments stopped in 2009 after Alvarez had received more than $77,000. Benjamin Garcia testified he knew Virgin ia from the Sheriff’s Department Internal Affairs Bureau where they bot h worked. The week before Virginia was killed, he had recommended the El Prieto restaurant in Ranc ho Cucamonga to her. Garcia testified he had never heard of the Villa Sombre ro restaurant in Highland Park. Detective Tennelle was one of the primar y investigators in this case. Between 2003 and 2008 he did not have any contact with Alvarez, wh o never made inquiries about the case. Tennelle interviewe d Alvarez on September 25, 20 08. Alvarez said he had been in the act of locking th e SUV door from the outside wh en he heard the gun go off. He went around the front of the SUV and f ound Virginia on the ground. Asked the name of the restaurant where the shooting occurred, Alvarez said it was the Green Burrito. Alvarez said he had never been to this restaurant before and that Virginia had chosen it. Alvarez denied there had ever been a plan to go to a restaurant in Rancho Cucamonga that night. Alvarez also said he did not know anyone named Joseph Sepulveda or Pee Wee, and that he did not rec ognize a photograph of Sepulveda.
2. Defense evidence. Neither Alvarez nor Sepulveda testified. Mary Prisant testified she had gone to di nner at the Villa Sombrero restaurant that night with Michael Beckman an d Patricia Van Cleave. In the parking lot after dinner, Prisant had been trailing behi nd the others. When she heard a gunshot, she turned and saw her friends running toward her. Prisan t saw a man holding a sawed-off shotgun.8 Prisant ran back toward the restaurant and a car drove past her; the gunman was driving and there was another man in the front passenger seat. Shown a photo array five years after the shooting, Prisant picked out Sepulveda’s photograph as a possibility, but did so because he had a simila r haircut and skin color to the gunman and the other photographs had no resemblance to the gunman. CONTENTIONS 1. The trial court erred by excluding testimony under the marital testimonial privilege. 2. The trial court erred by admitting ev idence of Sepulveda’s extra-judicial

statements. 3. The trial court erred by admitting evidence of a handwritten note found in Virginia’s purse. 4. Defendants were denied effective a ssistance because counsel did not object to testimony about a change in beneficiary to Virginia’s life insurance policy. 5. The trial court erred by admitting evid ence of Alvarez’s 2008 police statement. 6. The trial court erred by excluding testimony about eyewitness identifications from a defense expert. 7. The trial court erred by denying Alva rez’s request to discharge his retained counsel. 8. The trial court erred by awarding restitution to Virginia’s estate. 9. The trial court erred by awardi ng restitution to Virginia’s mother. 10. There are clerical errors in the abstracts of judgment and minute orders. 11. The trial court did not properly calculate Alvarez’s presentence custody credits. DISCUSSION
1. Marital communications privilege wa s not improperly used to exclude exculpatory evidence. Defendants contend their convictions must be reversed because the trial court erroneously applied the marital communications privilege (Evid. Code, § 980) to exclude9 evidence that would have proved Jimmy lie d about Alvarez’s having confessed. This claim is meritless.

a. Background

. Jimmy testified to a conve rsation during which Alvarez admitted to having been involved in Virginia’s murder. Jimmy’s ex-wife, Wend y, told a defense investigator about a conversation she had with Jimmy befo re he reported Alvarez’s confession to the police. The investigator’s report stated: “J ust before Jimmy got LAPD involved, he tried out stories on [Wendy] of [Alvarez] break ing down months prior and admitting his involvement in the murd er. She did not believe him. She stated she challenged Jimmy on the stories, and as such Jimmy never menti oned them to LAPD det ectives. [¶] Jimmy spoke to her of contacting the police and had i ndicated there was $50K or $60K in reward money offered. Jimmy went on to talk about what they would do with the reward money. She said; ‘Jimmy already had it spent’. She was clear that she believes Jimmy was trying to find a way to get even with [Alvarez] and get the reward money for putting him away.” The prosecution filed a motion to ex clude evidence of any confidential communications between Jimmy and Wendy pursuant to Evidence Code section 980 (confidential marital communication privilege). Alvarez opposed the motion, asserting Wendy’s testimony was admissible under th e crime-fraud exception to the marital privilege (Evid. Code, § 981). Alvarez argu ed the purpose of Jimmy’s conversation with Wendy had been to concoct a plausible stor y so the police would believe his lie that Alvarez had confessed to Virginia’s murder. b. Legal principles. Evidence Code section 980 provides, in pe rtinent part: “Subject to Section 912 [waiver of privilege by disclosure] and except as otherwise provided in this article, a spouse . . . whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communi cation was made in confidence between him and the other spouse while they were husband and wife.”10 Evidence Code section 917, subdivision (a), provides: “(a) If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client, physician-pa tient, psychotherapist-patient, clergy-penitent, husband-wife, sexual assau lt counselor-victim, or domestic violence counselor-victim relationship, the communicati on is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.” “As a general matter, the claimant of the confidential marital communication privilege has the burden to prove, by a prepo nderance of the evidence, the facts necessary to sustain the claim. [Citation.] He is aided by a presumption that a marital communication was made in confidence. [C itation.] The opponent has the burden to prove otherwise [citation] by a preponderan ce of the evidence [citation].” ( People v. Mickey (1991) 54 Cal.3d 612, 655.) “[A] ruling on a motion . . . [to exclude evidence under Evidence Code section 980], which c oncerns the admissibilit y of evidence, is subject to review for abuse of discretion. [Citation.] The underlyi ng determinations, of course, are scrutinized in accord ance with their character as purely legal, purely factual, or mixed.” ( Id . at p. 654.)

c. Discussion

. We conclude there was no prejudicial tria l error for two reasons. First, we do not believe the trial court abused its discretion by excluding this evidence . Second, even if it did, it is clear the excluded evidence would no t have made any difference to the trial’s

outcome. (1) The evidence was properly excluded

. Defendants make a series of claims intended to demonstrate the marital communications privilege was inapplicable in this situation. We disagree. (a) The crime-fraud exception did not apply. Evidence Code section 981 provides: “T here is no privilege under this article [Article 5, Privilege for Confidential Ma rital Communications] if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or11 a fraud.” Defendants argue this crime-fra ud exception was applicable because the investigator’s report showed Jimmy had enlis ted Wendy’s assistance in fabricating a convincing lie to tell the police. Alvarez asserts: “The most compelling evidence of this is the fact that when [Wendy] critiqued his stories, [Jimmy] decided not to use any of them when he ultimately went to the police to falsely accuse Alvarez.” But under the defense theo ry, the only thing Jimmy “dec ided not to use” was the apparently fictitious framing narrative suggesting Alvarez had suffered an emotional breakdown, which led him to admit his role in Virginia’s murder. Jimmy still told the police Alvarez had confessed to him, and defendants cite no evidence whatsoever proving Jimmy invented this confession. The most Wendy told the investigator was that she believed Alvarez was innocent and incapab le of having committe d the murder, that Jimmy had ulterior reasons for lying, and th at after “she challenged Jimmy on the stories . . . Jimmy never mentioned them to LAPD de tectives.” Since Jimm y obviously repeated Alvarez’s confession to the police, this onl y shows he decided to forego the part about Alvarez’s breaking down emotionally. Contrary to defendants’ suggestion that Jimmy’s willingness to invent a framing narrative demonstrates he must have been lying about the confession itself, the record indicates Jimmy had a reason for wanting to hide what actually triggered Alvarez’s confession. At the preliminary hearing, Jimmy te stified the confession conversation came about when he told Alvarez the Avenues gang was unhappy about Alvarez’s involvement in Virginia’s murder and had se nt Jimmy “a message . . . to deal with my brother . . . . otherwise they would deal with both of us.” Jimmy expl ained the gang believed Alvarez had broken their rules by killi ng Virginia, and was notifying Jimmy he had “to deal with [his] brother or there will be . . . a green light put on both of [them] . . . .” Jimmy testified a “green light” meant “people are welcome to hurt you or something to that effect.”12 Because Jimmy, Sepulveda and Arrellano ha d apparently been, to one extent or another, connected to the Avenues gang, th e trial court excluded all gang evidence because Virginia’s killing did not a ppear to have been gang-related. 4 The prosecutor raised a potential problem, explaining that Ji mmy had “brought to my attention that it’s difficult for him to explain why it is that he confronted his brother about these accusations without saying . . . the Avenues [gang] wanted me to take care of it or they were going to issue a green light. I told him don’ t talk about that. [¶] My feeling is that if [defense counsel] is suggesting that Jimmy has motives th at relate to a reward . . . he can certainly ask [Jimmy], were you seeking a reward? Isn’t it true that that’s what you were after the whole time? But then I should be pe rmitted to say, is there another reason that you went forward to the police . . . that you were feeling pressure from another entity? Otherwise, it . . . leaves the jury w ith the false impression that he was after the money solely and he didn’t ha ve any other pressure.” The trial court expressed sympathy for the prosecution’s position: “My thought is the defense examines on the issue of motivation at their peril. I mean, if you’re going to get into a situation where the People have a di fferent explanation, and Jimmy . . . told us at the preliminary hearing what his motivation was, then I think I’ve got to, in fairness, probably let the People get into it.” The co urt suggested defense counsel attack Jimmy’s credibility by asking him about the reward and his bad relationship with Alvarez, 5

