Filed 12/8/20 P. v. Cardoza CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE ALEXANDER CARDOZA,

Defendant and Appellant.

 B299328

 (Los Angeles County

 Super. Ct. No. TA141624)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Laura R. Walton, Judge. Affirmed with 

directions.

Janyce Keiko Imata Blair, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, David E. Madeo and Theresa A. 
2

Patterson, Deputy Attorneys General, for Plaintiff and 

Respondent.

INTRODUCTION

A jury convicted Jesse Alexander Cardoza on two counts of 

murder. He appeals, arguing the trial court violated his 

constitutional rights to counsel and to effective assistance of 

counsel when the court decided how to respond to a note from the 

jury at a hearing where Cardoza was represented by substitute 

counsel rather than trial counsel. Because we do not presume 

prejudice in this situation, and Cardoza cannot show prejudice, 

we affirm the convictions. We also conclude Cardoza forfeited his 

argument the trial court violated his due process rights under 

People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which 

this court decided over five months before the trial court 

sentenced Cardoza, by imposing a fine and assessments without 

determining his ability to pay. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The People Charge Cardoza with Murdering Two 

People with a Knife

Cardoza stabbed and killed two people, one on 

September 24, 2016 and one on October 29, 2016. Both attacks 

occurred during fights after a party.

The People charged Cardoza with two counts of murder. 

The People also alleged Cardoza personally used a dangerous or 

deadly weapon within the meaning of Penal Code section 12022, 
3

subdivision (b)(1),1 in committing both offenses and that the 

commission of the two murders was a special circumstance 

within the meaning of section 190.2, subdivision (a)(3).

B. The Jury Reaches an Impasse, and the Trial Court 

Rereads Certain Instructions and Allows Counsel To 

Present Additional Argument

In the morning on the fourth partial day of deliberations, 

the jurors sent the trial court a note stating (despite the court’s

instruction not to disclose their votes) that they were deadlocked 

on the September 24, 2016 murder count at 11 jurors for second 

degree murder and one juror for not guilty and that they were 

deadlocked on the October 29, 2016 murder count at 10 jurors for 

first degree murder, one juror for second degree murder, and one

juror for not guilty. At a hearing to discuss the court’s response 

to the jury’s note, the two prosecutors who tried the case 

appeared for the People, and a substitute counsel “specially” 

appeared for Cardoza in place of the attorney who represented 

Cardoza at trial. The court stated it intended to bring the jurors 

into the courtroom and ask if there was anything the court could 

do “to assist them in reaching a unanimous verdict in this case” 

and, at the prosecutors’ suggestion, to read the jurors CALCRIM 

No. 3551, the instruction on further deliberations when a jury is 

deadlocked. (See People v. Hem (2019) 31 Cal.App.5th 218, 222.) 

The court called the jurors into the courtroom and asked 

the presiding juror if there had been any “movement in the 

votes,” to which the presiding juror said, “No.” In response to the 

court’s question whether there was anything the court could do or 

instructions the court could read, the presiding juror stated, 

“Basically, from what I understand, is that there either has to be 

1 Undesignated statutory references are to the Penal Code.
4

testimony that someone actually saw the knife and the 

stabbing . . . . They just wanted to have some proof that the 

defendant stabbed the victims. It was not enough evidence.” At 

a sidebar conference, the court suggested rereading the 

instructions on circumstantial evidence, and the prosecutors 

suggested allowing counsel to present additional argument on 

circumstantial evidence. Substitute counsel did not object. The 

court said that trial counsel for Cardoza, who the prosecutor 

represented was an hour away and could argue after lunch, 

would need to return to the courtroom. The court decided to 

reread the instructions on circumstantial evidence and allow each 

side to present argument “concerning the circumstantial evidence 

as to the proof of the stabbing.” When the sidebar conference 

concluded, the court told the jurors that after lunch it would read 

instructions on circumstantial evidence and allow the attorneys 

to present additional argument on how those instructions applied 

to the case. 

