Filed 3/21/14 P. v. Guerrero CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN ASENSIO GUERRERO,

Defendant and Appellant.

 B244382

 (Los Angeles County

 Super. Ct. No. TA 118357)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Arthur M. Lew, Judge. Affirmed with modifications and directions.

Steven Schorr, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

Appellant Steven Asensio Guerrero challenges his conviction for first degree 

murder and attempted willful, deliberate, and premeditated murder. We affirm, but we 

will modify the judgment to reflect a proper court operations fee.

PROCEDURAL HISTORY

Following a jury trial, appellant was convicted of one count of first degree murder 

(Pen. Code, § 187, subd. (a)),1 and one count of attempted willful, deliberate, and 

premeditated murder (§§ 187, subd. (a), 664). For the murder count, the jury found true a 

special circumstance that appellant committed the murder in the course of a robbery 

(§ 190.2, subd. (a)(17)) and found true an allegation that appellant personally and 

intentionally discharged a firearm resulting in the victim’s death (§ 12022.53, subd. (d)). 

For the attempted murder count, the jury found true an allegation that appellant used a 

deadly weapon (a shank) (§ 12022, subd. (b)(1)) and caused the victim great bodily injury 

(§ 12022.7, subd. (a)). As to both counts, the jury found true an allegation that appellant 

committed the offenses for the benefit of, at the direction of, and in association with a 

criminal street gang. (§ 186.22, subd. (b)(1)(C).)

Appellant was sentenced to a total of 44 years to life in prison plus life in prison 

without the possibility of parole, which included 25 years to life for the firearm 

enhancement in the murder count, plus life in prison without the possibility of parole for 

the special circumstances conviction, and 15 years to life for the attempted murder count 

in conjunction with the gang enhancement, plus one year for the deadly weapon 

enhancement and three years for the great bodily injury enhancement. The gang 

enhancement for the murder count was stayed. (§ 654.) Appellant timely appealed.

STATEMENT OF FACTS

1. Count One: Murder of Dominique Dunn in May 2008

In May 2008, 19-year-old Dominique Dunn lived with his mother Yvette 

Matthews in an apartment complex on 72nd Street in the City of Paramount. He was not 

a gang member, and his mother did not know of any trouble he had with anyone in the 

 

1 All further statutory references are to the Penal Code unless otherwise noted.
3

neighborhood. Dunn got together daily with his best friend James Simpson, who also 

was not involved in gang activity.

Matthews and Dunn knew a man in the neighborhood named Armando Rodriguez, 

whom they called “Mando.” Mando2 was known as the “neighborhood grandpa” because 

children would go to his house to “hang out” and he would babysit. He babysat Dunn a 

few times. In May 2008, he lived downstairs from Matthews and Dunn in the same 

apartment complex. Before that time, he lived next door in the apartment building where 

Dunn was murdered.

On May 20, 2008, the day of Dunn’s murder, Matthews left her house for work at 

5:00 a.m. while Dunn was still asleep; he did not have school that day. Dunn and 

Simpson spent the day together. Simpson had a small “iPod Nano” in his jacket pocket 

and he thought Dunn had one, too. Matthews came home at approximately 6:30 p.m. to 

find Dunn and Simpson sitting together outside near their apartment building. Dunn 

asked Matthews for money, which she gave him, and Dunn and Simpson walked to a 

nearby market. Matthews went into her apartment.

Albert Turner lived nearby. On the day of the murder, he had returned home from 

work around dusk and saw two African-American men, apparently Dunn and Simpson,

emerge from an alley, cross 72nd Street, and approach a nearby apartment building. He 

thought they looked familiar, but they wore hoodies and he could not be certain if he 

knew them.

At around the same time, Mando was working on his car and saw Dunn on the 

street in front of his apartment.

Dunn and Simpson passed through a wrought iron gate of the building where the 

shooting would occur; Dunn sat on the stairs while Simpson stood against a wall. 

Simpson noticed a Honda pass back and forth on the street in front of them. On the car’s 

third pass, it stopped in the middle of the street and two Hispanic men exited from the 

front and back passengerside doors. The back passenger walked up to Dunn and 

 

2 We refer to Rodriguez as “Mando” for clarity only and intend no disrespect.
4

Simpson and asked if they “banged,” that is, if they were in a gang. Simpson said no. 

The front passenger stood near the car with a black semiautomatic gun pointed at them. 

Neither Simpson nor Dunn was armed.

The front passenger was about Simpson’s height, but thin, wearing all black 

clothes and a black hat. The back passenger was “[a] little chubby” and had a shaved 

head. The back passenger lifted up Dunn’s and Simpson’s shirts to check for tattoos. He 

spit in Simpson’s face, checked his pockets, found Simpson’s iPod, and took it. Simpson 

was afraid.

At that point, Dunn started to run up the stairs and screamed, “Mando.” The front 

passenger shot him once. The back passenger yelled “C.V.S.” or “Compton Varrio 

Segundo,” a gang slogan. Simpson ran around the corner of the building because he 

thought he would be shot next. He saw the men run back toward the car, but he did not 

see what they did after that. He found a back entrance to the building and went inside to 

tell someone Dunn had been shot. He then located Dunn, injured but awake.

Simpson ran to tell Dunn’s mother that Dunn had been hurt, and she ran screaming 

to the building where she found neighbors trying to help Dunn. Dunn was awake when 

Matthews got to him. When authorities arrived, they ordered Matthews and others to 

leave the area. Simpson also went home. Matthews learned Dunn later died at the 

hospital.

Several Los Angeles Sheriff’s Department deputies responded to the scene. 

Arriving first, Deputy Steven Kowaltschuk found Dunn lying conscious at the top of the 

staircase of the apartment building and being assisted by neighbors. He saw blood on 

Dunn’s chest and near his right pants pocket. He asked Dunn what happened and Dunn 

told him he was in front of the same building when a four-door, dark-colored car pulled 

up and three Hispanic men exited. One asked for his iPod, but he refused to give it to 

him and ran, at which point he heard a gunshot and felt pain in his chest. He saw the car 

depart westbound while he fled up the stairs and he heard someone yell, “Compton 

Varrio Segundo.” Deputy Kowaltschuk initiated a crime broadcast for three suspects and 

a dark-colored, four-door sedan.
5

Deputy Cesar Quiroz arrived as paramedics rendered aid to Dunn. He saw Dunn’s 

hat and iPod nearby. He searched the surrounding area and found an expended ninemillimeter casing and bullet in front of the building, but no gun.