4 The trial court said: “I have made my ruling because I thought that this was not really a gang case. I understood the People ’s argument that because Mr. Sepulveda may have had some tangential or actual associati on with the Avenues was one of the reasons that Mr. Gustavo Alvarez may have reached out to him to assist in this matter, but I felt that it injected an unnecessary issue into the case and that’s why I ruled as I did.”

5 Jimmy acknowledged he and Alvarez had personal pr oblems. In 2007, Jimmy invited Alvarez to live in the house Jimmy was renting from their sister, Celia. A few months after moving in, Alvarez wanted his girlfriend to move in, but Jimmy objected. An argument ensued. Jimmy kicked Alvarez off the property and piled his belongings in the driveway. Alvarez later sued Celia for wrongful eviction.13 “[b]ut if you get into why did you confront hi m that day about this event, then I think he’s got an answer that you’re not going to wa nt to hear even if you feel he did it for some other reason.” We conclude the defendant s have failed to show the crime-fraud exception applied in these circumstances. The purported fraud 6 would have been fa lsely telling the police Alvarez had confessed so Jimmy could both ex act revenge, by getting Alvarez in trouble with the law, and enrich himself by gaini ng the reward money. But defendants never showed any such crime or fraud had been planne d. For instance, defendants do not allege Jimmy admitted to Wendy he had invented Alvarez’s conf ession. As we said in Geilim v. Superior Court (1991) 234 Cal.App.3d 1 66, 174, a case involving the attorney-client privilege: “[T]he proponent of the exception bears the bur den of proof of the existence of crime or fraud.” (Accord, Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 640-641].) (b) There was no waiver by in tended partial disclosure

. Defendants contend the marital communicat ions privilege did not apply because Jimmy always intended to make a partial disclosure to the police. This claim is meritless. “ ‘To make a communication “in confidence,” one must intend nondisclosure . . . .’ [Citation.] ‘While a communication between a husband and wife is presumed to be confidential, if the facts sh ow that the communication was not intended to be kept in confidence, the communication is not privileged.’ [Citation.]” ( People v. Cleveland (2004) 32 Cal.4th 704, 744.) Alvarez asserts there was an intended partial disclosure because “Jimmy’s ve ry purpose in enlisting Wendy’ s aid in furtherance of the intended crime was to settle upon a story that was plausible enough that the police would believe it. Thus, at the tim e Jimmy spoke with Wendy, he intended to disclose one
version – a significant part – of the conversation to the police.” (Italics added.)

6 Alvarez cites sections 148.5 (making fals e report to police of criminal offense) and 487 (grand theft [of the reward money]).14 Alvarez argues “[t]he very purpose of th e communication was to select one of the versions based on We ndy’s critique.” We disagree. Although, Jimmy’s intention according to Wendy was to find the most plausible framing narrative, it must also have been his inten tion not to disclose any of the possible choices if Wendy trashed them all, which is just wh at happened according to Wendy: the investigator’s report states that after Wendy challenged all of Jimmy’s proposed scenarios he did not men tion any of them to the police. (c) There was no waiver by actual disclosure. Defendants contend the marital communi cations privilege was waived under Evidence Code section 912, subdivision (a), whic h provides in pertinent part: “Except as otherwise provided in this section, the right of any person to clai m a privilege provided by Section . . . 980 (privilege for confidential marital communications) . . . is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication . . . .” Defense counsel told the trial cour t that when Jimmy reported Alvarez’s confession he told detective Tennelle, “[B]ef ore I came in here I thought about making up some stuff, but I’m ready to kind of come clean and tell you.” Alvarez argues this demonstrates Jimmy himself disclosed that he had fabricated the alleged confession. Not so. If this happened, it only showed Jimmy tried to fabricate a framing narrative, not the truth of the confession itself. Moreov er, as the Attorney General points out, “appellants could have cross-examined Jimmy about his thoughts of fabricating a story without violating the marital communicati on privilege. Had Jimmy denied such thoughts, appellants could have impeached Ji mmy with evidence th at he made such statements to Detective Tennelle.” (d) A communication subject to the privilege was at issue. Defendants contends Evidence Code sec tion 980 was inapplicab le because “trying out stories” on Wendy was not technically a communication but only an observation of physical facts, something not protected by the marital communications privilege. We cannot agree.15 Certainly there is a distinction betwee n the fact a communication occurred and the content of that communication. (See, e.g., Tanzola v. De Rita (1955) 45 Cal.2d 1, 6 [written contents of bank ch eck and how husband presente d it to his wife were not “communications” within marital privilege: “the fact of communicating, as distinguished from the substance thereof, does no t fall within the privilege”]; People v. Saidi-Tabatabai (1970) 7 Cal.App.3d 981, 986 [no violation of marital privilege fo r husband to identify wife’s handwriting because “poi nt sought to be shown by the communications . . . was the act of communicating and not the natu re or character of the communications themselves”].) But as the Attorney General points out, he re the defendants “sought to introduce the substance of the communication between Jimmy an d Wendy, i.e., that Jimmy told Wendy various stories about appellant Al varez breaking down and admitting his involvement, and that Wendy challenged these st ories. [Defendants] did not merely seek to establish that a conversation took place. Nor did they seek to introduce Wendy’s observations of physical fact s she observed.” The defense theory was that Jimmy had been getting Wendy’s help in coming up with a plausible framing narrative; the mere fact he was conversing with her is immaterial. (e) Defendants did not object that Jimmy never invoked the privilege. Defendants contend the marital communicat ions privilege did not apply because Jimmy neither personally invoked it, nor au thorized the prosecution to do so. The Attorney General counters that defendants never raised this issue in the trial court and, had they done so, the problem could have be en easily corrected. We agree with the Attorney General. As the Attorney General explains, “When viewed in context, appellant Alvarez’s trial counsel’s comments were insufficient to al ert the court to his current theory that the privilege did not apply because Jimmy did not assert the privilege. Rather . . . counsel was merely pointing out that the prosecutor was likely the person who advised Jimmy that such a privilege existed. . . . But . . . counsel did not su ggest, as he does now, that16 the privilege did not apply because Jimmy was not the one to assert it. To the contrary, it appears that . . . counsel assumed that af ter discussing the matter with the prosecutor, Jimmy was in fact asserting the privilege.” Alvarez argues the record shows he “spe cifically addressed the fact that Jimmy never claimed the privilege.” We disagree. Alvarez cites the following trial comments by defense counsel: “. . . I don’t think . . . Jimmy Alvarez came forward with this information saying, hey, I’m claiming privilege if counsel asks me these questions.” But the very next words uttered by defense counsel were: “ I think this was discussed and the fact that . . . the People can plant this privilege idea – again, I’m not accusing the People of doing this, but it’s basically stopping the defendant of being ab le to properly crossexamine this witness.” (Italic s added.) It is fairly clear defense counsel was suggesting the prosecution had spoken to Jimmy abou t invoking the marital communications privilege. Thus, if anything, the record thus shows Alvarez objected that the prosecution had instigated Jimmy, behind the scenes, to invoke the privilege, not that the privilege was inapplicable because Jimmy neither asserted it nor auth orized the prosecution to assert it. 1) There was no federal constitutional error. Defendants contend the exclusion of th is evidence violated the Sixth and Fourteenth Amendments by in terfering with the right to confront and cross-examine witnesses. Alvarez argues: “Without this ev identiary bombshell, th e case against [him] was entirely or almost entirely circumstantial. It was therefore of the utmost importance to Alvarez to impeach Jimmy’ s credibility, not merely by show ing that he was a sketchy character or that he disliked Alvarez, but by revealing that his story to the police was in fact a lie. Wendy’s testim ony would have provided this ev idence, thereby destroying the value of the purported ‘confession,’ and compelli ng a juror to rely sole ly on the equivocal circumstantial evidence if he or she wanted to argue for a guilty verdict.” Alvarez insists “Wendy’s testimony would have been devastati ng because it went directly to that point, which was the entire purpose of Jimmy’s test imony: He fabricated a plausible story about Alvarez’s confession.”17 We do not agree. There was no interfere nce with defendants’ ability to challenge Jimmy’s credibility because th ey would have been free to cross-examine him about telling Detective Tennelle he had considered fabricating a framing narrative, but then decided against it. In any event, Wendy’s testimony would have done nothing more than reveal Jimmy’s search for a plausible fra ming narrative, along w ith Wendy’s personal opinion Alvarez was incapable of killing Virginia. This evidence would not have demonstrated Jimmy invented the conf ession. Moreover, as we discuss post , the evidence in this case apart from Alvarez’s confession was hardly equivocal; on the contrary, it was extremely powerful. 2) Any error was harmless

