Filed 6/29/15 P. v. Parra 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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,                                                          B253225

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. A702799)
         v.

RAYMOND JESS PARRA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Daniel
B. Feldstern, Judge. Affirmed as modified.
         Mark Yanis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General, for
Plaintiff and Respondent.
                                        _________________________
       The jury convicted defendant and appellant Raymond Jess Parra in count 1 of
conspiracy to commit kidnapping and assault with a firearm (Pen. Code, § 182),1 first
degree murder in count 2 (§ 187), kidnapping in count 3 (§ 207, subd. (a)), conspiracy to
commit murder in count 5 (§ 182), and assault with a firearm in count 6 (§ 245, subd.
(a)(2)).2 The jury found true the special allegation that defendant committed the murder
while engaged in the crime of kidnapping. As to all counts the jury found true that
defendant personally used a firearm (§ 12022.5), and a principal was armed with a
firearm (§ 12022, subd. (a)(1)).
       The trial court sentenced defendant for the murder in count 2 to life in prison
without parole, plus a two-year enhancement pursuant to section 12022.5, and a one-year
enhancement pursuant to section 12022, subdivision (a)(1), with the latter enhancement
stayed under section 654. It imposed and stayed the following sentences as to the
remaining counts: the upper term of eight years in each of counts 1 and 3 (§§ 182 & 207,
subd. (a), respectively), 25-years-to-life in count 5 (§ 182), and the upper term of four
years in count 6 (§ 245, subd. (a)(2)). As to each of counts 1, 3, 5, and 6, it imposed and
stayed a two-year enhancement pursuant to section 12022.5, plus a one-year
enhancement pursuant to section 12022, subdivision (a)(1).
       Defendant contends on appeal as follows: (1) he was convicted of first degree
murder on an invalid theory of culpability; (2) the court failed to instruct the jury that it
must find the murder was committed to advance the kidnapping; (3) the court failed to
instruct the jury that it must find the prosecution proved each element of the charged
offenses beyond a reasonable doubt; and (4) the court improperly imposed a parole
revocation fee.
       The Attorney General concedes, and we agree, that the parole revocation fee was
unauthorized and must be stricken. Additionally, our review of the record disclosed that
the abstract of judgment did not conform to the oral pronouncement of judgment. After

       1 All   statutory references are to the Penal Code, unless otherwise stated.

       2 The   trial court dismissed count 4.

                                                2
reviewing the parties’ supplemental briefing on this issue, we conclude that the abstract
of judgment must be corrected to properly reflect the trial court’s oral pronouncement.
       We affirm the judgment as modified.


                                          FACTS3


       Defendant and five other members of the San Fer gang abducted and killed Ruben
Cruz on Halloween night in 1984.


Co-participant Testimony


       Jesus Robles and Robert Ontiveros testified against defendant at trial. On the
night of Cruz’s murder, defendant led Robles, Ontiveros, brothers Benny and Michael L.,
and Ronnie Luna, into rival Pacoima gang territory, looking for a fight. They drove into
Pacoima in Ontiveros’s primer red Chevy Luv pickup truck, which had a camper shell
covering the back.
       They stopped at an AM/PM store, where defendant approached Sol Trece gang
members and displayed a handgun. One of the gang members testified that defendant
asked them if they were from Pacoima. They said they were not, and defendant
responded that was a good thing. He showed them a black revolver, which was tucked
into his waistband.
       While this was happening, Benny, Michael, and Luna approached Cruz, who
defendant had told them was from Pacoima. Cruz ran. They chased him on foot, and
Ontiveros followed in the truck. They caught Cruz, threw him into the back of the truck,
and went back to the AM/PM.
       Defendant and Benny rode in the front of the truck with Ontiveros. Michael,
Luna, and Robles were in the back with Cruz. They kicked him, burned him with