When the proceedings resumed after lunch, the court 

stated that the clerk had spoken with trial counsel for Cardoza 

and that the clerk told counsel the court wanted him to be in 

court at 2:30 p.m. When the court indicated it was going to 

proceed and read the jurors CALCRIM No. 3551 and the pattern 

instructions on circumstantial evidence, substitute counsel for 

Cardoza stated, “Would the court be willing to forego the reading 

of any further instructions until [trial counsel for Cardoza] gets 

here? I don’t know a thing about this case. I’m the conflict

attorney today in the courthouse. I’m feeling very uncomfortable 

about this being done on the record at this point. I don’t want to 

jeopardize this case in any way at all. Since he will be here 

within a half hour, I’m asking the court to forgo the reading of 

the instructions until [trial counsel for Cardoza] has an 

opportunity to address the issue himself.” The court stated that 
5

trial counsel for Cardoza told the clerk he did not object to 

rereading instructions the court had already read to the jury. 

One of the prosecutors confirmed that trial counsel for Cardoza 

told him the same thing. Substitute counsel for Cardoza said, 

“Thank you. I did not have that discussion with him, Your 

Honor, so I didn’t know that.” In response to substitute counsel’s 

question, the court confirmed it was only reading CALCRIM 

No. 3551 and instructions the court had previously read. 

Substitute counsel stated, “Thank you, Your Honor. I appreciate 

that.” The jurors returned to the courtroom, and the court read 

those instructions and told the jury the attorneys would give 

further argument when trial counsel for Cardoza arrived. 

When trial counsel for Cardoza arrived later that 

afternoon, the court summarized for him what had occurred in 

his absence (and in substitute counsel’s presence): the jury’s note, 

the court’s discussion with the presiding juror, and the reading of 

the CALCRIM instructions on circumstantial evidence and 

further deliberations. The court also put on the record that the 

jury had asked another question, this time asking for 

“clarification of the difference between first degree and second 

degree murder.” The court stated that, after conferring with one 

of the prosecutors and trial counsel for Cardoza, the court 

answered the question by telling the jurors that they should 

review CALCRIM Nos. 520 and 521 and that, for first degree 

murder, the defendant had to “have acted, one, willfully, two, 

deliberately, and three, with premeditation.” The court said that 

it intended to bring the jurors into the courtroom for additional 

argument by counsel, but that trial counsel for Cardoza had 

indicated he did not want additional argument.

Trial counsel for Cardoza argued: “First of all, I would 

have a strong objection to an argument by the People. It’s just 

not fair, and it’s in violation of due process because I know this 
6

court would never give me an opportunity to talk to this jury if it 

was 11 to 1 for innocent.” Counsel objected to additional 

argument because, given that the court and counsel knew the 

jury “count” was 11 to 1 to convict, “the pressure on this one juror 

is undue, and it’s in violation of due process.” Trial counsel for 

Cardoza stated: “I’m not going to proceed because of the violation 

of due process. What’s fair here? He’s had two times to argue, 

and where are you going to limit it?” Counsel asked the court to 

excuse him and Cardoza “from any proceeding in this matter.” 

Trial counsel for Cardoza further stated: “I would like to add 

that [the jurors] have been advised that they can read the law. 

It’s in there. They can see what circumstantial evidence is. I 

don’t mind if he reads the law. Why does he have a chance now 

to talk about facts and evidence and all of that? It’s just—just 

boggles my brain.” And: “I doubt very seriously if this court, or 

any court, had a count of . . . guilty or not guilty before they start 

giving the district attorney the floor again. I’ve never seen it.” 

The trial court took a personal waiver of Cardoza’s right to be 

present during the prosecutors’ argument, but ultimately ordered

Cardoza and his attorney to remain in the courtroom. With trial 

counsel for Cardoza’s permission, the court informed the jury that 

counsel for Cardoza would not be making any further argument. 

At the conclusion of the prosecutor’s additional argument, the 

trial court denied Cardoza’s motion for a mistrial. 

C. The Jury Convicts Cardoza

The jury found Cardoza guilty of second degree murder on 

one count and first degree murder on the other count. The jury 

also found the special circumstance and weapon allegations true. 

On the conviction for second degree murder, the trial court 

sentenced Cardoza to a prison term of 15 years to life, plus one 
7

year for the weapon enhancement. On the conviction for first 

degree murder with the special circumstance finding, the court 

sentenced Cardoza to life in prison without the possibility of 

parole, plus one year for the weapon enhancement.2 Cardoza 

timely appealed. 