. Even assuming arguendo the trial court e rred by excluding Wendy’s testimony, we conclude the error was harmless unde r any standard; certainly under the Watson 7 test (see People v. Von Villas (1992) 10 Cal.App.4th 201, 268 [decision to admit or exclude evidence lies within discretion of trial cour t and erroneous decisions are tested under
Watson harmless error standard]), but even under the more rigorous Chapman 8 test (see Neder v. United States (1999) 527 U.S. 1, 18 [119 S. Ct. 1827] [“Is it clear beyond a reasonable doubt that a rationa l jury would have found the defendant guilty absent the error?”]). In the first place, Wendy’s testimony woul d not have been significant. As noted,

ante , Wendy would have merely testified Jimm y tried out various framing narratives on her and that she did not pers onally believe Alvarez was guilty of murdering Virginia. Wendy would not, based on the defense proffer, testify Jimmy said he had invented the confession. Moreover, just as Jimmy appa rently had reasons to be biased against Alvarez, Wendy had reason to be biased against Jimmy. She told the investigator Jimmy was still active in the 43 rd Street clique of the Avenues gang (which he denied), that he

7 People v. Watson (1956) 46 Cal. 2d 818, 836.

8 Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824].18 was “controlling and vengeful,” and that she was “afraid of him.” On the other hand, Wendy clearly liked Alvarez, telling the inve stigator that when Al varez lived with her and Jimmy “he contributed in every way to th e household. He wa s very generous and helped out financially whenever he could. He was generous with the kids . . . . She strongly believes [Alvarez] is incapable of wh at he is accused of.” Wendy also said Jimmy hated Sepulveda and she accused him of “setting up [Sepulveda] as the shooter in this case” because Sepulveda “w ould be ill prepared to defend himself as she knows him as ignorant and a drug addict.” The sugg estion Jimmy had set up Sepulveda is fairly incredible given the overwh elming evidence of Sepulveda’s role as the gunman. In the second place, even without Alvar ez’s confession, the evidence against both defendants was extremely strong. The bys tander eyewitnesses identifications of Sepulveda as the gunman , even if not particularly strong , were amply corroborated by the testimony of Barreau and by Sepulveda ’s own incriminating statements. Barreau, who was his girlfriend, testifie d about Sepulveda directing her to the Villa Sombrero parking lot, waiting for the gr een SUV to arrive, getting out of Barreau’s car with a shotgun, returning right after the sh ooting, ordering her to make a fast getaway, and then having her drive him to a friend’s ho use where he wanted to hide the weapon. Sepulveda told his uncle he had shot a woma n with a shotgun “and she flew back,” which were the exact same words us ed by one of the bystander eyewitnesses to describe Virginia’s murder. 9 Sepulveda’s aunt overheard him on the phone saying Alvarez wanted him to kill Virginia, that Alvarez was going to pay him $ 20,000 or $ 30,000 for the job and, later, that Alvarez still owed him the money. Although circumstantial, the evidence against Alvarez was also extremely strong.

9 Patricia Van Cleave testified: “Well, I looked back over at the wall . . . and I saw a person that had gotten out of a car . . . was moving pretty deliberately into an attack kind of position and it happened very quickly. His arms went up with a rifle, and as his arms went up his body was going down. And . . . then I heard a really loud . . . firecracker sound and the victim flew back. She had been hit.” (Italics added.)19 Alvarez and Sepulveda had known each other since growing up together in Highland Park. But in the aftermath of the shooting, Alvarez lied to the police by claiming he did not know Sepulveda. Over the course of three police intervie ws, Alvarez’s story wa s both internally inconsistent and in conflict with other eviden ce. A week prior to the shooting, one of Virginia’s colleagues at the Sheriff’s Depa rtment recommended a Mexican restaurant in Rancho Cucamonga called El Prieto. The day befo re the shooting, Virginia told her sister that she and Alvarez planned to go to El Pr ieto the following day. On the day of the shooting, however, Alvarez drove Virginia to the Villa Sombrero rest aurant in Highland Park. During his second police interview, two we eks after the shooting, Alvarez said he and Virginia originally inte nded to go to Rancho Cucamonga for dinner, but altered their plans because the babysitter had to leave earl y and Rancho Cucamonga was too far away. However, the distance from their Pico Rivera hom e to either restaura nt was the about the same, 20 to 25 miles. Alvarez also said Virg inia usually drove her SUV when they went out together, but he drove that night because he knew where he was going. Alvarez said Virginia chose Villa Sombrero based on a recommendation from Sergea nt Garcia at her workplace. Garcia denied this, testifying he recommended El Prie to and that he had never heard of Villa Sombrero. At the thir d interview, Alvarez ch anged his story about the choice of restaurant, saying he did not recall any alternate plan to go to a restaurant in Rancho Cucamonga and that Virg inia had to give him directions to Villa Sombrero. The crime scene evidence di d not suggest any motive for the killi ng other than a planned assassination. There was no evidence of an attempted robbery or carjacking, or that the shooting stemmed from an argument or a fight. Th e gunman simply walked up to Virginia, knelt down, shot her in the head, and then walked away. Bystander eyewitness Van Cleave testified she did not hear the gunman say “anything about any robbery or anything like that,” or see him “touch or grab the victim.” Bystander eyewitness Beckman neither heard anything about a robbery nor saw the gunman touch the victim. During his poli ce interviews, Alvarez mainta ined he had exited the SUV20 before the shooting occurred, which contradicted Beckman and Van Cleave, who said the driver was still inside the SUV when the shoo ting occurred. Remaining in the car, while Virginia got out and offered herself up as a target to Sepulveda, suggests Alvarez was protecting himself from accidental collatera l damage, a suggesti on reinforced by the evidence of Virginia’s blood and brain matter found on the roof an d hood of the SUV. Alvarez’s marriage had not been going well. He engaged in extra-marital affairs, and he and Virginia were almost divorced . Alvarez acknowledges he had a financial motive for killing Virginia. He downplays its significance, but we don’t think a financial motive in excess of $200,000 is insignifica nt. Given Alvarez’s various motives for killing Virginia, and the lack of any appa rent independent motive whatsoever for Sepulveda’s role in th e murder, perhaps the single most incriminating circumstance was the sheer unlikelihood that Alvarez just happ ened to drive Virginia to the exact spot where Sepulveda was waiti ng with the shotgun. In sum, there is simply no other reasona ble explanation for Virginia’s death than that Alvarez and Sepulveda conspired to murder her.
2. Sepulveda’s extra-judicial statements we re properly admitted as declarations against penal interest. Alvarez contends his conviction must be reversed because the trial court erred by admitting evidence of Sepu lveda’s hearsay statements to Vince and Sandra. This claim is meritless.