       3   Defendant did not present witnesses or evidence in his defense.

                                              3
cigarettes, and threatened to “teach him a lesson.” Defendant told Ontiveros to drive
toward Sylmar. He said they were going to let Cruz go. Defendant told Ontiveros to stop
at the intersection of Interstate 5 and Old San Fernando Road. Defendant and Benny,
who was 15 years old at the time, got Cruz out of the back of the truck and led him into a
canyon off the side of the road. Ten minutes later they returned alone. Benny said that
he shot Cruz. They all went to defendant’s house. Defendant told the other gang
members not to say anything to anyone.
       About three days later, defendant, Ontiveros, and Benny returned to the canyon
because defendant wanted to bury the body. Cruz was naked. Defendant had ordered
him to strip before he was killed. Defendant and Benny burned Cruz’s clothes sometime
between the murder and the burial. Ontiveros helped defendant cover the body with dirt
while Benny waited in the truck. A few days later, defendant told Ontiveros to pick him
up. The two went to Ontiveros’s house and used a torch to melt down the gun. They hid
the camper shell at the house of one of defendant’s relatives.


Additional Testimony


       Cruz’s sister, Priscilla, and her boyfriend, Edward Shirley, witnessed part of the
attack. Cruz had been at Shirley’s apartment with his sister earlier that night. Shirley
heard fighting outside and looked out the window. He saw three men kicking and hitting
someone on the ground, and another man pointing a gun at the group. One of the men
said, “Put him in the truck.” Shirley recognized the person being assaulted as Cruz. Cruz
was trying to fight back and get away, but the group dragged him toward the truck. It
was primer red and had a camper on the back. The man with the gun was holding it to
Cruz’s head as the others dragged Cruz toward the back of the vehicle.
       Shirley awakened Cruz’s sister. They saw Cruz get away from the group and run.
Priscilla saw four or five men chasing her brother. Shirley saw two men chasing Cruz on
foot with the truck following behind them. Priscilla went downstairs and saw the men at
the AM/PM standing around the primer red truck with a camper shell. She recognized

                                             4
Benny. She recognized another group of men, so she asked them if they had seen Cruz.
They responded that they had not. The group belonged to the Sun Valley or Sol Trece
gang. Shirley was also a Sol Trece member. The two groups argued. Priscilla saw one
of the men around the truck lift up his shirt to display a gun in his waistband. After that,
both groups left. Priscilla continued to look for her brother. At some point someone
called the police.


The Investigation


       Police arrested Ontiveros about two weeks after the murder. They questioned him
about his truck, which no longer had the camper shell on it. Ontiveros initially lied about
the location of the camper shell and his participation in the crimes, but later told the truth.
Ontiveros pled guilty to conspiring to abduct and murder Cruz, and agreed to testify
against the others in exchange for leniency.
       Officers interviewed Benny and Michael, who led them to the area where Cruz’s
body was located. Cruz was buried in a shallow grave. He had been shot twice, on the
right side of his neck just below the ear, and on the left side of his neck just below the
ear. Cruz’s body had wounds consistent with cigarette burns on his neck and chest.
       Robles was arrested and prosecuted soon after the murder. Ontiveros testified
against Robles, who was convicted.
       Police were unable to locate defendant until June 1, 2012, when he provided false
identification during a traffic stop, and his real identity was ascertained through
fingerprinting. Defendant was wearing a hat with “SF” written on it when he was
stopped, and admitted to being a San Fer member.




                                               5
                                        DISCUSSION


First Degree Murder Conviction


       Defendant first contends that he was convicted of first degree murder on an invalid
theory of culpability, in violation of his state and federal due process rights. Defendant
maintains the trial court erroneously instructed the jury that it could convict him of first
degree murder on a felony murder theory if it found that the murder occurred in the
course of the kidnapping. He argues that in 1984, when the murder occurred, kidnapping
was not a predicate felony for felony murder, and therefore was not a valid basis for a
first degree murder conviction. We agree that the instruction was given in error;
however, because we can discern from its verdict that the jury necessarily found
defendant committed the murder with premeditation and deliberation, reversal is not
appropriate.
       “‘[I]n a prosecution for first degree murder it is not necessary that all jurors agree
on one or more of several theories proposed by the prosecution; it is sufficient that each
juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree
murder as that offense is defined by statute.’ (People v. Milan (1973) 9 Cal.3d 185,
195.)” (People v. Guerra (1985) 40 Cal.3d 377, 386; accord, People v. Moore (2011) 51
Cal.4th 386, 413; People v. Millwee (1998) 18 Cal.4th 96, 160.) Here, the trial court
instructed the jury that it could find defendant guilty of first degree murder on either of
two theories: (1) willful, deliberate, premeditated murder; or (2) felony murder based on
the predicate felony of kidnapping. The court instructed that the jury need not be
unanimous as to which theory supported conviction.
       Application of a statute that imposes increased punishment for a crime committed
before the statute was enacted is barred by the ex post facto clauses of the state (Cal.
Const., art. I, § 9) and federal (U.S. Const., art. I, § 9, cl. 3) constitutions. (In re Paez
(1983) 148 Cal.App.3d 919, 922-923 (Paez), disapproved on other grounds by In re
Ramirez (1985) 39 Cal.3d 931, 938.) At the time of Cruz’s murder in 1984, section 189

