Filed 10/1/21 P. v. Garcia CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN GARCIA,

Defendant and Appellant.

 B300914

 (Los Angeles County

 Super. Ct. No. 

NA107065)

APPEAL from an order of the Superior Court of Los 

Angeles County, Gary J. Ferrari, Judge. Affirmed.

Mark Alan Hart, 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, Scott A. Taryle, Supervising Deputy 

Attorney General, David A. Voet, Deputy Attorney General, for 

Plaintiff and Respondent.
2

Defendant and appellant Juan Castellanos Garcia 

(defendant) carried a seven-year-old relative out of her home and 

into an alley where he choked and sexually assaulted her until a 

passerby stopped him. A jury convicted defendant of kidnapping 

to commit another crime (child abuse) and several counts of 

forcible lewd acts upon a child and oral copulation or sexual 

penetration with a child ten years old or younger. We consider 

whether the trial court should have suppressed defendant’s postarrest statements to investigators because his low intelligence 

quotient (IQ) and verbal comprehension skills indicate his waiver 

of his Miranda1rights was not knowing and intelligent.

I. BACKGROUND

A. The Offense Conduct, as Established by the Evidence 

at Trial

1. Witness testimony

The victim, Jocelyn, was seven years old at the time of the 

offense in August 2017. She was nine when she testified at trial. 

She lived with her mother, father, and siblings in an apartment 

in Long Beach, California. Defendant is Jocelyn’s father’s cousin, 

but she did not recall meeting him before the crimes occurred.

On the evening in question, Jocelyn fell asleep watching 

television on a couch in the living room of her family’s apartment. 

She woke up to defendant carrying her out of the apartment over 

his shoulder. She bit and scratched defendant and told him to let 

her go. Defendant took her to an alley, placed her on her back, 

and pulled her pants down. Jocelyn testified at trial that she did 

not recall whether defendant touched her private parts, but she 

told investigators in an interview conducted the afternoon after 

1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3

the incident (a recording of which was played at trial) that 

defendant touched her private parts with his hand.

Defendant choked Jocelyn, and she “felt like [she] was 

about to die.” She screamed for help in English and Spanish. 

Defendant choked her harder and told her to shut up in Spanish. 

Jocelyn did not lose consciousness, but she felt dizzy and her 

vision was blurry. She told investigators she pretended to be 

dead, but she could not recall doing so at trial. Defendant stayed

on top of Jocelyn until another man kicked defendant and argued 

with him in Spanish. Defendant fled when the other man said he 

was going to call the police. The other man helped Jocelyn back 

to her family’s apartment.

Henry Estuardo Ramirez Lopez (Lopez) was the man who 

confronted defendant. Lopez testified he was walking to his car 

around 2:15 a.m. when he heard Jocelyn cry out. Lopez saw 

defendant on top of Jocelyn, who was attempting to fight him off. 

Defendant’s pants and underwear were pulled down to his knees. 

Defendant had one hand on Jocelyn’s neck and he was moving as 

if he was having sex. Lopez kicked defendant in the ribs. 

Defendant rolled over and Lopez saw his exposed and erect penis.

Lopez had a brief conversation with defendant in Spanish. 

Defendant sounded drunk. Lopez asked who the girl was, and 

defendant responded she was his friend’s daughter. When 

defendant offered to let Lopez have sex with Jocelyn, Lopez hit 

him again. Defendant fled, and Lopez helped Jocelyn stand up. 

Lopez escorted Jocelyn about 200 feet back to her family’s 

apartment. Lopez identified defendant in a six-pack photo array

the same day.

Long Beach Police Department officer Alexander Saldana 

testified that he and other officers found defendant based on 
4

information communicated from dispatch regarding defendant’s

cell phone location. Defendant cooperated with the officers and 

was taken into custody around 5:40 a.m. (a few hours after the 

incident). Defendant did not seem intoxicated, and Officer 

Saldana did not smell alcohol on his breath.