a. Legal principles. “In California, ‘[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissi ble by the hearsay rule if the declarant is unavailable as a witness and the statement, wh en made, . . . so far subjected him to the risk of . . . criminal liab ility . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.’ ([Evid. Code] § 1230.) The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal in terest when made and that the declaration21 was sufficiently reliable to warrant admission de spite its hearsay character. [Citation.]” ( People v. Duarte (2000) 24 Cal.4th 603, 610-611.) “To determine whether the declara tion passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible mo tivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.] On appeal, the trial court’s determination on this issue is reviewed for abuse of discretion. [Citation.]” ( People v. Cudjo (1993) 6 Cal.4th 585, 607; see also People v. Lawley (2002) 27 Cal.4th 102, 153- 154 [trial court’s ruling that statement is agai nst penal interest is reviewed for abuse of discretion].) “We have recognized that, in this context, assessing trustworthiness ‘ “requires the court to apply to the peculiar f acts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.” ’ ” ( People v. Duarte, supra , 24 Cal.4th at p. 614.) As we have noted, although “ ‘[t]h ere is no litmus test for the determination of whether a statement is trustw orthy and falls within the declaration against interest exception. . . . [¶] . . . [T]he most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]’ [Citation.]” ( People v. Cervantes (2004) 118 Cal.App.4th 162, 175.) b. Discussion

. Sepulveda’s statements ove rheard by his aunt, to the effect that Alvarez had offered him money to kill Virginia and that Sepulveda had carried out the job but not been paid, and his statement to his uncle that he had shot a woman with a shotgun, were obviously against his penal interest. Sepulve da was unavailable as a witness because he did not testify at trial. (See People v. Duarte, supra, 24 Cal.4th at p. 611 [witness’s invocation of Fifth Amendment right ag ainst self-incrimination establishes unavailability].) These conversa tions took place in entirely non-coercive situations. Sepulveda spoke from direct personal knowledge and he had no apparent reason to lie. (See People v. Cervantes, supra, 118 Cal.App.4th at p. 175 [m ost reliable circumstance is where conversation occurs between friends in noncoercive setting].) Alvarez argues22 Sepulveda’s pre-murder statemen t to his uncle that Alvarez was looking for a hitman did not qualify under Evidence Code section 1230 because “[i]t is not against penal interest to hear someone’s offer to commit a crime and to reject it.” But the evidence showed Sepulveda did not reject Alvarez’s offer. 10 Alvarez argues his confrontation clau se rights were infringed because this evidence violated the rule of Aranda-Bruton , 11 which holds: “A criminal defendant has a right, guaranteed by the confrontation clau se of the Sixth Amendment to the United States Constitution, to confront adverse witnesses. The ri ght to confront ation includes the right to cross-examination. [Citation. ] A problem arises when a codefendant’s confession implicating the defendant is introduced into evidence at their joint trial. If the declarant codefendant invokes the Fifth Ame ndment right against self-incrimination and declines to testify, the imp licated defendant is unable to cross-examine the declarant codefendant regarding the content of the confession.” ( People v. Lewis (2008) 43 Cal.4th 415, 453, disapproved on other grounds in People v. Black (2014) 58 Cal. 4th 912, 919.) But current law holds that Aranda-Bruton does not apply to non-testimonial extrajudicial statements. Defendants cite People v. Garcia (2008) 168 Cal.App.4th 261, 282, fn. 12, for the propositi on that “[w]hether the Aranda/Bruton rule applies only to extrajudicial testimonial statements appears to be an unsettled question.” However, “since People v. Garcia ’s observation, a number of fede ral courts have expressly held that the Bruton rule does not apply to nontestimonial statements.” ( People v. Arceo (2011) 195 Cal.App.4th 556, 574.) Sepulveda’s statements we re nontestimonial because

10 Even if, in some technical sense, this statement was not against Sepulveda’s penal interest when uttered, becaus e at that moment he had not yet decided to accept the offer, admitting it would have been harmless error given the pr oper admission of Sepulveda’s post-murder statements that he had been aske d to do the job by Alva rez, had carried it out by shooting a woman with a shotgun, an d had not been paid as promised.

11 Bruton v. United States (1968) 391 U.S. 1 23 [88 S.Ct. 1620]; People v. Aranda (1965) 63 Cal.2d 518.23 they were made either to his aunt and uncle, or overheard by them while speaking in their home to other people. (Cf. People v. Cervantes , supra , 118 Cal.App.4th at pp. 173-174 [codefendant’s statements to lo ng-time friend were nontestimonial].) 12
The admission of this eviden ce does not require a reversal of Alvarez’s conviction.
3. Admission of handwritten note in Virginia ’s purse does not require reversal

. Defendants contend their convictions must be reversed because the trial court erred by admitting evidence of a handwritten no te which had been found in Virginia’s purse when she was murdered. This claim is meritless.

a. Background

. The prosecution wanted to put into eviden ce a handwritten scrap of paper found inside Virginia’s purse, and tu cked into her day-planner, wh en she was shot. The paper had “Change Beneficiary” written at the top and it contained an apparent list of telephone numbers, followed by short notes which said th ings like “don’t need to change already have mom” and “already have mom – he can get my retirement for the 4 years we were married.” (People’s exh. 79) At the botto m of the paper was written: “Contact tax person Change W2.” Defendants argued this scrap of paper wa s irrelevant because it was undated, there was no evidence showing when or why it had been written, and there was no evidence Alvarez knew it existed. The prosecutor argued it was relevant as “a statement of her intent to financially disassociate herself with him, something that he became aware of during the course of the divorce. . . . And sh e took a step by writing down a statement of her future intent, which was to extricate him from financially be nefiting if her death occurred.” About a month befo re she died, Virgin ia told her sister Ruby “she had removed [Alvarez] from the lif e insurance and that she was afraid he would find out.” Noting this testimony, the pros ecutor argued Virginia “throu gh her sister, expressed an

12 For the same reason, Alvarez’s claim the trial court should have granted his severance motion is meritless.24 intent to change her financial situation, and she herself by writing this down and carrying it with her until the instant that she was murdered, she demonstr ated an intent to distance her finances from Mr. Alvarez.” The trial court reasoned the defense argum ents went more to weight than to admissibility, that the document was circumstantial evidence of Virginia’s state of mind and, because they were livi ng together, Alvarez may have suspected she would change beneficiaries because she intend ed to terminate their relationship. The trial court pointed out that, although it was unknown when Virgin ia wrote the note, “since it was found on her person . . . that lays a certain foundation for it.” “I will allow it on balance. I think the statement about he can get my retirement for the four years we were married shows at least at some point that was a concern of hers and she at least nailed that down, that that was what he was going to get.” b. Discussion