Lieutenant Steven Katz arrived after Dunn had been taken away by paramedics. 

He spoke to Matthews, and she pointed him toward Simpson, who he interviewed the 

next morning. He showed Simpson a book containing photographs of Hispanic males, 

but Simpson did not identify anyone. A few days later, police asked Simpson to look at 

some six-pack photographic lineups, although he did not want to. When he did, he again 

did not identify anyone. He did pick out someone who looked similar because officers 

asked him to.

Simpson was eventually arrested for disobeying a subpoena to appear at the 

preliminary hearing in this case. At that hearing, he initially identified appellant as the 

shooter, but recanted on cross-examination. At trial, he testified appellant was not 

involved in Dunn’s shooting and the reason he identified him initially was because “that 

was the man the police thought.”3

Debra Getts was a resident of the building where Dunn was shot and she witnessed 

parts of the incident. She was sleeping and awoke to the sound of someone running 

outside her apartment. She heard a gunshot and someone yell “help” and “Mando, help.” 

She opened her door and saw Dunn grasping his right ribcage area; he told her to call 

911. She ran to find Dunn’s mother in the building next door, and some neighbors tried 

to help Dunn before authorities arrived. She later gave a statement to police.

Turner, Dunn’s neighbor across the street, also witnessed parts of the shooting 

incident. At approximately 6:30 or 7:00 p.m., he was watching a basketball game on 

television when he saw the same two African-American men walking back the way they 

had come earlier. Later, while he was still watching the game, he heard arguing or a 

commotion outside. Someone said, “What set you from[?]” Another person responded, 

 

3 Beyond denying appellant was involved in the shooting, Simpson denied seeing 

appellant’s Cadillac at the scene; instead, he saw a dark green Honda.
6

“I’m not from no gang.” He then heard a gunshot. He looked outside and saw two 

Hispanic men, approximately 20 years old, running from the scene. One of them wore a 

Dodgers hat. He recognized them because they had once visited his home with Mando; 

on that occasion, he had asked Mando to tell them to leave because they carried blue rags, 

which Turner believed was gang attire.

On May 27, 2008, Lieutenant Katz received an anonymous tip from Turner, who 

did not initially identify himself because he was concerned for his safety. Lieutenant 

Katz met with Turner that day and Turner described what he had seen leading up to the 

time of Dunn’s murder, which was largely consistent with his account of the incident 

during trial.

A few days later on May 30, 2008, Turner identified a photograph of appellant, 

who he knew as “Bozo,” and said he had seen appellant in front of his house the day 

before Dunn’s death. At trial, Turner thought the person in the photograph he had 

identified was the man in his yard named Bozo, but he could not be sure because the 

person looked different in the photograph. He denied saying that person was the one he 

saw running from the scene on the night of Dunn’s murder; he claimed officers told him 

to circle the photograph and write down the name “Bozo.”

After interviewing Turner, Lieutenant Katz interviewed Mando, who provided 

addresses for appellant and another suspect, Gilbert Mojica. During his interview, 

Mando told officers appellant had said in the past, “[‘]I don’t like blacks. I don’t like 

niggers[,’] that’s what he says all the times he sees them.” At trial, Mando testified he 

knew appellant from around the neighborhood and would invite him over to barbecue or 

play dominos. Once, he heard appellant say the “F” word with the “N” word, referring to 

African-American people, but it seemed to Mando appellant “didn’t really mean it like in

a bad way.”

Mando knew appellant was in a gang. He did not know which one, but he had 

seen appellant’s “Florencia” tattoo and he knew that was a local gang. He saw appellant 

and Mojica together two to three times each week.
7

On June 6, 2008, Deputy Pascual Delgadillo and other officers arrested appellant 

and executed a search warrant for his residence. In response to questioning at the scene, 

appellant told Deputy Delgadillo he was in the Florencia 13 gang and he used the 

moniker Bozo. He had visible tattoos on his arms and a belt buckle with the letter “F” on 

it. The search uncovered items of gang paraphernalia and a box of live .38-caliber 

ammunition.

Mojica was also arrested on the same day. In exchange for pleading guilty to 

voluntary manslaughter and being sentenced to 13 years in prison, Mojica testified 

against appellant. Mojica associated with Florencia gang members and was known as 

“Youngster.” He knew appellant as “Bozo” and they had been friends since they were 14 

or 15 years old. He explained the apartment complex where Dunn was shot was a “hangout” area in Paramount for Florencia members. He described Mando as an “OG,” or oldtime gang member who was known throughout the neighborhood, and he said he and 

appellant would often hang out with him. Mojica and appellant shot pool once with 

Mando in Turner’s backyard.

Mojica feared for his life and his family as a result of testifying. Nevertheless, he 

identified appellant as the shooter and a Florencia gang member, and he admitted to 

being the back passenger who checked Dunn and Simpson for tattoos. He identified the 

driver of the car as another gang member known as “Stranger.” He explained on the 

night of Dunn’s murder, he, appellant, and Stranger had been driving around the 

neighborhood drinking and smoking in appellant’s Cadillac when they noticed Dunn and 

Simpson. Appellant said, “There is some fools right there hanging in front of the 

apartment. They got some i-Pods. Let’s go.” Appellant also said, “Let’s go jack them.” 

After passing by Dunn and Simpson several times, Mojica and appellant got out of the 

car. Mojica recognized Dunn, but not Simpson.

Mojica asked Dunn and Simpson, “Where you guys from?” They responded, “We 

don’t gang bang.” Mojica lifted up their shirts to check for gang tattoos and searched 

their pockets. He found their iPods and took them. Appellant was three to four feet 

away, pointing a black gun alternately at Dunn and Simpson. Dunn yelled, “Mando.” 
8

Appellant yelled, “Compton Varrio Segundo” and shot Dunn once as he tried to run up a 

flight of stairs. Mojica and appellant ran back to the car, which had moved further down 

the street during the confrontation. Mojica was certain he had taken Dunn’s iPod, 

although it was found at the scene. Mojica and appellant intended to sell the iPods, and 

Mojica gave them to appellant.

Mojica was interviewed at the time he was arrested, and a portion of that interview 

was played for the jury. In the interview, Mojica identified appellant as the shooter, 

which was consistent with his trial testimony, but otherwise the account of the shooting 

he gave to officers differed in certain details from his trial testimony. Those differences 

form the basis for one of appellant’s contentions on appeal, so we will discuss them in 

more detail below.