Jennifer Rivera (Rivera), a sexual assault nurse examiner, 

examined Jocelyn around 4:00 a.m.2 She documented extensive 

bruising, a tear to Jocelyn’s lip, and pinpoint hemorrhages 

indicating strangulation. Another nurse, Malinda Wheeler, 

testified the hemorrhaging observed on Jocelyn would require 10 

to 20 seconds of pressure on the neck. Rivera observed debris “all 

over” Jocelyn’s clothing. She also had dirt on her external 

genitalia. Rivera also observed redness and bruising to Jocelyn’s

vagina, which she opined was likely caused by “a finger, a penis, 

or an object.”

Rivera collected swabs from various areas of Jocelyn’s body 

and collected reference samples from Jocelyn and defendant. 

These were analyzed by Anselmo Casas (Casas), a criminalist 

employed by the Los Angeles County Sheriff’s Department. 

Casas testified that saliva was found on Jocelyn’s neck, thighs, 

vulva, vestibule, and anus. Defendant’s DNA was a probabilistic 

match to samples taken from Jocelyn’s umbilicus (belly button), 

neck, both thighs, and vulva. Jocelyn did not contribute DNA to 

samples taken from defendant’s penis and scrotum.

2. Defendant’s recorded police interview

Long Beach Police Department detective Denise Green and 

a colleague interviewed defendant about 11 hours after his 

2 A follow-up examination was conducted the next day.
5

arrest.3 The interview was conducted at a Long Beach Police 

Department facility. Detective Green testified she and her 

colleague are fluent in Spanish and conducted the interview in 

Spanish. Detective Green recorded audio of the entire interview 

and video of parts of the interview. The recorded audio has a 

total run-time of about one hour and 12 minutes. As we shall 

discuss in more detail, the trial court denied defendant’s motion 

to suppress his statements during the interview, and the

recordings were played at trial.

At the beginning of the interview, one of the detectives told 

defendant they were going to read him his rights and he should 

let them know if there was anything he did not understand. The 

detectives then gave Miranda warnings. Defendant 

acknowledged the first warning (“you have the right to remain 

silent”) with an “[u]h-huh.” When the detectives completed the 

warnings and asked defendant whether he understood, defendant 

responded, “Yeah, yes, but . . . the money, I mean, I, I don’t have 

any.” One of the detectives explained, “what she [i.e. the other 

detective] means is that if you don’t have money for an attorney, 

the court will assign you an attorney and won’t charge you.” 

Defendant responded, “Oh, okay.” Defendant told the detectives 

there was nothing else he did not understand and he agreed it 

would be “okay if we talk.”

Defendant told the detectives he was born in Oaxaca, 

Mexico in 1976. He had been in the United States less than a 

year and worked at two restaurants.

Defendant was drinking at Jocelyn’s family’s apartment the 

previous evening. Defendant, his cousin (i.e., Jocelyn’s father), 

and one of his cousin’s friends consumed 48 beers (two cases of 

3 During the interview, defendant denied feeling drunk.
6

24). This was defendant’s second visit to his cousin’s home. 

Defendant initially claimed he could not remember anything

other than going to his cousin’s apartment to drink, and he 

professed an inability to recall how he sustained various 

scratches.

When the detectives showed defendant a photograph of 

Jocelyn, he said, “I think I did something bad.” Defendant 

admitted he led Jocelyn outside by the hand because he was not 

in his right mind after drinking so much. Defendant confessed to 

hitting Jocelyn in the face with a closed fist and putting his 

fingers in her mouth when she screamed for help. The detectives 

asked why defendant hit Jocelyn and he said that he wanted to 

abuse her sexually. He said he choked her because “lost [his] 

mind.” The detectives asked defendant what he put in Jocelyn’s 

vagina, telling him they already knew and it was “a question of 

[defendant] telling [them] what [he] did.” Defendant admitted

rubbing Jocelyn’s vagina two times and putting his tongue inside.

Defendant maintained that Lopez’s intervention prevented 

him from raping Jocelyn, and the detectives told him (falsely) 

that semen was found in Jocelyn’s vagina. Defendant indicated

he did not know the word “semen”; he said he used the word 

“milk” to refer to the substance after the detectives explained. 

Defendant admitted to penetrating Jocelyn’s vagina with his 

penis two times, but said he could only get “the very tip” inside. 

After making this statement, however, defendant still continued 

to deny having raped Jocelyn.