. Alvarez argues this “scrap of paper in which Virginia wrote a reminder to ‘change beneficiary’ . . . . was manifestly written in 2001 at the time of the divorce, and had nothing to do with ‘changing th e beneficiary’ in 2003 at the time of the murder, which the prosecutor insinuated was the trigger for Alva rez to act before he was deprived of the benefits he was expecting. The paper was therefore irrele vant to any disputed issue because it revealed nothing a bout Virginia’s state of mind during the relevant time period.” But as the trial court pointed out, Ruby testified that shortly before her death Virginia said she had removed Alvarez from the her insurance and she was afraid he would find out. Alvarez also cites People v. Riccardi (2012) 54 Cal.4th 758, a case decided after the trial here. Riccardi held: “[E]vidence of the decede nt’s state of mind, offered under Evidence Code section 1250, can be relevant to a defendant’s motive – but only if there is independent, admissible eviden ce that the defendant was awar e of the decedent’s state of mind before the crime and may have been motivated by it. [Citations.]” ( Id. at p. 820.) A “victim’s fearful state of mind concerning th e defendant explains in part why a victim may not wish to reconcile, and the defendant’s knowledge of that rejection may have a25 deleterious effect on the relationship that can be relevant to a defendant’s subsequent actions and motive.” ( Id. at p. 819.) Alvarez argues that “here the evidence only showed Vi rginia had told Ruby that Alvarez had not discovered the change in bene ficiaries.” He also argues: “[W]ithout a showing that Virginia harbored that state of mind after her reconciliation, as opposed to when she was preparing for the divorce, it ha d no relevance to any disputed issue.” “Alvarez has never argued that his financial motive was irrelevant. As noted above, it may be assumed that he knew in general about Virginia’s benefits. The scrap of paper, however, was relevant only insofar as it provi ded an impetus for Alvarez to carry out the crime before Virginia could effectuate her intent to change beneficiaries.” But as the Attorney General argues: “The fact that Virginia continued to possess this piece of paper in her day planner, which re flected an intention to make her mother, as opposed to her husband, the primary bene ficiary of her financial accounts, was circumstantial evidence that her marriage to appellant Alvarez was troubled. . . . [¶] [E]ven if the writings were made in 2001 the evidence still had probative value. Virginia’s actions in 2001, at the time divor ce proceedings were initiated were highly relevant. It was the People’s theory that Virg inia’s actions during th e course of the 2001 divorce proceedings, i.e., seeking to maximize her share of the co mmunity property and causing the divorce to turn fro m amicable to bitterly cont ested, ultimately provided appellant Alvarez with a motive to kill Virginia.” Moreover, Ruby’s testimony established that, well into the reconciliation period, Virginia had concerns about her financial connection to Alvarez. The trial court concluded the points raised by defendants went to the weight of this evidence, not its admissib ility, while defendants argue those points did go to, and necessarily defeated, admissib ility. It may be that the tr ial court would have ruled differently had Riccardi been decided earlier. However, we need not reso lve this issue because, as the Attorney Gene ral argues, the disputed evid ence “constituted a very minor part of the prosecution’s case.” Alvarez’s financial motive for murdering Virginia was26 amply shown by other evidence, and exclusion of the document found in Virginia’s purse would not have changed the trial outcome.
4. There was no ineffective assistance of counsel re garding Ruby’s change of beneficiary testimony. Defendants contend trial counsel were in effective for failing to object to Ruby’s testimony that, two months before the murder, Virginia said she had replaced Alvarez as the beneficiary of her life insurance policy and she was afraid he would find out. Alvarez argues Ruby’s testimony “was demonstrably fa lse. The life insura nce records of both American General and Cigna . . . showed that the beneficiary since 1998 was Virginia’s mother, and there was no evidence whatsoever that Alvarez had ever been a beneficiary. The false hearsay was therefore unrelia ble and should have been excluded.” We conclude there was no ineff ective assistance of counsel.

a. Legal principles. A claim of ineffective assistance of counsel has two components: “ ‘First, the defendant must show that co unsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functio ning as the “counsel” guaranteed the defendant by the Sixth Amendm ent. Second, the defendant must show that the deficient performance prejudiced th e defense. This requires showing that counsel’s errors were so serious as to depriv e the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] [¶] To establish ineffectiveness, a ‘defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ [Citation.] To establish prejudice he ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, th e result of the proceeding would have been different. A reasonable probability is a prob ability sufficient to u ndermine confidence in the outcome.’ [Citation.]” ( Williams v. Taylor (2000) 529 U.S. 362, 390-391 [120 S.Ct. 1495].) “[T]he burden of proof that the defe ndant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderanc e of the evidence.” ( People v. Ledesma (1987) 43 Cal.3d 171, 218.) An appellate court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by27 the defendant as a result of the alleged deficiencies.” ( Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052].) b. Discussion

. Disputing the claim Alvarez was never a bene ficiary, the Attorney General asserts: “Lynne Wagner, the representative from Cigna In surance, was never asked whether there had ever been a change of beneficiary on Virginia’s life insuranc e policy or accidental death policy. Nor was she asked whether ap pellant Alvarez had ever been named as a beneficiary. And there was no representati on that People’s Exhibit 58 would have reflected all beneficiaries who had ever be en named on the polic ies.” The Attorney General also argues the second prong for esta blishing ineffective assistance of counsel cannot be met because “the testimony about th e change in beneficiary was a very minor part of the prosecution’s case.” We need not decide whether counsel’s performance was deficient because there was no resulting prejudice to the defense. As noted, ante , Alvarez’s financial motive for murdering Virginia was amply shown by othe r evidence, and exclusion of Virginia’s comment to Ruby would not ha ve changed the trial outcome. 5. Alvarez’s 2008 police interview wa s properly admitted into evidence. Alvarez contends the trial court erred by admitting evidence of his 2008 police interview because the detectives failed to acc ommodate his hearing disability. This claim is meritless.

a. Background

. At trial, Alvarez moved to suppress hi s 2008 police statement because he had not been provided with either a listening device or a sign la nguage interpreter during the interview as required by Evidence Code sec tion 754. The trial court denied the motion, saying: “I don’t think that the law require d the detectives, under the circumstances, to provide him with additional or assisting aids of some kind to assist him. I just don’t think that the law required it.” On appeal, Alvarez acknowledges that, although he had been given a disability discharge by the Navy on account of deafness, he is “not completely deaf” and is “able to28 hear and carry on a conversation by using his two hearing aids.” Nevertheless, he argues “there is a great difference between casual conversation and a police interrogation or courtroom proceeding in which misapprehending a word or phrase may have devastating implications.” He asserts the fact he “did not need a sign -language interpreter for daily life did not mean he was not ‘hearing impair ed’ for purposes of subdivision (k) [of Evidence Code section 754].” Section 754 provides, in pertinent part: “(a) As used in this section, ‘individual who is deaf or hearing impaired’ means an individual with a hearing loss so great as to prevent his or her understanding language spoken in a normal tone, but does not incl ude an individual who is hearing impaired provided with, and able to fu lly participate in the procee dings through the use of, an assistive listening system or computer-aided transcription equipment provided pursuant to Section 54.8 of the Civil Code

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “(j) Whenever a peace officer or any other person having a law enforcement or prosecutorial function in any criminal or quasi-criminal investigation or non-court proceeding questions or otherwise intervie ws an alleged victim or witness who demonstrates or alleges deafness or hearing im pairment, a good faith effort to secure the services of an interpreter shall be made, w ithout any unnecessary delay unless either the individual who is deaf or hearing impaired af firmatively indicates that he or she does not need or cannot use an in terpreter, or an interpreter is not otherwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted thereunder. . . . “(k) No statement, written or oral, made by an individual who the court finds is deaf or hearing impaired in reply to a questio n of a peace officer . . . may be used against that individual who is deaf or hearing impaired unless the question was accurately interpreted and the statement was made know ingly, voluntarily, and intelligently and was accurately interpreted, or the court makes special findings that either the individual could29 not have used an interpreter or an interpreter was not othe rwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted thereunder and that the statem ent was made knowingly, voluntarily, and intelligently.” b. Discussion

. Alvarez acknowledges he was using his hearing aids when he talked to the detectives in 2008. The Attorney General po ints out the definition of “deaf or hearing impaired” in Evidence Code s ection 754, subdivision (a), does not include “an individual who is hearing impaired provided with, and ab le to fully participat e in the proceedings through the use of, an assistive listening system .” The Attorney Gene ral also references a Law Review Commission Comment to section 7 54 which states the critical question is a person’s ability to hear, even if that ability has been assisted by technology: “The court’s inquiry should be directed to wards the ability of the person to hear; the court should not be concerned with the m eans by which he might be enabled to hear. [7 Cal.L.Rev.Comm. Reports 1 (1965)].” Without directly addressing this statutory language, Alvarez asserts: “The People observe that the underlying issue is whet her Alvarez had a sufficient ability to hear, whether with or without hearing aids. Alvarez has never argued otherwise .” (Italics added.) In this way, Alvarez concedes his cl aim is meritless because it is clear from the record Alvarez had no difficulty hearing and responding to the dete ctives during this interview. The interview wa s videotaped and we have ex amined the tape, from which it is quite clear Alvarez unders tood the detectives’ questions and had no trouble conversing with them. Alvarez consistently gave respon sive answers to their questions without any apparent difficulty. Alvarez claims one portion of the vide otape demonstrates he might not have understood a critical question about whether he knew Sepulveda because his answer was characterized as “unintelligible” in a written transcript of the interview. But this argument is specious. Not only does the contex t indicate Alvarez had answered “no,” but the question was re-asked and Al varez is recorded as saying he did not know Sepulveda.30 The detectives then showed him a picture of Sepulveda and Alvarez said he did not recognize the person. 13 Moreover, subdivision (j) of Evidence Code secti on 754 only requires police interviewers to try to arrange for “the serv ices of an interprete r” if the interviewee “demonstrates or alleges deafness or hearing impairment.” Alvarez did neither at this interview. And subdivision (k)’s restriction on the use of answers to police questioning only applies to “an individual who the co urt finds is deaf or hearing impaired.” 14
The trial court did not err by refusing to exclude evidence of Alvarez’s statements during his 2008 police interview.
6. Testimony from Sepulveda’s proposed eyewitness identification expert was properly excluded. Sepulveda contends the trial cour t erred by excluding testimony from his eyewitness identification expert, Dr. Kathy Pezdek. This clai m is meritless.

a. Background

. Sepulveda filed a pretrial motion concerning the proposed testimony of Dr. Pezdek, who would testify the photogra ph lineup shown to the Villa Sombrero eyewitnesses was biased agains t Sepulveda. Pezdek would testify Sepulveda’s picture had a light-pink cast to it, which her experi ments had shown made it unfairly stand out from the other photographs. In opposition, the People argue d the original photograph used in the photo array did not have the same coloring as the copy of the photo given to the defense as part of discovery.