A Los Angeles Sheriff’s Department criminalist analyzed the nine-millimeter 

bullet and expended cartridge case found at the scene. She determined they were 

consistent with each other, but she could not say for certain whether they originated 

together from the same cartridge.

An autopsy on Dunn revealed an entrance and exit bullet wound in his abdomen 

and grazing wounds on his arms. The bullet penetrated or grazed his kidneys, spleen, 

pancreas, aorta, liver, and small intestine before exiting his body. The bullet flew from 

left to right, front to back, and upward. The wound was fatal because of the number of 

organs hit, and Dunn died in surgery, although without surgery he would have bled to 

death within hours.

2. Count Two: Attempted Murder of Inmate Dominic Walker

In November 2010, appellant was an inmate in the Men’s Central Jail in Los 

Angeles. He and an African-American inmate named Dominic Walker were “trustees” 

who had greater freedom to move around the jail in exchange for doing chores, such as 

cleaning. Individuals were typically selected as trustees for their influence over other 

inmates so deputies could use them as liaisons during gang tensions. Trustees could 

leave their cells, walk around the different floors of the jail, and talk to other inmates. 

Trustees were segregated by race, so Walker would have only worked with African-
9

American inmates and appellant would have only worked with Hispanic inmates. At the 

end of a trustee’s shift, he can shower apart from the general population.

At around 9:20 p.m. on November 4, 2010, Los Angeles County Sheriff’s 

Department custody assistant Patricia Cristales was working in the 2400 block of 

dormitories in the jail when she heard a loud yell from the trustees’ shower area. She saw 

Walker walk out of the shower area and approach the officers’ station. Appellant and 

another inmate named Rivera appeared to stab Walker from behind five or six times, 

although Cristales could not see weapons in their hands. Unarmed, Walker appeared to 

be in excruciating pain and had blood on different parts of his body.

4

 Cristales yelled, 

“Stop fighting,” but appellant and Rivera did not comply. Appellant and Rivera stopped 

the attack when backup deputies arrived.

Deputy Andrew Lyons responded to the attack on Walker within 10 seconds of 

Cristales reporting it. He saw Walker covered in blood from multiple puncture wounds.

When he approached Walker, Walker pointed toward the shower area behind him. 

Deputy Lyons saw appellant and Rivera run from the shower area toward the toilet of a 

nearby “rec” room, yelling “Puro sur trece,” a chant used by southern Hispanic gang 

members. Another Hispanic inmate named Mejia was lying down in front of the officer’s 

station. Deputy Lyons knew Mejia, Rivera, and appellant were all Southsider gang 

members.

Deputy Lyons followed appellant and Rivera to the toilet area and ordered them to 

lie down on the ground. They did not immediately comply; instead, Deputy Lyons heard 

clanging like someone threw an object into a metal toilet and flushed it. Another deputy, 

Ayub Manjra, saw Rivera pass an object to appellant, who then dropped something 

metallic into the toilet and flushed. Appellant and Rivera then lay down on the ground, 

as ordered. Rivera appeared to have been in a fight, with bruises and redness on his body 

and blood on his face, and appellant had injuries consistent with being in a “brawl.” 

 

4 Rivera was five feet six inches and 169 pounds; appellant was six feet two inches 

and 260 pounds; and Walker was around six feet six inches and 340 pounds.
10

Deputy Manjra retrieved two jail-made shanks from the toilet, which were consistent 

with sounds he heard from the toilet. The larger shank was about five inches long.

Immediately after the incident, Deputy Lyons spoke with African-American 

trustee Montay Harbin. Deputy Lyons found Harbin and another African-American 

trustee locked in the 2400 tier module after the attack. Harbin believed Mejia had locked 

him in after falsely telling him a black inmate in the module had a problem and needed 

immediate help. By the time Harbin discovered no one needed help, Mejia shut “B” row 

gate and locked him in. Harbin heard yelling from the shower and saw Walker running 

out, followed by appellant and Rivera.

When he testified at trial, Harbin denied telling Deputy Lyons that Mejia had 

locked him in the module after falsely telling him another inmate needed help. Instead, 

he said he closed the gate himself when he entered. He also denied telling Deputy Lyons 

he saw Walker screaming and running out of the shower, followed by two male 

Hispanics. He admitted he saw Walker come out of the shower bleeding.

Walker suffered six or seven wounds to his back, three to five wounds to his chest, 

and two wounds to his arms and shoulders.5 Immediately after the attack he had 

difficulty breathing and his eyes were glazed. He had to be taken to the hospital and 

treated.6

3. Defense Case

Appellant testified. He admitted he was a member of the Florencia 13 Jokers 

clique and he was named Little Bozo after his father, who was known as Bozo when he 

was active in the gang years earlier. Appellant denied committing crimes with the gang 

or hitting up rival gang members, and his role in the gang diminished when he got a fulltime job in 2008. He had friends inside and outside of the gang, including AfricanAmericans.

 

5 Ten photographs of Walker’s injuries were introduced at trial.

6 The prosecution also called a gang expert witness, but because no issue is raised 

with regard to the gang allegations, we omit that witness’s testimony.
11

As for Dunn’s murder, he testified he knew Dunn from elementary school and 

denied shooting him. On the day of Dunn’s death, he drove his Cadillac to his job at a 

cleaning company and got off at 4:30 p.m. Around 5:00 p.m., he went with his girlfriend 

and their infant son to a furniture store to make a payment on a line of credit. Due to a 

computer problem, they went to another branch of the furniture store and made the 

payment at 7:05 p.m., and then returned to the first store to buy a fan. They then went to 

a birthday party for his cousin in Pico Rivera, where they stayed until 9:00 or 10:00 p.m.

Appellant’s girlfriend and several of his family members corroborated appellant’s 

alibi testimony at trial. Of note, however, appellant’s aunt, who hosted the birthday 

party, learned of appellant’s arrest from his parents, but they did not encourage her to call 

the police with appellant’s alibi. Also, while appellant’s father corroborated appellant’s 

birthday party alibi at trial, he previously told police in an interview on May 27, 2008,

that appellant returned home from paying bills at 6:30 or 7:00 p.m. on the night of 

Dunn’s murder and had fallen asleep there.