                                                6
did not include kidnapping as a predicate felony of first degree felony murder. (Former §
189 (Stats. 1982, ch. 950, § 1, p. 3440, eff. Sept. 13, 1982).) Subsequent amendments to
section 189 added kidnapping as a predicate felony for felony murder. Accordingly, it
was error for the trial court to instruct that defendant could be convicted of first degree
felony murder with kidnapping as the underlying felony. (Paez, supra, at pp. 922-923.)
       “When a trial court instructs a jury on two theories of guilt, one of which was
legally correct and one legally incorrect, reversal is required unless there is a basis in the
record to find that the verdict was based on a valid ground. [Citations.]” (People v. Chiu
(2014) 59 Cal.4th 155, 167.) In such cases, error is harmless. (Ibid.)
       “[D]ue process requires proof beyond a reasonable doubt of each element of the
crime charged.” (People v. Dillon (1983) 34 Cal.3d 441, 473.) “[T]he two kinds of first
degree murder in [California] differ in a fundamental respect: in the case of deliberate
and premeditated murder with malice aforethought, the defendant’s state of mind with
respect to the homicide is all-important and must be proved beyond a reasonable doubt;
in the case of first degree felony murder it is entirely irrelevant and need not be proved at
all.” (Id. at pp. 476-477, fn. omitted.) Because defendant could not have been validly
convicted under the theory of felony murder presented in this case, the verdict cannot
stand unless it is apparent that the jury unanimously found defendant acted with the
requisite willfulness, premeditation, and deliberation. We conclude that the verdict was
supported.
       Our Supreme Court has held that “[t]he mental state required for conviction of
conspiracy to commit murder necessarily establishes premeditation and deliberation of
the target offense of murder” and that “all murder conspiracies are conspiracies to
commit first degree murder.” (People v. Cortez (1998) 18 Cal.4th 1223, 1232 (Cortez).)
Here, the jury found defendant guilty of conspiracy to commit murder. It follows that, in
doing so, it unanimously found defendant had the mental state required for a conviction
of first degree murder beyond a reasonable doubt.
       Defendant argues that although Cortez held all conspiracy to commit murder is
first degree murder as a matter of law, the high court has not yet decided the question of

                                               7
whether a factual conspiracy to commit second degree murder exists. There is no merit
in this argument. The Cortez court’s holding was based on the factual reality that
conspiracy to commit murder requires that “two or more persons . . . intend to agree or
conspire, further intend to commit the target offense of murder, and perform one or more
overt acts in furtherance of the planned murder[,] a state of mind ‘functionally
indistinguishable from the mental state of premeditating the target offense of murder.’
[Citation.]” (Cortez, supra, 18 Cal.4th at p. 1232, quoting People v. Swain (1996) 12
Cal.4th 593, 608-609.) Contrary to defendant’s assertions, the majority in Cortez did not
approve dissenting Justice Kennard’s statements that “[p]unishing murder conspiracies of
unspecified degree as first degree murder conspiracies simply accords with the statistical
reality that the vast majority of murder conspiracies will involve premeditation and
deliberation.” (Cortez, supra, at p. 1250 (dis. opn. of Kennard, J.).) Rather, Cortez
unambiguously held “that the mental state required for conviction of conspiracy to
commit express malice murder necessarily equates with and establishes the mental state
of deliberate and premeditated first degree murder.” (Id. at p. 1232, fn. 3.)
       There is no merit in defendant’s argument that we are not bound to follow Cortez,
because the issue decided in that case was whether the punishment for conspiracy to
commit murder must be the same as the punishment for first degree murder, whereas here
we decide whether it is possible to determine from other portions of the verdict that the
defendant was found guilty on a proper theory. Cortez held in no uncertain terms that the
mental states for conspiracy to commit murder and first degree murder are
indistinguishable. We rely upon that principle in holding the guilty verdict for conspiracy
to commit murder necessitated that the jury find defendant killed with willfulness,
premeditation, and deliberation. It is of no import that the issues ultimately decided
differ, as the penultimate holding was necessary to each decision. (See Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [appellate court is bound to
follow holdings of the Supreme Court].)
       The jury’s verdict confirms that the prosecution proved each of the elements of
first degree murder beyond a reasonable doubt. There is no basis for reversal.