The detectives gave defendant materials to write a letter of 

apology to Jocelyn and her parents, emphasizing that defendant 
7

needed to include everything he had told them.4 Defendant read 

the letter he wrote: “Jocelyn, um, forgive me for the, um, the 

wrong, wrong I did to you. I’m sorry and please forgive me, um, 

for taking you out of the house and, and I’m sorry for hitting you 

and, and, and taking [you] there in the house. Um, I’m asking 

you from the bottom of my heart. I’m sorry and, and, and forgive 

me for the wrong that I did and, um, and forgive me cousin for 

what I did. I, I regret it. Forgive me please and forgive me 

Jocelyn for, for hitting you. I’m sorry and, and, and Jocelyn, I’m 

sorry. Never, never would I do harm to you and forgive me please 

for everything wrong I did.” Asked what else he did wrong, 

defendant responded, “trying to rape.” The detectives also asked 

defendant whether he regretted touching Jocelyn’s vagina with 

his hand, touching her vagina with his mouth, and touching her 

vagina with his penis; defendant answered “yes” to all.

B. Verdict and Sentencing

After presentation of evidence at trial, a jury found 

defendant guilty on all charged crimes. Counts one through 

three of the information against him alleged a forcible lewd act 

upon a child under the age of 14. (Pen. Code,5§ 288, subd. (b)(1).) 

Counts four through eight alleged oral copulation or sexual 

penetration with a child ten years of age or under. (§ 288.7, subd. 

(b).) Count nine alleged kidnapping to commit a lewd and 

4 Detective Green stopped recording while defendant wrote

the letter and resumed recording when he finished.

5 Undesignated statutory references that follow are to the 

Penal Code.
8

lascivious act. (§ 209, subd. (b)(1).) Count ten alleged child 

abuse. (§ 273a, subd. (a).)

The jury found defendant personally inflicted great bodily 

injury within the meaning of section 12022.8 as to counts one 

through eight and within the meaning of section 12022.7, 

subdivision (a) as to counts nine and ten. The jury also found 

true allegations relating to kidnapping a child under the age of 

14.6

The trial court sentenced defendant to non-consecutive 

terms of life without the possibility of parole on counts one, two, 

and three. The trial court imposed additional, consecutive 

indeterminate terms for some other offenses of conviction and 

stayed punishment pursuant to section 654 on the remaining 

counts; there is no need for our purposes to recount the 

particulars.

II. DISCUSSION

Defendant contends the trial court erred in denying his 

motion to suppress the police interview because his low IQ and 

verbal comprehension scores preclude a finding that his Miranda

6 As to count one, the jury found true allegations that 

defendant kidnapped Jocelyn within the meaning of sections 209 

and 667.61, subdivisions (a) and (e), and kidnapped a child under 

the age of 14 within the meaning of sections 667.61, subdivisions 

(j)(1) and (d)(2), and 667.8, subdivision (b). The jury found true 

the same allegations as to counts two and three, except with 

respect to section 667.8, subdivision (b) (which was not listed on 

the verdict form for these counts). As to counts four through 

eight, the jury found true the allegation that defendant 

kidnapped a child under the age of 14 within the meaning of 

section 667.8, subdivision (b).
9

waiver was knowing and intelligent. It is well established, 

however, that the effectiveness of a Miranda waiver depends on 

the totality of the circumstances. The recorded interview

provides ample support for the trial court’s conclusion that 

defendant’s repeated acknowledgment and waiver of his rights—

along with his attempts to minimize his culpability—demonstrate 

he adequately understood his rights and the consequences of 

waiver.

A. Additional Background

Defendant moved to suppress his post-arrest statements to 

the detectives. He argued he was incapable of making a knowing 

and intelligent waiver.

At the hearing on defendant’s motion, defendant called Dr. 

Francisco Gomez, a clinical psychologist, to testify. Dr. Gomez 

explained his “standard forensic evaluation” of defendant’s 

capacity to waive his Miranda rights included four parts: a 

clinical interview, psychological testing, a review of the interview 

recording, and an assessment for malingering.

During the clinical interview, Dr. Gomez noted defendant 

never went to school and, having been in the United States only 

about eight months, was “not really familiar with the system 

here.” Dr. Gomez testified that people with defendant’s 

background “tend to go along with what [authority figures] say 

and say yes to things.” Although Dr. Gomez sometimes had to 

repeat questions to defendant in a slow manner, “[defendant] 

pretty much was grasping what [Dr. Gomez] was asking him.”