Appellant eventually heard about Dunn’s death through neighborhood talk. When 

he was arrested for the murder, he was carrying an iPod he recently received as a gift. In 

an interview with police, he said he was in Lancaster at the time of Dunn’s death, 

although he explained at trial he was nervous and confused about the date.

A neighbor, Donnell Tinsley, Jr., testified on behalf of appellant. The night of 

Dunn’s murder Tinsley was in his apartment two units away from Dunn’s home when he 

heard a gunshot. He ran outside and saw Dunn at the top of the stairs. Dunn said, “I was 

shot.” Tinsley saw a dark green Honda with tinted windows in front of the apartment 

building heading west. Tinsley called the police and waited with Dunn until authorities 

arrived. At trial, Tinsley recognized appellant as Bozo and had seen him occasionally 

hanging around the apartments near the area of Dunn’s death. Tinsley also knew Mando 

and would barbecue and socialize with him.

As for the attack on Dominic Walker, appellant admitted he stabbed Walker with a 

shank. Before the attack, appellant and Rivera entered the shower and were surprised to 

find Walker there, apparently urinating. They were concerned because they had heard 
12

about guards letting inmates out to attack other inmates. Appellant thought he was being 

set up for an attack, so he got “paranoid,” “overreacted,” and “panicked,” and went after 

Walker with the shank. Appellant claimed he overreacted and was paranoid because he 

had been attacked in jail a year earlier, leaving him unconscious and hospitalized. 

Guards did not come to his aid then, so he believed he needed to protect himself. He was 

also paranoid because a week prior to the attack on Walker several riots between AfricanAmerican and Hispanic inmates had broken out.

Appellant claimed he did not intend to kill Walker, avoided stabbing his neck and 

face, and stopped stabbing him when appellant no longer felt in danger. He also claimed 

he was the only one in the shower area with a shank. After the attack, he ran into the 

dayroom and tried to flush the shank. When interviewed after the incident, he claimed he 

did not know what happened.

DISCUSSION

1. Count One: Playing of Mojica’s Police Interview at Trial

Appellant contends the trial court violated his constitutional due process rights by 

playing for the jury portions of the interview Mojica gave to officers at the time he was 

arrested because the evidence was unnecessary, cumulative, and confusing. We disagree.

A. Factual Background

As discussed above, on direct examination at trial Mojica identified appellant as 

the shooter, admitted to being the back passenger who checked Dunn and Simpson for 

tattoos, and described details of the incident. On cross-examination, he admitted some of 

those details differed from the account he gave to Lieutenant Katz and Detective Richard 

Ramirez during his interview after his arrest. For example, while he identified appellant 

as the shooter, he did not say a person named Stranger was with them during the time of 

the murder. He also claimed he and appellant parked appellant’s Cadillac across the 

street from Dunn, and as they crossed the street, Mojica stopped to tie his shoelace while 

appellant walked up to Dunn by himself and shot him. Afterward, Mojica and appellant 

ran toward the east, leaving appellant’s car parked at the scene.
13

Mojica testified his trial account of the incident was truthful and the details 

differed from his interview because at that time of his interview he was scared for his life 

and his family. Defense counsel’s cross-examination suggested Mojica had a motive to 

lie in light of his plea deal, a point counsel reiterated in closing arguments.

After Mojica testified, the prosecutor sought permission to play the audio 

recording of his interview, arguing Mojica’s prior consistent statements, particularly his 

identification of appellant, were admissible to rebut the defense’s suggestion Mojica’s 

testimony was influenced by his plea deal, and Mojica’s prior inconsistent statements 

were admissible for impeachment. Defense counsel objected on several grounds, 

including that a large portion of Mojica’s interview was irrelevant; Detective Ramirez 

could testify to Mojica’s statements without admitting the recording of the interview; 

Mojica had already testified about his prior consistent statements on cross-examination; 

and any prior consistent statements were admissible only to rebut later inconsistent 

statements.

After indicating the prosecutor could not introduce the entire interview under any 

circumstances, the trial court tentatively prohibited the prosecutor from introducing any 

portion of the recording because Mojica could be recalled as a witness and the prosecutor 

could directly elicit the prior consistent statements rather than playing the recording. The 

court also tentatively denied the prosecution’s request to call Detective Ramirez to testify 

to Mojica’s interview statements for the same reason.

In a later hearing, the prosecutor asked the trial court to reconsider its ruling and 

presented a redacted transcript of the recording reducing the full 50-minute interview to 

four minutes and five transcript pages. Defense counsel once again objected, suggesting 

the recording would require calling additional witnesses, including recalling Mojica. 

Further, while defense counsel did not necessarily take issue with the content of the 

recording, he believed “it’s not necessary in this case because the People have already 

established . . . [¶] . . . [¶] . . . the prior consistent statement through the testimony of 

Mr. Mojica, and that all this . . . is cumulative . . . .”
14

The trial court pressed the prosecutor to identify which statements from Mojica’s 

interview he believed were consistent with Mojica’s trial testimony, and the prosecutor 

pointed out the following (all errors in original):

7

(1) “He [appellant] shot him [Dunn].”

(2) In response to the question, “Did he take the iPod from him?,” Mojica said, “I 

remember because when I was there, but I’m fuck that, that ain’t my shit, you know,” and 

“And then I was walking away then with it, fucking running and shit.”

(3) He was asked, “You ran, bro, because you were scared. You didn’t know that 

was gonna happen, right?” He responded, “I didn’t. He killed him and I guess he killed 

him right there on the spot.”

(4) He was asked, “Who killed him, bro?” and “We’re talking Bozo? Is that a 

‘yes,’ Gilbert?” He responded, “Yeah.”

(5) “And for reals if I am telling you guys I don’t want Bozo to know cause . . . I 

gotta protect my family and shit, you know my little brother start riding and everything.”

(6) “I was barely walking -- like, a few houses [¶] . . . [¶] [a]nd when that shit 

happens, I’m like, ‘What the fuck?’ And I just ran a little bit. And then I just -- ‘cause I 

can’t even run a lot, you know . . . [¶] . . . [¶] . . . ‘cause my weight. [¶] . . . [¶] 

. . . And I just ran over, and I just like, ‘Damn, fool just shot,’ like, ‘damn.’ I seen what I 

seen.”

The trial court also pressed the prosecutor to identify the inconsistent statements, 

and he pointed out the following (all errors in original):

(1) Mojica was asked, “How was it that you guys wound up there together, bro? 