13 We also note that, during a post-conv iction hearing, Alvarez’s defense counsel told the trial court: “I was able to communicate clearly w ith the defendant, as was my investigator and any ot her experts, all without sign language interpreters. At all times I was able to communicate with him in jail and on the telephone.”

14 We are not persuaded a ll these statutory definitions are somehow vitiated by the fact a sign language interpreter wa s appointed for Alvarez’s trial.31 While discussing the admissibility of th is proposed testimony, the trial court remarked: “I thought it was in teresting that Exhibit A [the photo analyzed by Pezdek] had a pink cast to Mr. Sepulv eda in the lineup and yet Ex hibit B, which the People represent is a better copy of the original, di d not.” The court then said it believed the eyewitness identification evidence was not goin g to be particularly significant: “I don’t see this as an eyewit ness identification case. I’m inclin ed not to allow eyewitness expert testimony. You’ve got a lot of evidence of statements. You’ve got Arrellano saying your client wanted to give him a strap . . . close in time, to the event. Yo u’ve got the overhearers [ sic ] by the Hernandezes that implicates your client . . . . I just think that to allow eyewitness expert testimony in this situation would be likely to mislead and misdirect a jury, and I don’t thin k it would be particularly help ful.” “I think your client’s involvement is substantially corroborated to the point where I don’t feel comfortable allowing an eyewitness expert to come in and talk about . . . eyewitness fallibility.” The trial court later commented, “The eyewitn ess identifications, except for Van Cleave, were weak at best.” b. Legal principles. The admission of expert testimony about the problems inhe rent in eyewitness identifications is a matter for the trial court’s discretion. ( People v. Walker (1988) 47 Cal.3d 605, 627-628.) In an unusual case the exclus ion of such evidence may constitute an abuse of discretion if “ ‘an ey ewitness identification of the defendant is a key element of the prosecution’s case but is not substantially co rroborated by evidence giving it independent reliability, and the defe ndant offers qualified expert testimony on specific psychological factors shown by the reco rd that could have affected the accuracy of the identification but are not likely to be fully known to or unde rstood by the jury.’ [Citation.]” ( Id . at p. 628.)

c. Discussion

. People v. Jones (2003) 30 Cal.4th 1084, 1112, affirmed a trial court ruling excluding such evidence: “Exclusion of the e xpert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it32 independent reliability. [¶] The corroboratin g evidence here meets [that] standard. Kane’s identification of defendant was corrobo rated by testimony of Muslim, Cruz, Luna, Hunt, and Burton. It does not matter, for this purpose, that Muslim, Cruz, and Luna may have been accomplices whose testimony w ould require corroboration to support a conviction. [Citation.] Neither does it matter that all five witnesses could be impeached by proof of bias or prior inconsistent statem ents. The cumulative co rroborative effect of the testimony of defendant’s admissions is suffi cient to give independ ent reliability to the eyewitness identification.” The same is true here. As the trial court noted, the eyewitness identification evidence was far from overwhelming (see footnote 2, ante ). On the other hand, Barreau’s testimony put Sepulveda in the Vi lla Sombrero parking lot waiting for his friend to arrive. When a da rk green SUV arrived, Barreau described Sepulveda getting out of her car, walking over to the SUV and apparently firing his shotgun, and then frantically ordering Barreau to drive him aw ay from the crime scene to a friend’s house, where Sepulveda tried to hide the weapon. Vince Hernandez testifie d Sepulveda told him he had shot a woman with a shotgun and that the woman “flew back,” which was precisely the same description provided by one of the eyewitnesses. Sandra Hernandez testified she overheard Sepulveda saying Al varez owed him $20,000 or $30,000 for killing Virginia. This eviden ce “substantially corroborates the eyewitness identification and gives it independent reliability.” ( People v. Jones, supra, 30 Cal.4th at p. 1112.) Hence, we conclude the trial court di d not abuse its discretion by excluding Dr. Pezdek’s testimony.
7. Trial court erred by not allowing Alvarez to discharge retain ed counsel at the sentencing hearing. Alvarez contends the trial court erred by refusing a post-trial request to discharge his retained counsel. This cl aim has merit and will require a remand to the trial court for further proceedings.33 a. Legal principles. “[W]hen a criminal defendant makes a timely motion to discharge his retained attorney he should not be re quired to demonstrate the latte r’s incompetence, as long as the discharge will not result in prejudice to th e defendant or in an unreasonable disruption of the orderly processes of justice.” ( People v. Ortiz (1990) 51 Cal.3d 975, 979.) “[A] court must not consider whether a defendant is indigent and will require appointment of counsel in ru ling on his timely motion to discharge retained counsel

. To conclude otherwise would be to ignore the value we place on allowing defendants to defend themselves as they de em best, absent prejudice to themselves or unreasonable delay in the processes of jus tice. Although nothi ng we do here affects the rule that indigent defendants do not have the right to ch oose a particular atto rney to be appointed at public expense, there is no interest compel ling us to treat an indigent defendant any differently from a nonindigent defendant when he moves to discharge his retained counsel. In light of the importance of th e right to counsel of choice and the sensitive nature of the relationship between a crimin al defendant and his lawyer, we must not allow a defendant’s indigence to prevent him from discharging in a timely manner the retained counsel he no longer wishes to represent him. [Citation.]” ( Id. at p. 987.) However, “[t]he trial court, in its discre tion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defe ndant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orde rly processes of justice’ [citations].” ( People v. Ortiz, supra, 51 Cal.3d at p. 983.) The Ortiz standard applies to discharge motions made after conviction, but before sentencing. ( People v. Munoz (2006) 138 Cal.App.4th 860, 863.) b. Background

. Three days prior to sentencing, Alvare z’s trial counsel, Jeremy Karpel, filed a motion to withdraw. Karpel noted Alvare z wanted him to make a new trial motion predicated in part on ineff ective assistance of counsel clai ms, and “[c]onsequently, these discussions have created a conflict of interest with counsel, such that counsel does not feel fair continued representation could be ef fectuated.” Karpel also stated, “As a result34 of the defendant’s accusations against counsel , there has also been a breakdown in the communication between the defendant and couns el. Accordingly, counsel believes that he cannot properly represent the defendant further.” At the sentencing hearing, Karpel reitera ted his withdrawal request and the trial court invited Alvarez to speak. Alvarez pr esented a handwritten letter which the trial court read into the record. The letter began, “I am requesting a Marsden hearing,” and went on to complain Karpel had done nothing to acco mmodate his hearing impairment and had refused to let him testif y, call witnesses, help formulat e a defense, etc. The trial court then turned to Karpel for a response, saying “this is a Marsden hearing and I have to hear from you.” Karpel proceeded to de ny Alvarez’s allegations, to which Alvarez retorted: “It’s just not true what my attorney is saying.” The trial court then said, “All righ t. Well, I am viewing this as a Marsden hearing. I am taking guidance from the case of People v. Smith [(1993)] 6 Cal.4th 684 . . . which requires a court to conduct a hearing when a s ituation like this arises prior to a scheduled sentencing. I believe I have conducted that hearing.” The trial court then ruled: “Frankly, this all reeks of sour grapes and disappointment at the jury’s verdict. I do not believe that this is a situation where the court should find, and I do not find that Mr. Karpel should be removed as counsel and that new counse l should be appointed. I do not believe that there has been such a br eakdown of communication between Mr. Karpel and his client, although each no w is asserting the other is mi srepresenting statements to the court. But we are on the eve of sentencing. This sentencing has been set for 35 days from the date of conviction. [¶] I believe that as a Marsden motion the evidence is insufficient to compel me to replace Mr. Karpel, and I am going to deny the motion to withdraw.”35 c. Discussion