Defendant has an IQ of 61, placing him in the first 

percentile. Dr. Gomez testified that IQ tests measure verbal 

ability, nonverbal thinking ability, and processing speed, and 
10

“[w]hat really brought down [defendant’s] I.Q. is processing 

speed . . . .” Based on several other tests, Dr. Gomez concluded 

“[defendant’s] ability to process verbal information is slow. . . . So 

generally when you’re explaining something to him, if you just go 

at a normal pace, he won’t pick it up as fast. You’ll be on page 

[three] and he’ll still be on page [one]. So you’re asking him 

questions and so he’s going to have to—if he doesn’t ask you to 

clarify, he’s just going to be answering impulsively.” Dr. Gomez 

further testified that defendant tested at the second grade level 

for reading and oral comprehension.

Dr. Gomez opined that, given these limitations, defendant 

was unable to understand his Miranda rights when read as “one 

long string” as opposed to “one . . . at a time.” He further stated 

that, in any case, understanding Miranda rights requires at least 

a seventh grade reading level. Dr. Gomez did not believe 

defendant’s comment about having no money for an attorney 

demonstrated his understanding of the Miranda warnings as a 

whole because “[t]he one thing [defendants] always pick up is the 

cost of an attorney.” The letter defendant wrote to Jocelyn and 

her parents during the interview also did not alter Dr. Gomez’s 

opinion because “a second grader, third grader in that range is 

going to be able to write basic concrete sentences.”

The trial court asked Dr. Gomez whether it should “assume 

that when [defendant] says yes, he does understand [his rights], 

that he [in fact] doesn’t understand[.]” Dr. Gomez responded that 

“the tendency is, even if you have people with a college education, 

they tend to say yes to waive their Miranda.” When the trial 

court asked Dr. Gomez whether defendant’s responses to the 

detectives’ questions throughout the interview were contextually 

appropriate, Dr. Gomez said he “didn’t really focus in on that,” 
11

but acknowledged “that [defendant] was denying and then—then 

he wasn’t.”

The trial court denied defendant’s suppression motion, 

reasoning as follows: “I . . . want to note that at the beginning of 

the interview, the detectives did explain to the defendant that if 

he had any questions, anything he did not understand his rights

[sic], that let [sic] the officers know and they will explain it to 

him. [¶] In reading through the entire interview, I didn’t find 

anything in that interview that would indicate to me that the 

defendant could not comprehend questions, many of which were 

more complicated than the advisement. [¶] There is nothing that 

led me to believe that he did not understand the questions. [¶] I 

just—you know, I have all due respect for the doctor but there is 

nothing in what I heard, nothing in what I read that le[ ]d me to 

believe that he did not understand his rights and it was not an 

intelligent and knowing waiver.”

B. Applicable Law and Standard of Review

“‘To safeguard a suspect’s Fifth Amendment privilege 

against self-incrimination from the “inherently compelling 

pressures” of custodial interrogation (Miranda, supra, 384 U.S. at 

p. 467), the high court adopted a set of prophylactic measures 

requiring law enforcement officers to advise an accused of his 

right to remain silent and to have counsel present prior to any 

custodial interrogation (id. at pp. 444-445).’ [Citation.] A suspect 

who has heard and understood these rights may waive them. 

[Citations.]” (People v. Leon (2020) 8 Cal.5th 831, 842-843 

(Leon).)

“‘[T]he prosecution bears the burden of establishing by a 

preponderance of the evidence that the waiver was knowing, 
12

intelligent, and voluntary under the totality of the circumstances 

of the interrogation.’ [Citations.]” (Leon, supra, 8 Cal.5th at 

843.) A defendant’s waiver is voluntary only if “‘it was the 

product of a free and deliberate choice rather than intimidation, 

coercion, or deception.’” (People v. Molano (2019) 7 Cal.5th 620, 

648.) A defendant’s waiver is knowing and intelligent only if 

“‘made with a full awareness of both the nature of the right being 

abandoned and the consequences of the decision to abandon it.’” 

(Ibid.) Relevant considerations include the defendant’s age, 

experience, education, background, and intelligence. (People v. 