How is that? How did that happen?” He responded, “He picked me up and shit. And the 

car -- we parked, like, on the block and shit. We’re right there kicking it. He didn’t told 

me shit. You know where shit, fuck we gonna be able to park.” He was asked, “Where 

 

7 For clarity, we quote the transcript of the interview rather than the trial transcript 

because some of the statements were not precisely quoted during the hearing.
15

was the car parked, bro?” He responded, “Right there by 72nd, right in front of the 

apartment” and “A couple, few houses away, you know.”

(2) When asked, “When do you know that he’s got a gun in the car?,” he 

responded, “I never seen it. That’s why I tripped out like, ‘What the fuck?’”

(3) “He just, like, ‘Let’s take a walk fool. Let’s go see the apartments.’ All right. 

We got out of the car, and then we were right there. And then I started tying my 

shoelaces . . . just started walking, tying my shoe. And then I just heard, like, ‘Hey,’ 

‘Where you from?’ and he was on one. And he knew he didn’t bang.” He was asked, 

“[S]o you saw him approach the guys on the stairs?” He responded, “[H]e know he 

didn’t bang . . . .” He was asked, “[S]o, he knew it was Dominique? He knew he didn’t 

bang?” He responded, “He knew he didn’t bang, but I guess he was just so fucking that 

way, he fuckin’ -- ‘cause he’s stupid.”

(4) He said he was “maybe, 20 feet, 30 feet” away when he heard the shot.

The prosecutor also identified statements he believed were both consistent and 

inconsistent with Mojica’s trial testimony (all errors in original):

(1) He was asked, “Okay, you see him go up to these vatos and ask ‘em where 

they’re from; is that right? Is that a ‘yes’?” He responded, “Yeah.”

(2) He was asked, “And you saw him say what?” He responded, “He like, 

‘Where you from?’ And then I just heard them say, ‘I don’t bang.’ I’m like, What? 

(Inaudible) give me your iPod. And then like, What. I don’t know how he knew they 

had an iPod cause by the time that was already getting over when I heard the shot, when I 

was tying my shoe, by the time -- that shit happened, like, everything, like, I was --

(inaudible), you know.”

The trial court took the matter under submission and ultimately overruled the 

defense objections, permitting the prosecution to call Detective Ramirez and play the 

redacted recording for the jury. The redacted recording and transcript were admitted into 

evidence.
16

B. Analysis

Appellant concedes the redacted recording and transcript of Mojica’s interview 

were admissible as either prior consistent or inconsistent statements. (Evid. Code, 

§§ 770, 791, 1235, 1236;

8

see People v. Homick (2012) 55 Cal.4th 816C.M., 859 [prior 

inconsistent statements]; People v. Riccardi (2012) 54 Cal.4th 758C.M., 802 [prior 

consistent statements].) So appellant argues the interview excerpts were cumulative,

unnecessary, and risked confusing the jury in light of CALCRIM No. 318, an instruction 

read to the jury. This is essentially an argument that the trial court abused its discretion 

in finding this evidence admissible under Evidence Code section 352.

9 We “‘will not 

disturb a trial court’s exercise of discretion under Evidence Code section 352 unless it is 

shown the trial court exercised its discretion “‘in an arbitrary, capricious or patently 

 

8 Evidence Code section 1236 states, “Evidence of a statement previously made by 

a witness is not made inadmissible by the hearsay rule if the statement is consistent with 

his testimony at the hearing and is offered in compliance with [Evidence Code] Section 

791.” Evidence Code section 791 states in relevant part, “Evidence of a statement 

previously made by a witness that is consistent with his testimony at the hearing is 

inadmissible to support his credibility unless it is offered after: [¶] . . . [¶] (b) An 

express or implied charge has been made that his testimony at the hearing is recently 

fabricated or is influenced by bias or other improper motive, and the statement was made 

before the bias, motive for fabrication, or other improper motive is alleged to have 

arisen.” Evidence Code section 1235 states, “Evidence of a statement made by a witness 

is not made inadmissible by the hearsay rule if the statement is inconsistent with his 

testimony at the hearing and is offered in compliance with [Evidence Code] Section 770.” 

Evidence Code section 770 states, “Unless the interests of justice otherwise require, 

extrinsic evidence of a statement made by a witness that is inconsistent with any part of 

his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so 

examined while testifying as to give him an opportunity to explain or to deny the 

statement; or [¶] (b) The witness has not been excused from giving further testimony in 

the action.”

9 Evidence Code section 352 states, “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.”
17

absurd manner.’” [Citations.]’ [Citation.]” (Homick, supra, at p. 865.) Appellant has 

not shown an abuse of discretion here.

Appellant first argues admission of Mojica’s prior consistent statements was 

unnecessary because, although those statements rebutted defense counsel’s suggestion 

that Mojica fabricated his trial testimony in light of his plea deal, it did not rebut defense 

counsel’s other suggestion that Mojica also had a motive to lie to officers in light of his 

arrest itself.

10

 We cannot see why a secondary attack on Mojica’s credibility would 

render the prior consistent statements unnecessary to rebut defense counsel’s primary 

attack. Indeed, “a prior consistent statement is admissible as long as the statement is 

made before the existence of any one of the motives that the opposing party expressly or 

impliedly suggests may have influenced the witness’s testimony.” (People v. Noguera 

(1992) 4 Cal.4th 599C.M., 629 (Noguera), italics added.) The prosecutor could have 

reasonably concluded defense counsel’s primary attack based on the plea deal was a 

serious threat to Mojica’s credibility and it was well within the trial court’s discretion to 

allow the prosecutor to introduce the interview excerpts to rebut that attack.

Appellant next cites Noguera to argue that so many details in Mojica’s interview 

differed from his trial testimony that the interview had no “corroborative and 

rehabilitative potential.” Noguera, however, did not address the degree to which the 

details of the prior and current statements must be consistent in order for the prior 

statement to be admissible; the court simply found the recording and transcript of a 

witness’s prior interview corroborated the “origin and details” of a conspiracy to commit 

murder and “tended to reinforce in the jurors’ minds the impression that [the witness] was 

truthful.” (Noguera, supra, 4 Cal.4th at p. 628.) Here, Mojica’s interview corroborated 

his trial testimony on the key issue in the case: appellant shot Dunn. Beyond that, it was 

hardly unusual that a prior statement by an accomplice-turned-prosecution-witness 

 

10 We assume, without deciding, defense counsel’s cross-examination in fact implied 

Mojica had a motive to lie based on his arrest itself, although the portions of the record 

appellant cites are far from clear on the point.
18

contained both consistencies and inconsistencies, and the degree to which those points 

undermined or rehabilitated his credibility was a matter properly left to the jury.