. A Marsden 15 motion is a request for substitution of appointed counsel. “ ‘ “When a defendant seeks to discharg e his appointed counsel and s ubstitute another attorney, and asserts inadequate representation, the trial c ourt must permit the defendant to explain the basis of his contention and to relate specif ic instances of the a ttorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the reco rd clearly shows that the first appointed attorney is not providing adequate repr esentation [citation] or that defendant and counsel have become embroile d in such an irreconcilable conflict that ineffective representation is likel y to result.” ’ [Citation.]” ( People v. Vines (2011) 51 Cal.4th 830, 878.) Here, the trial court treated Alvarez’s Ortiz motion to discharg e retained counsel

as a Marsden motion to substitute ap pointed counsel. Thes e two motions are not equivalent. While acknowledging the trial co urt did err, the Attorney General argues: “Nevertheless, it is clear th at granting the request would ha ve resulted in unjustified delay. Indeed, the trial court specifically st ated that the request was being considered ‘on the eve of sentencing’ and that the sentencing date had been set fo r 35 days from the date of conviction . . . . Accordingly, it appears th at the trial court denied the motion in part on the ground that it was untimely, and that granting the request would result in the disruption of the orderly proce sses of justice. The trial court’s ruling was reasonable.” We disagree. The trial court’s referenc e to the timeliness of Alvarez’s motion was fleeting, there was no discussion of a de lay problem, and certainly no finding that granting Alvarez’s request woul d have disrupted the orderly process of justice. Nor do we believe the circumstances wo uld have warranted a disruptio n finding. The trial court said several times it was conducting a Marsden hearing. The trial court expressly relied

on People v. Smith, supra, 6 Cal.4th 684, a Marsden case, and the reason it refused to discharge defense counsel was its finding Alvarez was only complaining about a

15 People v. Marsden (1970) 2 Cal.3d 118.36 difference in trial tactics and there had not be en a breakdown in attorney/client relations. The trial court summed up its rationale by saying: “I believe that as a Marsden motion the evidence is insuffici ent to compel me to replace Mr. Karpel, and I am going to deny the motion to withdraw.” Hence, we conclude “the trial court vi olated defendant’s Sixth Amendment right to effective assistance of co unsel by denying his motion to relieve retained counsel,” a finding which “mandates au tomatic reversal.” ( People v. Munoz, supra, 138 Cal.App.4th at p. 870.) Because Alvarez was entitle d to have new counsel appointed under Ortiz , the appropriate remedy is to reverse and remand so he may now discharge retained counsel. “This requires a reversal of the judgment, but it does not require an automatic retrial. Once new counsel is appointed, the case sha ll proceed anew from the point defendant originally sought to disc harge his attorney.” ( Munoz, at p. 871.)
8. Trial court erred by orderi ng defendants to pay almost $700,000 to Virginia’s
estate as restitution. The trial court ordered Sepulveda and Alva rez, jointly and seve rally, to pay the following amounts in victim restitution: $ 138,921.17 to Virginia’s mother, Antonia Rivera; $2,586.38 to Virginia’s aunt, Carmel a Matanga; and, $699,196.32 to Virginia’s estate. In addition, Alvarez was separate ly ordered to reimburse the Restitution Fund $5000. Defendants 16 challenge various aspects of these restitution awards and the Attorney General agrees some errors were made.

a. Background

. At the restitution hearing, Rivera testifie d Virginia had been 37 years old when she was murdered. She and Alvarez had one son, I.A., who was six years old when Virginia

16 Although Alvarez will need to be resenten ced as a result of our conclusion the trial court erred by not allowing him to discharge his retained counsel, Sepulveda has joined all of Alvarez’s restitution claims and argu ments, and therefore we will continue to reference those claims and arguments just as they are presented in the parties’ appellate briefs.37 died. Virginia also had a son from a previ ous marriage, M.C. who was 10 years old when Virginia died. M.C. had been living with Alvarez and Virginia when sh e was killed, with his biological father paying only $25 to $50 per month for child support. Rivera immediately began living with M.C. following Virginia’s death, taking care of him from that point onward. Rivera pa id $3,250 in legal fees in order to obtain guardianship of M.C. M.C.’s father paid Rivera $50 to $75 for child support each month. Rivera’s outof-pocket expenses for M.C.’s care came to $500 per month. Although Rivera was also caring for I.A. ri ght after Virginia’s death, the following month Alvarez took I.A. and had custody of him until bei ng arrested for Virginia’s murder in January 2010. Duri ng that time, Rivera spent $6,034 in legal fees in order to obtain visitation rights to I.A. Subsequently, she spent $5,716 in legal fees to become I.A.’s legal guardian. The prosecution provided documentation sh owing Virginia’s net monthly salary had been $3,237.02. The trial court calc ulated her yearly income as $38,844 and
concluded she would have wo rked for 18 more years. 17 Based on these figures, the trial court awarded $699,196.32 in re stitution to Virginia’s estate. b. Legal principles. “In 1982, California voters passed Pro position 8, also known as The Victims’ Bill of Rights. At the time this initiativ e was passed, victims had some access to compensation through the Res titution Fund, and trial courts had discretion to impose restitution as a condition of probation. [Citati ons.] Proposition 8 esta blished the right of crime victims to receive restitu tion directly ‘from the persons convicted of the crimes for losses they suffer.’ (Cal. Const ., art. I, § 28, subd. (b).)” ( People v. Giordano (2007) 42 Cal.4th 644, 652.) “Penal Code section 1202.4 now requires res titution in every case, without respect to whether pr obation is granted. “ ( Id . at p. 653.) Section 1202.4,

17 Virginia would have been eligible for retirement at age 55; she was 37 years old when she died.38 subdivision (f), provides: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by cour t order, based on the amount of loss claimed by the victim or vict ims or any other showing to the court.” “[T]he standard of proof at a restitu tion hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.” ( People v. Baker (2005) 126 Cal.App.4th 463, 469.) A restitution order is reviewed for abuse of discretion. ( People v. Mearns (2002) 97 Cal.App.4th 493 , 498.) “A trial court abuses its discretion when it determines [a restituti on] award amount usi ng other than ‘a ra tional method that could reasonably be said to make the victim whole’ or when an award is arbitrary or capricious.” ( People v. Draut (1999) 73 Cal.App.4th 577, 582, italics omitted.)