DISCUSSION

Cardoza does not argue the trial court erred in rereading 

the CALCRIM instructions to the jury or in allowing both sides to 

present additional argument on circumstantial evidence. Nor 

does he argue, as his trial counsel argued to the trial court, that 

allowing the prosecutors to present a third argument to the jury 

violated due process. Instead, Cardoza argues that having a 

hearing on how to respond to the jury’s note with Cardoza’s 

substitute counsel, rather than his trial counsel, denied Cardoza

his constitutional right to counsel under United States v. Cronic

(1984) 466 U.S. 648 [104 S.Ct. 2039, 80 L.Ed.2d 657] (Cronic) and 

his right to effective assistance of counsel under Strickland v. 

Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]

(Strickland).

A. Cardoza Was Not Deprived of His Right to Counsel

Cardoza argues that “the representation rendered . . . by 

[substitute counsel], who appears to have been thrust into a 

circumstance in which she could only advocate for [Cardoza] on 

the procedural point that the proceedings should not take place 

2 The minute order and the abstract of judgment erroneously 

state the court sentenced Cardoza to life without the possibility of 

parole on both counts. The trial court will have to correct both 

errors.
8

without defense trial counsel and not on any point of substance, 

was of such a level that it amounted to a constructive denial of 

[his] right to counsel” under Cronic. Citing substitute counsel’s 

statement that she did not know anything about the case, 

Cardoza argues substitute counsel “did not advocate for 

[Cardoza] and the evaluation and analysis of the nature of the 

jury impasse and of the agreed-upon course of action were never 

subjected to ‘adversarial testing.’” Cardoza asserts his substitute 

counsel “was not and, because of her lack of familiarity with his 

case, could never have been an effective advocate for [Cardoza] in 

these critical and adversarial proceedings.” 

Under the United States Supreme Court’s decisions in 

Cronic and Strickland, “the right to the assistance of counsel is 

violated either by (1) the complete denial of counsel or its 

equivalent, or (2) the denial of the effective assistance of counsel. 

[Citations.] . . . [T]ypically, a defendant claiming a violation of the 

federal constitutional right to effective assistance of counsel must 

satisfy a two-pronged showing: that counsel’s performance was 

deficient, and that the defendant was prejudiced, that is, there is 

a reasonable probability the outcome would have been different 

were it not for the deficient performance. [Citation.] In contrast, 

a defendant is spared ‘the need of showing probable effect upon 

the outcome . . . where assistance of counsel has been denied 

entirely or during a critical stage of the proceeding . . . the 

likelihood that the verdict is unreliable is so high that a case-bycase inquiry is unnecessary. [Citations.] But only in 

“circumstances of that magnitude” do we forgo individual inquiry 

into whether counsel’s inadequate performance undermined the 

reliability of the verdict.’” (People v. Alexander (2010) 49 Cal.4th 

846, 888.) The California Supreme Court has emphasized that 
9

the exception to “the rule that a defendant claiming ineffective 

assistance of counsel must show prejudice” is “very narrow.” 

(People v. Rices (2017) 4 Cal.5th 49, 91, citing Florida v. Nixon

(2004) 543 U.S. 175, 190 [125 S.Ct. 551, 160 L.Ed.2d 565] and 

Bell v. Cone (2002) 535 U.S. 685, 696-697 [122 S.Ct. 1843, 

152 L.Ed.2d 914]; see People v. Brown (2014) 59 Cal.4th 86, 115.) 

The United States Supreme Court in Cronic “recognized 

three categories of cases that constitute per se violations of the 

Sixth Amendment right to counsel with respect to which 

prejudice is presumed: (1) ‘the complete denial of counsel’

[citation] at a critical stage of trial, (2) counsel’s failure ‘to subject 

the prosecution’s case to meaningful adversarial testing’ 

[citation], and (3) ‘the likelihood that any lawyer, even a fully 

competent one, could provide effective assistance is so small 

[under the particular circumstances] that a presumption of 

prejudice is appropriate without inquiry into the actual conduct 

of the trial.’” (People v. Jacobs (2013) 220 Cal.App.4th 67, 76, 

quoting Cronic, supra, 466 U.S. at pp. 659-660; see People v. 