Appellant argues the admission of Mojica’s prior inconsistent statements was 

unnecessary because Mojica acknowledged at trial that his previous account of the 

shooting differed from his current account. While conceding Mojica’s interview was 

indeed cumulative of his trial testimony, the Attorney General argues playing the 

interview was nevertheless necessary for several reasons: it provided “context” for 

Mojica’s earlier story; it would have been difficult to edit the transcript and recording to 

eliminate all the inconsistent statements but preserve the consistent statements; and the 

jury was entitled to hear Mojica’s own voice giving the false account during his interview 

to weigh his credibility.

We need not decide whether these reasons justified introducing Mojica’s prior 

inconsistent statements because we can identify no conceivable prejudice from their 

admission under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) 

(harmless beyond a reasonable doubt) or People v. Watson (1956) 46 Cal.2d 818, 836

(Watson) (reasonable probability of a more favorable outcome). As appellant 

acknowledges, the inconsistencies were already presented to the jury through Mojica’s 

trial testimony, none of which involved material points, as appellant himself 

acknowledges. Perhaps more to the point, Mojica’s prior inconsistent statements 

undermined his credibility, so having them repeated for the jury by way of his interview 

served only to benefit appellant. Thus, the outcome would not have differed had the trial 

court excluded the interview.

Finally, appellant contends the interview should have been excluded because it 

likely confused the jury when it applied CALCRIM No. 318, which instructed the jury as 

follows: “You have heard evidence of statements that a witness made before the trial. If 

you decide that the witness made those statements, you may use those statements in two 

ways: one, to evaluate whether the witness’ testimony in court is believable; and two, as 

evidence that the information in those earlier statements is true.” Appellant has not 

challenged the substance of this instruction, and we find no possibility the jury was 
19

confused in using it to evaluate Mojica’s interview. There was nothing particularly 

complicated about the consistencies and inconsistencies between Mojica’s trial testimony 

and his statements during the interview, or the testimony from any other witness, and 

nothing in the record suggests the jury had any trouble evaluating Mojica’s credibility 

and the truthfulness of his prior statements. As appellant aptly notes, “it is hardly 

uncommon for evidence of this nature to present jurors with complex credibility 

choices,” especially in gang cases in which witnesses might fear for their safety. There is 

no basis to suspect the jury was confused by the trial court’s admission of Mojica’s 

interview.

2. Count Two: Attempted Voluntary Manslaughter Instruction

Appellant contends the trial court violated his state and federal constitutional 

rights by refusing to give an attempted voluntary manslaughter instruction for count two. 

We disagree.

For count two, defense counsel requested CALCRIM No. 604, which would have 

instructed the jury on attempted voluntary manslaughter based on imperfect self-defense,

a lesser included offense of attempted murder. He argued appellant testified he had 

“panicked” due to the prior attacks on him and had “react[ed] to an environment where 

he thought he was in danger.” According to defense counsel, “the testimony shows that 

he had been severely beaten in the past; that he had been subject to a variety of attacks; 

and that the environment in the county jail was one where both guards and inmates . . . 

were setting people up. That in the week just prior to this, there had been gang or racial 

violence. [I]t would suffice to create the environment in which voluntary manslaughter 

instruction would be allowed.”

The prosecutor responded the evidence did not support the instruction because 

appellant “walked in, lights were out, and that there is no sudden quarrel. There is no 

defending himself. It’s just him walking in -- as per him, he panicked and started 

stabbing Dominic Walker.”

The court refused to give the instruction, reasoning that it “requires evidence that 

the defendant believed that he was in imminent danger of being killed or suffering great 
20

bodily injury. And there is nothing to support that element of it. He said he was afraid, 

but we don’t know what he was afraid of, or what he thought was going to happen to him. 

Because he didn’t say that. He was very vague on that part.” The court noted appellant 

used the word “panicked,” but “that’s totally different from believing he’s in imminent 

danger of death or great bodily injury.”

“‘“The trial court is obligated to instruct the jury on all general principles of law 

relevant to the issues raised by the evidence, whether or not the defendant makes a formal 

request.”’ [Citation.] ‘Conversely, even on request, the court “has no duty to instruct on 

any lesser offense unless there is substantial evidence to support such instruction.”’ 

[Citation.] This substantial evidence requirement is not satisfied by ‘“any evidence . . . 

no matter how weak,”’ but rather by evidence from which a jury composed of reasonable 

persons could conclude ‘that the lesser offense, but not the greater, was committed.’ 

[Citation.] ‘On appeal, we review independently the question whether the trial court 

failed to instruct on a lesser included offense.’ [Citation.]” (People v. Avila (2009) 46 

Cal.4th 680C.M., 704-705.)

A jury may convict a defendant of voluntary manslaughter based on imperfect 

self-defense “‘“when the trier of fact finds that a defendant killed another person because 

the defendant actually, but unreasonably, believed he was in imminent danger of death or 

great bodily injury . . . .” [Citation.]’” (People v. Manriquez (2005) 37 Cal.4th 547C.M., 

581 (Manriquez).) This theory “‘requires without exception that the defendant must have 

had an actual belief in the need for self-defense’” and “‘[f]ear of future harm -- no matter 

how great the fear and no matter how great the likelihood of the harm -- will not suffice. 

The defendant’s fear must be of imminent danger to life or great bodily injury. “‘[T]he 

peril must appear to the defendant as immediate and present and not prospective or even 

in the near future. An imminent peril is one that, from appearances, must be instantly 

dealt with.’”’” (Ibid.)

Although appellant testified that prior attacks and incidents made him paranoid 

and he “panicked” when he saw Walker in the shower, appellant offered no evidence he 

actually feared an imminent attack from Walker when he and Rivera entered the shower. 
21

(Manriquez, supra, 37 Cal.4th at p. 582.) Walker was alone in the shower and apparently 

unarmed, and there was no evidence Walker did anything to suggest he was about to 

attack appellant. To the contrary, uncontroverted facts demonstrated a brutal, 

coordinated attack by appellant and Rivera, with assistance from Mejia locking inmate 

Harbin in the 2400 tier module, followed by appellant’s attempt to dispose of the 

weapons, all against a backdrop of racial tensions between Southsider gang members and 

African-American inmates. Even if appellant had actually believed he might be attacked 

at some point in the future, nothing in this record suggests he was faced with an 

“‘“‘imminent peril . . . that, from appearances, must be instantly dealt with.’”’” (Id. at p. 