Johnson (2010) 183 Cal.App.4th 253, 293.)

Our review of a trial court’s ruling on a motion to suppress 

is limited to the evidence before the court at the time that it 

ruled. (People v. Moore (2006) 39 Cal.4th 168, 171.) “[W]e accept 

the trial court’s factual findings and credibility assessments if 

supported by substantial evidence. . . . ‘Where, as was the case 

here, an interview is recorded, the facts surrounding the 

admission or confession are undisputed and we may apply 

independent review.’ [Citation.]” (Leon, supra, 8 Cal.5th at 843.)

C. Defendant’s Waiver Was Knowing and Intelligent

Our review of the record, and the interview recordings in 

particular, leave us convinced defendant was capable of 

understanding and did in fact understand his Miranda rights and 

the consequences of waiving them.

The detectives prefaced the Miranda advisement with an 

invitation for defendant to let them know if he did not 

understand anything. Then, after reading defendant his rights, 

the detectives and confirmed his understanding by asking both 

whether there was anything he did not understand and, 
13

affirmatively, whether he understood the Miranda warning. In 

addition, and contrary to Dr. Gomez’s characterization or 

understanding of the Miranda advisement as having been given 

in one uninterrupted stream, there were notable breaks: initially 

when defendant interjected with “uh-huh” after the advisement 

that he had the right to remain silent and later when defendant 

told the detectives he did not understand his right to an 

appointed attorney and they clarified to defendant’s satisfaction

the meaning of the right to free representation.

Defendant’s statements during the interview attempting to 

deflect or minimize his culpability provide further reason to 

conclude he was capable of making, and did make, a knowing and 

intelligent waiver of rights. Defendant repeatedly emphasized he 

had been drinking and initially claimed he was unable to 

remember what he did to Jocelyn. Then he conceded he wanted 

to sexually abuse Jocelyn, but claimed Lopez prevented him from 

doing so. These and other statements during the interview that 

were calculated to minimize his culpability underscore 

defendant’s awareness of the stakes of the interview. (See Leon, 

supra, 8 Cal.5th at 844 [holding the defendant’s attempt to 

deceive investigators “indicate[d] attentiveness and an awareness 

of his circumstances”]; People v. Lewis (2001) 26 Cal.4th 334, 384 

(Lewis) [holding that a 14-year-old, schizophrenic defendant’s 

waiver was knowing and intelligent because, among other things, 

he was “keen enough to change his story” when confronted with 

facts contradicting previous statements]; People v. Whitson (1998) 

17 Cal.4th 229, 249 [“Although [the] defendant possessed 

relatively low intelligence, he was sufficiently intelligent . . . to 

attempt to deceive officers”].) Defendant’s demeanor during the 

interview also was not overly deferential in a way that would 
14

lend greater credence to Dr. Gomez’s belief that defendant’s 

background made him likely to “say yes to things.” Defendant

did not, for example, concede having touched Jocelyn’s buttocks 

when the detectives falsely suggested his semen was found in 

that area.

Defendant counters principally by emphasizing a purported 

inability to understand Spanish as well as his low IQ and verbal 

skills.

The first of these points is baseless. Although defendant 

states his first language is a local dialect of Spanish, he did not 

have any difficulty conversing with the detectives in Spanish. 

Indeed, Dr. Gomez himself examined defendant in Spanish, and 

defendant used a Spanish interpreter at trial.7

As to the second of these points, defendant cites Cooper v. 

Griffin (5th Cir. 1972) 455 F.2d 1142 (Cooper) for the proposition 

that his IQ score of 61 and his second grade level for reading and 

oral comprehension made a knowing and intelligent waiver 

impossible. In Cooper, brothers aged 15 and 16 with IQs between 

61 and 67 sought habeas relief because their convictions were 

based on confessions obtained without knowing and intelligent 

Miranda waivers. (Cooper, supra, at 1143.) Among other things, 

they presented testimony by a special education teacher who had 

known them “‘practically all their [lives]’” and did not believe 

they could understand the Miranda warnings. (Ibid.) The only 

contrary evidence was the testimony of police officers who stated 

7

 The exchange in which defendant told the detectives he 

did not know the meaning of “semen” does not reflect a broader 

lack of comprehension—to the contrary, this exchange 

demonstrates his willingness to speak up when he did not 

understand the detectives.
15

“each boy appeared to understand the warning.” (Id. at 1144.) 