                                             8
Kidnapping Special Circumstance


       Defendant next contends that the trial court erred in its instructions to the jury
regarding the kidnapping special circumstance under section 190.2, subdivision
(a)(17)(B). Defendant argues that to find the special circumstance true, the jury must first
find: (1) the kidnapping was committed for a purpose independent of the murder rather
than being incidental to it; and (2) the murder was committed to advance the independent
felonious purpose. Defendant asserts that the trial court failed to instruct the jury as to
the second requirement for kidnapping special circumstance, thereby lessening the
burden on the prosecution in violation of his due process rights. We disagree.
       The trial court instructed the jury pursuant to CALCRIM No. 730, which provides
in relevant part: “[I]n order for this special circumstance to be true, the People must
prove that the defendant intended to commit the crime of kidnapping independent of the
killing. If you find that the defendant only intended to commit murder and the
commission of the crime of kidnapping was merely part of or incidental to the
commission of that murder, then the special circumstance has not been proved.”
Defendant did not object to this instruction.
       The Attorney General argues that defendant’s failure to object below forfeits the
claim on appeal. Instructional error may be raised for the first time on appeal if it
implicates defendant’s substantial rights, however, as defendant here claims. (§ 1259;
People v. Salcido (2008) 44 Cal.4th 93, 155.) “Because defendant contends the
instruction reduced the prosecutors [sic] burden of proof, thus affecting one of his
fundamental constitutional rights, we entertain the claim on its merits.” (Ibid.)
       Section 190.2, subdivision (a)(17) provides the penalty for a defendant found
guilty of first degree murder is life in prison without the possibility of parole or death,
when “[t]he murder was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the immediate flight after



                                                9
committing, or attempting to commit [an enumerated felony],” which includes
kidnapping.
       In People v. Green (1980) 27 Cal.3d 1, 62 (Green), overruled on other grounds as
noted in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, footnote 8, the Supreme
Court set aside the jury’s robbery special circumstance finding. Although the trial court
had properly instructed the jury that to find the robbery special allegation true, it must
first find defendant guilty of the underlying robbery, it did not instruct the jury that the
murder must have been committed “‘during the commission’” of the robbery. (Id. at p.
60.) The Green court held that failure to so instruct was reversible error. It reasoned that
such instruction “ignored key language of the statute: it was not enough for the jury to
find the defendant guilty of a murder and one of the listed crimes; the statute also
required that the jury find the defendant committed the murder ‘during the commission or
attempted commission of’ that crime. (Former § 190.2, subd. (c)(3).) In other words, a
valid conviction of a listed crime was a necessary condition to finding a corresponding
special circumstance, but it was not a sufficient condition: the murder must also have
been committed ‘during the commission’ of the underlying crime.” (Green, supra, at p.
59.) As the court explained, “[T]he Legislature must have intended that each special
circumstance provide a rational basis for distinguishing between those murderers who
deserve to be considered for the death penalty and those who do not. The Legislature
declared that such a distinction could be drawn, inter alia, when the defendant committed
a ‘willful, deliberate and premeditated’ murder ‘during the commission’ of a robbery or
other listed felony. (Former § 190.2, subd. (c)(3).) The provision thus expressed a
legislative belief that it was not unconstitutionally arbitrary to expose to the death penalty
those defendants who killed in cold blood in order to advance an independent felonious
purpose, e.g., who carried out an execution-style slaying of the victim of or witness to a
holdup, a kidnaping, or a rape.” (Green, supra, at p. 61, fn. omitted.)
       Relying on the Ninth Circuit’s opinion in Clark v. Brown (9th Cir. 2006) 450 F.3d
898, 905, defendant urges us to interpret the Green court’s statement that murder subject
to a special circumstance “advance[s] an independent felonious purpose” as announcing a