581.) The trial court did not err in refusing to give the attempted voluntary manslaughter 

instruction.

3. Count Two: Prosecutorial Misconduct

Appellant contends the prosecutor committed misconduct by asking him on crossexamination whether he was aware of a “kite,” or note, passed between inmates that gave 

a “green light” on Walker.11 Appellant has forfeited the argument, and even if not, we 

reject it.

During cross-examination, the prosecutor and appellant had the following 

exchange:

“Q Were you aware that there was a kite that was passed between Southsider 

inmates that gave a green light on Scrilla [i.e., Walker]?

“A I wasn’t aware of that.

“Q Is that news to you?

“A That’s news.

“Q Isn’t it true that you as a Southsider knew that there was a green light on 

Dominique [sic] Walker?”

 

11 The prosecution’s gang expert witness explained to the jury a “green light” means 

“someone is marked for death” and that “[t]here will be messages sent within the jail, 

typically, that someone is no good. There is a green light on someone, and that it’s okay 

for that person to be hit wherever that person is at.”
22

At that point defense counsel objected and asked to approach the bench. At 

sidebar, he argued appellant already answered he was not aware of the kite and argued

this line of questioning was irrelevant. The prosecutor responded he had “a right to ask 

him . . . what he knows. He says it was just a shock that this guy was in the shower, and 

he just overreacted, when there is evidence to the contrary.” The court asked the 

prosecutor how far he would delve into the topic, and the prosecutor said, “He’s denying 

it. So that’s all I’m doing. I’m questioning him and moving on.” The court said, 

“Okay,” and defense counsel said, “Okay. Well, whatever.”

Back on the record, the prosecutor resumed the questioning briefly:

“Q Let me ask you, Mr. Guerrero, you were aware that there was a green light 

on Scrilla; isn’t that true?

“A I wasn’t.

“Q I’m sorry?

“A I wasn’t.

“Q As a Southsider, you have no idea that that was -- that was set; right? Is 

that what you’re saying?

“A That’s exactly what I’m saying.”

A prosecutor commits misconduct in violation of the federal Constitution when he 

or she engages in conduct so egregious that it infects the trial with such unfairness as to 

make the conviction a denial of due process. (People v. Fuiava (2012) 53 Cal.4th 

622C.M., 679 (Fuiava).) Under state law, a prosecutor commits misconduct if he or she 

uses deceptive or reprehensible methods to attempt to persuade either the court or the 

jury. (Ibid.) Because the single instance of prosecutorial misconduct alleged in this case 

was not so egregious it violated due process, we must determine if it was reasonably 

probable a result more favorable to the defendant would have resulted absent the 

misconduct. (People v. Bordelon (2008) 162 Cal.App.4th 1311C.M., 1323-1324, citing 

Watson, supra, 46 Cal.2d at p. 836.)

“A defendant generally ‘“‘may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion -- and on the same ground -- the defendant made an 
23

assignment of misconduct and requested that the jury be admonished to disregard the 

impropriety. [Citation.]’” [Citation.]’ [Citation.]” (Fuiava, supra, 53 Cal.4th at p. 679.) 

The failure to timely object may be excused if objecting would have been futile or a jury 

admonition would not have cured the harm caused by the misconduct. (Ibid.)

Appellant has forfeited his misconduct challenge by not objecting to the 

prosecutor’s line of questioning on the basis of misconduct, or at the very least, on the 

basis that the prosecutor did not have the evidence to support his questions. (See People 

v. Young (2005) 34 Cal.4th 1149, 1186 (Young) [finding no forfeiture of misconduct 

claim based on prosecutor’s questions when defendant objected that the questions were 

irrelevant in the absence of evidence to substantiate them].) Contrary to appellant’s 

suggestion, defense counsel’s relevance objection did not alert the trial court to this 

specific issue; defense counsel merely complained appellant had already answered the 

questions by denying any knowledge of a “kite” putting a “green light” on Walker.

We also disagree with appellant that the trial court prevented defense counsel from 

fully articulating his objection when the discussion of the issue concluded on defense 

counsel’s comment, “Okay. Well, whatever.” Defense counsel had ample opportunity to 

object that the prosecutor lacked a good faith basis for his line of questioning, and had he 

done so, we have little doubt the trial court could have addressed the issue and properly 

admonished the jury.

In any case, appellant’s claim fails on the merits. He is correct that “a prosecutor 

may not ‘“ask questions of a witness that suggest facts harmful to a defendant, absent a 

good faith belief that such facts exist.”’” (Young, supra, 34 Cal.4th at p. 1186.) As noted 

above, the prosecutor argued appellant “says it was just a shock that this guy was in the 

shower, and he just overreacted, when there is evidence to the contrary.” (Italics added.) 

Although that ambiguous statement alone did not necessarily mean the prosecutor had 

specific evidence a “kite” existed that put a “green light” on Walker, appellant never 

requested further elaboration or an offer of proof. Not having done so, he cannot now 

complain the statement was too vague to demonstrate the prosecutor’s good faith belief.
24

Appellant relies on People v. Wagner (1975) 13 Cal.3d 612C.M. and People v. 

Evans (1952) 39 Cal.2d 242C.M., but both cases are inapposite. “In Wagner, the 

prosecutor failed to make an offer of proof or to introduce any evidence to substantiate 

the implications from his questions that the defendant, who was charged with selling 

marijuana, had been involved in extensive drug sales. (Wagner, at pp. 616-619.) In 

Evans, the prosecutor, without any evidentiary support, improperly asked the defendant a 

series of questions insinuating the defendant accosted and molested a girl in a park. 

(Evans, at pp. 247-249.)” (Young, supra, 34 Cal.4th at p. 1186.) Here, by contrast, the 

prosecutor indicated he had evidence to substantiate his questioning, and without a 

request by defense counsel to elaborate, that was enough to provide a good faith basis for 

the questions.