c. Trial court erred by awarding re stitution to Virginia’s estate

. The trial court awarded al most $700,000 to Virginia’s estate in restitution. After the restitution hearing in this case, our Supreme Court held “that for purposes of mandatory restitution provisions, the estate is not itself a ‘dir ect victim’ of a crime that caused the deceden t’s death.” ( People v. Runyan (2012) 54 Cal.4th 849, 853.) “For purposes of section 1202.4, a ‘victim’ is de fined to include, among others, the actual victim’s immediate surviving fa mily [citation], as well as speci fied relatives of the actual victim, and present and certain former member s of the victim’s hou sehold, who sustained economic loss as a result of the crime [citation]. A ‘vic tim’ also includes ‘[a]ny corporation, business trust, estate , trust, partnership, asso ciation, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime .’ [Citation.] [¶] The case law has ascribed a precise meaning to the phrase ‘direct victim,’ as that phrase has appeared in several restitution statutes. Thus , it is established that a statute ‘permitting restitution to entities that are “direct” victim s of crime [limits] re stitution to “entities against which the [defendant’s] crimes had been co mmitted” – that is, entities that are the “immediate objects of the [defendant ’s] offenses.” [Citation.]’ ” ( Id. at p. 856.)39 As a result, Runyan concluded, “the [victim’s] esta te is not entitled to restitution, on its own behalf, as an entity itself direc tly targeted and vic timized by defendant’s crimes.” ( People v. Runyan, supra, 54 Cal.4th at p. 857.) However, Runyan went on to say: “Nonetheless, we are persuaded that a d eceased victim’s estate may, in appropriate cases, receive restitution in a different capac ity, and for a different reason. When the actual victim of a crime has died, the estate, acting in the decedent’s stead, steps into the decedent’s shoes to co llect restitution owed to the decedent , but which the decedent cannot personally receive because of his or he r death. Thus, a decedent’s estate – or, more precisely, its executor or administrator as the decedent’s personal representative – is a proper recipient, on the decede nt’s behalf, of restitution owed to the decedent , as an actual and immediate crime victim, for econom ic losses the decedent incurred as a result of the defendant’s offenses against the decedent.” ( Id. at p. 857.) Despite this caveat, the restitution awarded in Runyan was improper because, “though a decedent’s personal representative is authorized to receive, on the decedent’s behalf, restitution for economic losses the dece dent personally incurred prior to death as an actual victim of the defendant’s crime, here there were no such personal, pre-death losses.” ( People v. Runyan, supra, 54 Cal.4th at p. 867.) The Attorney General ac knowledges that, under Runyon , “the order granting restitution to Virginia’s estate is unauthorized and should be stricken,” but also asserts “the matter should be remanded for a new rest itution hearing, to allow the trial court to consider whether Virginia’s ch ildren should be awarded restitu tion, as it appears that this was the trial court’s intent in awarding res titution to Virginia’s es tate.” The Attorney General notes Virginia’s children were stat utory victims under se ction 1202.4, because they sustained a loss of future economic support as a result of her murder, and argues: “Accordingly, the matter should be remande d for a new restitution hearing addressing whether M.C. and I.A. are entitled to res titution based on their own economic loss suffered as a result of the crime in this case.” We agree a new restitution hearing is necessary because th e almost $700,000 awarded to Virginia’s es tate was improper under Runyon . In determining how much of40 that amount, if any, should be awarded to Vi rginia’s children, the trial court should be cognizant of several factors. As defendants point out, the potential amount to be awarded cannot be all of Virginia’s lost futu re earnings because, to paraphrase Runyan , her children are only entitled to restitution “for [their] own personal loss arising from the decedent’s death, i.e., the depr ivation of support that [the y] otherwise had a right to expect from [their mother].” ( People v. Runyan, supra, 54 Cal.4th at p. 861, italics omitted; see also People v. Giordano, supra, 42 Cal.4th at p. 665 [“surviving spouse’s economic loss is best described as a loss of economic support ”]; People v. Dehle (2008) 166 Cal.App.4th 1380, 1389 [remanding to trial c ourt to consider if “it was appropriate to reduce [decedent’s] gross inco me by 30 percent per year ba sed on an estimate of his personal consumption”].) Moreover, a cal culation based on Virginia’s expected retirement date might be improper if her chil dren were only entitled to support up to the age of 18. Defendants also point out the tr ial court should discount to present value any awards meant to compensate for th e loss of future support. (See People v. Pangan (2013) 213 Cal.App.4th 574, 581-582.) Hence, we will remand to the trial cour t for a new restitution hearing to consider compensating Virginia’s children for the loss of future support. 18

9. Trial court did not err by awarding Rivera restituti on for expenses related to her care of Virginia’s children

. Defendants contend the trial court imprope rly awarded Virginia’s mother, Antonia Rivera, restitution to compensate her for the expenses of rais ing M.C. and the legal fees she spent to acquire guardianship and visitati on rights as to I.A. and M.C. We conclude the trial court did not err. Rivera was a statutory victim under section 1202.4, and the costs she incurred were the direct result of the fact defendant s murdered her daughter. Defendants argue

18 Again, we point out this holding te chnically affects only Sepulveda because Alvarez’s case is already bein g remanded for resentencing as a result of the trial court’s Ortiz error.41 Rivera had no legal obligation to care for the bo ys. But they were her grandchildren and, even if Rivera acted both to provide for their needs as well as to satisfy her own peace of mind, the restitution award was proper. (See People v. Moore (2009) 177 Cal.App.4th 1229, 1233 [residential burglary victim’s em otional and psychologi cal trauma, stemming from “ ‘lasting and lingering sense of neve r ultimately being sa fe in your own home again’ ” justified restitution for costs incurred to attend court proceedings]; People v. Crisler (2008) 165 Cal.App.4th 15 03, 1509 [restitution properly awarded to nontestifying parents for lost wages and costs in curred attending defendant’s trial: “It is entirely reasonable that the parents of a murder victim will attend the murder trial in an attempt to gain some measure of closure and a sense that justice has been done.”]; People v. Mearns, supra, 97 Cal.App.4th at p. 497 [res titution properly awarded for cost of relocating to new mobilehome where victim “wanted to leave th e residence where she had been raped and her son th reatened” because of the “ ‘b ad memories’ ”].) Alvarez concedes Rivera incurred these expenses “to prevent the emotional lo ss of losing contact with her grandson[s]” in the afte rmath of Virginia’s murder. Sepulveda complains restitu tion for I.A.’s visitation-based legal fees was improper because the fees were caused by disagreements between Rivera and Alvarez regarding appropriate parenting for I.A., rather than by Sepulveda’s criminal conduct. But there may be more than one cause of an injury , and had Sepulveda not participated in Virginia’s murder, this dispute would have never arisen. (See People v. Holmberg (2011) 195 Cal.App.4th 1310, 1322 [in affirming restitution award, Court of Appeal notes defendant “ignores the fact that there can be more than one cause of injury and that multiple causes can comb ine to cause harm”].) The trial court did not abuse its discreti on by awarding this restitution to Rivera.
10. Correction of clerical errors in the judgment. Defendants contend, and the Attorney General properly acknowledges, the abstract of judgment contains a clerical error by reflecting the imposition of parole revocation fines on both defendants. The tr ial court did not impose such fines.42 Section 1202.45, subdivision (a) provid es: “In every case where a person is convicted of a crime and his or her sentence in cludes a period of parole, the court shall at the time of imposing the restitu tion fine pursuant to subdivi sion (b) of Section 1202.4, assess an additional parole revocation restitu tion fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This add itional restitution fine shall be suspended unless the person’s parole is revoked.” People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185, held that where the defendant was sentenced to life without possibility of parole and an additional indeterminate life term, the tr ial court properly declined to impose a parole revocation fine “because the sentence does not presently allow for parole and there is no evidence it ever will.” Oganesyan reasoned the legislative purpose of restitution fines is to recoup “from prisoners and potentially from parolees who violate th e conditions of their parole some of the costs of providing restitution to crime victims,” but given there is only the slimmest chance anything would be recoup ed from a defendant sentenced to a term that prohibited parole, “there is no eviden ce the Legislature inte nded that its cost recoupment purposes were to apply unde r such an extremely limited set of circumstances.” ( Id . at pp. 1184 & 1185.) We will order the abstracts of judgment to be corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgme nt is not judgment of conviction and does not control if different from trial court’s or al judgment; it is proper and important to correct such errors in abstracts of judgment]; In re Candelario (1970) 3 Cal.3d 702, 705 [“It is not open to question that a court has the inherent power to correct clerical errors in its records so as to ma ke these records reflect the true facts. . . . The court may correct such errors on its own motion or upon the application of the parties.”].) Regarding a second clerical error, the A ttorney General agre es that, with the exception of the $5,000 Alvarez was ordered to pay to the Victim’s Compensation Board, all the rest of the restitution was to be paid by both defendants, jointly and severally. The abstracts of judgment do not reflect th is order for joint and several liability, and should be correct ed accordingly.43 11. Alvarez’s presentence custody credits must be recalculated. The Attorney General pr operly acknowledges Alvarez’s presentence custody credits must be recalculated because the trial court failed to account for an earlier period of incarceration prior to his subs equent arrest in January 2010. DISPOSITION The judgments are affirmed in part, re versed in part, and remanded for further proceedings. The defendants’ mu rder convictions are affirmed . The trial court’s decision denying defendant Alvarez’s moti on to relieve retained counsel at sentencing is reversed. Once new counsel is appointed, Alvarez’s cas e shall proceed anew from the point at which he originally sought to discharge counsel. As to defendant Sepulveda, the trial court’s ruling awarding restitution to Virgin ia’s estate is reversed and the matter remanded to the trial court for further procee dings in accordance w ith this opinion. The clerical errors noted herein are to be corrected, and Alvarez’s presentence custody credits are to be recalculated. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.