                                              10
requirement additional to the one that the murder be “during the commission” of an
enumerated felony. He argues that the trial court was required to give CALJIC No.
8.81.17, which tracks the language of Green.4
       We decline to follow Clark v. Brown, supra, 450 F.3d 898, as it directly
contradicts state authority on the matter. Our Supreme Court did not set forth an
additional requirement in Green. To the contrary, it has repeatedly stated that “‘there is
no requirement that the prosecution prove an additional or different element that the
killing be committed to “advance”’ or carry out the felony. (People v. Dykes (2009) 46
Cal.4th 731, 760-761.)” (People v. Dement (2011) 53 Cal.4th 1, 47.) Nor has our high
court mandated that the “advance an independent felonious purpose” language be
included in instructions to the jury. In People v. Horning (2004) 34 Cal.4th 871
(Horning), the court rejected the defendant’s argument that the trial court erred in
omitting from CALJIC No. 8.81.17 the very “advance” language that defendant now
advocates: “As the transitional words in the instruction, ‘In other words,’ suggest, Green
established one requirement, not two. The point we made in People v. Green, supra, 27
Cal.3d 1, is that if the felony was merely incidental to the murder—as the evidence
showed it was in Green—no separate felony-based special circumstance exists. We have
used various phrasings in explaining this requirement, two of which are included in
CALJIC No. 8.81.17, but we have never suggested that we had created two separate
requirements, or that any precise language was required to explain the concept to the jury.
There is nothing magical about the phrase ‘to carry out or advance’ the felony. Indeed,
we ourselves have stated the requirement without using that phrase. (See People v.



       4 CALJIC    No. 8.81.17 states in pertinent part: “To find that the special
circumstance referred to in these instructions as murder in the commission of
_____________ is true, it must be proved: [¶] [¶] [¶] [2. The murder was committed in
order to carry out or advance the commission of the crime of _____________ or to
facilitate the escape therefrom or to avoid detection. In other words, the special
circumstance referred to in these instructions is not established if the [attempted]
_____________ was merely incidental to the commission of the murder.]”


                                             11
Mendoza [(2000)] 24 Cal.4th [130,] 182; People v. Clark (1990) 50 Cal.3d 583, 608.)
Several ways exist to explain the requirement . . . . [T]he court’s explanation that the
burglary or robbery must not be ‘merely incidental to the commission of the murder,’
adequately conveyed the requirement.” (Horning, supra, at pp. 907-908, fn. omitted.)
Moreover, the Supreme Court has indicated that CALCRIM No. 730 accurately states the
Green rule, and has stated that CALCRIM No. 730 is clearer in its articulation of the rule
than CALJIC No. 8.81.17. (People v. Boyce (2014) 59 Cal.4th 672, 697, fn. 14.) In light
of state precedent, we conclude that the trial court did not err in instructing the jury. (See
Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp. 455-456.)


Proof Beyond a Reasonable Doubt


       Defendant contends that the trial court’s general instruction that proof beyond a
reasonable doubt was required for conviction was insufficient to inform the jury that each
element of every individual crime, special circumstance, and enhancement alleged must
be proven beyond a reasonable doubt. The trial court did not err in instructing the jury on
the burden of proof.
       We review de novo the question of whether a jury instruction correctly states the
law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “Review of the adequacy of
instructions is based on whether the trial court ‘fully and fairly instructed on the
applicable law.’ [Citation.] ‘“In determining whether error has been committed in giving
or not giving jury instructions, we must consider the instructions as a whole . . . [and]
assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos
(2008) 163 Cal.App.4th 1082, 1088 (Ramos).)
       “Under the United States Constitution and California law, the government must
prove each element of a charged offense beyond a reasonable doubt. [Citations.]