Even if the prosecutor’s questioning had amounted to misconduct, appellant 

cannot show prejudice under either the Chapman or Watson standards. The exchange 

was only a small part of the trial proceedings (less than one page of the lengthy trial 

transcript) and did not imply appellant had originated the “kite” that put a “green light” 

on Walker, but only that appellant might have known one existed. And the existence of a 

“kite” would have been at best cumulative of the significant evidence that the attack on 

Walker was coordinated and planned. Under these circumstances, appellant would not 

have obtained a more favorable outcome absent the alleged misconduct.

4. Count Two: Great Bodily Injury Enhancement

Appellant contends his state and federal constitutional rights were violated 

because insufficient evidence supported the jury’s finding that he inflicted great bodily 

injury on Walker as required for the enhancement under section 12022.7, subdivision (a). 

We disagree.

Section 12022.7, subdivision (a) states, “Any person who personally inflicts great 

bodily injury on any person other than an accomplice in the commission of a felony or 

attempted felony shall be punished by an additional and consecutive term of 

imprisonment in the state prison for three years.” “Great bodily injury” is defined as “a 

significant or substantial physical injury” (§ 12022.7, subd. (f)), which requires 
25

“substantial injury beyond that inherent in the offense,” but not “‘permanent,’ 

‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function” 

(People v. Escobar (1992) 3 Cal.4th 740, 746, 750 (Escobar); see People v. Cross (2008) 

45 Cal.4th 58, 64). “Proof that a victim’s bodily injury is ‘great’ -- that is, significant or 

substantial within the meaning of section 12022.7 -- is commonly established by 

evidence of the severity of the victim’s physical injury, the resulting pain, or the medical 

care required to treat or repair the injury.” (Cross, supra, at p. 66.) This is an issue of 

fact that we review for substantial evidence, and we must accept the jury’s determination 

even if the circumstances might reasonably be reconciled with a contrary finding. 

(Escobar, supra, at p. 750; People v. Le (2006) 137 Cal.App.4th 54C.M., 59 (Le).)

The evidence readily supported the jury’s finding Walker suffered great bodily 

injury under section 12022.7. He had been stabbed multiple times with prison-made 

shanks, one at least five inches long, and he appeared to be in excruciating pain and had 

blood on different parts of his body immediately after the attack. Upon examination, 

deputies observed he had suffered six or seven wounds to his back, three to five wounds 

to his chest, and two wounds to his arms and shoulders. He had difficulty breathing and 

his eyes were glazed. He had to be taken to the hospital and treated.

Walker’s injuries fell well within the universe of similar injuries courts have found 

constituted great bodily injury. (Escobar, supra, 3 Cal.4th at p. 750 [extensive bruises 

and abrasions, neck pain, and vaginal soreness impairing victim’s ability to walk]; Le, 

supra, 137 Cal.App.4th at p. 59 [soft tissue damage from a gunshot rendering the victim 

“unable to walk, stand, or sit unassisted for weeks”]; People v. Bustos (1994) 23 

Cal.App.4th 1747C.M., 1755 [multiple abrasions, lacerations, and contusions]; People v. 

Harvey (1992) 7 Cal.App.4th 823C.M., 827-828 [blistering second degree burns with 

visible discoloration and disfigurement for at least a month requiring repeated medical 

treatments]; People v. Muniz (1989) 213 Cal.App.3d 1508C.M., 1520 [bruised and 

swollen eye, loss of consciousness, and severe blows that “‘felt like splinters going 

through [victim’s] skull’”]; People v. Sanchez (1982) 131 Cal.App.3d 718C.M., 733 

[multiple abrasions, lacerations, bruises, and swelling]; People v. Jaramillo (1979) 98 
26

Cal.App.3d 830C.M., 836 [multiple contusions, swelling, and sever discoloration painful 

to the touch and visible a day later].)

Although appellant cites Walker’s medical records to question the severity of 

Walker’s injuries, he is essentially urging us to reweigh the evidence, which we cannot 

do. Nor are we persuaded by his reliance on People v. Martinez (1985) 171 Cal.App.3d 

727C.M., the only case he cites finding evidence insufficient to demonstrate great bodily 

injury. It involved only a minor laceration inflicted on the victim through two shirts and 

a heavy coat, and it did not require the victim to be taken to the hospital. (Id. at p. 735.) 

The prosecutor had even agreed the injury did not satisfy section 12022.7 and asked the 

allegation be stricken. (Martinez, at pp. 735-736.) Here, in sharp contrast, Walker was 

stabbed multiple times, appeared to be in excruciating pain, and had to be taken to the 

hospital.

12

 Sufficient evidence supported the jury’s finding that the great bodily injury 

requirement of section 12022.7, subdivision (a) had been met.

5. Incorrect Court Operations Fee

The oral pronouncement of judgment, the sentencing minutes, and the abstract of 

judgment reflect the trial court imposed a $200 court operations fee on each count, for a 

total fee of $400, pursuant to section 1465.8, subdivision (a)(1). Appellant contends this 

was error and the maximum statutory fee was $40 per count, for a total of $80. The 

Attorney General agrees, as do we. (§ 1465.8, subd. (a)(1) [“To assist in funding court 

operations, an assessment of forty dollars ($40) shall be imposed on every conviction for 

a criminal offense,” with certain exceptions not pertinent here]; People v. Sencion (2012) 

211 Cal.App.4th 480C.M., 483-484 [separate court operations fee imposed on each 

 

12 Appellant also cites People v. Covino (1980) 100 Cal.App.3d 660C.M., in which

the court suggested in dicta that the victim appeared not to suffer great bodily injury 

based on a “momentary interruption of breathing and slight reddening of the skin without 

any substantial damage to bodily tissues.” (Id. at p. 667.) But the case did not involve 

section 12022.7; it involved assault by force likely to produce great bodily injury under 

section 245, subdivision (a), which does not require any injury at all. (Covino, at p. 667.) 

In any case, Walker’s injuries easily surpassed those inflicted on the victim in Covino.
27

count].) Therefore, we will modify the judgment to reflect the proper court operations 

fee of $80.

DISPOSITION

The judgment is modified to impose the correct court operations fee of $80. 

(§ 1465.8, subd. (a)(1).) The clerk of the superior court is ordered to issue an amended 

abstract of judgment reflecting the correct court operations fee and forward a copy of the 

amended abstract of judgment to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.

FLIER, J.

WE CONCUR:

BIGELOW, P. J.

RUBIN, J.