Brown, supra, 59 Cal.4th at p. 115 [“‘Defendants have been 

relieved of the obligation to show prejudice [under Cronic] only 

where counsel was either totally absent or was prevented from 

assisting the defendant at a critical stage.’”];3 People v. Streeter

(2012) 54 Cal.4th 205, 232 [“when the defendant is represented 

3 The People concede “a court’s response to an impasse 

during jury deliberations constitutes a critical stage of the 

proceeding . . . .” (See People v. Hawthorne (1992) 4 Cal.4th 43, 

68-69 [“failure to give notice or afford an opportunity to respond” 

to an inquiry from the jury or to “take[ ] some action on the 

defendant’s behalf to amplify, clarify, or modify the supplemental 

instruction or procedure” is constitutional error]; People v. 

Bradford (2007) 154 Cal.App.4th 1390, 1410 [“Jury instruction is 

a critical stage of the proceedings.”].)
10

by counsel, the presumption of prejudice will only stand when 

counsel entirely failed to subject the prosecution’s case to 

meaningful adversarial testing”].) “Prejudice must be shown if 

counsel has opposed the prosecution throughout the relevant 

proceeding, even if counsel failed or was unable to do so at 

specific points.” (People v. Hernandez (2012) 53 Cal.4th 1095, 

1106.)

Cardoza does not fall within any of the Cronic exceptions to 

the requirement of prejudice. He was represented by counsel at 

all times; at no point in the proceedings was he completely denied 

counsel or its equivalent. During one morning of jury 

deliberations he was briefly represented by an attorney who was 

substituting or standing in for his trial attorney, but that 

attorney was still an attorney. (See People v. Streeter, supra, 

54 Cal.4th at p. 232 [representation by substitute counsel without 

trial counsel during jury selection did not deny the defendant his 

right to counsel under the federal and state constitutions

“because defendant had an attorney representing him at all times 

during the jury selection proceedings” and “there was not a 

complete denial of counsel, let alone ‘structural error’”]; People v. 

Benavides (2005) 35 Cal.4th 69, 86-87 [absence of lead counsel 

during a portion of jury selection was not a “presumptively 

prejudicial violation of [the defendant’s] right to counsel” where 

“either lead counsel or cocounsel, or both, were present at all 

times”].)

Nor was there a failure to meaningfully and adversarially 

test the People’s case. The People’s case was over; Cardoza’s trial 

counsel had subjected it to meaningful adversarial testing for 

nine trial days. The issue was whether the court would reread 

certain instructions and one pattern jury instruction on 

continuing deliberations when the jury was deadlocked. 

Substitute counsel challenged the prosecutors’ request and the 
11

court’s ruling by objecting to the court rereading any instructions

until trial counsel returned later in the afternoon. That the court 

overruled the objection did not indicate the absence of an

adversarial process. To the contrary, the proceedings reflected 

that the adversarial process was functioning properly: The 

prosecutors made a request, Cardoza’s substitute counsel 

objected, and the court ruled. (See Bell v. Cone, supra, 535 U.S. 

at pp. 696-697 [“When we spoke in Cronic of the possibility of 

presuming prejudice based on an attorney’s failure to test the 

prosecutor’s case, we indicated that the attorney’s failure must be 

complete.”]; In re Visciotti (1996) 14 Cal.4th 325, 353

[“notwithstanding the broad language in the Cronic opinion 

[citation] to the effect that when ‘counsel entirely fails to subject 

the prosecution’s case to meaningful adversarial testing,’ the 

right to competent counsel has been denied and the result of the 

trial is presumptively unreliable, the actual application of Cronic

has been much more limited”]; In re Avena (1996) 12 Cal.4th 694, 

727 [trial counsel who waived opening statement, called no 

defense witnesses, and did not address two murder charges or 

two special circumstance allegations in closing argument was 

“neither ‘totally absent’ nor ‘prevented’ from assisting petitioner 

at trial”].)