                                              12
Whether an instruction correctly conveys this standard must be determined by examining
the instruction in the context of all the instructions, given the jury. [Citation.]” (People
v. Wyatt (2008) 165 Cal.App.4th 1592, 1601 (Wyatt).)
       The trial court instructed the jury under CALCRIM No. 220, which states in
relevant part: “A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt . . . .”
       Defendant did not object to the instruction, but, as with his previous contention,
“[b]ecause defendant contends the instruction reduced the prosecutors [sic] burden of
proof, thus affecting one of his fundamental constitutional rights, we entertain the claim
on its merits.” (People v. Salcido, supra, 44 Cal.4th at p. 155.)
       As defendant concedes in his opening brief, at least four appellate courts have
rejected similar arguments in published cases. (People v. Riley (2010) 185 Cal.App.4th
754, 767-770; People v. Henning (2009) 178 Cal.App.4th 388, 405-406 & fn. 3; Wyatt,
supra, 165 Cal.App.4th at pp. 1600-1601; Ramos, supra, 163 Cal.App.4th at pp. 1087-
1090.) Here, as in those cases, the jury was informed that in every instance in which it
was charged with determining whether the prosecution proved something, proof must be
beyond a reasonable doubt. For each offense, special circumstance, and enhancement,
the trial court instructed: “To prove the defendant is guilty of [the relevant offense,
special circumstance, or enhancement], the People must prove that: . . . .” Following this
language was a list of elements in the conjunctive. Viewing these instructions as a
whole, we conclude the trial court correctly instructed the jury that each and all of the
elements of every offense, special circumstance, and enhancement must be proven
beyond a reasonable doubt.
       Defendant’s citations to out-of-state authorities holding that the ‘each element’ or
‘every element’ language must be included in jury instructions on reasonable doubt are
not persuasive. “While we do not doubt that the use of such language is appropriate
[citation], defendant has not cited any California or United States Supreme Court

                                             13
authority holding that it is constitutionally required.” (Ramos, supra, 163 Cal.App.4th at
p. 1090.)


Abstract of Judgment


       The Attorney General concedes, and we agree, that the parole revocation fee was
unauthorized and must be stricken. Section 1202.45, subdivision (a) provides that “[i]n
every case where a person is convicted of a crime and his or her sentence includes a
period of parole, the court shall, at the time of imposing the restitution fine pursuant to
subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine .
. . .” Defendant was sentenced to life in prison without parole, which precludes
imposition of the parole revocation fine. (People v. Battle (2011) 198 Cal.App.4th 50,
63.)
       Additionally, our review of the record disclosed that the abstract of judgment does
not conform to the oral pronouncement of judgment. At the sentencing hearing on
December 13, 2013, the trial court orally imposed one-year enhancements under section
12022, subdivision (a)(1), and two-year enhancements under section 12022.5,
subdivision (a), as to all counts. Pursuant to section 654, it stayed the section 12022,
subdivision (a)(1) enhancements as to all counts, and the section 12022.5, subdivision (a)
enhancements as to all but count 2. However, the abstract of judgment filed December
23, 2013, fails to reflect the enhancement imposed under section 12022, subdivision
(a)(1), and stayed pursuant to section 654, as to all counts. It also erroneously reflects
that the two-year enhancement pursuant to section 12022.5, subdivision (a), was stayed in
count 2.
       Where there are discrepancies between the oral pronouncement of judgment and
the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26
Cal.4th 181, 185.) Accordingly, the abstract of judgment must be corrected to properly
reflect the trial court’s oral pronouncement of judgment at sentencing.



                                             14
                                      DISPOSITION


       The trial court is directed to prepare an corrected abstract of judgment to reflect
that: (1) the parole revocation fine is stricken; (2) a one-year enhancement was imposed
as to all counts pursuant to section 12022, subdivision (a)(1), and stayed; and (3) the two-
year enhancement imposed in count 2 pursuant to section 12022.5, subdivision (a), was
not stayed. The trial court shall forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.




              KRIEGLER, J.


We concur:




              TURNER, P. J.




              KIRSCHNER, J.*




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

                                             15