The Fifth Circuit held the petitioners’ “uncontradicted” evidence 

left “no alternative but to hold that the waivers by the two boys 

were not knowingly and intelligently made.” (Ibid.)

Our Supreme Court has emphasized that Cooper is “not 

controlling precedent” and has repeatedly declined to recognize a 

minimum IQ or other quantitative metric below which a 

defendant is incapable of making a knowing and intelligent 

waiver of Miranda rights. (See, e.g., Leon, supra, 8 Cal.5th at 

844 [“We have not decided that any particular intelligence or 

experience level is required to understand the Miranda warnings 

or to waive them”]; Lewis, supra, 26 Cal.4th at 384 [“‘“Neither a 

low I.Q. nor any particular age of minority is a proper basis to 

assume lack of understanding, incompetency, or other inability to 

voluntarily waive the right to remain silent under some 

presumption that the Miranda explanation was not 

understood”’”].) That alone is reason to put Cooper to the side as 

an unreliable guide, but even taking the case on its own terms, 

the record here is different in a crucial respect. If a recording or 

transcript of the interrogation was available in Cooper, it did not 

merit a mention in the Fifth Circuit’s opinion. Here, on the other 

hand, we need not rely on police testimony that defendant 

“appeared” to understand his rights. The recordings in our 

appellate record demonstrate defendant was actively and 

intelligently engaged when the detectives read him his rights and 

throughout the interview.

Defendant suggests that even if controlling case law does 

not recognize a minimum IQ or verbal comprehension level for a 

knowing and intelligent waiver, Dr. Gomez’s testimony 

establishes that such a line exists as a matter of scientific fact. 
16

That does not square with Supreme Court precedent. In Leon, an 

expert (apparently the same Dr. Gomez who was the defense’s 

expert in this case) testified that “understanding the Miranda

warnings requires at least seventh grade level reading 

comprehension.” (Leon, supra, 8 Cal.5th at 841.) Emphasizing 

that the trial court was “entitled to reject” this testimony, the 

Supreme Court affirmed the trial court’s finding that the 

defendant’s waiver was knowing and intelligent based on its 

independent review of the videotaped interrogation. (Id. at 844-

845.)

Furthermore, the trial court’s questioning of Dr. Gomez in 

this case revealed the probative value of his opinion was limited 

by the fact that he “didn’t really focus in on” defendant’s 

responses to the detectives’ questions. Like the defendant in 

Leon, defendant was admonished in a language he demonstrably 

understood, repeatedly and unequivocally waived his rights,8and 

attempted to minimize his culpability during the interview. 

(Leon, supra, 8 Cal.5th at 844-845.) Under these circumstances, 

the trial court’s conclusion that defendant’s waiver was knowing 

and intelligent is well supported.

8 We are not persuaded by defendant’s suggestion that the 

use of a printed waiver form was a decisive factor in Leon. The 

defendant contended he “looked at the form only briefly and 

signed without reading” (Leon, supra, 8 Cal.5th at 843), and his 

signature was obtained during an interview that occurred the day 

before he ultimately confessed (id. at 840-841). In any case, the 

Supreme Court made clear that its ruling was based on its 

independent review of the recorded police interview. (Id. at 844.)
17

D. The Abstract of Judgment Must Be Amended

Defendant has withdrawn an argument that the abstract of 

judgment does not accurately reflect his sentence on count ten. 

There is, however, a different error in the abstract of judgment. 

In its oral pronouncement of defendant’s sentence, the trial court 

stated defendant’s sentences of life without the possibility of 

parole on counts one through three are “not consecutive to each 

other.” Both the trial court’s minute order and the abstract of 

judgment, however, indicate these sentences are consecutive. 

Because the oral pronouncement controls (People v. Zackery

(2007) 147 Cal.App.4th 380, 385), we will order the abstract of 

judgment amended. 
18

DISPOSITION

The clerk of the superior court shall prepare an amended 

abstract of judgment indicating defendant’s sentences on counts 

one through three are not consecutive and deliver the amended 

abstract to the Department of Corrections and Rehabilitation. 

The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.