Finally, this was not a case where, under the 

circumstances, the likelihood was small that even a fully 

competent attorney could provide effective assistance. Cases in 

that category include those where “the court barred counsel from 

the courtroom, interfered with their ability to confer with their 

clients [citation], directed them to sit mute at the counsel table 

[citation], issued an order out of pique or whim directing counsel 

to stop representing their clients, or anything similarly serious.” 

(People v. Rivas (2013) 214 Cal.App.4th 1410, 1424-1425.) This 

was not such a case. There was a discussion without Cardoza’s 
12

trial counsel about rereading jury instructions on circumstantial 

evidence, but substitute counsel—competently, albeit 

unsuccessfully—objected and asked the court not to read the 

instructions until trial counsel returned and could be heard. 

There was also a discussion about having counsel present 

additional argument on the concept of circumstantial evidence 

and how it related to the evidence in the case, but Cardoza’s trial 

counsel strenuously objected to any additional argument when he 

returned to the courtroom. (Cf. Cronic, supra, 466 U.S. at 

pp. 660-661 [citing Powell v. Alabama (1932) 287 U.S. 45

[53 S.Ct. 55, 77 L.Ed. 158], where the trial court on the day of 

trial appointed an out-of-town lawyer who “was unwilling to 

represent the defendants on such short notice” but who assisted 

the defendants with “whatever help the local bar could provide,” 

as an example of “a case in which the surrounding circumstances 

made it so unlikely that any lawyer could provide effective 

assistance that ineffectiveness was properly presumed without 

inquiry into actual performance at trial”].)

The cases cited by Cardoza, People v. Nunez (1983) 

144 Cal.App.3d 697 and People v. Hogan (1982) 31 Cal.3d 815, 

disapproved in People v. Cooper (1991) 53 Cal.3d 771, 836, do not 

support his argument. Both cases involved the complete absence 

of counsel, not substitute or stand-in counsel, and in both cases 

the court (contrary to Cardoza’s position that prejudice should be 

presumed) considered whether the error was prejudicial. In 

Nunez the trial court excused an alternate juror, ordered 

readback of testimony, accepted the jury’s verdict, and polled the 

jurors, all in the absence of (and indeed without even notifying) 

the defendant’s attorney. (Nunez, at pp. 701-703.) The court in 

Nunez held this was error, but concluded the error was harmless 

under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 

824, 17 L.Ed.2d 705], because the defendant “was not prejudiced 
13

by the absence of his counsel during the jury’s deliberations.” 

(Nunez, at pp. 702-703.) In Hogan the trial court responded to 

jury requests and sent exhibits into the jury room without 

notifying the defendant’s attorney. (Hogan, at p. 848.) The 

Supreme Court in Hogan held the “conduct of the trial court in 

sending in the exhibits without notifying counsel was serious 

error,” but the Supreme Court proceeded to consider “whether the 

denial of assistance of counsel here was prejudicial error 

requiring reversal,” ultimately concluding the error was not 

harmless under Chapman. (Id. at p. 850.)4

B. Cardoza Was Not Deprived of His Right to Effective 

Assistance of Counsel

Cardoza argues, briefly and in the alternative, that his 

substitute counsel “failed to provide [him] with the effective 

representation the Sixth Amendment right to counsel 

contemplates.” Cardoza asserts his substitute counsel provided 

ineffective assistance because she “was unable to advocate for 

[him] in resolving a delicate jury impasse matter involving one 

holdout juror for acquittal because counsel knew nothing about 

[the] case.” 

To establish ineffective assistance of counsel under 

Strickland, “‘“a defendant must show that (1) counsel’s 

representation fell below an objective standard of reasonableness 

under prevailing professional norms, and (2) counsel’s deficient 

performance was prejudicial, i.e., there is a reasonable 

probability that, but for counsel’s failings, the result would have 

4 Cardoza mentions the right to counsel under the California 

Constitution, but he does not analyze whether or how that right 

applies any differently from the right to counsel under the United 

States Constitution.
14

been more favorable to the defendant. [Citation.] ‘A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome.’”’” (People v. Rices, supra, 4 Cal.5th at p. 80; see 

People v. Sepulveda (2020) 47 Cal.App.5th 291, 301.) “If a claim 

of ineffective assistance of counsel can be determined on the 

ground of lack of prejudice, a court need not decide whether 

counsel’s performance was deficient.” (In re Crew (2011) 

52 Cal.4th 126, 150; see Strickland, supra, 466 U.S. at p. 697 [“a 

court need not determine whether counsel’s performance was 

deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies,” and “[i]f it is 

easier to dispose of an ineffectiveness claim on the ground of lack 

of sufficient prejudice, which we expect will often be so, that 

course should be followed”].)

Here, Cardoza suffered no prejudice from substitute 

counsel’s initial failure to object to the court’s decision to reread 

the instructions on circumstantial evidence. The court had 

already read those CALCRIM instructions, and Cardoza does not 

argue there was anything erroneous or improper about them. 

(See United States v. Chambers (N.D.Cal. Aug. 19, 2015, 

No. 08-CR-00658-PJH-4) 2015 WL 12862915, p. 7 [counsel’s 

failure to object to the court rereading instructions was not 

prejudicial under Strickland where there was “no reasonable 

probability that the court would have sustained an objection to 

rereading the original instructions”].) The record reflects that 

trial counsel for Cardoza told the courtroom clerk and one of the 

prosecutors he had no objection to the court rereading the 

instructions, and Cardoza does not contend the record on this 

point is inaccurate. Indeed, when he returned to the courtroom 

in the afternoon, trial counsel for Cardoza stated that, although 

he objected to allowing the prosecutor to present additional
15

argument on circumstantial evidence, he had no objection to the

court rereading jury instructions the court had already given.

Nor did Cardoza suffer any prejudice from substitute 

counsel’s failure to object to the court’s decision to allow 

additional argument to assist the jurors in reaching a verdict. 

Trial counsel strenuously objected to the court’s decision upon his

return to the courtroom. The court heard the objection, allowed 

trial counsel for Cardoza to present legal argument on the 

matter, and ensured there was a record of the objection to 

preserve the issue for appeal. Although trial counsel argued the 

court’s decision to allow additional argument was unfair and 

violated Cardoza’s due process rights, Cardoza does not make 

those arguments on appeal. He argues only that substitute 

counsel was ineffective for not making the argument in the 

morning that trial counsel made in the afternoon. Under these 

circumstances, substitute counsel’s performance, regardless of its 

comparison to prevailing professional norms, did not cause 

Cardoza any prejudice.

C. Cardoza Forfeited His Challenge to the Restitution 

Fine and Assessments

Cardoza argues the trial court violated his due process 

rights under Dueñas, supra, 30 Cal.App.5th 1157 by imposing a 

$300 restitution fine under section 1202.4, subdivision (b), two

$30 court facilities assessments under Government Code section 

70373, and two $40 court operations assessments under section 

1465.8 without determining his ability to pay.5 The trial court, 

5 The Supreme Court has granted review in People v. Kopp

(2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844, on the following issues: Must a court consider a 
16

however, sentenced Cardoza on June 20, 2019, almost six months 

after we issued our opinion in Dueñas. Because Cardoza could 

have raised the issue of his inability to pay the restitution fine 

and assessments but failed to do so, he has forfeited the 

argument. (See People v. Castellano (2019) 33 Cal.App.5th 485, 

490 [“a defendant must in the first instance contest in the trial 

court his or her ability to pay the fines, fees and assessments to 

be imposed and at a hearing present evidence of his or her 

inability to pay the amounts contemplated by the trial court”].) 

defendant’s ability to pay before imposing or executing fines, fees, 

and assessments? If so, which party bears the burden of proof 

regarding defendant’s inability to pay?
17

DISPOSITION

The judgment is affirmed. The trial court is directed to 

correct the June 20, 2019 minute order and the abstract of 

judgment to reflect that the court sentenced Cardoza to a prison 

term of 15 years to life on his conviction for second degree murder 

and to a prison term of life without the possibility of parole on his 

conviction for first degree murder with the special circumstance 

finding. The trial court is also directed to send a corrected 

abstract of judgment to the Department of Corrections and 

Rehabilitation.

SEGAL, J. 

We concur:

PERLUSS, P. J.

FEUER, J.